                                    IN THE
                ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                    VICTOR TED HERNANDEZ, Petitioner,

                                       v.

 THE HONORABLE JOSEPH C. WELTY, Judge of the SUPERIOR COURT OF
 THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent
                               Judge,

                  STATE OF ARIZONA, Real Party in Interest.

                             No. 1 CA-SA 15-0009
                                 FILED 3-19-2015

    Petition for Special Action from the Superior Court in Maricopa County
                             No. CR2010-137021-001
                     The Honorable Joseph C. Welty, Judge

         JURISDICTION ACCEPTED, RELIEF GRANTED IN PART


                                   COUNSEL

Taylor W. Fox, Attorney at Law, Phoenix
Brandon N. Cotto, Attorney at Law, Phoenix
By Taylor W. Fox
Co-Counsel for Petitioner

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Co-Counsel for Petitioner
Sanders & Parks, P.C., Phoenix
By J. Arthur Eaves, Robin E. Burgess
Counsel for Real Party in Interest

Lewis Brisbois Bisgaard & Smith LLP
By Bruce C. Smith, Carl F. Mariano
Counsel for Blaine Gadow



                              DECISION ORDER

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


S W A N N, Judge:

¶1            This special action challenges the superior court’s refusal to
disqualify the Maricopa County Attorney’s Office (“the MCAO”) from
prosecuting petitioner Victor Ted Hernandez. We accept jurisdiction because
Hernandez has no equally plain, speedy, and adequate remedy by appeal. See
Ariz. R.P. Spec. Act. 1(a). We review for abuse of discretion, which may occur
when the court misapplies the law. Villalpando v. Reagan, 211 Ariz. 305, 307, ¶ 6,
121 P.3d 172, 174 (App. 2005).

¶2            In March 2010, the state, represented by the MCAO, obtained an
indictment against Hernandez for influencing a witness and participating in or
assisting a criminal syndicate. The court appointed Blaine Gadow, then an
attorney in private practice, to represent Hernandez. Gadow met with
Hernandez and exchanged written correspondence with him, but ultimately
withdrew from the representation before the initial pretrial conference.1

¶3            Unknown to Gadow, Hernandez had been under investigation for
an unrelated murder at the time Gadow represented him. Several months after
Gadow withdrew, the state, again represented by the MCAO, obtained an
indictment against Hernandez for first-degree murder and filed a notice of intent
to seek the death penalty.

1      On February 4, 2015, his counsel filed Blaine Gadow’s Motion To Formally
Intervene and/or Participate as an Amicus Curiae in this special action. The
motion is hereby granted; Mr. Gadow may participate in this matter as an
intervener.



                                        2
                     HERNANDEZ v. HON. WELTY/STATE
                           Decision of the Court

¶4             In late 2013, Hernandez proposed to the MCAO a non-death-
penalty plea agreement that would resolve both the capital case and the non-
capital case in which Gadow had represented Hernandez. Hernandez’s proposal
was considered by the MCAO Capital Review Committee. At that time, Gadow
was employed by the MCAO as the Family Violence Bureau Chief, and by virtue
of that position was a member of the Committee. Gadow attended the
Committee meeting at which Hernandez’s plea proposal was considered, and he
participated in the vote that led the Committee to recommend rejecting it.

¶5           Hernandez filed a motion to disqualify the MCAO from
prosecuting the capital case, arguing that Gadow was disqualified and that the
MCAO was vicariously disqualified as a result of Gadow’s participation in the
Committee process. After holding an evidentiary hearing, the superior court
denied Hernandez’s motion.

¶6            Ariz. R. Sup. Ct. 42, E.R. 1.9(a), provides that “[a] lawyer who has
formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.” This rule applies to
prosecutors who formerly represented criminal defendants in private practice.
Ariz. R. Sup. Ct. 42, E.R. 1.11 cmt. 2. Further, Ariz. R. Sup. Ct. 42, E.R. 1.11(c)(1),
provides that such an attorney generally “shall not . . . participate in a matter in
which the lawyer participated personally and substantially while in private
practice.”

¶7            Under E.R. 1.9(a) and 1.11(c)(1), Gadow was disqualified, at a
minimum, from participating in the prosecution of the non-capital case. Because
Hernandez’s plea proposal included the non-capital case, Gadow should have
been screened from the Committee’s consideration of the proposal regardless of
whether the nature and content of his previous conversations with Hernandez
disqualified him from participating in the prosecution of the capital case. See
Ariz. R. Sup. Ct. 42, E.R. 1.11 cmts. 3, 5. Further proceedings are necessary to
determine whether Gadow’s participation in the Committee process that
included consideration of Hernandez’s non-capital case prejudiced Hernandez in
the context of the capital case such that the MCAO as a whole should be
disqualified from the prosecution. See State v. Superior Court (Pearson), 184 Ariz.
223, 228-29, 908 P.2d 37, 42-43 (App. 1995). The state shall bear the burden to
show that any confidential information conveyed to Gadow in the non-capital
case did not affect the MCAO’s decision to seek the death penalty in the capital
case.




                                          3
                    HERNANDEZ v. HON. WELTY/STATE
                          Decision of the Court

¶8            This decision does not imply that disqualification of the MCAO
will be required. If Gadow did not communicate to the Committee confidential
information learned through his prior representation of Hernandez, and if
Gadow’s vote was not essential to the Committee’s decision to recommend
seeking the death penalty, imputed disqualification is not required. But on this
record, we cannot say what, if any, effect the failure to screen Gadow had on the
MCAO’s prosecution of the capital case. We therefore vacate the superior court’s
ruling and remand for proceedings consistent with this decision.




                                     :ama




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