PHOENIX — On November 15, 2019, Maricopa County Superior Court Judge Erin Otis kept a secret.
It was a sentencing hearing for a man convicted of first-degree murder.
But what defense attorneys in the case didn’t know: Otis had been seeking and negotiating employment with the county attorney’s office to become a prosecutor for weeks — possibly longer.
Emails show the judge was in contact with the highest officials at MCAO, including County Attorney Allister Adel, Chief Deputy Ken Vick, and division chief Rachel Mitchell.
It’s a stunning conflict and lack of disclosure, according to legal ethics experts.
“If you’re worried about being impartial and fair, how hard it would be to be fair if your prospective employer is there in front of you,” said Charles Geyh, a law professor with Indiana University’s Maurer School of Law.
ABC15 discovered multiple conflicts in murder prosecutions due to failures by Otis and MCAO officials to effectively screen and disclose conflicts before and after her hiring.
After Otis was hired in early 2020 as a prosecutor, the office assigned her to two capital cases in which she played a role as a judge.
The conflicts cost taxpayers more than $58,000 in outside legal fees after defense attorneys filed disqualification motions.
In November 2019, Otis sentenced Victor Hernandez, who was convicted by a jury of first-degree murder months earlier.
She also ruled on other significant motions in the months between trial and the sentencing hearing, court records show.
ABC15 obtained multiple messages between Otis and MCAO officials in the weeks leading up to the sentencing that show the judge seeking out employment as a prosecutor.
The emails show that Otis had repeated contact with top executives via email, phone, and text.
Some of Otis’s messages and office calendar entries also show lunch dates with Rachel Mitchell and other MCAO employees in 2019.
The timing is notable because an ABC15 investigation discovered Otis was placed under a judicial misconduct probe in mid-2019.
A courtroom clerk reported that Otis and her staff had been exchanging cruel and obscene jokes and memes to mock people in court during hearings and trials.
For her last six months as a judge, Otis was transferred off criminal cases to preside over family court matters. But she was kept on the Hernandez case.
Hernandez’s defense attorneys declined to comment.
But ABC15 learned the conflict will likely be raised as part of Hernandez’s future appeals and post conviction relief application.
“That’s a real problem,” said Ben Edwards, a law professor at UNLV. “That’s not something we would expect judges to do and something that the ethics codes prohibit.”
Experts said the fact that Otis and MCAO didn’t declare a conflict and notify the defense team is troubling.
“At an absolute minimum, if you’re not going to disqualify yourself, you have a duty to disclose to everyone in the courtroom, saying ‘Listen I’m in the process of negotiating employment here and if you want to move for my disqualification, do it,’” Geyh said.
So far, MCAO officials and Otis have declined to be interviewed for ABC15’s “(dis)Honorable” investigation.
The following is MCAO’s written response regarding the Hernandez case.
MASON AND ENGLISH CASES
Before becoming a judge, Erin Otis was a Maricopa County prosecutor specializing in sex crime cases. She joined the bench as a commissioner in 2012 and was appointed as a judge in 2016.
When she rejoined MCAO in 2020, the office assigned her to the capital unit, which prosecutes death penalty cases and murders.
Defense attorneys in the case State v. Mason were the first to file a disqualification motion.
Mason’s attorneys discovered that Otis had previously presided over a settlement conference and change of plea hearing for a co-defendant in the case.
To challenge the disqualification, MCAO hired outside attorneys from the firm Sanders and Park. [One of the attorneys, Artie Eaves, served on County Attorney Allister Adel’s transition team.]
The firm was paid more than $32,000 in the Mason case.
In months of litigation, MCAO gave up trying to keep Otis and their prosecutors on the case.
After the judge ordered an evidentiary hearing to learn more about the potential conflicts, the county attorney’s office filed a notice to transfer the prosecution to the Pinal County Attorney’s Office.
One of the witnesses set to testify was Kelly Shafer.
She’s the former courtroom clerk whose response for the Arizona Commission on Judicial Conduct opened an investigation into Otis.
In MCAO’s notice to transfer the case, the county’s outside attorneys continued to deny any wrongdoing.
“The State maintains that Defendant’s allegations are without merit, unnecessarily inflammatory and hyperbolic,” according to the notice.
A separate defendant who represented himself, Josiah English, also successfully got Otis disqualified.
Court records show Otis played a role in the Grand Jury proceeding when English was indicted.
The Sanders and Park law firm was also retained to challenge the disqualification motion in English. The firm was paid $25,000 in that matter, invoices show.
On the stand during an evidentiary hearing in November 2021, Otis testified that her role was administrative and that she had no knowledge of the underlying facts of the case.
But a judge ruled that her judicial involvement was still an issue.
“The possibility of public suspicion now outweighs any benefits that might accrue due to her continued representation of the State in this matter,” wrote Judge Frank W. Moskowitz.
In a January 30, 2020 letter officially offering Otis employment, MCAO instructed the former judge to prepare a memorandum detailing any potential conflicts.
MCAO policies also clearly state that newly hired attorneys must immediately provide a list of conflicts. The policies also require “every MCAO employee” to report potential conflicts of interest.
In response to questions about the Sanders and Park law firm’s representation of MCAO, the office released the following statement.
Contact ABC15 Investigator Dave Biscobing at Dave@ABC15.com.