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Secrecy rules all when it comes to investigating Arizona judges

OTIS PIC FOR WEB.jpg
Posted at 10:34 PM, Jun 02, 2022
and last updated 2022-06-03 21:42:57-04

PHOENIX — The Arizona Commission on Judicial Conduct dismisses almost every complaint it receives: 97.2% of them.

Are all of those dismissals justified? There’s no way for the public to know.

The commission, which investigates and disciplines judges, operates under special rules that were created for Arizona’s court system that exempt it from state public record and open meetings laws.

“The judiciary is the only branch that can take money from you, take your kids from you, take your house from you, take your liberty from you, put you in jail, and even kill you. You would think we would demand transparency from such a system,” said David Cuillier, who’s a nationally-recognized public records expert and University of Arizona professor.

He added, “It’s probably the powerful branch of government and yet the most secret.”

ABC15’s investigating of the lack of transparency and public accountability in commission investigations and deliberations as part of its “(dis)Honorable” investigation, which exposed an “astonishing and horrific judicial conduct complaint was dismissed.

Maricopa County Superior Court Judge Erin Otis and her staff frequently mocked and ridiculed people during hearings and trials – including death penalty cases - by routinely emailing each other cruel, racial, and obscene statements, jokes, and memes.

The commission, which has refused ABC15’s requests to release underlying case records, issued Otis a private warning letter instead of sustaining the complaint.

The dismissal allowed the judge to keep her name and involvement confidential.

Otis left the bench in 2020 to take a job as a death penalty prosecutor at the Maricopa County Attorney’s Office.

LOTS OF DISMISSALS, LITTLE TRANSPARENCY 

The Commission on Judicial Conduct was created in 1970.

It’s an independent state agency responsible for investigating complaints against justices and judges at all levels in the state court system. The commission is currently made up of 11 members, including six judges, two attorneys, and three public members.

The commission operates under Arizona Supreme Court rules, which have a special carve-out from state public record laws.

Those rules make the following commission documents confidential: Correspondence, drafts, computer records, investigative reports, attorney work product, deliberations, and most records in dismissed cases.

In dismissed cases, like the complaint against Judge Otis, only the final order and complaint are posted online. But all identifying information about the judge and court is redacted.

There is no public information about what the commission investigated.

“We are supposed to trust that they’re being honest with us. But we can’t tell,” Cuillier said., “Unless we can see the records ourselves, we will never know… Maybe they’re acting in good faith. Maybe they aren’t. We will never know.”

From 2006 to 2020, the commission dismissed 97.2% of complaints, according to an ABC15 calculation of basic statistics posted on the commission website.

In raw numbers, there were 150 complaints sustained and 5,221 complaints that were dismissed during the 15-year period.

Commission members have declined multiple interview requests.

Instead, the commission chair, Hon. Louis Frank Dominguez sent ABC15 a three-page written report. [A copy is embedded at the end of this report.]

“The majority of complaints filed with the Commission do result in dismissals, however, a substantial percentage of cases received and processed every year by the Commission are, at their core, disagreements with legal rulings, such as allegations that the judge has made a legally erroneous ruling,” Dominguez wrote. “The Commission lacks jurisdiction to overturn, amend, or remand a judicial officer’s rulings.”

Dominguez also wrote that Arizona’s commission is one of the most transparent in the country.

WHAT DID THEY INVESTIGATE? 

The commission’s rules and guidelines state that members have the discretion to release more information and records if it’s in the interest of justice or the public.

In January, ABC15 sent a written request for more disclosure in the Otis complaint. But Commission members issued a formal order denying the request two weeks later.

“After careful consideration, the Commission found that the request failed to establish good cause that such additional discretionary disclosure was in the interests of justice,” according to the order.

Otis presided over serious felony cases, including multiple death penalty trials.

Without the underlying investigative files, it’s not clear what evidence and testimony the commission considered in the Otis complaint.

In the anonymized final dismissal order, the commission wrote, “The Commission’s investigation found no clear and convincing evidence that the judge had initiated any memes, however, she was copied on many emails and occasionally commented on the contents."

It continued, “The Commission decided, after considering all the facts and circumstances, to dismiss the Complaint pursuant to Commission Rules 16(b) and 23(a), but to issue a warning letter to the judicial officer that should she ever return to the bench in the future, she must appropriately supervise her judicial staff, including an employee’s use of electronic communications.”

The courtroom clerk whose information initiated the complaint against Otis was shocked at the final result.

“I don’t understand,” Kelly Shafer told ABC15 during an interview earlier this year. “I don’t know how they feel she did not participate… There were so many times she would say to her bailiff, ‘That needs a meme, that needs a meme.’”

ABC15 reviewed evidence that shows Otis did initiate a cruel and insensitive email chain to mock a defense attorney for the cellulite on her butt.

The station also pulled courtroom videos to match recordings to specific times when various emails, memes, and jokes were sent.

The footage shows Otis smiling and laughing at her computer.

In some cases, during breaks, she also called other courtroom staff over to look at her computer screen.

“I think what was frustrating for me: Everything went to the ethics board, the judicial ethics board. They told me that for a year and a half, they were going to make a finding because she was young, that they never wanted her to be a judge again. They did not do that,” said Shafer, who added that she was interviewed by the commission twice. “I think they failed in their duty.”

The jokes and memes sent between Otis and her staff ridiculed and mocked attorneys, witnesses, jurors, and defendants and their families.

It’s not clear if the commission ever spoke to those who were disparaged.

ABC15 identified and spoke to several victims, who said they were never notified and were shocked to learn about what happened from a news station and not the commission.

The commission also didn’t speak to some witnesses who were central to serious allegations made in the complaint against Otis.

One of the main allegations was about ex parte communications with detained defendants.

But the detention officer assigned to Otis’s courtroom told ABC15 he was never interviewed by the commission.

CONFUSING DECISIONS 

While Otis’s 2019 complaint was dismissed and her name was kept out of the public record, ABC15 reviewed other cases where judges were publicly identified and disciplined for their conduct.

One example: A 2018 complaint against Justice of the Peace Steve Urie.

The commission issued Urie a public reprimand for a Facebook post that generically described a past landlord/tenant dispute hearing in his courtroom.

“The posting and reply mocked the intelligence level of the tenant. This is an appearance of impropriety and diminishes public confidence in the judiciary,” according to the commission’s final order in the case.

One Facebook post after a hearing got Urie a sustained complaint and public discipline. But more than a year of obscene, racial, and cruel emails, memes, and jokes sent during hearings and trials between Otis and her staff was dismissed.

In the written response to ABC15, the commission chair did not specifically address the disparity between the final decisions in the two cases.

“The Commission evaluates each complaint individually, although the Commission may consider similar cases for parity purposes,” Dominguez wrote. “The Commission also considers the aggravating and mitigating factors set forth in Commission Rule 19.”

A copy of the commission’s full response to ABC15 is below.

Contact ABC15 Chief Investigator Dave Biscobing at Dave@ABC15.com.