By Howard Fischer
Twitter: @azcapmedia

PHOENIX — The Arizona Supreme Court has disqualified all the lawyers working at the Tucson office of the state attorney general from handling a new trial in a 21-year-old murder case.

In a unanimous decision Monday, the justices said there is reason to believe that Darren Irving Goldin could not get a fair trial because one of the lawyers at that office there had improper conversations with a court-appointed confidential intermediary.

That lawyer, Richard Wintory, eventually left the attorney general's office and was later suspended from the practice of law for 90 days.

But attorneys for Mr. Goldin argued — and the high court agreed — that there was no way to tell what Mr. Wintory shared with other lawyers at the office. And if nothing else, they said it cast a shadow on the ability of Mr. Goldin to get a fair trial.

None of this means Mr. Goldin is off the hook.

It simply means the trial will have to be handled by someone other than the lawyers working for Attorney General Mark Brnovich out of his Tucson office. Anne Elsberry of the Pima County Legal Defender's Office said that could be a different unit of the Attorney General's Office or farmed out to a county attorney.

There was no immediate response from the Attorney General's Office.

Mr. Goldin was indicted in 2010 on the decade-old death of Kevin David Estep, a fellow drug dealer. Prosecutors initially intended to seek the death penalty.

The court appointed Mary Fornino as confidential intermediary to see if there are any factors that would weigh against execution.

And that, in turn, was complicated by the fact that Mr. Goldin's biological mother — he was adopted as an infant — refused to speak with her.

That resulted in a conversation between Mr. Wintory and Ms. Fornino, one that was not supposed to occur and one he did not initially disclose. He then was removed from the case.

At that point the Attorney General's office offered Mr. Goldin a plea deal which he took. But Ms. Elsbery said that was vacated when he didn't get the terms he was promised.

That set the stage for a new trial — and Goldin's motion to disqualify anyone who worked at the same office as Mr. Wintory.
Pima County Superior Court Judge James Marner agreed to the request, saying there was no way to know what conversations Mr. Wintory had with other prosecutors and whether that tainted the case.

"I'm sure there's a more eloquent way of putting this, but it just looks bad,'' Judge Marner said.

The Court of Appeals disagreed, saying Judge Marner did not consider the proper factors before making a decision.

But Justice Clint Bolick, writing for the unanimous high court, said the trial judge had legitimate reasons for his decision.

"Justice and the law must rest upon the complete confidence of the the thinking public,'' he wrote, quoting from earlier court rulings.

"And to do so they must avoid even the appearance of impropriety.''

And this case, Justice Bolick said, involved more than just some bad judgment. Instead, it was actual misconduct.

"The misconduct was so significant that it resulted in severe discipline,'' he wrote. "The appearance of impropriety was grounded not in a mere perception of wrongdoing but an actual finding of misconduct with no ability to determine the scope of its impact.''

Justice Bolick also noted the misconduct occurred over a period of time.

"We do know know which other staff members in the Tucson office, if any, were privy to the improperly obtained information,'' he said. Therefore, he said, "it was within the trial court's discretion to disqualify the entire office.''
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