The Arizona Supreme Court has the exclusive authority to administer the Superior Courts, and has elected to do so by delegating virtually all administrative duties over the operation of the county courts to the particular county’s Presiding Judges. As the Governor appoints all the members of the Arizona Supreme Court, whom then appoint the Presiding Judges for each county, the administration of the courts has no public oversight, except for what little (if any) supervision is provided by the Administrative Office of the Arizona Supreme Court.

In real-time, on the ground, the Presiding Judges manage the day to day operations of the courts which includes the jury selection system, for which they hire and manage jury officials who operate the system for them, and at their direction. In a very real sense, the Presiding Judges are not really judges at all, except when they sit on the bench and rule on a case. For the most part they are county managers, supervising the operation of the courts which also includes such things as security, transportation of inmates, press relations, and now managing the public emergency crisis as it affects the administration of the courts.

In 2018, I initiated a formal challenge to the county’s jury selection system while employed by the county as a deputy public defender.  As it turned out, such legal challenges against another county entity were not permitted by the Public Defender’s Office, a fact I did not know, and was never informed about.  When I lost my job because of it, I ended up getting an employment attorney and sued the county in federal court which suit is still pending. I had learned the hard way, that the Maricopa County Superior Court has not been periodically reviewing and analyzing the master jury list since 2003, to ensure its representativeness and inclusiveness. ACJA Section 5-203 (J) (3), ‘Monitoring the Jury System’, (as amended by administrative order 2007-105, effective Jan. 1, 2008) is a mandatory requirement of the Superior Court.

Recently, the Presiding Judges (who refused to disqualify themselves from judging their own actions as jury managers) ruled that they have been reviewing and analyzing the master jury list as required, but insisted they are not required to produce any written reports proving that they have done so, as we (‘the people”) should just take their word for it. For the record, the Presiding Judges ruled that they can analyze the demographic statistics of millions of county prospective jurors without any written reports being produced of their work. In Maricopa County 2 + 2 = 5 if the Presiding Judges say so. Their entire argument is absurd, and constitutes Orwellian doublespeak of the highest order. The good news is that the word analyze which is set forth in the Code is defined as; ” to examine methodically, and in detail the constitution or structure of something, especially information, typically for purposes of explanation and interpretation.” The evidence will establish that it would be impossible to conduct such an analysis without preserving the examination in writing.

The county’s Presiding Judges managing the so called Jury Office, or Jury Commissioner, have for decades, outsourced the public’s jury management function to a corporate vendor (with multiple corporate acquisition(s) of that vendor) having ownership of the much sought after jury management software. The Jury Office, is actually a façade, masking from the public, the administrative authority of the Presiding Judges over the county’s jury selection system. As such, the Presiding Judges are themselves, “stakeholders” with the other county entities, in managing the operations of the court.  At issue, is whether the Presiding Judges are the ultimate enforcer of the “stakeholders policy” which is the subject of my pending federal law suit against the county, for retaliating against me for having tried as a lawyer to litigate the jury challenge against the Jury Office, which is a fellow county entity.

Just a few weeks ago, during the virus crisis, the Presiding Judges confirmed the existence of their county” stakeholders only” court system, by inviting only their fellow county stakeholders to a meeting to discuss what to do about re-opening the courts. The decision-making process of course was controlled by the Presiding Judges in that conference room, willing to hear from smiling and compliant and always harmonious fellow stakeholders. Was any county employee in that conference really willing to express opposition to anything the Presiding Judge said? Come on now….who’s kidding who? But the bigger question is who tells the Presiding Judges what to do? Are they the guys buying judges their drinks and lunches at a certain private club on Camelback Mountain?

By Administrative Order 2007-105, the Arizona Supreme Court in secret session, (without any debate by the Arizona Judicial Council of the pertinent text to be deleted) obliterated from the Code, all of the previously enacted “fair cross section of the community” language from Section 5-203, (which had been enacted upon the recommendations of the Supreme Court’s own Blue Ribbon Committee). When the Deputy Chief Justice, by Administrative Order 2007-105, deleted all of the fair cross section guarantee language from the text, she did make the surviving requirement set forth in sub section (J) (3), “mandatory.” The Blue Ribbon Committee in 2001, had decided to exclude poor, non-English speakers and Hispanics from the master jury list, based on their belief that they did not need to experience the civic responsibility of performing jury duty because they would only be excused for financial hardship anyways.  The exclusion of this large group of residents from the jury system was systemic, and intentional, and has been carried out ever since. It has helped the county’s jury officials  keep Maricopa County jury pools as white as White Lily Flour.

The Presiding Judges who refused to disqualify themselves from hearing a case involving their own actions as jury selection system managers, have now after months of stalling, formally denied Comeback Law’s fourteen major felony clients the right to join the jury selection challenge, which was started while I was at the Public Defender’s Office. We wanted to save the county the cost and expense have having to start over again.

At issue is whether the actions of the Superior Court, and of its Presiding Judges, have been intentional and or wilful, and constitutes sufficient “direct evidence” of a discriminatory intent to preserve “white privilege” and “all white juries” in Maricopa County in violation of the 14th Amendment guarantee of Due Process for all Arizona residents. The issue of “intent” is also material to prong three of the 6th Amendment Duren standard of Duren v. Missouri, 439 U.S. 357 (1979).

The court’s “intent” would especially be of interest to the county’s 1.5 million Hispanic residents, who deserve to know if their “statistically significant” under-representation from the county’s jury pools (as found by our expert witness’ review of the three month sampling of questionnaires) is the result of the “intentional” and systemic exclusion of Hispanics from the jury selection process, which is inherent in the county’s system.

Given the court’s non -compliance with its mandatory duty to guarantee the 6th Amendment right to an impartial jury chosen from a fair cross section of the community, the integrity of the entire Superior Court is very much in issue. This includes the actions of its Presiding Judges, whom for decades have managed a jury selection system so broken and flawed, that in the year 2020, “all white” juries are still routinely convicting Hispanics and African-Americans and other minorities, every day of the week. The Presiding Judges are final decision-makers with respect to the day to day operations of the Jury Office, and of directing and instructing county jury officials in the management of the county’s jury management system. As the administrative decisions and “intent” underlying those decisions of the Presiding Judges are now being subjected to scrutiny in the pending jury challenge, the judicial officers become interested in the subject of the proceeding. They become fact witnesses like any other administrator, subject to the discovery request made by these criminal defendants. They should disqualify themselves from hearing my clients’ motions, but they likely will refuse to do so. Stay tuned for Comeback Law’s further reporting on this critical issue raising these questions impacting adversely the court’s legitimacy.