Martinez vs. Prior
Why was one disbarred and not the other?
What Would Spiderman Do?
July 19, 2020
Errata: Some pesky errors crept into the past couple of posts. Many thanks to eagle-eyed readers who caught them. I love it when someone catches a mistake because it means you’re reading! There are three corrections. In the article What’s the Deal on the Sealed Documents? I incorrectly said that Mark Means was asked about his past representation of Chad at Chad’s arraignment. Of course, it was at Lori’s arraignment, where Judge Eddins asked about the conflict. Second, I incorrectly identified the county where Chad is being held as “Jefferson” County in that post. Chad is being held in Fremont County. Third, in the first installment of How Did Chad and Lori’s Beliefs Create Motive? I incorrectly identified the end of polygamy in 1952. The correct year was 1852. Thanks for keeping me straight!
While we wait for more news in the Lori Vallow case, care to take a deep dive into the weeds of attorney ethics with me? It’s about to get a little esoteric in here, so if this isn’t your cup of tea, feel free to skip it.
As many people know, Juan Martinez, the Mesa, AZ prosecutor of the Jodi Arias case was disbarred late last week. People are curious about why he was disbarred, and Chad’s lawyer, John Prior, is still practicing. For those who want to delve deeper into the ethics rules, I’ve included the text of some of the rules as well as the commentary used to interpret them.
The rules of professional responsibility vary slightly from state to state. Here is the relevant passage about misconduct from the Idaho Rules of Professional Conduct.
*RULE 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. *(Rule 8.4 amended 3-17-05) Commentary [1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled to take. [2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. [3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
The rules in Arizona are nearly identical. States also have special rules for prosecutors. The rules are necessary because prosecuting attorneys have tremendous power. They have broad discretion in who they prosecute and when. The Arizona rule that applies to Martinez is this:
ER 3.8. Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of any ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6 or this Rule.
(g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant’s counsel or, if defendant is not represented, the defendant and the indigent defense appointing authority in the jurisdiction, and
(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable efforts to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take appropriate steps, including giving notice to the victim, to set aside the conviction.
(i) A prosecutor who concludes in good faith that information is not subject to subsections (g) or (h) of this Rule does not violate those subsections even if this conclusion is later determined to have been erroneous.
COMMENT
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.
[2] Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.
[5] Paragraph (f) supplements ER 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with ER 3.6 (b) or (c).
[6] Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.
[7] Evidence is considered new when it was unknown to a trial prosecutor at the time the conviction was entered or, if known to a trial prosecutor, was not disclosed to the defense, either deliberately or inadvertently.
According to Justin Lum of Fox News 10, “In July 2019, FOX 10 reported that Martinez is due to face a disciplinary hearing as a result of an ethics complaint that was filed in March of that year. The complaint accused Martinez of leaking information to a blogger he was having an affair with, communicating with a dismissed juror, and sexually harassing several female coworkers.” Many of you will recognize Justin Lum’s name because of his involvement in the coverage of the Lori Vallow case. Martinez opted to consent to be disbarred rather than face a trial.
The first allegation, that Martinez leaked information, may be the most serious. The judge issued a gag order in that case. Despite the order, Martinez leaked information to Trial Divas blogger Jen Woods, with whom he was having an affair. Gag orders always create frustration on the part of the public in high-visibility cases but are necessary to ensure a fair process. If prosecutors are allowed to circumvent the orders, the defendant’s right to a fair trial is compromised. The comments to the Idaho rules point out, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Leaking information is misconduct because it risks the defendant’s ability to have their case heard by an impartial jury. The story is just made more titillating by the sexual relationship between Martinez and the blogger.
The other allegations are that Martinez had contact with a dismissed juror and that he sexually harassed coworkers. Contact with a person who was an active juror on the case would have been grounds for a mistrial and would likely have gotten Martinez in deep trouble immediately. Contact with a juror who was already dismissed from the case is still problematic because it could give Martinez insight into the sitting jury members’ thoughts and personalities. Jury selection has been compared to water witching, and lawyers agonize over their selections from limited information about jurors. Access to inside information about jurors could be a huge and unfair advantage.
Sexual harassment of coworkers is also fundamentally about power, and about creating an atmosphere of hostility in the workplace. Taken together, the allegations prove that Martinez was a man who believed the rules didn’t apply to him. Working from a “totality of the circumstances,” we can conclude that Martinez committed misconduct in situations where he was held to a higher standard because of his position as a prosecutor.
Turning to Chad Daybells’ present attorney, John Prior, there are some similar issues. The ABA Journal reported on Prior’s case, “Faced with the possibility of a maximum 20-year prison sentence if he had been found guilty of felony battery for allegedly forcing himself on a woman in his law office conference room last year, an Idaho attorney has taken a mid-trial plea to misdemeanor battery. John Prior, 50, will now face a maximum of six months in jail and a $1,000 fine when he is sentenced in November in the Canyon County case, according to the Idaho Statesman and KTVB. Prior was indicted by a grand jury for felony battery with intent to commit rape after being accused of attacking a 20-year-old woman who said she came to his Nampa office seeking a job and advice on a child-custody case, the Statesman reports. Before the trial concluded Friday with Prior’s plea, his lawyer, Scott Fouser, told the jury during opening statements that Prior paid the woman, who was in dire straits financially, for sex. She then lied about the incident to her boyfriend, her family, and police, Fouser said. However, the woman testified before Prior took his plea that she refused when he offered her a job and help with the custody case in exchange for having sex with him, the Associated Press reported earlier. The state attorney general’s office prosecuted the case.”
Prior was sentenced to 120 days in jail, which he served. The issue of sexual relationships is treated differently in different states. For example, Oregon is clear about sexual contact between a lawyer and client, including prospective clients. Their rule 1.8(j) reads “A lawyer shall not have sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them before the client-lawyer relationship commenced; or have sexual relations with a representative of a current client of the lawyer if the sexual relations would, or would likely, damage or prejudice the client in the representation.” Idaho has no such rule.
It’s clear that Prior saw the handwriting on the wall, and pled guilty to a misdemeanor mid-trial to avoid conviction for a felony. In general, state bar associations frown on felonies. It’s also true that bar disciplinary rules focus more on crimes that reflect on a person’s ability to practice law, and that usually means crimes of dishonesty. Over the years, state bar associations have moved away from disciplinary actions based on what in the old days, we called “moral turpitude.” The Idaho commentary says, “ Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” I have requested Mr. Prior’s disciplinary history from the Idaho State Bar Association to determine if he was sanctioned by the bar for the criminal conviction.
While Prior’s conduct, if true, is reprehensible, Martinez’s conduct has a much greater impact on the fairness and integrity of the criminal justice system. Martinez’s actions were not only personally repugnant but were also an abuse of his power as a prosecutor. To quote Spider-Man, “with great power comes great responsibility.”
Look for Part Two of How Did Chad and Lori's Beliefs Create Motive? on Friday
Have questions or an idea for a future newsletter? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
