Defense attorneys file complaints against Arias prosecutor Juan Martinez

• Arizona Attorneys for Criminal Justice filed a state Bar complaint against prosecutor Juan Martinez
• Three other Bar complaints filed against Martinez last year have already been dismissed
• It will be months before the outcome of the complaints is known

As the Jodi Arias-obsessed public awaits his tell-all book about the case, prosecutor Juan Martinez is the subject of two new complaints to the State Bar of Arizona, the semi-governmental agency that licenses and polices attorneys.

They are the fourth and fifth Bar complaints against Martinez in the last year. The first three, filed in 2015 after the Arias sentencing trial ended in a hung jury, pertained to that case and already have been dismissed.

The fourth complaint, filed by unknown parties, concerns Martinez' book and remains under investigation.

So does the most recent, filed Dec. 22 by the Arizona Attorneys for Criminal Justice, an association of nearly 500 defense attorneys. The complaint spans at least 10 years of Martinez' career and as many of the cases he tried.

Representatives of AACJ would not comment on the complaint, though spokeswoman Kathleen Brody confirmed that it had been lodged. A spokesman for the Maricopa County Attorney’s Office said Martinez and his boss, County Attorney Bill Montgomery, would not comment.

The remaining complaints, if not dismissed, could result in a range of sanctions from an instructional letter to suspension or disbarment.

The Arizona Republic obtained an October draft of the AACJ complaint, and its principal author, attorney Robert McWhirter, said the document that was filed with the state Bar covers the same cases and issues.

It alleges a pattern and practice of ethical violations and prosecutorial misconduct.

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Martinez was accused of misconduct by defense attorneys in the Arias case, which played out during trials in 2013 and 2014-2015. Arias was found guilty of the 2008 murder of her sometime lover Travis Alexander, but two juries failed to reach a unanimous verdict for the death penalty, and she was sentenced to life in prison.

The judge in that case denied each defense motion for dismissal and said Martinez’ actions did not amount to misconduct.

Martinez attracted national attention — and a book contract — because of publicity from the Arias trial.

His book, Conviction: The Untold Story of Putting Jodi Arias Behind Bars, is scheduled to be published in February. Legal ethicists argue the book, and another written by Arias' former defense attorney, Kirk Nurmi, violate the rules of ethical conduct for attorneys because Arias' case is still under appeal.

Complaints have been filed with the Bar against both Martinez and Nurmi for publishing those books.

Though Martinez has repeatedly faced allegations of misconduct, none has ever risen to the level of dismissing a case. Many of those cases in which misconduct was previously alleged are included in the most recent complaint against him.

Last September, for example, the Arizona Supreme Court upheld the death sentence of murderer Shawn Lynch, a case Martinez prosecuted. Attorneys for Lynch alleged 13 instances of prosecutorial misconduct. The court acknowledged that Martinez had crossed the line of acceptable conduct on several of the allegations, but “the conduct was not so egregious that it permeated the entire trial and probably affected the outcome.”

Martinez' conduct was the subject of discussion in open court before the Arizona Supreme Court justices in 2010.

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According to transcripts, then-Justice Andrew Hurwitz turned to the attorney representing the Arizona Attorney General's Office, the prosecutorial agency that handles death-penalty appeals regarding a case, and said:

"Can I ask you a question about something that nobody's discussed so far? The conduct of the trial prosecutor. It seems to me that at least on several occasions, and by and large the objections were sustained, that the trial prosecutor either ignored rulings by the trial judge or asked questions that the trial judges once ruled improper and then rephrased the question in another improper way. ... Short of reversing a conviction, how is it that we can ... stop inappropriate conduct?"

Then-Justice Michael Ryan then stepped into the discussion.

"Well, this prosecutor I recollect from several cases," Ryan said. "This same prosecutor has been accused of fairly serious misconduct, but ultimately, we decided it did not rise to the level of requiring a reversal. There's something about this prosecutor, Mr. Martinez."

Martinez’ failure to follow a judge’s orders during trial sidebars was also the subject of one of the recent state Bar complaints that were dismissed. During cross-examination in the second Arias trial, he repeatedly blurted out the name of a witness who was supposed to remain anonymous, despite instructions by the trial judge to stop doing so.

That complaint was dismissed Dec. 10. The state Bar investigator concluded that the error was “inadvertent and the product of your fast-paced questioning,” and told Martinez to be more careful in the future.

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But allegations of prosecutorial misconduct and ethical misconduct are not synonymous. The Bar is concerned with ethical misconduct.

“Prosecutorial misconduct is determined by criminal courts. Ethical misconduct is decided by the lawyer discipline system,” said Karen Clark, an attorney who specializes in attorney ethics. “While there may be overlap between the two, they are separate and distinct.  A finding of prosecutorial misconduct by a criminal judge may or may not involve an ethics violation, and vice versa. The purposes of the two proceedings are not the same.”

A continued pattern and practice of misconduct could lead to discipline by the state Bar, Clark noted, pointing to the case of Kenneth Peasley, a deputy Pima County attorney she prosecuted in attorney disciplinary proceedings. Peasley ultimately was disbarred.

The other complaints against Martinez that were dismissed Thursday, concerned his accusation during the Arias trial that Arias' previous attorneys had erased pornographic files from the victim's computer. That complaint was actually lodged twice, by attorney Maria Schaffer and her boss at the Maricopa County Office of the Legal Defender, Marty Lieberman. They were combined into one, according to Bar spokesman Rick DeBruhl.

The combined complaint was dismissed with a message from the Bar investigator that "there is no clear and convincing evidence of an ethical violation" by Martinez or the County Attorney's Office.

There are more Bar complaints in the works against Martinez.

Juror treatment, conduct in Arias case raise questions

Attorney Michael Reeves, who defended convicted cop killer Bryan Hulsey, said he will file a complaint against Martinez alleging “constant belittling of the defense attorneys, which is counter to the rules. He kept making references about the attorneys making things up and compared us to Don Quixote lancing at windmills.”

Attorney Tom Ryan, whose accusations of conflicts of interest led to Arizona Corporation Commissioner Susan Bitter Smith's resignation, said he also is preparing a complaint related to Martinez’ treatment of the holdout juror in the Arias sentencing mistrial.

Whether any of the complaints will lead to discipline will take months to play out.

The Bar will first evaluate the claims internally. If the Bar investigator feels they have merit, he or she will send them to the state Supreme Court's probable-cause committee. If the committee determines there is a likelihood of wrongdoing, it will refer the claims to the court's three-judge disciplinary panel.

Many attorneys enter into consent agreements at that point to avoid the disciplinary hearings, which are like trials.

The panel can then recommend sanctions ranging from instructional letters to suspension and disbarment.

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