County’s ‘volunteer prosecutor’ case under scrutiny

The La Paz County Attorney’s decision to use the services of a volunteer prosecutor came under more scrutiny this month after the Arizona Court of Appeals sent the case back to the Superior Court for more consideration.

County Attorney Tony Rogers had appointed James Schilder as a Special Deputy County Attorney without pay, as a volunteer who wanted to help with Rogers’ caseload and said he enjoys the work. But several defendants objected, asking Judge Samuel Vederman to disqualify Schilder on the basis that their due process rights were being violated by the arrangement.

In response to the defendants’ motions to disqualify, Schilder informed Judge Vederman that Schilder is “not controlled by, nor answers to, the County Attorney as a ‘deputy'”, and has “independent power without the day-to-day oversight” of Rogers.

Vederman’s ruling was that Schilder could continue to represent the state in his current capacity, because whether he or Rogers choose to acknowledge it, Rogers is in fact supervising Schilder regardless. The Court of Appeals described this as the Superior Court having “essentially disbelieved Schilder’s assertion that in the prosecutions to which he is assigned, he answers to no one.”

In Vederman’s ruling, he said he was “very concerned” that Schilder proclaimed to answer to nobody and that Rogers did not refute that notion. The appellate court essentially agreed with the need for concern, asking the Superior Court to look at the case again.

“Not surprisingly, there is no Arizona case authorizing this arrangement or even addressing it,” the Appeals Court opinion notes. “In other jurisdictions, in the rare case where a similar arrangement has been undertaken, courts have expressed grave concerns about attorneys simply taking over for properly elected or appointed prosecuting officers without supervision, absent any ethical conflict or statutory authorization.”

And:

“From the record presented, we cannot determine the extent to which authority and responsibility for these prosecutions may have been ceded to Schilder. In a ‘revised response’ to the petitions, the State asserts that Schilder is subject to some authority of the County Attorney, citing the finding the superior court made in denying the motions to disqualify. But the finding by the superior court that Schilder in fact is supervised by the County Attorney flies in the face of the categorical representations Schilder made in responding to the motions to disqualify and in statements he made during oral argument in the superior court.”

In the end, the Court of Appeals sent the case back to the lower court:

“We direct the superior court to receive whatever evidence it requires to ascertain the scope of Schilder’s authority over these cases, including the nature and extent, if any, of County Attorney Rogers’ supervision of Schilder. After receiving such evidence, the superior court must reconsider the petitioners’ motions to disqualify, consistent with this decision.”

It may not be Judge Vederman holding an evidentiary hearing and making this decision. Vederman’s last day as judge is June 30th, after which time Matthew Newman takes his place on the bench. But since Newman has been a defense attorney in cases prosecuted by Schilder, it may be another judge taking the case.

Rogers told Parker Live that using Schilder’s services as a volunteer is good for the taxpayer and has precedent in government operations:

“The United State Supreme Court has long recognized that prosecutors hold a special role in our legal system – they are ministers of justice,” Rogers said. “The La Paz County Attorney’s Office takes its role as a minister of justice very seriously, and works to ensure that the rights of all – both defendants and victims – are protected as justice is sought. It is well known that the county’s financial resources are often outweighed by its needs. However, because the responsibilities of a minister of justice do not change simply due to a lack of resources, the La Paz County Attorney’s Office has found alternative avenues to meet the needs of the community. To supplement the work of the La Paz County Attorney staff, the office has utilized the talents of volunteer law students and a volunteer lawyer. In addition, the office has tapped into the resources of other Arizona prosecution offices, rather than retain private counsel, when a legal conflict arises in a case.”

Rogers went on to say that there are volunteers present in many areas of government:

“Volunteerism in government is well-established. Many sheriff’s offices throughout Arizona still operate a sheriff’s posse composed of volunteers. The La Paz County Sheriff’s Office has the VIP program, Volunteers in Protection. The majority of county attorney offices statewide solicit volunteer participation in their victims’ services divisions. Most counties also have a CASA program; Court Appointed Special Advocates speak for the best interests of child victims and children in dependency cases.

“The La Paz County Attorney’s Office will continue to seek innovative ways to ensure that the justice needs of our community are met.”