PHOENIX — Following years of judicial misconduct and other serious allegations exposed in an ABC15 investigation, Maricopa County’s top judge has disqualified his entire bench from hearing a post-conviction relief challenge in a first-degree murder case.
In an order issued on May 7, Presiding Judge Joseph Welty ruled that the “exceptionally rare” and “unprecedented” circumstances surrounding former judge Erin Otis required him to re-assign the case to a judge from another county.
“The Defendant alleges, and presents apparent support, for an unprecedented number of ethical violations committed by then-Judge Otis,” according to the ruling. “Some, but not all, of these allegations have been addressed by the State Bar of Arizona and the Arizona Commission of Judicial Conduct.”
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The ruling continued, stating, “Many of the allegations set forth above were widely publicized by the media in Maricopa County. Erin Otis was a judicial officer of the Superior Court in Maricopa County for eight years. She continues to appear before our criminal courts as a prosecutor with the Maricopa County Attorney’s Office. She is well known by the bench. While not subjectively proven, there is the potential that judges in Maricopa County have formed opinions regarding Erin Otis and the allegations of unethical conduct, that they may not be able to set aside.”
The post-conviction relief challenge and request for reassignment was made by attorneys for Victor Ted Hernandez, who was convicted of murder in late 2019.
Otis presided over Hernandez’s trial and sentencing.
During that case and many others, the judge and her staff repeatedly mocked and ridiculed people in court through emails and memes.
In early 2020, Otis left the bench to become a death penalty prosecutor with MCAO.
“It was a very solid legal ruling and analysis,” said Amy Armstrong, who directs the Arizona Capital Representation Project. “The potential for bias was just too high and was intolerable.”
The ruling states it is likely that Otis and other court officials will have to testify and answer questions about all of the alleged misconduct.
“There’s a definitely a chance of that,” said Armstrong, who is not one of the attorneys on Hernandez’s case. “And that’s exactly why this ruling was needed in order to protect everybody’s rights and the integrity of the judiciary and the public’s trust.”
Welty’s order includes multiple pages of information laying out sustained misconduct and other allegations against Otis.
The published information also implicates other legal officials and institutions, including County Attorney Rachell Mitchell, the State Bar of Arizona, and the Arizona Commission on Judicial Conduct.
While presiding over the Hernandez case, Otis was discussing potential employment opportunities at MCAO with Mitchell and other top officials.
Mitchell, who denies any wrongdoing, was an MCAO division chief at the time.
In response to Welty’s order, MCAO filed a motion asking the court to reconsider the decision to re-assign the case and to vacate the order.
The motion argues that the “factual assertions and accusations” included in Welty’s order “are not sufficiently supported or fail to provide a complete account of the relevant events.”
MCAO also included a rebuttal to most of the allegations.
Several attorneys said they believe the court’s order and MCAO’s challenge will finally put greater scrutiny on the scandal, which they believe the legal system has previously tried to minimize and ignore.
“There’s been a long history of misconduct here that has not been brought to light and not been properly investigated,” said Karen Clark, an attorney who’s handled Arizona legal ethics cases for more than three decades. “But based on this order just issued, I hope that it is.”
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Clark represented a pair of defense attorneys who raised concerns about Otis’s conduct as a prosecutor after leaving the bench.
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The two attorneys filed a motion that alleged Otis was flirting and manipulating a severely mentally ill death penalty defendant who was representing himself.
MCAO strongly defended Otis against the allegation.
“And what happened was county attorney’s office retaliated with a Bar charge against (the defense attorneys),” Clark said.
That Bar complaint was ultimately dismissed.
Clark said Bar attorneys didn’t fully investigate the corresponding evidence that she and her clients provided about Otis.
“Including a witness who said that Otis told her she was trying to befriend him at the same time she was trying to put him to death,” Clark said. “And (Otis) said, isn’t that funny… the Bar had that information, and they didn’t even talk to that lawyer.”
Following ABC15’s reports, the Bar admonished Otis for the emails and memes and for her job discussions with MCAO officials.
An admonition is the lowest level of discipline and doesn’t appear on an attorney’s public profile.
Most of the other allegations against Otis were not a part of the decision.
Clark said the Bar didn’t appear to investigate or consider action against any other officials, including Mitchell, tied to the scandal.
In a statement to ABC15 the State Bar said, “Based on Judge Welty’s order, the State Bar is currently considering whether there is a basis for additional review.”
Contact ABC15 Chief Investigator Dave Biscobing at Dave@ABC15.com.
