//Obligations of prosecutor in plea deals: Cochise County case may be reviewed by AZ Supreme Court

Obligations of prosecutor in plea deals: Cochise County case may be reviewed by AZ Supreme Court

By Terri Jo Neff

Defendant: Cop’s story about assault unchallenged because misconduct was concealed
County Attorney: Disclosure of impeachment information not required in plea deals
PHOENIX – The Arizona Supreme Court has announced it will decide next month whether to hear a 2015 case involving former Sierra Vista police officer Mike Mitchell.  Apetition for review filed by Cory Lee Bakeris one of 25 that the state’s high court will consider for acceptance May 15.

Baker pleaded no contest in May 2015 to aggravated assault on a police officer with a knife stemming from a December 2014 incident. The officer he allegedly assaulted was Sierra Vista corporal Mike Mitchell, who was laterfound to have violated several department policiesduring May-July 2015 in unrelated cases.
According to court records, Baker “vigorously protested that he had never drawn his knife during his confrontation with Mitchell.” The only witnesses to the incident were  Baker and Mitchell. Baker contends he only agreed to the plea bargain in lieu of going to trial because he believed “no jury would ever accept his account against the word of a veteran police officer.”
Baker was sentenced by Cochise County Superior Court judge James Conlogue in June 2015 to nine years in prison on the assault charge and 4.5 years on a separate weapons charge that he is not disputing. The sentences are being served concurrently (at the same time).
Just weeks after Baker’s sentencing,Cochise County Attorney Brian McIntyre sent an emailadvising his staff that corporal Mitchell was the subject of a Sierra Vista PD investigation. McIntyre eventually authorized the dismissal of more than a dozen pending cases that would have had to rely upon Mitchell’s testimony.

Mitchell resigned in October 2015 after 11 policy violations were sustained in aninternal affairs report. Some of those violations dated back to May 2015 when Baker accepted a plea deal, but the investigation did not delve into any prior conduct or cases. Mitchell, who never testified in any cases after July 2015, committed suicide in October 2016.
Baker then attempted to withdraw his plea, arguing that information he could have used to challenge Mitchell’s credibility was withheld – whether by the prosecution or Mitchell himself.  He argued in part that Mitchell’s “fraudulent concealment” of misconduct “deceived” Baker into taking a deal, which could deem the plea involuntary.
In June 2016, Baker’s petition for post-conviction relief (also known as a Rule 32 petition) was denied by judge Conlogue. The case was reviewed by the Arizona Appeals Court (Division Two) whichruled in October 2016 that Conlogue had not abused his discretion in denying Baker’s petition.

That is when attorney Peter A. Kelly filed the petition for review to the supreme court on Baker’s behalf. If the justices agree to review Baker’s case then oral arguments will take place this fall. If they do not accept his petition then judge Conlogue’s ruling denying Baker post-conviction relief will stand.
Even if Baker’s assault conviction is overturned he will not be released from prison anytime soon.  According to the Arizona Dept. of Corrections, once Baker completes the nine year sentence he still has five more sentences in other cases that must be served consecutively (one at a time) totaling 12 years. If his conviction is not overturned, prison records show Baker is scheduled for release in January 2034.
Disclosure of witness credibility problems, for trials only?
Baker has contended in his court filings that information about Mitchell’s May-July  2015 misconduct should have been disclosed to the defense as Brady material. Underthe Brady rule, any information or evidence known to or available to the prosecution that tends to mitigate a defendant’s guilt or that can be used by the defense to challenge the credibility of a witness is supposed to be provided to the defense.
But Arizona courts also recognize a U.S. Supreme Court decision known asUnited States v. Ruiz (2002)that applies the Brady rule only to defendants going to trial, not those agreeing to a plea bargain.

In denying Baker’s petition, judge Conlogue noted there was no violation of the Brady rule because any Brady material about Mitchell – if it existed – was not required to be disclosed to a defendant accepting a plea.
The appeals court concurred, noting in itsOctober 12, 2016 decisionthat “due process does not require prosecution to disclose impeachment evidence before plea agreement” and therefore under Ruiz the defense “would not have been entitled to disclosure of the victim’s misconduct in relation to the state’s plea offer even had the prosecutor been aware of it.”
On March 22, theCochise County Attorney’s Office responded to Baker’s petition for review. Deputy county attorney Roger Contreras prepared the response, which follows previous arguments put forth against Baker’s challenges, including that “the State is not required to disclose impeachment when a defendant accepts a plea bargain.”
Contreras also notes that the prosecution was not aware of Mitchell’s misconduct at the time of Baker’s plea, so there would not have been Brady material to disclose. In addition, he argues that Mitchell’s misconduct occurred well after the December 2014 incident between Baker and Mitchell that led to the aggravated assault charge.
A prosecutor’s ethical duty?
Baker also contends that prosecutors in Arizona – as officers of the court – have “pretrial obligations” separate of any constitutional issues addressed in the Ruiz decision.  Those obligations include ethical responsibilities described by the Arizona Rules of Professional Conduct and the Arizona Rules of Criminal Procedure, both of which address disclosing information to defendants.
According to Baker, court rules do not limit disclosure to only those defendants going to trial. Baker further argues the state’s position regarding a distinction between resolving a case by trial rather than by plea agreement ignores the fact that plea deals are how 90% or more of criminal convictions are obtained.
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Contact reporter Terri Jo Neff at cjw_media@yahoo.com or 520-508-3660