[00:00:03] Speaker 02: Good morning. [00:00:04] Speaker 02: I'm Nicholas Asado. [00:00:05] Speaker 02: I'm counsel for Pima County. [00:00:07] Speaker 02: I will be arguing today on behalf of the appellants petitioners. [00:00:12] Speaker 02: My goal is to spend about seven and a half minutes on the appeal from the seal order, spend approximately seven and a half minutes on the petition for the mandamus and reserve approximately five minutes for my rebuttal and I will keep track of my own time. [00:00:26] Speaker 02: I'll begin with appeal number 23-15110, which is our appeal from the seal order. [00:00:32] Speaker 02: And as ordered by the court, I will focus my arguments on the jurisdictional question. [00:00:37] Speaker 02: This court should exercise its discretion and accept jurisdiction of that appeal under the collateral order doctrine. [00:00:44] Speaker 02: In Center versus Auto Safety versus Chrysler Group, this court recognized the class of orders that qualify under the doctrine, civil interlocutory orders denying a motion to unseal judicial records. [00:00:56] Speaker 02: Like the order at issue in CAS, the seal order is an interlocutory order denying appellant's motion to unseal records filed on the district court's docket. [00:01:06] Speaker 00: It therefore falls within- One of the issues I have with this particular question, counsel, is that the district court doesn't seem to have finalized the order. [00:01:15] Speaker 00: It appears that the district court view was, okay, for now, I think there are sufficient reasons to seal it, but it can be revisited at a later point in time. [00:01:25] Speaker 00: I'm looking at ER 311, sorry, the portion of her ruling where she says that if needed, the court will issue an order addressing the declaration and will allow the present opportunity to address the court. [00:01:38] Speaker 00: So she hasn't closed the door to that. [00:01:41] Speaker 00: I know that you still have a trial date pending, [00:01:44] Speaker 00: in April, at the end of April. [00:01:46] Speaker 00: It seems like at some point prior to trial, the district court was willing to revisit that. [00:01:52] Speaker 00: So why should we address it now when you could raise it with the court? [00:01:56] Speaker 00: I don't know if you've had a final pretrial conference or not, you could raise that issue then, because the court's willing to take another look at it. [00:02:04] Speaker 02: So your question, Judge Nguyen, goes towards the very first cone factor, which is whether or not the issue was conclusively determined. [00:02:10] Speaker 02: We believe that it is. [00:02:12] Speaker 02: What you're referring to was the district court's response to an issue that we raised in our briefing was that the court was going down this path to maintain everything under seal. [00:02:23] Speaker 02: And we pointed out that there's been no notice given to the press to be able to lodge objections. [00:02:28] Speaker 02: So that was something that we injected. [00:02:30] Speaker 02: The press never injected that. [00:02:32] Speaker 02: And if you look at the sentence before, the sentence that you just read, she specifically said that the safety concerns of the declarant outweigh the press's opportunity to be heard and object to the sealed filings. [00:02:45] Speaker 02: So she said at that moment that everything that she's seen before her up to that point was enough to [00:02:50] Speaker 02: not give the press an opportunity to object. [00:02:53] Speaker 02: Yes, she does go on to say later, if needed, I'll entertain those. [00:02:57] Speaker 02: But just like any other interlocutory order, they're always subject to reconsideration. [00:03:02] Speaker 02: We can move for reconsideration. [00:03:04] Speaker 02: The press at some point can. [00:03:06] Speaker 02: But for purposes now, the court has ruled that we are prohibited from disseminating any of this information. [00:03:14] Speaker 02: We've proceeded on that [00:03:16] Speaker 00: on that ruling for the last [00:03:30] Speaker 00: hey, we're in pre-trial proceedings. [00:03:32] Speaker 00: Right now, the balancing is going to be done one way, but obviously, the case is going to attract huge public interest, and so the evaluation might be different. [00:03:42] Speaker 00: It really isn't clear to me, but at least it signals a willingness to revisit the issue. [00:03:48] Speaker 02: Again, like I said, there's always an opportunity to revisit an issue, but for our purposes, we believe that it is conclusively determined against us, the appellants, Pima County and the City of Tucson. [00:03:59] Speaker 02: I don't know what's going to happen in the future. [00:04:01] Speaker 02: I don't know if the press is going to interject. [00:04:03] Speaker 02: I know that we've recently filed joint proposed pretrial orders, and everything relating to the declarant was filed under seal. [00:04:10] Speaker 02: The recent summary judgment order pertaining to the declarant was filed under seal. [00:04:14] Speaker 02: The plaintiffs just recently filed a subpoena for the declarant to testify under seal. [00:04:20] Speaker 02: Everything is going that way. [00:04:21] Speaker 02: And frankly, I don't know what more the press could offer. [00:04:25] Speaker 02: other than the arguments that we've already made and which the court has injected. [00:04:29] Speaker 02: I don't know what more... Cancel. [00:04:30] Speaker 03: Cancel, can I ask you, what's the county's interest? [00:04:32] Speaker 03: Is it just the press issue, letting the press have access to it, or is there something else? [00:04:36] Speaker 03: And if it's sealed, let me know, but... Sure. [00:04:40] Speaker 02: No, it is our position that the fact that all of this is being sealed, that you've got the declarant who is a critical witness for the plaintiff in this case, could turn an issue, a claim in this case. [00:04:52] Speaker 02: that that declarant should not be permitted to testify in secret, anonymously. [00:04:57] Speaker 02: We believe that doing so prejudices the appellants in this case. [00:05:01] Speaker 02: And here's how. [00:05:02] Speaker 02: Yeah, that's how. [00:05:04] Speaker 02: So if the declarant can go in and take the stand, knowing that whatever the declarant says will never be released to the public, that no one will ever know what the declarant says, there is no accountability. [00:05:17] Speaker 02: There is actually a motive to conceal the truth. [00:05:20] Speaker 02: if what the declarant says can never be checked at some point later, there is a motive to not tell the truth, allowing it to be. [00:05:28] Speaker 03: Wasn't there any discovery that you could discover, you could figure out or verify any of this information? [00:05:35] Speaker 02: There has been discovery. [00:05:37] Speaker 03: I just don't know if I've ever heard that, that somehow, you know, that having a testimony out in public allows the public to somehow come to you and say that was wrong. [00:05:49] Speaker 03: I just never heard of that as a reason to keep something not sealed. [00:05:53] Speaker 02: Admittedly, this is a unique situation. [00:05:55] Speaker 02: But again, the declarant is a critical witness for the plaintiff. [00:05:59] Speaker 04: Let me ask you, let's assume for a moment that the district court maintains this seal order throughout the trial. [00:06:06] Speaker 04: Just as you just articulated and you claim that you're prejudiced and you raise a motion for a new trial and you lay out all the Reasons why you claim that you were prejudiced from that situation and that let's say the district court denies that why can't you appeal that to us? [00:06:24] Speaker 02: We don't think that a direct appeal it will be effective why not well the Prejudice occurs at the moment that the declarant is allowed to testify in secret [00:06:33] Speaker 02: Just like today, all the folks behind me, approximately 30 people, are attending this proceeding. [00:06:37] Speaker 02: It's being broadcast live. [00:06:40] Speaker 02: At that trial, nobody's going to be allowed in that courtroom. [00:06:43] Speaker 02: That harm cannot be undone. [00:06:45] Speaker 04: Second, finally- Well, we're talking about prejudice to the county's position. [00:06:49] Speaker 04: Sure. [00:06:50] Speaker 02: Raising a motion for new trial or direct appeal, it will be very difficult for us to establish the prejudice at that point. [00:06:57] Speaker 03: That's the whole problem. [00:06:58] Speaker 03: This is totally speculative. [00:07:00] Speaker 03: So, I mean, basically, my understanding of your theory is that if the person testifies, someone in the public will hear him testify, him or her testify, and contact your office and say, that was wrong, and that's the theory, right? [00:07:14] Speaker 03: This seems so speculative. [00:07:16] Speaker 02: That's part of it, but primarily to allow a witness on the witness stand [00:07:21] Speaker 00: under oath, be able to testify in secret, it doesn't ensure that- Well, you said that there's an accountability question because now the district court says that it's going to be sealed forever, but I think the other side's taking the risk. [00:07:37] Speaker 00: After trial, let's assume we don't take this up right now under the collateral order doctrine. [00:07:46] Speaker 00: After trial, I think it could be unsealed. [00:07:48] Speaker 00: It is an issue, as Judge Pai points out, that you are now preserving for purposes of appeal. [00:07:54] Speaker 00: So the witness, the plaintiffs, they know that it could be unsealed after trial, right? [00:08:02] Speaker 00: So that mitigates that there's no accountability or possibility of accountability forever argument that you're trying to raise. [00:08:10] Speaker 00: I mean, our question is, do we hear it now? [00:08:11] Speaker 00: Because we know you hear it later. [00:08:13] Speaker 00: So what's really the harm in waiting in the usual course of things for you to bring it up on direct appeal? [00:08:20] Speaker 02: Well, again, in addition to the public not being able to attend in person and us not being able to have that witness testify publicly at that moment, as far as the declarant, [00:08:32] Speaker 02: The declarant has stated that he does not want to testify if it is public. [00:08:38] Speaker 02: So the court, I believe, has an interest in protecting the declarant's interest. [00:08:44] Speaker 02: The declarant does not want to testify at trial if it's going to become public after trial. [00:08:51] Speaker 02: Why would we let the declarant go in under the protection of a seal order, testify, [00:08:59] Speaker 02: And then after the fact, we raise this appeal and it's released to the public. [00:09:03] Speaker 02: If that were to happen, then all of the harms that the declarant, that the plaintiff, that the district court were concerned about actually would happen. [00:09:11] Speaker 03: Well, except that he would have testified at that point. [00:09:16] Speaker 03: The fear is if you unseal it now, he would refuse to testify. [00:09:19] Speaker 02: If it is unsealed now, the declarant can make a [00:09:24] Speaker 02: Conscious, voluntary decision, knowing ahead of time, okay, if I do this, it will be subject to public scrutiny, it will be subject to the public, and at least the declarant has the opportunity to make that choice now. [00:09:37] Speaker 02: If the declarant goes into it believing that it's going to be sealed indefinitely and does so, and then after the fact, it's nope, here you go, public, what does that do for the declarant? [00:09:49] Speaker 00: And- Well, you're not here to protect the declarant's interest, right? [00:09:52] Speaker 00: I think he runs that risk. [00:09:55] Speaker 02: I'm primarily here to protect my client's interest. [00:09:57] Speaker 02: I'm merely pointing out that if the court doesn't take this up, now that could happen. [00:10:01] Speaker 02: And I think that the court has an interest in ensuring that everybody's interests are preserved. [00:10:06] Speaker 04: I guess I'm just really concerned with how you're prejudiced. [00:10:09] Speaker 04: What I've heard so far doesn't really tip it. [00:10:14] Speaker 04: Well, again, well. [00:10:15] Speaker 04: I mean, you have to write a full cross-examination, right? [00:10:17] Speaker 04: You're going to have a jury there, correct? [00:10:20] Speaker 02: That's correct. [00:10:21] Speaker 04: And you can go to town cross-examining this guy. [00:10:25] Speaker 02: He's going to be under oath. [00:10:28] Speaker 02: All of those protections are in place, but the most important protection, knowing that the declarant's testimony could potentially be sealed indefinitely, we believe is an incentive, if not a motive, for the declarant. [00:10:41] Speaker 02: For him to lie. [00:10:42] Speaker 02: Correct. [00:10:43] Speaker 04: Well, you got right across examination, correct? [00:10:46] Speaker 02: He can lie on cross-examination just as much as the declarant can lie on direct examination. [00:10:50] Speaker 02: We don't know. [00:10:51] Speaker 02: But there's that check. [00:10:53] Speaker 02: It's the check of being on the stand with the doors open to the courtroom, knowing that this cannot be buried after the fact. [00:11:01] Speaker 02: And at least if the declarant knows that ahead of time, the declarant can make the conscious decision whether or not the declarant wants to testify. [00:11:10] Speaker 00: Do you want to move on to the Mendingmas issue? [00:11:11] Speaker 00: Sure. [00:11:12] Speaker 02: That's a big issue, too. [00:11:13] Speaker 02: Thank you. [00:11:14] Speaker 02: Yes. [00:11:17] Speaker 02: The district court has endorsed a judicial remedy that not only does not exist, but has been rejected by this court. [00:11:24] Speaker 02: It created what it called ship expungement. [00:11:27] Speaker 02: And under ship expungement, the district court bestowed upon itself the power to expunge Lewis Taylor's outstanding 28 state court convictions in this Section 1983 action. [00:11:38] Speaker 02: That self-prescribed remedy was clear error because this court has only ever recognized a court's authority to expunge criminal records. [00:11:45] Speaker 04: She just said it was possible, right? [00:11:49] Speaker 04: The remedy would be a possible remedy? [00:11:54] Speaker 02: No. [00:11:54] Speaker 02: I believe the district court has determined that as a matter of law, she can expunge. [00:11:59] Speaker 04: She hasn't done it yet, though. [00:12:01] Speaker 02: She has not done it yet. [00:12:02] Speaker 02: That's correct. [00:12:03] Speaker 02: But she has ruled that she. [00:12:04] Speaker 04: Where's the clear error? [00:12:07] Speaker 02: The clear error is her ruling that she has this power. [00:12:11] Speaker 02: The clear error is based on that erroneous ruling, we are going to trial on a lawless remedy. [00:12:18] Speaker 02: She has created this remedy, remedy out of whole cloth. [00:12:22] Speaker 02: There's no basis in law or fact to have it. [00:12:25] Speaker 02: She has said she is going to do it. [00:12:28] Speaker 04: You know, if there's no basis for it, I mean, if it's erroneous ruling, you can appeal that. [00:12:35] Speaker 02: The fact that she's already, that the district court has already determined that she has that power [00:12:40] Speaker 00: Right, so you need to deal with the Bauman factor, so I think you need to address the same questions or similar questions that we asked you on the collateral order doctrine issue, which is why should we take up the appeal now? [00:12:55] Speaker 00: Because you have an adequate means of relief that is direct appeal. [00:13:02] Speaker 02: It's our position that, and these go towards the first two Bowman factors, which the court considers together, whether going forward now is realistic and whether or not a direct appeal would correct the harm. [00:13:15] Speaker 02: And we don't think that either that a direct appeal is realistic or that it could correct the harm that will happen if we go forward with a trial on this expungement claim. [00:13:22] Speaker 02: And here's why. [00:13:23] Speaker 02: First, if that expungement claim goes forward, [00:13:27] Speaker 02: Pima County's counsel will be required to testify, and under Arizona's ethical rules, an advocate cannot also be a witness in the same case. [00:13:36] Speaker 02: So there are disqualification concerns there, and Pima County will have to make the choice as to whether or not its counsel can or should continue. [00:13:44] Speaker 02: The district court will have to make that decision. [00:13:47] Speaker 02: But the fact that we're even talking about this has put Pima County [00:13:50] Speaker 02: in a position where it's losing effectively losing its right to counsel because we are facing this expungement trial in less than three weeks. [00:13:59] Speaker 03: Is that right to counsel? [00:14:00] Speaker 03: Does that apply to the government? [00:14:01] Speaker 03: I just, you know, obviously applies to criminal defendants. [00:14:05] Speaker 03: I just never heard of it applying to the government. [00:14:07] Speaker 02: The ethical rule does not have a limitation or exception. [00:14:10] Speaker 03: No, I'm not talking about the ethical rule. [00:14:11] Speaker 03: I'm talking about the right to counsel. [00:14:13] Speaker 03: It's a specific counsel. [00:14:14] Speaker 03: You know, government, we're all fungible in some respects. [00:14:17] Speaker 03: So why isn't government counsel fungible? [00:14:21] Speaker 03: Well, I am... You're not government counsel, I guess. [00:14:25] Speaker 03: You represent the government, but you are... I'm outside counsel. [00:14:28] Speaker 02: You're outside counsel. [00:14:29] Speaker 03: But that wouldn't affect you, right? [00:14:32] Speaker 02: I am counsel for Pima County. [00:14:34] Speaker 02: And so that rule pertains to me. [00:14:37] Speaker 02: It doesn't matter that Pima County is a government entity or that I represent a government entity. [00:14:41] Speaker 02: So we need. [00:14:43] Speaker 04: So you're concerned you might have to be, you might have to testify? [00:14:47] Speaker 02: I'm not concerned about that. [00:14:48] Speaker 02: I'm concerned that when I, because I do have to testify that my client, Pima County, cannot have me advocate on its behalf at that trial. [00:14:58] Speaker 02: That's the concern. [00:14:59] Speaker 02: And if the court steps in now and grants mandamus relief, [00:15:01] Speaker 02: and finds that there's clear error, there is no expungement claim. [00:15:05] Speaker 02: That doesn't go to trial. [00:15:06] Speaker 02: I'm not a witness, and I can continue to represent my client. [00:15:09] Speaker 03: But you would be a witness from the 2013 plea agreement? [00:15:15] Speaker 02: That's correct. [00:15:17] Speaker 03: Were you counsel then, too? [00:15:19] Speaker 02: No. [00:15:23] Speaker 02: The district court summary judgment order made findings that conduct by Pima County and its counsel [00:15:31] Speaker 02: in 2022 is relevant to what the Pima County Attorney's Office did in 2013. [00:15:38] Speaker 02: And so Pima County's counsel's testimony is relevant on the one point to prove the other. [00:15:46] Speaker 03: Just a technical question. [00:15:47] Speaker 03: The trial is still going on in April. [00:15:49] Speaker 03: If we were to do something on this mandamus, do we have to do it before then, or would we stay the trial? [00:15:56] Speaker 03: What are you asking on that? [00:15:57] Speaker 02: Obviously, we don't want to rush the panel. [00:15:59] Speaker 02: We want the panel to take its time with this. [00:16:01] Speaker 02: This is an important issue. [00:16:02] Speaker 02: We have a status conference in front of the district court on April 4th, raising the feasibility of the trial date in light of several issues, including the oral argument today and the outstanding appeals. [00:16:13] Speaker 02: We will be asking the district court for a stay at that status conference. [00:16:17] Speaker 02: If a stay is denied, we will come back to this court and file an emergency motion to stay. [00:16:21] Speaker 02: I think that this court also has the discretion to grant its day, sua sponte, today or before then. [00:16:26] Speaker 02: I don't think it needs to wait for the district court [00:16:28] Speaker 02: in light of the timing of this. [00:16:31] Speaker 00: I just want to make sure I understand your concern. [00:16:34] Speaker 00: Has the issue of your representation and possibly having to get off the case on the eve, now is now pretty close the eve of the trial, been discussed with the court at a status conference contingency plans made? [00:16:46] Speaker 02: No, and that's another issue for the status conference and or pretrial conference. [00:16:51] Speaker 02: We're kind of in limbo right now with this appeal. [00:16:54] Speaker 02: We may not need to cross that bridge, depending on how the petition goes. [00:16:58] Speaker 02: But it's a very real possibility and it's something it's a crossword we're going to have to come to. [00:17:04] Speaker 02: But the precise issue has not been raised, but it is an issue and it's something that we're going to have to address. [00:17:11] Speaker 00: OK, so the district court has never had an opportunity to pass on this conflict issue and to discuss to what extent the 2022 conduct would be admitted at trial. [00:17:22] Speaker 02: Well, the district court has passed on that issue. [00:17:24] Speaker 02: The district court has ruled that 22 [00:17:26] Speaker 02: 2022 conduct is relevant to the 2013 expungement issue and that that evidence, including counsel's testimony, is relevant to those issues. [00:17:36] Speaker 02: So that has been resolved and that is going to happen at the trial unless the expungement claim is held to be, should go away, should be dismissed if this petition for it is granted. [00:17:50] Speaker 03: Could there be a more narrow remedy such as not letting you testify? [00:17:57] Speaker 02: potentially, but the district court has already ruled that my testimony is relevant. [00:18:03] Speaker 02: But that's not before us. [00:18:07] Speaker 02: That's correct. [00:18:08] Speaker 02: That's not an issue. [00:18:08] Speaker 00: Can you remind me of the scope of your role in 2022? [00:18:12] Speaker 02: Sure. [00:18:16] Speaker 02: So 2013, the Pima County Attorney's Office offered the no contest plea to Louis Taylor, and he accepted that plea. [00:18:22] Speaker 02: They filed this civil 1983 lawsuit in 2015. [00:18:27] Speaker 02: initially didn't have an expungement claim. [00:18:29] Speaker 02: It was only once the district court ruled that the 2013 convictions barred incarceration-based damages resulting from the 1972 trial. [00:18:39] Speaker 02: At that moment, they moved to amend the complaint to add this expungement claim for relief. [00:18:45] Speaker 02: Once they did that, there was discovery. [00:18:49] Speaker 02: And then after the close of discovery, it was discovered that the [00:18:54] Speaker 02: current Pima County attorney had been conducting a review of Louis Taylor's 72 convictions and 2013 convictions, unbeknownst to Pima County, and that had been conducting that review from 2021 through 2022. [00:19:09] Speaker 02: In May of 2022, the county attorney announced that she was considering vacating Louis Taylor's convictions. [00:19:18] Speaker 02: Two months later, in August 2022, she announced that she wasn't going to do that. [00:19:22] Speaker 02: After that reversal, there was public records requests and discovery trying to figure out why she had changed her mind or how she telegraphed she was considering it and didn't. [00:19:34] Speaker 02: One of the theories that the plaintiffs have is that Pima County and or its counsel threatened the Pima County attorney to not take any action. [00:19:42] Speaker 02: That is a theory that they have raised in this case. [00:19:45] Speaker 02: It's our position that that theory is baseless, that there's no evidence to support that allegation. [00:19:50] Speaker 02: The district court has ruled that there's a genuine issue of fact. [00:19:53] Speaker 02: And so my testimony would be relevant to show, to disprove that allegation. [00:20:00] Speaker 02: So it's a pretty critical testimony. [00:20:03] Speaker 02: And if the petition isn't granted, under the ethical rules, I cannot serve in both roles. [00:20:10] Speaker 02: And this case has been going on since 2015. [00:20:12] Speaker 02: There's tens of thousands of pages of documents. [00:20:16] Speaker 02: Nobody could possibly step in at this moment and take over the case. [00:20:19] Speaker 02: And that's the prejudice to my client. [00:20:21] Speaker 02: I know I only have a few more seconds, but there's also a few other reasons. [00:20:25] Speaker 04: That's for the district court to take up. [00:20:30] Speaker 02: Well, that's an issue that the district court will have to confront, yes. [00:20:33] Speaker 04: But there's also other issues. [00:20:36] Speaker 04: Whether you maintain counsel of record or whether you have to disqualify yourself or whether the district court takes any action against you is not before us. [00:20:45] Speaker 02: Not that, but there's also conflict issues. [00:20:48] Speaker 02: The ethical rule also contemplates that, and that is not something for the court. [00:20:51] Speaker 02: That's something for the client. [00:20:53] Speaker 04: It's not before us. [00:20:55] Speaker 00: Right. [00:20:55] Speaker 00: That's why I was inquiring, because those issues are really undeveloped. [00:20:59] Speaker 00: Frankly, I'm a little surprised that this has not been fleshed out a little bit more fully at this stage before the district court, so that we have a record of, OK, these are the additional considerations that the county's coming in and raising. [00:21:12] Speaker 00: And so now it's like, [00:21:14] Speaker 00: We've got the scope of the record, and now we're dealing with peripheral, important issues, but more peripheral issues that we hadn't fully absorbed, and we're hearing it for the first time at argument. [00:21:26] Speaker 00: But I think we understand your argument. [00:21:29] Speaker 00: There are very important issues, and there's a lot to discuss here, so I'll give you your five minutes back for rebuttal. [00:21:36] Speaker 02: Okay. [00:21:36] Speaker 02: I just wanted one point. [00:21:37] Speaker 02: Part of the problem with the rush, Your Honor, is that [00:21:39] Speaker 02: The summary judgment order came out January 19th, and so there's been this sprint. [00:21:44] Speaker 00: I'm aware. [00:21:46] Speaker 02: And so that's one of the reasons why this hasn't been fully fleshed out. [00:21:48] Speaker 00: We know, because we have to read the big record within a very short time frame as well. [00:21:52] Speaker 00: I apologize for that. [00:21:52] Speaker 00: Thank you. [00:21:53] Speaker 00: Thank you. [00:21:56] Speaker 01: May it please the court. [00:21:57] Speaker 01: Good morning. [00:21:58] Speaker 01: John Leder for Nina Alley, who is the real party in interest. [00:22:03] Speaker 01: She is the legal guardian for Luce Taylor. [00:22:05] Speaker 01: I will address the Bauman factors. [00:22:07] Speaker 01: If the court has questions at any point about the seal order, I will, of course, answer them. [00:22:12] Speaker 01: But I intend to focus my time on the other issue. [00:22:15] Speaker 01: Bauman has five factors that the court must consider in deciding whether to grant mandamus relief. [00:22:21] Speaker 01: The first is whether there are other means of relief. [00:22:23] Speaker 01: Is there a direct appeal? [00:22:25] Speaker 01: And I believe Your Honor had said in response in the colloquy with Mr. Rosado that they do have an appeal. [00:22:31] Speaker 01: And in fact, that's conceded in their petition that they do have an appeal. [00:22:35] Speaker 01: So the real issue is the second Bauman element, which is whether the petitioner would be damaged in a way not correctable on appeal. [00:22:44] Speaker 01: And that's really what the focus of the discussion was. [00:22:47] Speaker 01: And let me clarify a few points. [00:22:49] Speaker 01: The Arizona Rules of Ethics do not require Mr. Aceto to withdraw. [00:22:53] Speaker 01: It's cited in our response, ER 3.7 specifically creates an exception to withdrawal if it would work a hardship on the client. [00:23:02] Speaker 01: ER 3.7. [00:23:04] Speaker 01: So the district court has known Mr. Acedo as a potential witness for some time. [00:23:08] Speaker 01: It's done nothing. [00:23:10] Speaker 01: We have not filed a motion to disqualify him, nor will we. [00:23:13] Speaker 01: And so the only way he would be disqualified would be if he chose to do that, but the rules of ethics plainly allow him not to withdraw to avoid working a hardship to the client. [00:23:24] Speaker 01: Now it's interesting that we expected there would be a limiting motion filed with the court on this, a Rule 403 motion. [00:23:30] Speaker 01: It was not filed. [00:23:32] Speaker 01: The parties filed a lot of Lemony motions about 10 days ago, but not included was a Lemony motion to preclude Mr. Asado's testimony. [00:23:40] Speaker 01: And I assume if the case proceeds to trial, and we certainly hope earnestly that it does, perhaps they will file that motion and the district court can assess it. [00:23:48] Speaker 00: How long does the trial expect it to last? [00:23:51] Speaker 01: It will depend in large part on the Lemony ruling, Your Honor. [00:23:54] Speaker 01: So one of the issues that the county's main case [00:23:58] Speaker 01: pertains to prior testimony from the criminal trial, and we have limiting motions with respect to that evidence. [00:24:04] Speaker 01: So depending on what the court rules, the trial could be relatively short, could be long, so it just depends. [00:24:10] Speaker 01: Probably 10 to 12 days would be my best guess, and it's scheduled to start April 22nd. [00:24:16] Speaker 01: But getting back to potential prejudice, the district court can rule on the issue, but it's important, Judge Marquez has known for quite a while that Mr. Estado's potential witness [00:24:27] Speaker 01: Again, the district court has expressed no concern, raised no issues. [00:24:32] Speaker 01: He simply isn't required to withdraw. [00:24:35] Speaker 01: He is employed by a large firm in Phoenix that has a bunch of really good lawyers. [00:24:39] Speaker 01: And I don't even think Mr. Asado would be lead trial counsel. [00:24:41] Speaker 01: Certainly, that's not my call. [00:24:43] Speaker 01: But I believe Mr. Strzok from his firm would be lead counsel. [00:24:47] Speaker 01: So in terms of any prejudice, even if Mr. Asado had to withdraw, I don't think it's the type of prejudice. [00:24:53] Speaker 01: He could still be there behind the scenes, maybe not appearing, but he could be there assisting. [00:24:58] Speaker 01: He's an excellent writer, as the court knows. [00:25:00] Speaker 01: And he would still be available to do those types of things behind the scenes, I believe, even if he wasn't formerly counsel of record. [00:25:06] Speaker 03: So just to be clear, you're not going to call Mr. Arsato. [00:25:11] Speaker 03: You won't ask, compel him to testify. [00:25:13] Speaker 01: No, no. [00:25:14] Speaker 01: I'm sorry, Your Honor. [00:25:15] Speaker 01: We may very well call him. [00:25:17] Speaker 01: Oh, you will? [00:25:17] Speaker 01: And I'll touch on that in a moment. [00:25:19] Speaker 01: But the point is, we will not move to disqualify him. [00:25:23] Speaker 01: And so the argument is because I would have to be disqualified. [00:25:27] Speaker 01: And my point is the district court hasn't disqualified him. [00:25:30] Speaker 01: We're not going to move to disqualify him. [00:25:32] Speaker 01: And the rules don't require him to disqualify himself. [00:25:37] Speaker 03: OK, but he will be a witness. [00:25:38] Speaker 01: Probably. [00:25:39] Speaker 01: And, Your Honor, we put a slightly different spin on what happened. [00:25:42] Speaker 01: So in 2020, a new county attorney was elected. [00:25:55] Speaker 01: Give me just a moment. [00:26:04] Speaker 01: A new county attorney was elected and conducted her own review of the Taylor conviction. [00:26:12] Speaker 01: She actually designated Professor Jack Chin, her senior litigation counsel, to do that review. [00:26:23] Speaker 01: And Professor Chin, [00:26:25] Speaker 01: concluded, and it's in our brief, that the charges should have been dismissed in 2013. [00:26:31] Speaker 01: And there is evidence. [00:26:33] Speaker 01: And I need to emphasize, as the court pointed out, there is no expungement order. [00:26:37] Speaker 01: This is all speculative. [00:26:38] Speaker 01: There's a lot of facts that need to be sorted out. [00:26:40] Speaker 01: But some of the evidence the jury will hear is that the sitting county attorney, who is the sole person with authority to make that decision, had determined that she was going to dismiss Mr. Taylor's charges. [00:26:53] Speaker 01: So there's a slight difference of opinion exactly what she had decided, but there is evidence from Professor Chin that the decision had been made. [00:27:01] Speaker 01: We have a copy of the motion that was to be filed. [00:27:08] Speaker 00: Do you need a minute, counsel? [00:27:09] Speaker 00: No. [00:27:09] Speaker 00: Do you need us to take a break? [00:27:10] Speaker 01: Thank you. [00:27:11] Speaker 01: I'm fine. [00:27:13] Speaker 01: It's been a long case, Your Honor. [00:27:16] Speaker 01: So what Mr. Asado did once the county attorney began contacting stakeholders [00:27:22] Speaker 01: He was one of the stakeholders as counsel for the county. [00:27:25] Speaker 01: It's in the record, there was a phone call where Mr. Asado raised his voice and threatened the county attorney with a bar complaint. [00:27:32] Speaker 01: And it was after that phone call that the county attorney paused. [00:27:36] Speaker 01: And then some other important things happened, and it's in the record. [00:27:40] Speaker 01: There was communication between a prior member of the county attorney's office and the board of supervisors, where there clearly was an effort to [00:27:47] Speaker 01: put pressure on County Attorney Conover not to dismiss. [00:27:53] Speaker 01: And on August 1st of 22, there was a closed-door board meeting. [00:27:58] Speaker 01: And the very next day, the county attorney announced she wasn't going to dismiss. [00:28:02] Speaker 01: So to put Mr. Osado's conduct in context, we believe that, and we certainly wish that hadn't happened, but it did. [00:28:11] Speaker 01: He played a role in the [00:28:13] Speaker 01: that we believe in the criminal charges not being dismissed. [00:28:18] Speaker 01: So. [00:28:18] Speaker 00: All right. [00:28:19] Speaker 00: I understand now. [00:28:20] Speaker 00: I guess I hadn't fully appreciated the scope of what you're intending on presenting at trial in this case, which does put him in a very difficult position. [00:28:31] Speaker 01: Sure. [00:28:32] Speaker 01: It does, Your Honor. [00:28:32] Speaker 01: But I think we need to recognize that he's in that position because of decisions he won't be hearing today. [00:28:36] Speaker 00: No, I understand that. [00:28:37] Speaker 00: My point merely is that I had not, you know, obviously we're not sitting in the trial court. [00:28:43] Speaker 00: and even though we're aware of the facts in the record, I hadn't fully appreciated the scope of the issues relating to his conduct that you were intending of putting into trial. [00:28:54] Speaker 00: So related to that issue, I take it that it is your intention to basically retry all of the whole case, including the evidence, [00:29:08] Speaker 00: that our prior opinion said was heck barred, right? [00:29:11] Speaker 00: Now you're basically going to bring it all back in because you successfully moved to amend the complaint to add the declaratory relief claim, is that right? [00:29:23] Speaker 00: Not necessarily, Joseph. [00:29:24] Speaker 00: So tell me, because there are multiple claims in this case, and you came up here on the prior case, and the prior panel essentially said [00:29:32] Speaker 00: Well, a lot of it was heck barred. [00:29:35] Speaker 00: So you went back to the district court. [00:29:38] Speaker 00: You got the deck relief claim added. [00:29:41] Speaker 00: So does that then, in your mind, open up the full scope of the evidence again, including all the facts that you would put in to demonstrate Mr. Taylor's innocence? [00:29:52] Speaker 00: Because you'd have to get that, right, in order to take advantage of the ship. [00:29:56] Speaker 01: It's not clear, Your Honor. [00:29:58] Speaker 01: And I apologize for talking over you. [00:29:59] Speaker 01: So the trial court's summary judgment ruling isn't entirely clear on what the scope of the trial will be. [00:30:07] Speaker 01: Innocence is not necessarily an issue. [00:30:10] Speaker 01: I believe that the issues are whether he got a fair trial in 1972, and whether there were Brady and other giglio violations, and we will prove that. [00:30:18] Speaker 01: One of the issues is whether the county's conduct in 2013 was unconstitutional, because the law is clear that if proof beyond a reasonable doubt is lacking, and if the prosecution can't prove a case beyond a reasonable doubt, [00:30:29] Speaker 01: The only option is to dismiss. [00:30:32] Speaker 01: And Professor Chin eloquently testified to that. [00:30:36] Speaker 01: It's in our brief. [00:30:37] Speaker 01: And it was the reason that they decided the criminal charges should be dismissed. [00:30:41] Speaker 01: And in 2013, the county attorney admitted on the record that Mr. Taylor couldn't be retried, that they didn't have the evidence. [00:30:48] Speaker 01: And if that's true, then the only available option at that point is to dismiss the charges. [00:30:53] Speaker 01: And yet they chose not to do that. [00:30:55] Speaker 00: And the district court has left open the possibility that they did that because the county was acting to protect its financial no I understand all that but but since you're going to be trial counsel yes my question to you is what is your intended scope of the trial because it really does play into [00:31:11] Speaker 00: whether we need to dig down on the clear error factor and assess the prejudice, right? [00:31:18] Speaker 00: Because essentially, I'm assuming you're going to attempt to do the full scope of the trial that would have been barred by the prior panel's decision. [00:31:27] Speaker 00: Because the debt relief claim, the theory, at least as I understand the district court's ruling, the theory is that the county improperly coerced somebody who was not guilty into taking a no contest plea, essentially admitting for legal purposes guilt for murders that he did not commit. [00:31:50] Speaker 00: in order to gain an immediate release from prison. [00:31:53] Speaker 00: So in order to kind of prove the underlying facts, strengthen your case to get the debt relief that you're seeking, I'm assuming you're going to try to put in as much evidence as you can. [00:32:05] Speaker 00: And the fact that the trial is expected to last over two weeks, which as you know in federal courts, a long, long trial, means that the scope of what you're intending to put in is quite broad. [00:32:15] Speaker 01: It could be, Your Honor. [00:32:16] Speaker 01: We need to prove that there were constitutional violations. [00:32:19] Speaker 01: But this was a good time to segue, if I could, into the third Bauman factor, which is whether there's any order that's clearly erroneous. [00:32:27] Speaker 01: And there's not. [00:32:28] Speaker 01: In fact, we believe that the district court's ruling was clearly correct. [00:32:32] Speaker 01: What the district court ruled was that she has authority to expunge criminal court records related to an unconstitutional conviction. [00:32:40] Speaker 01: And that is exactly what- Wait. [00:32:41] Speaker 03: No, I thought she's saying she could expunge the conviction. [00:32:44] Speaker 01: Actually, no, Your Honor. [00:32:45] Speaker 01: So if you look at the summary judgment ruling, most of the language relates to... Well, how would that get you out of the heck bar if the conviction still stands? [00:32:53] Speaker 01: Well, I don't know that... If I may, Judge. [00:32:57] Speaker 01: Sure. [00:32:58] Speaker 01: What the judge has ruled, the issue before this court is, was the ruling clearly incorrect? [00:33:04] Speaker 01: The court ruled she has the authority and might, she hasn't ruled she's going to expunge, but she might expunge if certain factual predicates are established. [00:33:12] Speaker 01: Under Shipp, Maurer, and Sumner, the court can do that. [00:33:17] Speaker 00: Well, hold on a second. [00:33:20] Speaker 00: I'm sorry to interrupt you, but I need to clarify this. [00:33:22] Speaker 00: Your amended complaint seeks the declaratory judgment expunging the April 2013 no-contest plea and convictions as unconstitutional and thus invalid. [00:33:35] Speaker 00: So we're just not talking about expunging and sealing arrest records, right? [00:33:39] Speaker 00: Relief you're seeking is a declaration that his plea was unconstitutional and therefore it's an invalid. [00:33:47] Speaker 01: That is what we asked for, but the issue is what the district court has said it might do. [00:33:51] Speaker 01: And it appears from the summary judgment ruling that the district court has simply acted within the confines of Shipp, Sumner, and Maurer. [00:34:01] Speaker 01: The order says it refers to expunging records. [00:34:05] Speaker 00: I'm sorry. [00:34:06] Speaker 00: I was going to ask, your view of Shipp is that Shipp allows expunging records and not a conviction? [00:34:12] Speaker 01: No, we believe that it allows [00:34:15] Speaker 01: So I don't know how significant the distinction is because, again, from Maurer and Sumner, the holding is that district courts can expunge records related to unconstitutional state court convictions. [00:34:27] Speaker 01: So they're related concepts. [00:34:29] Speaker 01: So we believe, based on that language, there could not be a finding now that that ruling is clearly incorrect. [00:34:35] Speaker 01: We think that that language certainly makes it plausible. [00:34:38] Speaker 03: So you would have no problem with mandamus order saying that the district court has no authority to expunge a conviction? [00:34:47] Speaker 01: No. [00:34:48] Speaker 01: We would take issue with that. [00:34:50] Speaker 01: But why? [00:34:52] Speaker 01: Because I think SHIP can, because in SHIP, the relief requested in SHIP was that the convictions be set aside. [00:34:59] Speaker 01: And then SHIP goes on to cite a case allowing expungement of records, and it remanded to the district court [00:35:05] Speaker 01: to let the plaintiff amend his complaint. [00:35:07] Speaker 03: You would agree that no case has ever expunged a conviction under 1983, right? [00:35:12] Speaker 01: I'm not aware of any, but I'm likewise not aware of any case that's directly addressed this issue and that would prevent it. [00:35:17] Speaker 04: Because no one thought you could do that. [00:35:19] Speaker 04: All of this could be brought up on appeal if this were to happen. [00:35:22] Speaker 04: Isn't that correct? [00:35:23] Speaker 01: Your Honor, so in doing my research, preceding this argument, there are hundreds of times that this Court has dealt with heck issues on appeal. [00:35:31] Speaker 01: There's no reason the Court can't deal with heck issues [00:35:33] Speaker 01: on appeal. [00:35:34] Speaker 01: On appeal, right. [00:35:35] Speaker 01: So it's just, it's not the type of thing where mandamus is appropriate. [00:35:40] Speaker 03: And again, I don't think... Isn't it true that under the ballot factors that the clearly erroneous is the most important factor though? [00:35:52] Speaker 01: That is for the panel to decide. [00:35:54] Speaker 01: I mean, I think... I thought the president said that. [00:35:57] Speaker 01: The issue here is timing. [00:35:59] Speaker 01: And so if that issue [00:36:03] Speaker 01: the clearly erroneous issue or whether the court can do this, if that can be fully and properly and adequately raised on appeal, then I would say no. [00:36:11] Speaker 01: It's not the most important issue. [00:36:13] Speaker 01: I think the most important issue would be, you know, should we proceed with this trial with Mr. Taylor filed his case nine years ago after serving 42 years in prison. [00:36:23] Speaker 01: It came to this court in 1982 in a habeas petition. [00:36:27] Speaker 01: And as you know, this court ordered him released, which was a finding later overturned by the Supreme Court. [00:36:32] Speaker 01: It then came back to this court. [00:36:34] Speaker 01: It's been to the Supreme Court, or at least we petitioned. [00:36:37] Speaker 01: So it's been a long road. [00:36:39] Speaker 01: It's time to resolve this case. [00:36:42] Speaker 00: There's discussion in the case law that the relief undership is probably not appropriate if there's other avenues. [00:36:53] Speaker 00: I take it that it's too late for him to file for post-conviction relief. [00:36:57] Speaker 00: I know that you filed a notice, but it doesn't seem like any action's really been taken. [00:37:01] Speaker 01: We actually briefed that issue, Your Honor, extensively before the district court ruled she could have authority to expunge under ship. [00:37:08] Speaker 01: And there was extensive briefing on whether there is an adequate state court remedy. [00:37:12] Speaker 01: And the district court ruled that there is not an adequate state court remedy. [00:37:16] Speaker 01: Neither petitioner has moved to reconsider that ruling. [00:37:20] Speaker 01: So at this point, there is not an adequate state court remedy. [00:37:23] Speaker 00: There's a timeliness issue. [00:37:26] Speaker 01: I don't recall these specifics. [00:37:28] Speaker 01: That's part of it, but Arizona's rules of post-conviction relief are fairly specific. [00:37:34] Speaker 01: Of course, as he's not in custody, so habeas is not an option. [00:37:39] Speaker 01: In fact, there's a recent case from this court allowing a claim that would otherwise be heck barred [00:37:46] Speaker 03: to move forward because- I thought habeas, you could still, if there's some post-conviction impact on him, that you could still use habeas. [00:37:55] Speaker 01: Not that we're aware of, Judge. [00:37:56] Speaker 01: As far as I know, and I mean, for what it's worth, years ago, I clerked for a district court and handled a lot of habeas petitions in Section 90, 1983 actions. [00:38:03] Speaker 03: He's not under any supervised release or probation or anything like that? [00:38:07] Speaker 03: He's just completely free? [00:38:09] Speaker 03: He's not. [00:38:09] Speaker 03: Yeah. [00:38:10] Speaker 03: He's not. [00:38:10] Speaker 01: Yeah. [00:38:11] Speaker 03: So no- Well, wouldn't he get- [00:38:12] Speaker 03: He can't vote, for example, so he'll have collateral consequences to the federally conviction. [00:38:19] Speaker 01: Sure. [00:38:20] Speaker 03: I thought that's a basis to give you habeas relief. [00:38:24] Speaker 01: Honestly, Your Honor, I have not considered that, but it's always been my understanding that a prerequisite of habeas relief is that the petitioner be in custody under 2254. [00:38:34] Speaker 01: I'm not sure that's correct. [00:38:36] Speaker 01: Yeah, for a 2254 state court or a 2255 federal court habeas proceeding, I believe they have to be in custody. [00:38:42] Speaker 01: But even if not, we believe that the district court did not clearly err in ruling she could expunge under Shipp, Maurer, and Sumner. [00:38:52] Speaker 01: Two other bowman factors I'd like to address briefly. [00:38:56] Speaker 00: It just seems odd that the state rules allow for out of custody post-conviction relief, and someone can just allow the time restriction to lapse and then say, well, I don't have any [00:39:08] Speaker 00: alternative relief. [00:39:10] Speaker 00: That's the danger of your position in your argument. [00:39:13] Speaker 01: And the county attorney addressed this at her deposition, Your Honor, just Arizona's rules of post-conviction relief in the criminal setting are very limited. [00:39:20] Speaker 01: In other cases, Mr. Taylor, in other states, Mr. Taylor might well have a remedy, but he doesn't in Arizona, which is what makes the expungement issue in its Section 1983 action far more important. [00:39:32] Speaker 01: So if I may, the fourth Bauman requirement is that this be an oft-repeated error. [00:39:37] Speaker 01: I think we can all agree that's not the case. [00:39:39] Speaker 01: The fifth requirement is that this be a new and important issue of law and first impression. [00:39:43] Speaker 01: And for the reasons I just discussed, it's not. [00:39:46] Speaker 01: Because Shipp and Maurer and Sumner hold that a district court may expunge state court criminal records that relate to unconstitutional convictions. [00:39:56] Speaker 03: So just so I'm clear, expunging his conviction is off the table as far as you're concerned. [00:40:01] Speaker 01: No, that is our request. [00:40:03] Speaker 01: So that's our request, Your Honor, of course. [00:40:05] Speaker 01: And we hope that the judge does that. [00:40:06] Speaker 01: We believe ship allows it. [00:40:08] Speaker 03: So you're saying she left that open. [00:40:10] Speaker 01: Sure. [00:40:10] Speaker 01: I mean, she may not even expunge, Your Honor. [00:40:13] Speaker 01: Certain factual predicates have to be met. [00:40:15] Speaker 03: But I do take the point, asserting jurisdiction over a remedy that you have no jurisdiction over is problematic. [00:40:20] Speaker 01: I would concede that point. [00:40:22] Speaker 01: So again, it's not a new issue of law, first impression. [00:40:27] Speaker 01: It's an issue that's been decided, at least as to the expungement of records. [00:40:30] Speaker 01: Last point, this is in our response, if the court were to accept and name this jurisdiction and rule, it would be an advisory opinion. [00:40:38] Speaker 01: There are so many factual things that need to be established before the expungement issue is really right, and we're just not there. [00:40:44] Speaker 00: You'd be made- It's not advisory if the district court left room to expunge the conviction itself and the law doesn't permit that, or at least it's a novel application, arguably. [00:40:58] Speaker 01: Arguably. [00:41:00] Speaker 04: But you'd have to prevail a trial, first of all. [00:41:03] Speaker 01: Correct. [00:41:04] Speaker 01: We'd have to prevail a trial. [00:41:06] Speaker 01: There's just so many things that have to happen before these issues are ripe. [00:41:10] Speaker 03: No, because, I mean, if she lacked jurisdiction to order this remedy, all those witnesses, all that testimony should not be allowed at trial. [00:41:17] Speaker 01: Well, if the issue is, again, Your Honor, but I think we all agree that the court would have discretion and the authority to order expungement of records. [00:41:25] Speaker 01: That's what Chip and Mauer and Sumner say. [00:41:28] Speaker 01: And the legal effect of expungement is a separate issue. [00:41:31] Speaker 01: But if you look at the Cromwell case or Crowell-Cromwell, I mean, expungement has certain legal implications which have not been fleshed out at this point. [00:41:40] Speaker 01: But it would be an advisory opinion at this point for the court to take it on. [00:41:46] Speaker 01: What we ask you to do is to, as quickly as you can, deny the request for mandamus relief. [00:41:52] Speaker 01: They can appeal these issues. [00:41:53] Speaker 01: This is not a mandamus issue. [00:41:55] Speaker 01: This case is set for trial. [00:41:57] Speaker 01: We are ready to go to trial. [00:41:58] Speaker 01: We are ready to resolve this. [00:42:00] Speaker 01: Does the panel have any questions? [00:42:01] Speaker 00: I know that you're out of time, but I want to make sure to give you an opportunity to address the collateral order doctrine, because I think there's a risk here that they may prevail on appeal if we were to deny it at this point. [00:42:17] Speaker 01: So I think, Your Honor, hit the nail on the head. [00:42:19] Speaker 01: The district court left the door open to revisit this. [00:42:23] Speaker 01: As we come closer to trial and and the petitioners are free to do that We do not believe though that it qualifies as a as an appeal order under the collateral order doctrine. [00:42:35] Speaker 01: I think it is So if for all the reasons that all the questions that you asked my opponent I we just simply think it's not it's not right to [00:42:46] Speaker 03: And I'm- It does propose a significant appellate issue for you if you prevail. [00:42:51] Speaker 03: You'd rather not just have it resolved now? [00:42:54] Speaker 01: Well, Your Honor asks some very valid questions relating to what is the prejudice to the county. [00:43:01] Speaker 01: I mean, it's kind of amorphous. [00:43:03] Speaker 01: It's certainly the public has a right to know certain things. [00:43:06] Speaker 01: But it's not, there isn't anything concrete as to how they're prejudiced if the order were to be lifted and if this matter were to be unsealed. [00:43:16] Speaker 01: And the panel has seen the specifics. [00:43:18] Speaker 01: It's not. [00:43:18] Speaker 00: What about counsel's point that the declarant has been pretty emphatic about the willingness to testify if it eventually becomes public? [00:43:27] Speaker 00: Do we need to think about that? [00:43:29] Speaker 00: And if so, how do we think about that issue? [00:43:31] Speaker 01: Well, so if you get to the merits of the district court's order, it's relevant to why this matter was sealed in the first place. [00:43:39] Speaker 01: And I hope I'm answering your honor's question. [00:43:42] Speaker 00: Sort of, but that's all right. [00:43:45] Speaker 01: Well, can I help clarify? [00:43:48] Speaker 00: Well, counsel raised the point that the declarant has taken a position in this case as to whether the declarant is even willing to put himself through testimony if it were to eventually become public. [00:44:03] Speaker 00: Do we need to think about that? [00:44:06] Speaker 00: Because there is the right to, if we were to deny the relief sought now, there is the right on direct appeal. [00:44:13] Speaker 00: And the declarant may not prevail on the position that he wants to prevail on. [00:44:19] Speaker 01: And the district court has apparently factored that in as part of her ruling. [00:44:25] Speaker 01: And yes, it would be appropriate. [00:44:26] Speaker 01: Again, Your Honor has seen the seal order and the related briefings. [00:44:30] Speaker 01: And so I think the question for the court would be whether that position, [00:44:36] Speaker 01: is reasonable in light of all the matters the court knows, and we submit that without question it is, but I'm reticent to go into a lot of detail on that because it is the old- I understand. [00:44:45] Speaker 00: I have your answer. [00:44:46] Speaker 00: Thank you. [00:44:47] Speaker 01: Okay. [00:44:47] Speaker 01: Thank you. [00:44:48] Speaker 01: If there's nothing further, thank you for your time. [00:44:50] Speaker 00: Thank you. [00:44:52] Speaker 00: I promised you a little extra time, so you may have it. [00:44:56] Speaker 02: Thank you very much. [00:44:57] Speaker 02: The district court hasn't put a limit on how long this trial will be. [00:45:02] Speaker 02: If there is no expungement claim, we estimate it will be at least four weeks. [00:45:07] Speaker 02: If the expungement claim is part of this case, we estimate it'll be closer to six to eight weeks. [00:45:12] Speaker 02: And here's why. [00:45:12] Speaker 02: They are going to retry the entire 1972 prosecution. [00:45:20] Speaker 02: All of that evidence, they're claiming that Lewis Taylor was denied a fair trial. [00:45:23] Speaker 02: All of that evidence needs to be brought into evidence. [00:45:26] Speaker 02: All of those rulings will be relitigated again. [00:45:30] Speaker 02: They also will retry, will try the 2013 plea agreement and whether or not that was proper. [00:45:38] Speaker 02: And now based on the district court summary judgment ruling, they're going to try conduct that occurred in 2022 regarding the new Pima County attorney, the new Pima County Board of Supervisors and its council. [00:45:51] Speaker 02: And that is not small potatoes. [00:45:54] Speaker 02: They are actually alleging that Pima County and its council engaged in public corruption and obstruction of justice. [00:46:00] Speaker 02: This is how far their allegations are going. [00:46:03] Speaker 02: This is a very serious matter for petitioners. [00:46:09] Speaker 02: Mr. Leader claimed that Ms. [00:46:13] Speaker 02: Conover stated that counsel threatened her during a phone call, urged the court to look at Ms. [00:46:19] Speaker 02: Conover's sworn testimony. [00:46:21] Speaker 02: She rejected [00:46:23] Speaker 02: that claim. [00:46:24] Speaker 02: She testified she was not threatened by me or anybody else. [00:46:28] Speaker 02: She testified under oath that Pima County did not influence her decision. [00:46:33] Speaker 02: But this is a matter of trial that we're going to have to litigate, and my testimony is part of that trial, unfortunately. [00:46:41] Speaker 02: And it's just not a matter of whether or not my client is losing its ability to choose its counsel based on [00:46:49] Speaker 02: the ER rule saying that a lawyer cannot be an advocate and as a witness. [00:46:55] Speaker 02: That's a self-imposed regulation. [00:46:58] Speaker 02: I can seek relief to see if I can still participate, but that's not in my control. [00:47:03] Speaker 02: That's in the district court's control. [00:47:05] Speaker 02: But separate apart from that, there are ethical issues that Pima County and myself need to consider. [00:47:12] Speaker 02: That is not a ruling for the district court. [00:47:14] Speaker 02: Those are decisions that we have to make and that we are having to make right now [00:47:19] Speaker 02: because this expungement theory is on the table. [00:47:22] Speaker 03: Can I ask, is it possible for you to get an ethical opinion before the trial saying that you're allowed to participate if called? [00:47:30] Speaker 03: From the bar or whoever you believe is imposing these ethical obligations? [00:47:38] Speaker 02: Possibly. [00:47:39] Speaker 02: Possibly. [00:47:39] Speaker 02: The time constraint, if the trial was moved, possibly. [00:47:42] Speaker 02: If the district court required that, we would certainly [00:47:46] Speaker 02: seems like a good option to do that on whether or not a direct appeal is realistic we really only talked about one factor but there are other issues here [00:48:00] Speaker 03: Can I ask counsel, do you agree with your colleague on the other side that the district court was limiting her ruling to expungement of the record only and not the conviction? [00:48:08] Speaker 02: No, absolutely not. [00:48:09] Speaker 02: She specifically said that she has the authority to expunge the convictions. [00:48:13] Speaker 03: That's how I understand it too. [00:48:14] Speaker 02: And that's what they are asking for. [00:48:16] Speaker 02: That's what she said she can and will do. [00:48:19] Speaker 02: As far as the prejudice that this goes forward, in addition to me having to be a witness, [00:48:24] Speaker 02: If we wait until a direct appeal before this court vacates this expungement, that direct appeal is going to take years. [00:48:32] Speaker 02: This case, because it involves a 1970 to 1972 prosecution. [00:48:37] Speaker 04: We have managed to catch up on our backlog, so it's not going to take years. [00:48:41] Speaker 02: Fair point. [00:48:43] Speaker 02: Months. [00:48:47] Speaker 02: The witnesses that are still alive are very old. [00:48:52] Speaker 02: Our expert witness passed away last year. [00:48:55] Speaker 02: He was the state's initial expert witness. [00:48:58] Speaker 02: We have had to take at least two trial depositions because of the health and age of other witnesses. [00:49:06] Speaker 02: to a direct appeal, and then the expungement claim is dismissed, and we have to retry this. [00:49:10] Speaker 02: I don't know what evidence is going to be left. [00:49:12] Speaker 02: And that is going to prejudice the petitioners in this case to have to retry that based on whatever evidence is left. [00:49:19] Speaker 00: I don't know if you have to retrial it. [00:49:20] Speaker 00: In the terms of the plea agreement, it says that the original conviction is going to be reinstated. [00:49:27] Speaker 00: And that brings it. [00:49:28] Speaker 00: I mean, there may be some litigation surrounding that, obviously, depending on what happens in this trial if it goes forward. [00:49:34] Speaker 00: But I don't know that you have to necessarily retry the whole thing. [00:49:37] Speaker 02: We agree with you, Your Honor, that if when the jury renders its verdict and if it finds the 2013 expungement claims are expunged and no longer exist, it's our position that the 1972 convictions are reinstated. [00:49:51] Speaker 02: But the problem, again, with not resolving this now is [00:49:55] Speaker 02: The jury is reading the verdicts on expungement, turns the page, and then rules on the 1972 convictions, right then and there. [00:50:03] Speaker 02: And it could rule, his 1972 trial was unconstitutional, and here's the incarcerated-based damages that you're entitled to. [00:50:13] Speaker 02: So then we have a situation where we have to appeal the expungement claim. [00:50:17] Speaker 02: And then if the court does what we're asking it to do and says that wasn't a claim, then what happens? [00:50:21] Speaker 02: Mr. Taylor's holding a bag of money. [00:50:24] Speaker 02: Those 1972 convictions are still in place and he should be incarcerated. [00:50:28] Speaker 02: It's a very confusing scenario. [00:50:33] Speaker 02: There will be clarity if the court takes it now and decides that expungement is off the table because then we know that there is the heck bar and we know what we are looking at. [00:50:45] Speaker 00: I understand. [00:50:46] Speaker 00: Any additional questions? [00:50:48] Speaker 00: All right, thank you very much from both sides for your very helpful arguments this morning. [00:50:53] Speaker 00: We'll be in recess until 1.30. [00:50:55] Speaker 00: The matter submitted.