A Tucson man who says he was denied a fair trial in Cochise County because his attorney also represented his co-defendant had his case argued before the Arizona Court of Appeals on Wednesday.
David Joseph Duffy and girlfriend Dora Celena Matias were convicted in a joint jury trial last year on several felonies related to conspiracy to transport 242 pounds of marijuana. The drugs, street valued at nearly $72,000, were found in Duffy’s SUV during a January 2017 traffic stop south of Sierra Vista.
Duffy, 63, is serving a six-year prison term. Now, the former director of facilities planning for the University of Arizona claims he deserves a new trial because his Sixth Amendment rights were violated when a judge allowed his attorney Ivan Abrams to also defend Matias in the same trial.
Abrams was assisted in the cases by Nicholas Brereton, an attorney who worked for the same law firm.
At trial, Duffy testified Matias asked him to drive her to Cochise County on Jan. 16, 2017 to help find a friend’s father who illegally crossed the border. He knew that was illegal, Duffy told the jury, but insisted he had no idea several men would place 10 burlapped bundles into the SUV when they picked up the border crosser.
Another man stood nearby with a rifle, Duffy testified. This caused him to panic as he drove away, garnering the attention of a U.S. Border Patrol agent and a DPS trooper.
Matias’ initial trial testimony was similar to Duffy’s version of the events, but her story fell apart under cross-examination by Roger Contreras, the county’s top drug prosecutor at the time.
Contreras impeached Matias’ credibility with cellphone and social media records showing she exchanged messages with someone about picking up the drugs. And the jury heard of Matias’ incriminating post-Miranda statements in which she admitted expecting to be paid $1,000 for each bundle she delivered.
Court records show Matias never told authorities that Duffy was part of the conspiracy nor did Contreras present evidence that Duffy was aware of the drugs in advance. However, the jury didn’t hear what Duffy’s appellate attorney Daniel DeRienzo calls “his only plausible defense”– that Matias tricked Duffy.
According to DeRienzo, Abrams could have easily presented evidence exonerating Duffy, although it would have pointed to Matias as the guilty party. But Abrams’ “double duty” as counsel for both defendants legally and ethically prohibited him from doing so.
“The defense attorney never once suggested that (Matias) lied or in any way deceived (Duffy),” DeRienzo noted in the brief. “He could not, as he had a loyalty to both.”
On Wednesday, DeRienzo argued that Presiding Judge James Conlogue of the Cochise County Superior Court erred in allowing the dual representation because it resulted in an unfair trial in violation of Duffy’s constitutional rights. He also noted that the appeal isn’t the first time Abrams’ double duty was questioned.
In a March 2017 hearing, the prosecutor expressed “his real concern” about Abrams’ arrangement. Contreras again addressed the issue at an April hearing when he cautioned Conlogue that the co-defendants likely had competing interests.
“I think that I have an obligation to protect the rights of the defendants,” Contreras told the judge. “I believe there is at least a potential for adverse defenses in this matter, especially if it were to go to trial.”
Conlogue deferred to Abrams, who stated Duffy and Matias had “a common defense, common defense strategy, and essentially we have a common defense agreement.” The judge was also told both clients signed conflict waivers, although he never ascertained whether the defendants understood the consequences.
Most of Wednesday’s proceeding at the court of appeals dealt with what responsibility, if any, Conlogue had to protect Duffy’s right to a fair and conflict-free trial, and what recourse Duffy has now.
Joshua Smith of the Arizona Attorney General’s Office argued that Duffy’s complaint about the dual representation is actually a claim of ineffective assistance of counsel. As such, Arizona case law requires the matter to be taken up directly with the trial judge, not the court of appeals.
Smith also noted that Conlogue took steps in 2017 to address Contreras’ concerns, although there is no court rule about how a trial judge must proceed in such situations. And he pointed out Duffy never informed the court of any uneasiness with the arrangement throughout the year-long case.
“The trial judge complied with what was required,” Smith argued.
The three-judge appellate panel can affirm Duffy’s conviction in which case he’s set to be released from prison in January 2023. They can also overturn the conviction in favor of a new trial or remand the matter back to Conlogue for additional action.
A decision is expected later this summer.