A former University of Arizona employee serving a six-year prison sentence on drug charges won’t be getting the new trial the Arizona Court of Appeals granted him last month, at least not any time soon.
David Joseph Duffy was convicted by a jury in January 2018 of transporting $72,000 worth of marijuana bundles near Sierra Vista. The former director of facilities planning for the university appealed the conviction, arguing Cochise County’s presiding judge erred by allowing Duffy and his girlfriend to stand trial together with the same attorney.
The court of appeals decided Duffy deserves a new trial because Judge James Conlogue failed to protect the defendant’s Sixth Amendment right at trial. A mandate was set to be issued Dec. 1 ordering a new trial within 90 days, but on Nov. 26 the case was put on hold when the Arizona Attorney General’s Office asked the Arizona Supreme Court to set aside the appeal’s court decision.
In the Nov. 1 appellate opinion, Judge Peter Eckerstrom notes Conlogue did not adequately inquire into repeated warnings by then-prosecutor Roger Contreras that Duffy and his girlfriend Dora Celena Matias had “competing interests” which might be better served by separate attorneys at trial.
Contreras knew Matias had told officers in a post-Miranda interview that she was the one who arranged to transport several bundles of marijuana using Duffy’s vehicle. She was to receive $1,000 per bale, Matias admitted, but suggested Duffy was not part of the conspiracy.
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The opinion also noted Contreras’ warning as early as March 2017 required Conlogue to take a close look into whether Duffy understood the disadvantages of sharing an attorney with Matias. “In this case, the prosecutor’s cautionary comment at arraignment was sufficient to trigger the trial court’s duty to inquire,” Eckerstrom wrote.
Conlogue had authority to deny joint representation for Duffy and Matias for either an actual conflict or potential for conflict. The judge held a hearing about the issue, but the appeals court determined he failed to guard Duffy’s rights and never addressed the defendants about the issue even though Contreras restated his concerns of competing defense interests.
Instead, the judge accepted a statement by the couple’s attorney that Duffy and Matias wanted shared representation. “The avowals of Duffy’s defense counsel that both his clients had signed a waiver were not sufficient,” the opinion noted.
The court of appeals found Duffy’s defense counsel “had an actual conflict of interest” because the attorney was ethically prohibited from pointing the finger at Matias to minimize Duffy’s culpability. The jury rejected the co-defense strategy that the couple was tricked or forced to transport the marijuana and convicted the defendants on all charges.
The opinion also noted the existence of “some plausible alternative defense strategy or tactic” which a non-conflicted defense attorney could have been pursued on Duffy’s behalf. This included using Matias’s police statements to show Duffy wasn’t aware of the conspiracy and negotiating a plea deal to have Duffy testify against Matias.
Eckerstrom noted in the opinion that under current court rules Conlogue would have borne “no affirmative duty to inquire” into the Duffy-Matias dual representation issue had no one raised a concern prior to trial.
The supreme court will decide early next year whether to review the attorney general’s position that the appellate court erred in their Nov. 1 opinion. In the meantime, Duffy remains in state prison with a January 2023 release date.