A Tucson man convicted of transporting $72,000 worth of marijuana bundles in 2017 in southern Cochise County was granted a new trial Monday when the Arizona Supreme Court ruled the trial judge did not ensure the man understood the downside to sharing an attorney with his girlfriend.
David Joseph Duffy is serving a six-year prison term for two felony marijuana charges and a drug paraphernalia charge. He and the girlfriend, Dora Matias, were represented by the same defense attorney, Ivan Abrams, during a joint trial in 2018.
On Monday, the supreme court unanimously overturned Duffy’s convictions and sentence after determining Judge James Conlogue “did not look behind counsel’s assurance that Duffy was advised of the dangers of joint representation, nor did it take independent steps to satisfy itself that Duffy chose to waive his rights despite those dangers.”
Duffy’s new trial must be held within 90 days, according to court rules.
Cochise County Attorney Brian McIntyre says he is prepared to proceed with a new trial for Duffy, although he would have preferred the joint -or dual- representation issue to have been addressed at the outset of the cases. He also pointed out the Supreme Court and the Court of Appeals decisions demonstrated his prosecutor properly raised the conflict issue “in furtherance of our greater duty to do justice and protect the rights of the accused.”
That prosecutor, Roger Contreras, is now in private practice. He told Arizona Daily Independent he expects the new trial will result in conviction, although McIntyre’s office could opt for a plea deal given that Duffy would have been eligible for release to community supervision after serving 85 percent of his prison term.
Contreras is also grateful that the Supreme Court provided clear guidance for defense attorneys, prosecutors, and judges for handling potential joint representation conflicts in the future.
“This case was a learning experience for everyone involved: the defense attorneys, the prosecutor, the trial judge, the appellate attorneys, and the appellate courts,” he said. “It brought to light a loophole in the Arizona Rules of Criminal Procedure and the Arizona Rules of Professional Conduct; one which cost the State significant time and resources to address.”
The U.S. Supreme Court has established that a defendant has the right to counsel of choice and may waive “any conflict or potential conflict.” But the central issue in a joint representation situation is whether the defendants understand the consequences of signing a conflict waiver.
It was Contreras who initially advised Conlogue of concerns with having Duffy and Matias represented by the same defense attorney. The couple had been arrested in January 2017 after a SUV driven by Duffy was observed speeding and abruptly changing lanes about 10 miles north of the U.S. / Mexico border.
During a traffic stop, an officer saw burlap-wrapped bundles in the back seat. Testing later found the bundles contained more than 240 pounds of marijuana. As prosecutor, Contreras knew Matias told officers in a post-Miranda interview that she arranged to transport several bundles of marijuana using Duffy’s vehicle. She also said she expected payment of $1,000 per bale.
Both were convicted at trial after Matias said her confession was a lie. Duffy later argued on appeal that Conlogue should have rejected the joint representation arrangement or done more to ensure Duffy understood the consequences.
The Arizona Court of Appeals agreed, ruling in November 2019 that Duffy was entitled to a new trial, but the order was put on hold when the Arizona Attorney General’s Office asked the Arizona Supreme Court to review the case. The review ended with Monday’s opinion written by Justice Clint Bolick.
“Representation of multiple criminal defendants by the same attorney sometimes may be strategically warranted, but it raises conflict risks,” Bolick wrote. “Based on this record, we cannot conclude that Duffy knowingly and intelligently waived the right to conflict-free counsel.”
Matias also challenged her conviction based on the dual representation issue. She argued that Abrams “couldn’t say ‘let me make a deal for you’ or even point out what was best for Ms. Matias, because it would be to the disadvantage of Mr. Duffy.”
In a post-conviction hearing, Abrams testified Duffy and Matias “were emphatic in how it happened” and therefore “the strongest defense was a joint defense.” He also noted it would not have been possible “turn one against the other.”
Conlogue, who had presided over the cases from the beginning, concurred. “I can’t envision Ms. Matias testifying versus Mr. Duffy,” the judge said at the end of the hearing. Public records show Matias faces deportation upon completion of her seven-year sentence.