Lawsuit Alleges Cochise County Hiding Phone Record That Could Show If Court Staff Lied

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A lawsuit has been filed against various Cochise County officials for not releasing a record which would show whether a judicial assistant made a phone call to an attorney as directed by a superior court judge, or if the judge was misled by court staff.

Last week’s lawsuit is the second in less than two months which alleges Cochise County is noncompliant with Arizona’s public records law.  The first was filed May 25 by a member of the Church of Jesus Christ of Latter-day Saints who contends County Attorney Brian McIntyre is violating state law by not disclosing records of his communications with an attorney suing the Church and several members.

McIntyre is also a defendant in a July 13 lawsuit filed by Tucson-based attorney Salam Tekbali who asserts Cochise County’s presiding judge has already said he has no problem with the judicial assistant’s phone records being made public. But who has the records has become a game of “hiding the ball,” according to Tekbali.

The phone records issue dates back to April 2021 when attorney Gregg Leslie of ASU’s First Amendment Clinic filed a motion on behalf of this reporter and courts blogger David Morgan in an effort to gain access to the names of the prospective and empaneled jurors in a financial crimes trial.

Judge Laura Cardinal scheduled a hearing on the motion for the morning of April 6, 2021 just before jury selection. But when the judge called the case, Leslie was not in attendance nor appearing by phone.

Court records show Cardinal instructed the bailiff to tell her judicial assistant to contact Leslie by phone. A short time later the bailiff reappeared in the courtroom and simply announced “no answer.”  Cardinal went ahead and issued her rulings on the motion without the attorney’s input and the trial began.

Leslie, who was previously an attorney for the Reporters Committee for Freedom of the Press, later insisted he received no such call from the courthouse on either his cell or his office phone.  He even sent a letter to Cardinal stating such after the trial.

Arizona is a leader in the country for its law mandating that all officers and public bodies maintain all records “reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state.”

In May 2021, Morgan made an official request to the Cochise County for a copy of the phone records for all phone lines assigned to Cardinal’s courtroom from 8 to 9 a.m. on April 6. The request was formally denied by Deputy County Attorney Paul Correa in January 2022 when the county responded it was “not the custodian” of the requested record.

The lawsuit Tekbali recently filed outlines all the efforts undertaken since then to obtain the information Morgan requested. One effort was a certified letter the attorney sent in February to a dozen county officials and employees, none of whom responded.

Then in March, nearly one year after the hearing in question, Tekbali sent a certified letter to Presiding Judge Timothy Dickerson. On March 17, Dickerson responded by telling Tekbali that the court does not maintain phone records nor receive a phone bill but that Dickerson had no objection to the request.

John Schow, the court’s administrator, followed up Dickerson’s comments with a March 21 email advising that telephone service records “are handled by the county.” He also provided Tekbali with contact information for Joe Casey, Cochise County’s Chief Information Officer.

Then less than an hour later, Correa sent his own email to Tekbali, instructing him to have no contact with Casey. In addition, Correa noted a search was made to determine “whether any records responsive to your request exist. None do. The request is closed.”

Morgan contends he previously discussed the matter with Casey and was under the understanding the information could easily be made available. But as a county employee and not an elected official, Casey needed clearance to do so, according to Morgan.

The wording of Correa’s March 21 email does not address whether the phone records are available in “data form.” Such verbiage is key, because Arizona’s Public Records Law was strengthened in 2017 when the Pima County Sheriff’s Office was ordered to fulfill a simple records request in which the information was pulled from a public database.

Arizona case law also places the burden on the public body to articulate “sufficiently weighty reasons to tip the balance away from the presumption of disclosure and toward nondisclosure.”

Even if Cochise County can demonstrate the phone logs for a one-hour period are not a county public record, Tekbali argues the information should be considered a judicial record under Arizona Supreme Court Rule 123 which is the  state courts’ version of a public records law.

The lawsuit argues there is even a third option for public disclosure of the judicial assistant’s phone records – as part of the official record of the underlying criminal case.

“The telephone was the method by which the court chose to provide notice during the April 6th hearing. Had the court issued a notice of hearing through a paper document or electronic means, those documents would be part of the Adjudicatory Case Records, and subject to disclosure under Rule 123,” Tekbali wrote.

The lawsuit names McIntyre as a defendant, along with Cardinal, Dickerson, Correa, Schow, Casey, and Amy Hunley, the Clerk of the Cochise County Superior Court. A formal answer from the various defendants is not due to the court until late August.

The State of Arizona is named as a Real Party in Interest.