A Sierra Vista man who twice stood trial and was twice convicted of sexual conduct with a young girl in a 2016 incident is asking for a third trial because of undisputed discrepancies with the transcripts that detailed the testimony of witnesses and the judge’s rulings during his second trial.
Nathan D. Rojas wants his 2020 conviction and life sentence vacated, or set aside, and a new trial held. Oral arguments on his defense motion will be held by Judge Tim Dickerson of the Cochise County Superior Court in Bisbee on Jan. 5.
Rojas, 36, was originally convicted by a jury in 2018 of one count of sexual misconduct with the girl, a family friend. However, the trial judge ordered a new trial because jurors knew video showing them in the courtroom had been shown on social media in violation of court rules.
The order for a new trial was upheld by the Arizona Court of Appeals in 2019. The second trial was conducted by a different judge in July 2020 during severe public health restrictions imposed by the Arizona Supreme Court due to COVID-19.
Rojas, who has maintained his innocence, was found guilty by a new jury. He was sentenced by Judge James Conlogue on July 30, 2020, to life in prison without the possibility of clemency for 35 years.
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A notice of appeal was filed the same day to preserve Rojas’s rights. That notice, however, was only a formality as the Clerk of the Court then had to compile all the transcripts from various court reporters who covered the eight-day trial.
The last transcript was received by the Arizona Court of Appeals in February 2021, which started the clock for Rojas’s court-appointed appellate attorney to file an opening brief detailing any grounds for appeal. The appellate attorney then requested and received several filing extensions before withdrawing from the case in November 2021 without filing the opening brief.
Marc Victor and Andrew Marcantel of Attorneys for Freedom Law firm took over as Rojas’s appellate counsel and immediately asked the Court of Appeals to put the case on hold due to issues with the transcripts containing several inaccuracies.
The stay was granted and the case sent back to Cochise County Superior Court in December 2021 so Dickerson, who took over the case when Conlogue retired, could address the matter. The Cochise County Attorney’s Office also obtained the unofficial audio recordings of the trial and had those transcribed as another reference in an effort to clarify the transcripts.
Then in October 2022, Marcantel filed a motion asking Dickerson to throw out the 2020 conviction due to the transcript problems.
“The proceedings were garbled and distorted due to Covid procedures, and no court reporter can provide an accurate and complete record,” Marcantel wrote in the motion, adding that one court reporter even included a disclaimer on his transcripts that “accuracy is subject to COVID-19 limitations on court reporter’s ability to hear and understand court proceedings.”
Marcantel’s motion to Dickerson argues too may discrepancies exist among the various transcripts to provide an accurate record of the 2020 trial. A sufficiently complete and reliable record is necessary, he argues, to ensure Rojas’s federal and state constitutional rights are protected. A new trial is the only resolution, Marcantel argues.
But Michael Powell, the prosecutor who led the State’s case against Rojas at both trials, says a new trial is not necessary. He points instead to Arizona court rules which permit a judge to work with the parties to compile and conform an official record.
This can be done, Powell noted in a recent filing, by Dickerson utilizing “multiple sources” to resolve any disputes. This could include the transcripts prepared by various court reporters who attended the trial, as well as the unofficial recordings and the transcripts of those.
“Where questions may arise, it can also refer to the transcripts from the first trial in 2018 which are available and were exhibits in the second trial,” Powell added.
After that, if there is still any discrepancies then court rules provide Dickerson another option – he can request a narrative statement from the trial participants themselves based on their own recollections.
This would include Powell and another prosecutor as well as the two defense attorneys appointed by the court to represent Rojas. Even the now-retired Conlogue could be asked to weigh in.
“In short, there is no question that the record can be determined,” from which Rojas can pursue his appeal, Powell argues.
There is also Arizona case law dating back 50 years to support that reversal of a conviction is not always warranted even in cases where no transcript is available at all.
“If transcripts can be lost without the ability to be reproduced and still the record is deemed sufficient, then here -where two certified transcripts exist along with a full audio and potential recollections by all the trial participants- any discrepancies should be deemed de minimis,” Powell argued.
Rojas is serving his sentence at the Arizona State Prison Complex – Eyman in Florence. Court records do not indicate whether Marcantel intends to have Rojas brought to Bisbee for the upcoming hearing.
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