New Trial Ordered After Attorney Forced To Represent Client At Trial Despite Animosities

John Lucian Shearer II [Photo courtesy Arizona Dept. of Corrections]

In a split decision, the Arizona Court of Appeals on Monday ordered a new trial for a Sierra Vista man convicted last year of 11 felonies, including sexual conduct with a minor, using a minor to engage in illegal drug use, molestation, and possession of a dangerous drug.

John Lucian Shearer II is currently serving a 37 prison sentence handed down by Judge Laura Cardinal of the Cochise County Superior Court in May 2019. However, he could be back in court in January to learn when he will be retried unless the Arizona Attorney’s Office petitions for review from the Arizona Supreme Court in the next 30 days.

Shearer appealed his convictions and sentence on the argument that he was denied a fair trial when Judge Laura Cardinal forced him to be represented by a court-appointed attorney who admitted the attorney-client privilege was irreconcilably damaged. Under Arizona law, such judicial decisions will not be disturbed on appeal unless the trial court committed a “structural error” that deprived a defendant of a fundamentally fair trial.

“We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against Shearer,” Presiding Judge Christopher Staring wrote in the 2-1 decision. “Here, the trial court committed structural error in denying John Shearer’s motion for new counsel based on an irreconcilable conflict between himself and his attorney,” requiring a reversal of all the convictions.

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The charges against Shearer stem from a runaway juvenile report in March 2017 involving a 13-year-old girl who left her foster home in Cochise County and later came into contact in Tucson with Shearer. The two traveled back to Sierra Vista where, according to the girl, they used methamphetamine and had sex.

Sierra Vista and Tucson officers eventually tracked the girl via her cell phone. She described Shearer’s vehicle, home, and bedroom. Evidence in the case included items seized from Shearer’s bedroom as well as DNA obtained during a medical examination.

In early 2019, defense attorney David Gregan and Shearer told Cardinal there was “an irreconcilable conflict” and a “breakdown of communication” between attorney and client. Gregan, an attorney for more than 25 years, even told the judge he “can’t in good faith say I can effectively assist Mr. Shearer in any capacity.”

However, Cardinal ruled Gregan had to remain as defense counsel and the trial moved forward as planned, even though Shearer had filed a bar complaint against the attorney.

“I’m absolutely objecting,” Shearer told the judge at the time. “I’m not going to let this man, [who] I do not trust, hold my future in his hand. I will make a scene in that courtroom. You will not railroad me and stick this tyrant on my defense. There’s no way.”

After Shearer was convicted, his appellate attorney Emily Danies argued her client “not very sympathetic” but he was still entitled to due process. “And he didn’t get it,” she told the court of appeals.

The 2-1 appellate decision states “when such a ‘completely fractured’ relationship exists, failure to provide new counsel constitutes structural error and, as noted, reversal is required.”

In dissent, Judge Sean Brearcliffe noted the court record showed “any conflict between Shearer and his counsel had been sufficiently (if not completely) reconciled before trial. Shearer was not deprived of his Sixth Amendment or state constitutional right to counsel.”