At the Courthouse: Phillips attorney wants judge, clerk gone

2011-07-05T12:12:00Z 2011-07-05T14:30:24Z At the Courthouse: Phillips attorney wants judge, clerk goneBy Kim Smith Arizona Daily Star
July 05, 2011 12:12 pm  • 

Pima County Superior Court Judge Richard Fields and Clerk of the Court Patti Noland have joined Peter Herberg's list.

Herberg represents Pamela Phillips, who is scheduled to go to trial in January on charges alleging she hired a hitman to kill her former husband, Gary Triano, in November 1996.

A couple of months ago, Herberg asked Judge Fields to throw prosecutor Shawn Jensvold and the rest of the Pima County Attorney's Office off the case because Jensvold started a consulting business and created a web page for it while working for the PCAO.

Jensvold resigned from the PCAO and went into private practice and Judge Fields scheduled a hearing for July 18 to discuss throwing the rest of the PCAO off the case.

Judge Fields got on Herberg's bad side when he quashed three subpoenas Herberg had issued for that hearing. The subpoenas ordered Jensvold and two other attorneys to bring materials with them pertaining to the consulting business and Jensvold's employment with the PCAO. 

Herberg complains in court documents that Judge Fields quashed the subpoenas by signing a proposed order submitted by prosecutor Bill McCollum, an order Herberg didn't see until after it was signed.

The defense attorney objects to the language in the order and the fact he didn't get a chance to provide any input on it.

This morning, Judge Fields was scheduled to give Herberg an opportunity to complain in person about the quashing of the subpoenas, but the hearing was postponed.

It was postponed because McCollum said if Herberg allowed Judge Fields to hear the issue, he would be waiving any right to later file a motion asking for Judge Fields to be thrown off the case.

The defense attorney told Judge Fields he does, indeed, plan to ask for a new judge.

Judge Fields told Herberg that before he did that, he might want to consider the fact that the higher ups in the public defender's office, legal defender's office, office of court appointed counsel and PCAO all met awhile back and agreed to enact a rule that says subpoenas CAN NOT be issued by attorneys who are seeking discovery (evidence/information) — unless they've received prior approval of the judge on the case.

Judge Fields pointed out he quashed some other subpoenas the same day he quashed Herberg's for just that reason.

Herberg told Judge Fields to expect his recusal motion soon. 

In a previous court filing, Herberg said he wanted Judge Fields to voluntarily take himself off the case. He said the Judge has already made up his mind about taking the PCAO off the case and lists various decisions the judge has recently made as evidence of it.

The quashed warrant, Judge Fields' denial of a motion that would've prevented Jensvold from destroying evidence pertaining to his website and an uncalendared hearing announcing Jensvold's resignation are all evidence of the judge's bias, Herberg complains.

Herberg is convinced Phillips will be denied a fair trial because of the media attention the case has gotten and Jensvold's actions.

According to court documents, Herberg wants to know if Jensvold was investigated by the PCAO, if Jensvold took a polygraph and if Jensvold's company was approved by the PCAO.

He is also demanding to know:

* If Triano's family helped Jensvold and McCollum get the 2010 Prosecutor of the Year Award.

* If Triano's family helped retired Det. Jim Gamber get a job at Raytheon.

* Who contributed to Barbara LaWall's past election campaigns.

* Any information that may show a conflict-of-interest between Clerk of the Court Patti Noland, who once worked for Triano, and Phillips.

In a recent filing, Herberg wrote, "Since it is now clear that undersigned counsel has no valid reason to trust the activities of the prosecutor's office and that half of the prosecution team has been operating as a biased, not neutral, for-profit, not public and interested, not disinterested prosecutor, the suspicions and doubts of defense counsel are valid and reasonable."

In another filing, Herberg alleges "The 'story' regarding Mr. Jensvold's departure is in a constant state of change, flux and obscurity."

Replacing Jensvold with another attorney "is the professional equivalent of rearranging the deck chairs on the Titanic," Herberg wrote in one of his motions.

Herberg also wants Noland removed from the case because she once worked for Triano and is "responsible for the summoning of the prospective jurors" who will decide Phillips' fate.

Herberg had a deadline of June 30 to tell Judge Fields what motions he anticipates filing before the trial. The defense attorney listed more than two dozen motions, but warned he would not allow the state to limit him to just those he enumerated.

On the list — "Unknown motions based on continuing defense investigation regarding conflicts of interest regarding the PCAO, Pima County Sheriff's Department, plaintiffs' attorneys, official victims, possible corrupt local government officials and criminal elements (organized or individual.)

He also listed motions pertaining to barring cameras, changing venue and "competency concerns."

 

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News and events of Pima County's courthouses.