SUPREME COURT OF ARIZONA
En Banc
In the Matter of ) Arizona Supreme Court
) No. SB-02-0103-D
THOMAS J. ZAWADA, )
Attorney No. 5815 ) Disciplinary Commission
) No. 98-2465
Respondent. )
__________________________________) O P I N I O N
DISCIPLINARY ACTION
Respondent Suspended
State Bar of Arizona Phoenix
by John A. Furlong, Staff Bar Counsel
Thomas J. Zawada, Respondent Tucson
In Propria Persona
J O N E S, Chief Justice
¶1 We granted sua sponte review of this disciplinary
matter in order to determine whether the Disciplinary
Commission’s recommended sanctions of prosecuting attorney Thomas
J. Zawada were adequate in light of the objectives of lawyer
discipline. We hold they were not.
I. Facts and Procedural History
¶2 At all times relevant, Zawada was a prosecutor in the
Pima County Attorney’s Office. He prosecuted Alex Hughes in 1994
for various violent crimes, including first degree murder, all
stemming from a shooting incident that resulted in the death of
one person. Hughes’ defenses consisted solely of insanity and
self-defense. Throughout Hughes’ trial, Zawada was fully aware
that each of the six mental health experts who examined Hughes in
relation to the crimes in question, including those retained by
the state, found him to be mentally ill.
¶3 Notwithstanding the insanity plea, a jury found him
guilty of first degree murder, attempted second degree murder,
aggravated assault, disorderly conduct, and felony flight. On
appeal, this court reversed Hughes’ convictions, finding that
“the cumulative effect of [Zawada’s] misconduct deprived [Hughes]
of a fair trial.” State v. Hughes, 193 Ariz. 72, 74, ¶ 1, 969
P.2d 1184, 1186 (1998). On remand, the trial court dismissed all
charges, holding that Article 2, Section 10, of the Arizona
Constitution, the double jeopardy clause, forbade retrial. This
court affirmed that holding after observing that double jeopardy
bars retrial when there is “intentional prosecutorial misconduct
aimed at preventing an acquittal.” State v. Jorgenson, 198 Ariz.
390, 391, ¶¶ 3-4, 10 P.3d 1177, 1178 (2000) (citing Pool v.
Superior Court, 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984)).
¶4 Subsequent to this court’s ruling in Hughes, a Bar
complaint was filed against Zawada alleging prosecutorial
misconduct in the handling of the case. The matter went to
hearing, following which the hearing officer determined Zawada’s
2
acts of prosecutorial misconduct included (a) appeals to fear by
the jury if Hughes was not convicted, (b) disrespect for and
prejudice against mental health experts that led to harassment
and insults during cross-examination, and (c) improper argument
to the jury.
¶5 For example, during cross-examination of one of Hughes’
mental health experts, Zawada implied that the expert fabricated
his diagnosis to coincide with the defendant’s theory of the
case:
I mean, you pick up Mr. Hughes as a . . . client for
the court, initially, and you are not able to make any
decision, and then what happens is after you are hired
by the defense, you are able to come to a conclusion?
More improperly, in rebuttal argument, Zawada asserted that
defense counsel paid his expert to fabricate a diagnosis:
He knows the result he is looking for. Subject comes
in with schizophrenic-potential schizophrenic
diagnosis. He knows right there what he is looking
for, and $950 later, yes, that’s what he’s got . . . .
Also in rebuttal, Zawada improperly argued that mental health
experts in general create excuses for criminals:
How about the Judge back there in New York, was it,
that was infatuated with the secretary or somebody else
and he followed her around and sent her notes and sent
her letters and all kinds of things and wouldn’t leave
her alone. I don’t know if he stalked her or not, and
ultimately they looked into the case a little bit. You
know what they did, they created a syndrome for him to
try to justify his action.
(Emphasis added.)
3
¶6 The hearing officer concluded that Zawada’s conduct,
wholly unsupported by evidence of any kind, violated Ethical Rule
(“ER”) 1.1 (competence),1 ER 3.1 (assertions made without good
faith basis in law or fact), ER 3.4(e) (trial tactics unsupported
by admissible evidence), and ER 8.4(d) (conduct prejudicial to
the administration of justice). As a result, the hearing officer
recommended (a) that Zawada be censured and placed on probation
for six months, (b) that he be required to attend fifteen hours
of continuing education that addresses the effective use of and
response to psychiatric and psychological testimony, (c) that he
be prohibited from handling any case involving a significant
mental health component until he completes the continuing
education requirement, and (d) that he be assessed the costs and
expenses of the disciplinary proceedings.
¶7 The Disciplinary Commission modified the hearing
officer’s recommended sanction by removing the probation and
continuing education requirement and adding as a requirement a
Member Assistance Program (“MAP”) referral. Zawada sought review
of the Commission’s decision and this court denied his petition.
Nevertheless, the court, under Supreme Court Rule 59(i),
determined, sua sponte, to review the proposed discipline and, in
1
The Disciplinary Commission did not agree that Zawada’s
conduct evidenced incompetence and therefore found no ER 1.1
violation.
4
light of the record, to decide whether the sanction should
include a period of suspension.
II. Discussion
A. The Court Has Authority, Sua Sponte, to Review Zawada’s
Actions.
¶8 Zawada challenges this court’s legal authority to take
sua sponte review of the appropriate sanction in this case,
arguing that Supreme Court Rule 53(e)(7) (subsequently renumbered
Rule 59(i)) permits review only if the Commission has recommended
suspension or disbarment, and where no timely petition for review
is filed. He argues that because neither of these requirements
has been met, the Supreme Court cannot review this action.
Zawada misreads this court’s authority to review disciplinary
matters.
¶9 “[T]he Supreme Court of Arizona has the exclusive
jurisdiction to regulate the admission to the practice of law and
the discipline of those admitted.” In re Riley, 142 Ariz. 604,
607, 691 P.2d 695, 698 (1984). As a result, “the Bar
Disciplinary Board and its committees are mere arms of this court
and can have no greater jurisdiction or authority than this
court.” Id. at 608, 691 P.2d at 699. Under Zawada’s
interpretation of the rule, the court would be bound by the
Commission’s disciplinary decision, even though the Commission
derives its authority and jurisdiction from the court. Zawada
contends that when the Commission recommends a sanction less than
5
suspension, the court has no jurisdiction to review that
particular sanction. The result is illogical and inconsistent
with case law as well as the Supreme Court Rules. See id.; see
also Ariz. R. Sup. Ct. 32(a)(2) (This court may “discipline a
member when it is satisfied that such member is not mentally or
morally qualified to practice law even though none of the
specific grounds for discipline set forth in these rules exist.”)
(emphasis added) (formerly Rule 31(a)(2)); Ariz. R. Sup. Ct.
33(b) (stating that the supreme court has power to impose,
without limitation and on its own motion, the suspension of an
attorney).
¶10 Rule 59 does not place the limitation on the court that
Zawada urges. The Rule provides:
If no timely petition for review of a commission
recommendation of suspension or disbarment is filed,
the disciplinary clerk shall prepare and file a
certificate attesting to those facts, and transmit to
the court copies of the commission report and related
order, the certificate, and a form of judgment for
signature and entry by the clerk of the court. Within
sixty (60) days, the court, in its discretion, may
decline review, or it may grant review sua sponte. If
the court grants review, the record shall be
transmitted to the clerk.
Ariz. R. Sup. Ct. 59(i). The rule is clear. The language merely
addresses the procedures to be followed when no petition for
review is filed. There is no suggestion that when a petition has
been filed, the court is stripped of authority to review the case
sua sponte on other issues. Were that the case, an attorney
6
subject to discipline could necessarily avoid review of certain
issues raised in a disciplinary proceeding by filing a petition
addressing other matters. The intent of the rule does not
contemplate that result.
B. Standard of Review.
¶11 “In disciplinary proceedings, this court is the
ultimate trier of fact and law, requiring clear and convincing
evidence of all facts.” In re Brady, 186 Ariz. 370, 373, 923
P.2d 836, 839 (1996). Although the hearing officer’s factual
findings and the Commission’s recommendations are not ultimately
determinative, they deserve great weight. Id.
C. The Sanctions Imposed In Light of the Purposes of
Lawyer Discipline.
¶12 Lawyer discipline serves two main purposes: (1) to
protect the public and the courts and (2) to deter the attorney
and others from engaging in the same or similar misconduct. In
re Kleindienst, 132 Ariz. 95, 102, 644 P.2d 249, 256 (1982)
(citing In re Stout, 122 Ariz. 503, 596 P.2d 562 (1974)).
Accomplishing these objectives promotes and maintains confidence
in the bar’s integrity. In re Horwitz, 180 Ariz. 20, 29, 881
P.2d 352, 362 (1994). To this end, Arizona generally follows the
American Bar Association’s Standards for Imposing Lawyer
Sanctions (1991) (“ABA Standards”) to help determine appropriate
discipline. In re Wolfram, 174 Ariz. 49, 57, 847 P.2d 94, 102
(1993). ABA Standard 3.0 states that the court should consider
7
four factors: (1) the duty violated, (2) the lawyer’s mental
state, (3) the potential for actual injury or actual injury
caused by the lawyer’s misconduct, and (4) the existence of
aggravating and mitigating factors. We also oversee the
proportionality of discipline imposed in analogous cases. In re
Bowen, 178 Ariz. 283, 286, 872 P.2d 1235, 1238 (1994). Viewed in
its entirety, the record in this disciplinary matter clearly
establishes that Zawada indeed engaged in intentional and
egregious prosecutorial misconduct, and that serious
consideration by this court of the appropriate sanction is fully
warranted.
(1) The Duty Violated
¶13 The hearing officer and the Commission found that clear
and convincing evidence established Zawada’s violations of ER 3.1
(assertions made without good faith basis in law or fact),
ER 3.4(e) (trial tactics unsupported by admissible evidence), and
ER 8.4(d) (misconduct prejudicial to the administration of
justice).2 We agree. Although the State Bar also alleged that
2
In addition to Zawada’s improper cross-examination and
argument regarding Hughes’ mental health, the hearing officer and
Commission found that Zawada also violated these three ERs when,
in closing argument, he improperly invoked personal fear in the
jury to create unfair prejudice. Zawada warned the jury of
possible future consequences of its decision:
You know, the next time you are out on a nice, pretty,
sunny afternoon, perhaps with your family, and you are
driving along the roads or maybe you are at a picnic,
your radio is on and you hear about a murder or
8
Zawada violated ER 3.4(c) (knowing disobedience of an obligation
under the rules), inexplicably the hearing officer did not find
clear and convincing evidence that Zawada violated that rule.
The hearing officer stated only that “[t]he ‘knowing’ component
of 3.4(c) was not proven.” We believe the hearing officer erred.
¶14 Ethical Rule 3.4(c) states: “[A lawyer shall not]
knowingly disobey an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid
obligation exists[.]” One such obligation is that a prosecutor
cannot “imply unethical conduct on the part of an expert witness
without having evidence to support the accusation.” Hughes, 193
Ariz. at 86, ¶ 59, 969 P.2d at 1198 (citing State v. Bailey, 132
Ariz. 472, 479, 647 P.2d 170, 177 (1982)). The record
demonstrates with utmost clarity that Zawada knowingly disobeyed
this obligation under the rule, placing him in direct violation
of ER 3.4(c). The Arizona Rules of Criminal Procedure permitted
the defendant, Hughes, to present expert psychiatric and
something like that, or an aggravated assault, you
think back to this case you are going to have to be
able to say right then and there that you were
convinced that the evidence was clear and convincing
that this man was insane. Not just paranoid
schizophrenic, not mentally ill, not possibly mentally
ill, but insane. Because you know, you go back there
in your deliberation now and you’re sitting there and
you can’t imagine that day, ladies and gentlemen, when
you hear this on the report and you can’t say, yes, I
was clearly convinced, you know, that the defendant
carried his burden.
9
psychological testimony to support the defense of insanity. In
fact, the rules prescribe a detailed and specific role for mental
health professionals to assess a criminal defendant’s mental
state. See Ariz. R. Crim. P. 11. Faced with such expert
testimony for the defendant, a prosecutor has several options:
he can rebut the testimony with controverting evidence; he can
stipulate to the accuracy of the testimony; he can attack the
defense expert through legitimate cross-examination; or he can
ignore the testimony altogether. But a prosecutor cannot attack
the expert with non-evidence, using irrelevant, insulting cross-
examination and baseless argument designed to mislead the jury
and undermine the very purpose of the rule. A prosecutor is
surely entitled to an opinion as to the persuasiveness or
validity of mental health evidence presented but must
nevertheless adhere to established rules and standards in the
presentation of evidence and argument in the courtroom.
¶15 Knowing behavior is established by invoking, among
other things, objective factors that include “the situation in
which the prosecutor found himself, the evidence of actual
knowledge and intent and any other factors which may give rise to
an appropriate inference or conclusion.” Pool, 139 Ariz. at 108
n.9, 677 P.2d at 271 n.9. Applying this standard, there can be
no doubt that Zawada, an experienced prosecutor, was aware of his
direct disobedience of a court rule.
10
¶16 Zawada’s misconduct occurred in part during cross-
examination when he accused the psychiatrist of indecision and of
reaching a conclusion of insanity only after he was hired by the
defense and paid for his services. Zawada knew there was no
evidentiary basis for the accusation, nor did he offer one. He
continued the attack in closing argument, suggesting, still
without evidence, that defense counsel paid money to the mental
health expert to fabricate a diagnosis of insanity for the
defendant. This was not a case of negligence; rather, it was an
intentional, knowing attack by Zawada on defense counsel, on the
experts, and on the mental health profession. Zawada’s actions
unquestionably indicate he knew his conduct constituted outright
disobedience in violation of ER 3.4(c).
(2) Zawada’s Mental State
¶17 The hearing officer’s conclusion with regard to
Zawada’s mental state in violating the rules is equally clear:
“[He] violated the duties to his client and to the legal system.
The conduct was intentional, although [he] believed that his
actions were well-founded and appropriate.” Based on the complete
record, the court concludes that Zawada’s rebuttal arguments and
cross-examination of the experts were grossly improper and
deliberate and thus in violation of the rule that protects the
defendant’s right to present the defense of insanity. With
11
specific reference to our decision in Hughes, we declared in
Jorgensen:
[Zawada’s method of prosecution] was “a dishonest way
to represent the State . . . , and it was especially
dishonest . . . where the evidence of insanity was
substantial, and where the [s]tate had no evidence that
[Defendant] had fabricated an insanity defense.” We
unanimously concluded that the “evidence of mental
illness was overwhelming” and Defendant’s case for
acquittal on grounds of insanity was “substantial.”
The state overwhelmed Defendant’s insanity defense,
“but it did not do so with evidence; it did so with
prosecutorial misconduct.” We condemned this win-by-
any-means strategy, agreeing with Defendant’s argument
that it “was a direct attempt to . . . prejudice the
jury” and to put the fear of acquittal in the jurors’
minds.
198 Ariz. at 390-91, ¶ 2, 10 P.3d at 1177-78 (second alteration
in original) (internal citations omitted).
¶18 In his attempt to discredit, Zawada attacked the
experts, their profession and credibility through disingenuous,
baseless argument and cross-examination. This was highly
improper and provides ample evidence that Zawada’s actions were
intentional and knowing, aimed at thwarting Hughes’ insanity
defense and gaining a conviction at any cost.
(3) Potential or Actual Injury
¶19 The more serious the injury, the more severe should be
the sanction. See, e.g., In re Cardenas, 164 Ariz. 149, 152, 791
P.2d 1032, 1035 (1990) (noting that the difference between ABA
Standards 4.41(b) (calling for disbarment) and 4.42(a) (calling
for suspension) is the seriousness of the injury). Serious
12
injury was caused by Zawada’s misconduct. The criminal justice
system suffered, as did society as a whole. When serious crime
goes unpunished everyone suffers, not because the suspect was
unidentifiable, but because a prosecutor’s misconduct bars
retrial as a matter of double jeopardy. Disciplinary
Commissioner Cahill spoke accurately in his dissent from the
Commission’s recommendation: “Simply put, [Zawada’s] knowing,
deliberate and intentional misconduct either caused a murderer to
walk free, or it helped convict an innocent man of first-degree
murder. Either way, no harm could be more serious.”
(4) Aggravating vs. Mitigating Factors
¶20 The hearing officer considered both aggravating and
mitigating factors in determining the proper sanction to be
recommended. Pursuant to ABA Standard 9.22(c), the officer found
that Zawada engaged in a pattern of misconduct consisting of
serious violations that occurred during both the Hughes trial and
the Pool trial.3 Together, these cases demonstrated repeated
instances of misconduct in cases that involved serious
consequences. We agree with that finding. In addition, we
agree, pursuant to ABA Standard 9.22(i), that Zawada’s
3
Zawada was the prosecutor in Pool, and there, as in Hughes,
double jeopardy attached because Zawada “intentionally engaged in
improper conduct for the purpose of forcing defendant to seek a
mistrial so that the prosecution could procure a new indictment
with correct charges.” Pool v. Superior Court, 139 Ariz. 98,
107, 677 P.2d 261, 270 (1984). The court found his conduct to be
“egregiously incorrect.” Id.
13
substantial experience in the practice of law should be treated
as an aggravating factor. The finding of substantial experience
is justified by the fact Zawada has practiced law in Arizona
since 1979.
¶21 No less important is that much of his experience as an
attorney has come through many years working as a prosecutor.
Because prosecutors’ ethical duties exceed those of lawyers
generally, substantial experience as a prosecutor may become a
further aggravating circumstance, particularly in cases, as here,
where the prosecutor should have learned much earlier to conform
his conduct to the rules, but has not done so.4
¶22 We addressed this issue squarely in our very recent
decision, In re Peasley, __ Ariz. __, __, ¶ 40, 90 P.3d 764, 774
(2004), finding that “when a lawyer’s substantial experience
places that lawyer in a position that would be unavailable to a
less experienced lawyer, and that lawyer’s experience also
affords, or should afford, a greater appreciation of the
advantages of eliciting false testimony, substantial experience
may be considered a relevant aggravating factor.” As a seasoned
prosecutor in the Pima County Attorney’s Office, Peasley, like
4
We do agree, in mitigation, that Zawada does not have a
prior disciplinary record with the Bar. ABA Standard 9.32(a).
However, we accord little or no consideration to the absence of a
disciplinary record when there is evidence of prior, known
misconduct. See In re Peasley, __ Ariz. __, __-__ ¶¶ 51-52, 90
P.3d 764, 775-76 (2004). Such is the case here. See Pool, 139
Ariz. at 98, 677 P.2d at 261.
14
Zawada, was given the responsibility of prosecuting capital
cases. Id. An inexperienced attorney would not be given such
responsibility. Further, Peasley’s extensive experience as a
prosecutor helped him understand how a jury would react to
unfavorable evidence. Accordingly, he suborned perjured
testimony to destroy the negative inference the jury would
otherwise have drawn. Id.
¶23 Similarly, Zawada’s substantial experience informed him
how the jury would react if he did not impeach the defendant’s
experts. His substantial experience also informed him that an
improper cross-examination such as the one he engaged in would
affect the defense experts’ credibility. As a result, Zawada,
without supporting evidence, launched a full scale attack on the
credibility of defendant’s experts and on the mental health
profession in general.
¶24 Thus we conclude, as in Peasley, that Zawada’s
substantial experience as a prosecutor is an aggravating factor.
Cf. Maretick v. Jarrett, 204 Ariz. 194, 199, ¶ 19, 62 P.3d 120,
125 (2003); New Jersey v. Torres, 744 A.2d 699, 708 (N.J. Super.
Ct. App. Div. 2000) (“A prosecutor is not simply another lawyer
who happens to represent the state. Because of the overwhelming
power vested in his office, his obligation to play fair is every
bit as compelling as his responsibility to protect the public.”).
15
¶25 Moreover, like the dissenting Commissioner, we find
clear evidence that Zawada has refused, and to this day continues
to refuse, to acknowledge wrongful conduct both in Hughes and in
Pool. His unwillingness to recognize wrongful conduct has led
Zawada to outright hostility. Such an attitude is an aggravating
circumstance in itself under ABA Standard 9.22(g). At the
disciplinary hearing, Zawada stated, “I’m here not because I did
anything wrong. I’m not here because I did anything unethical,
and I’m not here because I deserve to be punished for anything
that’s transpired.” Since this disciplinary process began, this
has been Zawada’s attitude. In his own words, Zawada believes
that “[t]his Court simply wishes to punish [him] for thinking
[differently] on the issue of the admissibility of, reliability
of, psychiatric-psychological testimony.” He believes this case
“expose[s] the Arizona Supreme Court’s pro-psychiatry/anti-
prosecution position; its pop culture values; it’s [sic]
overzealousness in pursuit of those values.” Finally, he asserts
that “there is no precedent in the history of Arizona
jurisprudence” to suggest that he acted unethically. As the
dissenting Commissioner noted,
[Zawada] fails to acknowledge that he is single-
handedly responsible for much of the law in Arizona on
the consequences of extreme prosecutorial misconduct.
His sweeping statement about our jurisprudence omits
mention of several pertinent cases, each of which
addresses whether he has ever done anything unethical.
State v. Pool, State v. Hughes, and State v. Jorgenson.
16
It would be difficult, in view of Zawada’s acrimonious statements
to the hearing officer, to the Disciplinary Commission, and to
this court, to conclude that Zawada acknowledges even a single
violation. As a result, we find, pursuant to ABA Standard
9.22(g), that Zawada’s continuing refusal to recognize what is
clearly gross misconduct is a further aggravator to be considered
in the process of determining the sanction in this case.
(5) Proportionality of Discipline Imposed in Analogous
Cases
¶26 The hearing officer correctly noted the absence of
Arizona case law with similar facts. The Supreme Court of
Florida, however, was confronted with a prosecutorial misconduct
case strikingly similar to the case before us. Florida Bar v.
Schaub, 618 So. 2d 202, 204 (Fla. 1993). That decision, though
not binding, is instructive.
¶27 The Supreme Court of Florida suspended Mr. Schaub, a
prosecutor, because:
1. During cross-examination, Schaub improperly
elicited irrelevant testimony from the defense’s expert
psychiatrist, Dr. Tanay, that a non-testifying expert
had classified him as a “hired gun.” Later, in
summation to the jury, Schaub again referred to Tanay
as a “hired gun.”
2. Schaub accused Dr. Tanay of charging $600 per hour
for his deposition testimony. Yet, Schaub had a copy
of the itemized bill showing Tanay charged $150 per
hour.
3. Throughout his cross-examination, Schaub insulted
Dr. Tanay, ignored the trial court’s rulings on defense
objections, and inserted his personal opinions on
17
psychiatry and the insanity defense into his
questioning.
Id. at 203.
¶28 Like Zawada, Schaub “refus[ed] to acknowledge the
wrongful nature of his conduct.” Id. at 204. And like Zawada,
Schaub had substantial experience as a prosecutor. Id.
Importantly, unlike Zawada, nothing in the Florida opinion
suggests that Schaub’s misconduct was repetitive, although
neither he nor Zawada had a formal disciplinary record. Schaub
received a thirty-day suspension. Id.
¶29 Suspension from the practice by reason of misbehavior
either in the courtroom or in court-related proceedings is not
without precedent in Arizona. In In re Alcorn, 202 Ariz. 62, 41
P.3d 600 (2002), this court, sua sponte, increased the
Commission’s recommended discipline of a thirty-day suspension to
six months. Alcorn and Feola defended a doctor in a medical
malpractice action against the doctor and a hospital. Id. at 64,
¶ 9, 41 P.3d at 602. By secret agreement, the injured plaintiff
and the defendant doctor effectively pursued a “mock” trial,
taking the court’s time and resources without disclosing to the
judge that the trial was a sham. Id. at 65, ¶ 11, 41 P.3d at
603. The agreement between the injured plaintiff and the doctor
was concealed from the court even when the judge sensed the
possibility that such an arrangement existed and asked about it.
Id. at 66, ¶ 15, 41 P.3d at 604. The purpose of the sham trial
18
was to help the plaintiff bring the hospital back into the case
as a defendant by adducing damning information from the defendant
doctor at trial, while at the same time having given the doctor a
covenant not to execute on any judgment. Id. at 65, ¶ 12, 41
P.3d at 603.
¶30 In holding that a six-month suspension was appropriate,
the court found that the attorneys’ conduct was knowing and
intentional and, among other things, had wasted valuable judicial
resources. Id. at 74, ¶¶ 42-43, 41 P.3d at 612. The court found
several mitigating factors, including a non-selfish motive, a
cooperative attitude toward the disciplinary proceedings, and an
unlikely repetition of such conduct in the future. Id. at 74-75,
¶¶ 45-46, 41 P.3d at 612-13.
¶31 In contrast, Zawada has remained hostile, utterly
refusing to cooperate in the disciplinary proceedings. His
unwillingness to acknowledge gross misconduct suggests at least
some risk that Zawada, given the opportunity, would treat expert
witnesses in another case with a serious mental health component
in the same manner in which he treated the expert witnesses in
Hughes. That risk, without appropriate discipline at this point,
is unacceptable.
¶32 In In re Moak, 205 Ariz. 351, 71 P.3d 343 (2003), also
in sua sponte review proceedings, this court increased the
Commission’s recommended discipline of six months’ suspension to
19
six months and one day in order to require Moak to follow the
formal application and reinstatement procedure under the rule.
See Ariz. R. Sup. Ct. 64(e).
¶33 Moak, the disciplined attorney, withheld vital evidence
of his client’s injuries sustained in a second car accident
before the case went to trial on the first accident. Id. at 353-
54, ¶ 10, 71 P.3d at 345-46. He thus knowingly misled the jury
by withholding relevant evidence as to the occurrence of injuries
for which the defendant clearly was not responsible. Equally
serious, Zawada misled the jury by attacking the experts with
irrelevant interrogation and baseless argument, all without
evidence offered in support.
¶34 Finally, this court disbarred prosecutor Peasley
because he knowingly introduced perjured testimony through a
police witness in two capital trials. Peasley, __ Ariz. at __-
__, ¶¶ 65-66, 90 P.3d at 778-79. The distinction between Peasley
and Zawada is that Peasley concealed acts amounting to
subornation of perjury, while Zawada misled the jury openly,
appealing to fear and emotion. Both acts are serious and deserve
to be sanctioned. But Peasley’s acts, because they involved
fraud and concealment within the judicial system, are
substantially more serious. Conversely, there was no intentional
concealment on Zawada’s part.
20
(6) The Proper Sanction
¶35 A mere censure of Zawada or even the imposition of
probation without suspension, in our judgment, would undermine
the disciplinary process applicable to all lawyers, would
contravene the presumptive discipline suggested by the ABA
Standards, and would be grossly disproportionate to discipline
imposed in other cases in which serious misconduct was found. We
agree with the dissenting member of the Disciplinary Commission:
A public rebuke will do nothing to deter [Zawada]. The
Supreme Court’s 1984 criticism of his trial tactics in
State v. Pool – in all practical effect a public
censure – had no deterrent effect; he repeated his Pool
misconduct in State v. Hughes. The Supreme Court’s
scathing assessment in the State v. Hughes opinion also
has had no effect; [Zawada] is still right and everyone
else is wrong – and biased. Finally, even State v.
Jorgenson is not enough to deliver the message to
[Zawada]. What else can be said to get him to obey the
law? Why do we think he will heed our censure, when
Supreme Court opinions mean absolutely nothing to him?
Disciplinary Commission Report, at 10 (Cahill, dissenting).
¶36 ABA Standard 6.22 recommends that suspension be imposed
when a lawyer “knowingly” disobeys a court order or rule.
Standard 6.23, on the other hand, recommends a censure for
disobedience that was merely negligent. Zawada’s misconduct in
the prosecution of the Hughes case was knowing and intentional,
not merely negligent. Further, in light of the aggravating
circumstances, including the evidence of prior misconduct in the
Pool case, the single mitigating factor – absence of prior bar
discipline - is not sufficient to justify a lesser sanction. We
21
must apply discipline here where Zawada has acted knowingly or
intentionally, where aggravating factors outweigh mitigating
factors, and where substantial damage resulted.
¶37 Sanctions should be reasonably proportionate. On this
record, therefore, we believe that a suspension, together with a
subsequent probationary period, a referral to the Member
Assistance Program, and requiring continuing education hours,
will have the best chance of accomplishing the purposes of lawyer
discipline.
III. Conclusion and Order
¶38 Based on the record, Mr. Zawada is hereby suspended
from the practice of law in Arizona for six months plus one day,
beginning thirty days from the date of this opinion. Further,
upon reinstatement, Mr. Zawada shall be placed on probation,
under bar supervision, for one year. He shall also be referred
to the Member Assistance Program in which he shall participate
under conditions imposed on him by Program officers. Mr. Zawada
shall attend fifteen hours of continuing education that addresses
the effective use of and response to psychiatric and
psychological testimony, and shall not participate in any case
involving a mental health component until such time as he shall
have completed the continuing education requirement. Finally,
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Mr. Zawada is ordered to pay the costs and expenses of these
disciplinary proceedings.
___________________________________
Charles E. Jones, Chief Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice-Chief Justice
____________________________________
Rebecca White Berch, Justice
____________________________________
Michael D. Ryan, Justice
____________________________________
Andrew D. Hurwitz, Justice
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