In Re Peasley

SUPREME COURT OF ARIZONA
En Banc

In the Matter of ) Arizona Supreme Court
) No. SB-03-0015-D
KENNETH J. PEASLEY, )
Attorney No. 004114 ) Disciplinary Commission
) No. 97-1909
Respondent. )
__________________________________) O P I N I O N

Review from Disciplinary Commission
No. 97-1909

RESPONDENT DISBARRED

________________________________________________________________

State Bar of Arizona Phoenix
By: Karen A. Clark, Senior Bar Counsel
Attorney for State Bar of Arizona

Waterfall, Economidis, Caldwell, Hanshaw Tucson
& Villamana, P.C.
By: James W. Stuehringer
Attorneys for Kenneth J. Peasley
________________________________________________________________
R Y A N, Justice

¶1 In this lawyer disciplinary case, the State Bar filed

a complaint charging Respondent Kenneth J. Peasley with

misconduct in violation of the Arizona Rules of Professional

Conduct. The charges alleged that Peasley intentionally

presented false testimony in the prosecution of two capital

murder defendants. After lengthy proceedings, the hearing

officer found by clear and convincing evidence that Peasley

intentionally violated the ethical rules. Based upon the
presence of mitigating factors, the hearing officer recommended

a sixty-day suspension along with one year of probation.

¶2 Upon review, the Disciplinary Commission adopted and

incorporated the hearing officer’s findings, but reached a

different conclusion about various aggravating and mitigating

factors. The Commission recommended disbarment. Peasley

petitioned this court for review, which we granted because this

is a matter of first impression in Arizona and of statewide

importance. We have jurisdiction under Article 6, Sections 5(4)

and 5(5), of the Arizona Constitution and Arizona Rule of the

Supreme Court 59(a).

I.

A.

¶3 The record before the hearing officer established the

following facts.1 Peasley was admitted to the State Bar of

Arizona on April 26, 1975. He started his career in the Pima

County Public Defender’s Office, but in January 1978 he began

working as a prosecutor in the Pima County Attorney’s Office.

By 1992, Peasley had conducted approximately 250 felony trials,

140 of which were homicide cases. Of the homicide trials, about

sixty were capital cases.

1
We review the hearing officer’s findings of fact for clear
error. Ariz. R. Sup. Ct. 59(b).

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¶4 On June 24, 1992, three people were murdered during a

robbery of the El Grande Market in Tucson. The lead detective

in the El Grande murder case was Joseph Godoy. Detective Godoy

had been with the Tucson Police Department for twelve years and

had worked in homicide for several years before the El Grande

murders. Peasley was the issuing attorney in the El Grande

homicides, which meant that he went to the crime scene, received

all the police reports, and decided who would be charged and

with what crimes they would be charged. Godoy and Peasley were

good friends.

¶5 On August 26, 1992, an attempted robbery and shootout

occurred at a pizza restaurant in Tucson. Although another

detective was assigned to this case, the names of the eventual

defendants in the El Grande case arose in connection with the

investigation of the pizza restaurant case. Those suspects were

Martin Soto-Fong, Andre Minnitt, and Christopher McCrimmon.

¶6 On August 31, Detective Godoy received information

from an anonymous source that a Martin Soto was involved in the

El Grande murders. That same day, Mr. Gee, the owner of the El

Grande Market, told Godoy that a Martin Fong was a former

employee. Also, on August 31, another detective told Godoy that

one of his informants implicated “ChaChi” and Christopher

McCrimmon in the El Grande murders. That evening, Godoy

determined that “ChaChi,” Martin Fong, and Martin Soto were

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names used by Martin Soto-Fong. In addition, on September 1, a

Tucson Police Department fingerprint comparison report was

completed, listing McCrimmon and Minnitt as suspects. The

report identified McCrimmon’s fingerprints as those found on a

car near the El Grande Market. On September 2, Godoy assisted

in arresting both McCrimmon and Minnitt for the robbery of the

pizza restaurant. At that time, Godoy also interviewed both of

them about the El Grande case.

¶7 Godoy subsequently wrote two police reports that

reflected what he had learned during late August and early

September in his investigation of the El Grande murder case.

Specifically, those reports established that, before September

8, Godoy knew that Soto-Fong, McCrimmon, and Minnitt were the

primary suspects.

¶8 On September 8, Detective Godoy interviewed an

informant by the name of Keith Woods. The first part of the

interview was not recorded. In the recorded portion, Woods

stated that both Minnitt and McCrimmon had confessed to him that

they and Soto-Fong had committed the El Grande murders.

Eventually, Soto-Fong, Minnitt, and McCrimmon were charged with

the murders. Peasley assumed responsibility for prosecuting the

cases.

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 B.

¶9 Peasley prosecuted Soto-Fong first in 1993. Although

the State Bar did not allege any misconduct in connection with

the Soto-Fong trial, the hearing officer referred to that trial

because it revealed Peasley’s knowledge of when Detective Godoy

knew the identities of the suspects involved in the El Grande

case. First, Peasley admitted reading Godoy’s reports before

the Soto-Fong trial and thus knew that Godoy considered

McCrimmon and Minnitt as suspects before September 8. Second,

Peasley was present at Soto-Fong’s counsel’s interview of Godoy,

during which the timing of Godoy’s investigation was discussed.

Finally, at Soto-Fong’s trial Peasley questioned Godoy about

when he first met with Mr. Gee. Godoy responded by telling the

jury that he met with Mr. Gee during “the first week [of]

September,” when “Mr. Soto-Fong became a focus of the case.”

Soto-Fong was convicted and sentenced to death. State v. Soto-

Fong, 187 Ariz. 186, 191, 928 P.2d 610, 615 (1996).

¶10 Less than a month after the Soto-Fong trial ended, the

case against McCrimmon and Minnitt went to trial before a jury.

Keith Woods was a key witness for the state in the joint trial

of Minnitt and McCrimmon because no direct evidence linked them

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to the crime.2 However, Woods was a highly impeachable witness

because he was a drug addict with multiple felony convictions

and agreed to testify to avoid prosecution and a potentially

lengthy prison sentence on another charge. Consequently, for

the jury to believe Woods, it was important that there be no

suggestion that Godoy told Woods that McCrimmon and Minnitt had

been involved in the El Grande murders.

¶11 To ensure that the jury believed Woods, Peasley, along

with Godoy, engaged in the following conduct. First, in his

opening statement, Peasley told the jury that Detective Godoy

did not learn of McCrimmon, Minnitt, or Soto-Fong before the

Woods interview and that Godoy did not know Soto-Fong was a

former employee of the El Grande Market before he interviewed

Woods. This statement implied to the jury that Godoy could not

have told Woods who the suspects were when Godoy interviewed

Woods on September 8.

¶12 Second, Detective Godoy, when questioned by Peasley,

testified that he was not personally aware that one of the

participants in the murder was a former employee until after he

interviewed Woods and that McCrimmon and Minnitt were not

2
Peasley did not call Woods to testify at the Soto-Fong
trial because Soto-Fong did not confess to Woods and because
Soto-Fong’s fingerprints were found at the scene.

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suspects before the Woods interview.3 During a bench conference,

Peasley also told the judge that Godoy did not begin

investigating McCrimmon, Minnitt, or Soto-Fong until after the

Woods interview. Finally, in his closing argument, Peasley

argued to the jury that Godoy did not know until the Woods

interview that a former employee was involved in the murders.

¶13 The jury convicted McCrimmon and Minnitt and they were

sentenced to death. Their convictions were reversed for reasons

unrelated to this matter. State v. McCrimmon, 187 Ariz. 169,

174, 927 P.2d 1298, 1303 (1996).

¶14 After Minnitt’s and McCrimmon’s convictions were

reversed, the cases were severed and Minnitt was retried in 1997

before a different judge, Judge Richard Nichols. During this

trial, when questioned by Peasley, Detective Godoy again

testified that he had not come up with the names Chris

McCrimmon, Andre Minnitt, “ChaChi,” Martin Fong, or Martin Soto

before speaking with Woods on September 8. He emphasized that

the first time he had heard those names was during that

interview. In response to further questions by Peasley, Godoy

also testified that he had not submitted any of the defendants’

fingerprints for comparison before he interviewed Woods and that

Minnitt and McCrimmon were not suspects until he had spoken with

3
Both defense attorneys had copies of Godoy’s reports, yet
failed to impeach Godoy about what he knew before the Woods
interview.

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Woods. In his final argument, Peasley again argued that Godoy

did not have Minnitt’s name until after he had interviewed

Woods. The retrial ended in a mistrial because the jury could

not reach a verdict.

¶15 McCrimmon’s defense attorney had been present during

the Minnitt retrial and discovered that Peasley had introduced

false testimony. During McCrimmon’s second trial, which began

shortly after the conclusion of Minnitt’s retrial, Detective

Godoy answered Peasley’s questions differently than he had in

the prior trials. For example, he testified that he had

submitted the fingerprints before the Woods interview and that

he had known the defendants’ names on September 1, 1992.

Defense counsel impeached Godoy with his prior testimony. In

his closing argument, Peasley explained that Godoy answered the

way he did in the earlier trials to protect confidential sources

and avoid a mistrial. He also argued it was a “sick system”

that put an officer in a position in which he had to answer the

way Godoy had answered. The jury acquitted McCrimmon.

¶16 After McCrimmon’s acquittal, in anticipation of a

third trial, Minnitt’s defense counsel filed a motion that

alleged Peasley engaged in prosecutorial misconduct in the prior

trial and urged the court to dismiss on the grounds of double

jeopardy. Judge Nichols denied the motion but made findings

about Peasley’s conduct in the Minnitt retrial. He found

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misconduct on Peasley’s part and that it was “not merely a

result of legal error, negligence, or mistake or insignificant

impropriety.” Judge Nichols, however, did not find that the

“conduct was engaged in with the intent to further an improper

purpose.”

¶17 Minnitt was subsequently convicted and again sentenced

to death.4 But his conviction was overturned by this court on

double jeopardy grounds. We held that the third trial should

have been barred on double jeopardy grounds because of

prosecutorial misconduct in the first two trials. State v.

Minnitt, 203 Ariz. 431, 440, ¶¶ 44-45, 55 P.3d 774, 783 (2002).5

C.

¶18 The State Bar eventually charged Peasley with five

counts of misconduct. The hearing officer found the bar had

proven by clear and convincing evidence two counts of

misconduct, one count for the 1993 joint trial and one for the

1997 Minnitt retrial. He found that Peasley intentionally

violated Arizona Rule of the Supreme Court 42, Ethical Rule

4
Peasley was not the prosecutor for the third trial.
5
The Minnitt opinion was published after the hearing officer
made his decision in Peasley’s disciplinary case but before the
Commission reviewed the hearing officer’s decision. The
Commission took judicial notice of the Minnitt decision and
noted that it was consistent with the hearing officer’s
determination that Peasley acted intentionally.

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(“E.R.”) 3.3(a)(4)6 (candor toward the tribunal), E.R. 4.1(a)

(false statement of material fact or law), E.R. 8.4(c) (conduct

involving dishonesty, fraud, deceit, or misrepresentation), and

E.R. 8.4(d) (conduct prejudicial to the administration of

justice).7 The hearing officer referred to the American Bar

Association Standards for Imposing Lawyer Sanctions

(“Standards”) (1992) to determine the appropriate sanction.

See, e.g., In re Shannon, 179 Ariz. 52, 68, 876 P.2d 548, 564

(1994) (stating that “[w]e look to the American Bar

Association’s Standards for Imposing Lawyer Sanctions . . . for

guidance in determining the appropriate sanction to impose”

(citing In re Tarletz, 163 Ariz. 548, 554, 789 P.2d 1049, 1055

(1990))).

¶19 Under the Standards, consideration is given to the

following factors: 1) the duty violated; 2) the lawyer’s mental

state; 3) the actual or potential injury caused by the

misconduct; and 4) the existence of aggravating and mitigating

factors. Standard 3.0.

6
Ethical Rule 3.3(a)(4) was renumbered and is now found at
Ethical Rule 3.3(a)(3).
7
The Arizona Rules of Professional Conduct were amended on
December 1, 2003. Peasley was disciplined under the Ethical
Rules in effect before the amendment. We note that the Ethical
Rules relating to both infractions remained substantially
unchanged.

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¶20 The hearing officer found that Peasley violated his

duty as a prosecutor to the public and the court, and his

responsibilities as a professional. He further concluded that

“Respondent was either oblivious to his obligations or

intentionally disregarded them. Respondent acted

intentionally.” The hearing officer also found that Peasley’s

conduct caused potential injury, in that the death penalty was

sought against both Minnitt and McCrimmon.

¶21 The hearing officer next considered whether any

aggravating and mitigating factors existed. Standard 3.0(d); In

re Augenstein, 178 Ariz. 133, 136, 871 P.2d 254, 257 (1994). He

found only one aggravating factor: substantial experience in

the practice of law. See Standard 9.22(i). He found the

following mitigating factors: absence of a prior disciplinary

record, see Standard 9.32(a); cooperative attitude toward

disciplinary proceedings, see Standard 9.32(e); good character

or reputation, see Standard 9.32(g); physical or mental

disability or impairment (only as to the 1997 Minnitt retrial),

see Standard 9.32(h); delay in disciplinary proceedings, see

Standard 9.32(j); and interim rehabilitation.8 The hearing

officer then conducted a proportionality analysis. Although

8
The Standards were amended and renumbered in 1992 and
interim rehabilitation, which used to be Standard 9.32(j), was
removed as a mitigating factor. Nevertheless, the hearing
officer relied on this factor in mitigation.

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acknowledging that the presumptive sanction for the type of

misconduct Peasley committed is disbarment, see Standard 6.11,9

the hearing officer found that the mitigating factors supported

a recommendation that Peasley be suspended for sixty days. He

also recommended that Peasley be placed on probation for one

year and pay costs.

D.

¶22 On review, the Disciplinary Commission adopted the

hearing officer’s findings of fact and conclusions of law but

viewed the aggravating and mitigating factors differently.10 It

agreed that substantial experience in the practice of law was an

aggravating factor, see Standard 9.22(i), but noted this factor

was “particularly aggravating given that Respondent is a

seasoned prosecutor with over 25 years of experience.” The

Commission also found two additional aggravating factors:

dishonest or selfish motive, see Standard 9.22(b); and multiple

offenses, see Standard 9.22(d). It agreed with the following

9
Standard 6.11 provides as follows:

Disbarment is generally appropriate when a lawyer,
with the intent to deceive the court, makes a false
statement, submits a false document, or improperly
withholds material information, and causes serious or
potentially serious injury to a party, or causes a
significant or potentially significant adverse effect
on the legal proceeding.
10
The Disciplinary Commission reviews questions of law de
novo and defers to the hearing officer’s findings of fact unless
they are clearly erroneous. Ariz. R. Sup. Ct. 58(b).

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three mitigating factors found by the hearing officer: absence

of a prior disciplinary record, see Standard 9.32(a); full and

free disclosure to disciplinary board or cooperative attitude

toward proceeding, see Standard 9.32(e); and good character and

reputation, see Standard 9.32(g). The Commission disagreed with

the finding of physical or mental disability or impairment, see

Standard 9.32(h); delay in disciplinary proceedings, see

Standard 9.32(j); and interim rehabilitation.11 After conducting

a proportionality analysis, the Commission recommended

disbarment.

II.

¶23 Our task in reviewing a lawyer disciplinary proceeding

is to “examine the facts to determine if the evidence supports

the factual findings made by the hearing officer and the

Commission, as well as to decide on the appropriate sanction, if

any.” In re Walker, 200 Ariz. 155, 160, ¶ 20, 24 P.3d 602, 607

(2001). In conducting this review, “we give ‘deference and

serious consideration’ to the recommendations of the hearing

officer and the Commission.” Id. (citing In re Curtis, 184

Ariz. 256, 261, 908 P.2d 472, 477 (1995)). However, “the

responsibility to decide upon the appropriate sanction in a

disciplinary proceeding is ultimately ours.” Id. We also look

to the Standards for guidance in deciding the proper

11
Former Standard 9.32(j).

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disciplinary measures. In re Scholl, 200 Ariz. 222, 224, ¶ 9,

25 P.3d 710, 712 (2001).

¶24 Although Peasley raised numerous issues in his

original petition for review, his contentions can be distilled

to two: 1) whether Peasley was denied due process, and 2)

whether the Commission’s recommendation that Peasley be

disbarred is supported by the record. We turn first to

Peasley’s contention that he was denied due process.

A.

¶25 Peasley argues that the hearing officer violated his

due process rights when he “adopted” the findings made by Judge

Nichols and referred to Judge Nichols’ testimony from an

incomplete deposition. Specifically, he asserts that 1) Judge

Nichols’ findings were tainted by the influence of an ex parte

meeting with an FBI agent; 2) the hearing officer denied

Peasley’s request to complete Judge Nichols’ deposition or to

call him at the hearing; and 3) the hearing officer stated that

he would not rely on Judge Nichols’ findings but then relied on

them. As a consequence, Peasley contends that the hearing

officer’s finding that he intentionally presented false

testimony was clearly erroneous. For those reasons, he requests

a new hearing.

¶26 “[P]rocedural due process in attorney disciplinary

proceedings include[s] fair notice of the charges made and an

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opportunity for the accused to provide an explanation and

present a defense.” Walker, 200 Ariz. at 158, ¶ 13, 24 P.3d at

605 (citing In re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839

(1996)). After reviewing the record, we conclude that Peasley

has not established that he was denied due process in these

proceedings.

¶27 During the preparation for the hearing before the

hearing officer, Peasley noticed Judge Nichols as a witness. He

wanted Judge Nichols’ testimony because Judge Nichols had found

that Peasley’s misconduct was not committed “with the intent to

further an improper purpose.” Peasley consequently deposed

Judge Nichols but was unable to finish because of Judge Nichols’

schedule. At the disciplinary hearing, Peasley attempted to

call Judge Nichols as a witness or, in the alternative, complete

his deposition. Bar counsel objected, and the hearing officer

refused to permit Judge Nichols to appear or to permit Peasley

to finish the deposition of Judge Nichols. The hearing officer,

however, admitted portions of Judge Nichols’ deposition but

stated that he would not rely on the judge’s opinion in making

his decision. Nevertheless, the hearing officer quoted portions

of Judge Nichols’ findings in his report.

¶28 After the hearing officer issued his report, Peasley

discovered that Judge Nichols had met with an FBI agent before

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the hearing on Minnitt’s motion to dismiss.12 The agent’s report

indicated that the agent expressed his opinion to Judge Nichols

that Peasley had intentionally presented false testimony.13

Because of these circumstances, Peasley argues that the hearing

officer’s reliance on Judge Nichols’ findings taints the whole

proceeding. We disagree for several reasons.

¶29 First, the hearing officer said that he would not rely

on Judge Nichols’ findings but that he would reach his own

conclusions. No evidence suggests that the hearing officer did

not reach his own conclusions. For example, Judge Nichols found

that Peasley’s misconduct was not committed “with the intent to

further an improper purpose.” In contrast, the hearing officer

specifically found that Peasley acted intentionally. This

finding contradicts Peasley’s contention that Judge Nichols’

findings influenced the hearing officer’s decision.

¶30 Second, the hearing officer’s reference to Judge

Nichols’ findings can be fairly understood to relate solely to

what happened in the trial court, rather than as a basis for his

findings. The hearing officer gave a very detailed description

12
Peasley received the FBI reports from the State Bar four
months after he deposed Judge Nichols. But Peasley contends
that he did not “revisit” those reports until after the hearing
officer issued his decision.
13
No explanation is given why Judge Nichols did not disclose
this contact either before the hearing on the motion to dismiss
or during his deposition in this proceeding.

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of all the proceedings, including those that occurred before

Judge Nichols. That the hearing officer quoted some of Judge

Nichols’ findings does not establish that he relied on those

findings in making his recommendation.14

¶31 Third, and most importantly, even if the hearing

officer relied on Judge Nichols’ findings, no due process

violation occurred because the record contains other evidence

that supports the finding that Peasley acted intentionally.

Specifically, the misconduct in both the 1993 joint trial and

the 1997 Minnitt retrial was identical. In addition, the Soto-

Fong trial revealed that Peasley knew Godoy considered McCrimmon

and Minnitt to be suspects in the El Grande murders before he

had interviewed Woods. Further, after the misconduct had been

discovered in 1997, a grand jury was convened to investigate

14
A judge’s findings in the underlying criminal case do not
necessarily determine whether or not an ethical violation
occurred. Cf. In re Wolfram, 174 Ariz. 49, 53, 847 P.2d 94, 98
(1993) (holding that a trial court’s finding of ineffective
assistance of counsel in a Rule 32 proceeding does not
“necessarily equate” to a finding of “a violation of our ethical
rules”). In addition, we also note that “[o]nly in the rarest
of circumstances should a judge be called upon to give evidence
as to matters upon which he has acted in a judicial capacity,
and these occasions, we think, should be limited to instances in
which there is no other reasonably available way to prove the
facts sought to be established.” State ex rel. Carroll v.
Junker, 482 P.2d 775, 781 (Wash. 1971); see also Phillips v.
Clancy, 152 Ariz. 415, 420–21, 733 P.2d 300, 305-06 (App. 1986)
(holding that public policy militates against a judge testifying
as an expert witness for one of the parties). Because there
were other reasonably available ways to establish Peasley’s
state of mind, calling Judge Nichols as a witness was
unnecessary.

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Peasley and Godoy. Peasley admitted to the grand jury that

Detective Godoy’s testimony was in fact false. Consequently,

the presentation of the false testimony in the 1993 Minnitt and

McCrimmon joint trial and the 1997 Minnitt retrial could only

have been intentional. Thus, the hearing officer’s finding that

Peasley acted intentionally is supported by evidence independent

of any findings by Judge Nichols. Accordingly, we hold that

Peasley was not denied due process in this disciplinary hearing.

B.

¶32 As a result, we conclude that the hearing officer’s

factual findings are not clearly erroneous. The record clearly

supports the finding that Peasley intentionally violated E.R.

3.3(a)(3) (candor toward the tribunal), E.R. 4.1(a) (false

statement of material fact or law), E.R. 8.4(c) (conduct

involving dishonesty, fraud, deceit, or misrepresentation), and

E.R. 8.4(d) (conduct prejudicial to the administration of

justice). Because the record clearly and convincingly supports

the finding that Peasley violated the ethical rules, we now must

determine the appropriate sanction.

III.

¶33 As stated above, we apply the Standards when imposing

attorney discipline. Shannon, 179 Ariz. at 68, 876 P.2d at 564.

Like the hearing officer and the Commission, we consider the

following factors: 1) the duty violated; 2) the lawyer’s mental

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state; 3) the actual or potential injury caused by the

misconduct; and 4) the existence of aggravating and mitigating

factors. Standard 3.0. In addition, we consider other similar

cases in determining whether a specific sanction is

proportional. In re Horwitz, 180 Ariz. 20, 28, 881 P.2d 352,

360 (1994). We address each of these considerations in turn.

A.

¶34 With respect to the first factor, Peasley violated his

duty as a prosecutor to seek justice. “The prosecutor’s

interest in a criminal prosecution ‘is not that it shall win a

case, but that justice shall be done.’” Pool v. Superior Court,

139 Ariz. 98, 103, 677 P.2d 261, 266 (1984) (quoting Berger v.

United States, 295 U.S. 78, 88 (1935)). In addition, courts

generally recognize that the ethical rules impose high ethical

standards on prosecutors.

Recognizing a Government lawyer’s role as a
shepherd of justice, we must not forget that
the authority of the Government lawyer does
not arise from any right of the Government,
but from power entrusted to the Government.
When a Government lawyer, with enormous
resources at his or her disposal, abuses
this power and ignores ethical standards, he
or she not only undermines the public trust,
but inflicts damage beyond calculation to
our system of justice. This alone compels
the responsible and ethical exercise of this
power.

In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992). By presenting

false testimony in the prosecution of two defendants charged

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with capital murder, Peasley violated one of the most important

duties of a lawyer.

¶35 As to the second factor, the record clearly supports

the finding that Peasley intentionally presented false testimony

over the course of two trials. The record also supports the

finding that the third factor, actual or potential harm,

occurred here. Peasley sought and obtained the convictions and

the death penalty against two capital murder defendants using

false testimony to establish a crucial fact. Such harm is

particularly egregious. See In re Wolfram, 174 Ariz. 49, 57,

847 P.2d 94, 103 (1993). We cannot conceive of a more serious

injury, not just to the defendants but to the criminal justice

system, than a prosecutor’s presentation of false testimony in a

capital murder case.

¶36 The presumptive discipline for Peasley’s intentional

misconduct is disbarment. Standard 6.11. Thus, we must

determine whether the aggravating factors, weighed against the

mitigating factors, justify disbarment. We first address the

aggravating factors. These factors need only be supported by

reasonable evidence. In re Varbel, 182 Ariz. 451, 455 n.7, 897

P.2d 1337, 1341 n.7 (1995).

B.

1.

¶37 Both the hearing officer and the Commission found that

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substantial experience was an aggravating factor. The hearing

officer did not give this factor any weight because he believed

that it was offset by the corresponding mitigating factor of an

unblemished disciplinary record. Prior decisions of this court

support such an offset. See, e.g., Shannon, 179 Ariz. at 68,

876 P.2d at 564. But as we suggested in In re Arrick, 180 Ariz.

136, 143, 882 P.2d 943, 950 (1994), the aggravating factor of

substantial experience in the practice of law deserves closer

examination and should not simply be “offset” by a supposedly

unblemished record. See also Shannon, 179 Ariz. at 82, 876 P.2d

at 578 (Zlaket, J., dissenting) (arguing that “using the

mitigating effect of . . . discipline-free years to ‘offset’ the

‘substantial practice’ aggravating factor . . . effectively

accords equal weight to both”).

¶38 One commentator suggests that “[t]he justifications

for treating substantial experience in the practice of law as an

aggravating factor are weak in many cases.” Leslie C. Levin,

The Emperor’s Clothes and Other Tales About the Standards for

Imposing Lawyer Discipline Sanctions, 48 Am. U. L. Rev. 1, 50

(1998). Further, “[t]he bar admission standards in every state

require applicants to demonstrate knowledge of professional

responsibility rules and admitted lawyers are bound to abide by

the rules regardless of their level of experience.” Id. Thus,

merely because a lawyer has substantial experience in the

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practice of law should not mean that this aggravating factor

automatically applies.

¶39 However, because “[t]here are, obviously, problems

that more experienced lawyers may be better able to avoid than

less experienced lawyers,” there could “be cases in which the

lawyer’s substantial experience should be considered relevant to

the sanction imposed.” Id. at 52. We conclude that when there

is a nexus between a lawyer’s experience and the misconduct,

substantial experience should be considered a relevant

aggravating factor.

¶40 Peasley maintains that substantial experience should

not be considered an aggravating factor in his case because

dishonesty is not the type of misconduct that becomes less

likely with years of experience. See In re Savoy, 181 Ariz.

368, 371, 891 P.2d 236, 239 (1995) (substantial experience

“applies only when the misconduct would be less likely to occur

the more experienced a lawyer becomes; but every lawyer is

expected to be truthful, regardless of the length of time he has

practiced”). Obviously, even the most inexperienced lawyer

knows that he or she should not elicit false testimony.

Nevertheless, 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

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eliciting false testimony, substantial experience may be

considered a relevant aggravating factor.

¶41 Peasley’s substantial experience as a prosecutor

placed him in a different position than a prosecutor with less

experience. First, because of his lengthy experience, Peasley

had the ability to, and did, try the most serious of cases,

capital murder cases. Second, as the issuing attorney in the El

Grande case, Peasley had the authority to, and did, assume

responsibility for prosecuting the case himself. More

importantly, because of his substantial experience, particularly

in prosecuting homicide cases, Peasley understood far better

than would an inexperienced prosecutor how a jury would likely

react to a suggestion that Detective Godoy “fed” information

about Minnitt and McCrimmon to Woods. Peasley would not have

been prosecuting the El Grande murders but for his experience,

and because of that experience, he recognized the significance

of Godoy’s testimony with respect to Woods’ credibility. We

therefore conclude that Peasley’s substantial experience does

carry weight as an aggravating factor.

2.

¶42 The Commission also found the additional aggravating

factor of dishonest or selfish motive, which Peasley contests.

We have held that dishonest or selfish motive “speaks in terms

of ‘motive,’ not conduct.” Shannon, 179 Ariz. at 69, 876 P.2d

- 23 -
at 565; see also In re Attorney D., 57 P.3d 395, 400 (Colo.

2002) (“‘[T]he absence of a dishonest or selfish motive,’ . . .

refers to the lawyer’s motive for his conduct, without regard to

any awareness on his part whether that conduct is specifically

proscribed as unethical. While not necessarily irrelevant, a

respondent’s awareness that his conduct will violate an ethical

proscription is not itself material.”). Simply because an

attorney’s conduct is intentional or dishonest does not by

itself establish a dishonest or selfish motive. See In re

Alcorn, 202 Ariz. 62, 74, ¶ 42, 41 P.3d 600, 612 (2002)

(respondent violated his ethical duty of candor toward the

tribunal, but selfish motive was not an aggravating factor).

¶43 In the past, we have held that dishonest or selfish

motive is an aggravating factor when an attorney received some

financial gain or made misrepresentations to cover his or her

negligence. These previous holdings of dishonest or selfish

motive involved private attorneys, not public sector lawyers.

See, e.g., Arrick, 180 Ariz. at 143, 882 P.2d at 950 (holding

that lawyer who made deliberate misrepresentations to his client

to conceal his negligence and improperly retained a fee from

that client had a dishonest or selfish motive); Shannon, 179

Ariz. at 69, 876 P.2d at 565 (finding lawyer who represented

clients with conflicting interests did so for “selfish

reasons”). We have never addressed a situation involving a

- 24 -
prosecutor who was alleged to have had a dishonest or selfish

motive.

¶44 Nevertheless, we believe there are instances in which

the misconduct of a prosecutor can be prompted by a dishonest or

selfish motive. Obtaining a conviction at any cost is one of

them. Peasley intentionally and repeatedly presented false

testimony in an effort to bolster Woods’ credibility solely for

the purpose of obtaining convictions and subsequent death

penalties for both Minnitt and McCrimmon. In our view, such

circumstances demonstrate a dishonest motive. Cf. People v.

Pautler, 35 P.3d 571, 585-86 (Colo. 2001) (finding that

prosecutor who misrepresented himself to a suspect as a public

defender was motivated in part by gaining an advantage in

subsequent legal proceedings, which supported the existence of

the aggravating factor of dishonest or selfish motive). We

therefore agree with the Commission that the aggravating factor

of dishonest motive is present in this case.

3.

¶45 Peasley contests the Commission’s finding of multiple

offenses as an aggravating factor. This court has applied the

aggravating factor of multiple offenses to a lawyer’s misconduct

that involved multiple clients or multiple matters. For

example, we found multiple offenses when a lawyer violated

duties owed to two clients, a former client, the court, and

- 25 -
opposing parties in a one-year period. See In re Moak, 205

Ariz. 351, 356, ¶ 30, 71 P.3d 343, 348 (2003). We also found

multiple offenses when a lawyer brought several frivolous claims

against multiple defendants on behalf of one client. In re

Levine, 174 Ariz. 146, 171, 847 P.2d 1093, 1118 (1993). But we

do not think this aggravating factor is limited to such

situations. Cf. In re Rome, 856 So. 2d 1167, 1169-71 (La. 2003)

(upholding finding of multiple offenses when assistant district

attorney kept fine payments for himself on six to eight

occasions).

¶46 Here, Peasley presented misleading and false testimony

in two separate trials against two defendants. In each trial,

he referred to Godoy’s false testimony in his opening

statements, elicited the false testimony on direct examination

of Godoy, and exploited that false testimony in his closing

arguments. Furthermore, his conduct was more egregious in the

second trial than in the first — his questions were more

specific and pointed in eliciting the false testimony. We

therefore agree with the Commission and conclude that Peasley

committed multiple offenses, which we consider to be a very

serious aggravating factor.

4.

¶47 Peasley claims that the Commission erred in finding,

as a de facto aggravating factor, that he failed to demonstrate

- 26 -
that recurrence was unlikely. The Commission found that

Peasley’s statement — that a “sick system” made Detective Godoy

testify the way he did — suggested “the potential for future

misconduct by Respondent, which places the public and criminal

justice system at substantial risk.” The Commission went on to

state, “Given the seriousness of the misconduct and the

significant injury it caused to the defendants and to the legal

system, the Commission is convinced that the public and the

criminal justice system will not be protected by anything less

than disbarment.”

¶48 We do not read the Commission as having treated the

possibility of recurrence as an aggravating factor, but instead

it simply considered that possibility in determining the

appropriate sanction. We believe that such consideration was

appropriate. “This court has long held that ‘the objective of

disciplinary proceedings is to protect the public, the

profession and the administration of justice and not to punish

the offender.’” Alcorn, 202 Ariz. at 74, ¶ 41, 41 P.3d at 612

(citing In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78

(1966)); see also Scholl, 200 Ariz. at 227, ¶ 29, 25 P.3d at 715

(“The purpose of professional discipline is twofold: (1) to

protect the public, the legal profession, and the justice

system, and (2) to deter others from engaging in misconduct.”).

- 27 -
 C.

¶49 We next examine the existence of mitigating factors.

As discussed above, the hearing officer and the Commission

reached different findings with respect to several of the

mitigating factors. Because our review is de novo, see Moak,

205 Ariz. at 352, ¶ 5, 71 P.3d at 344, we examine these factors

in detail.

1.

¶50 Both the hearing officer and the Commission found

Peasley’s unblemished disciplinary record to be a mitigating

factor. This court has on occasion given great weight to an

unblemished disciplinary record in determining the proper

sanction for lawyer misconduct. In re Murphy, 188 Ariz. 375,

380, 936 P.2d 1269, 1274 (1997) (“[W]e are greatly influenced by

the fact that in 26 years of practice, respondent has never

before received a disciplinary complaint.”); Levine, 174 Ariz.

at 172, 847 P.2d at 1119 (“We give great weight, in particular,

to respondent’s previous unblemished disciplinary record as well

as his professional contributions and accomplishments during his

30 years of practice.”).

¶51 The Commission did not give this factor much weight

and the State Bar encourages us to do the same. We agree that

Peasley’s unblemished disciplinary record should not be given

great weight here. First, “the absence of a disciplinary record

- 28 -
is not by itself proof of good conduct.” Levin, supra, at 53-

54. Second, although Peasley had not previously been formally

disciplined by the State Bar, at least two reported decisions

discuss Peasley’s misconduct in the prosecution of those cases.15

¶52 This court commented on allegations of prosecutorial

misconduct by Peasley in State v. Rodriguez, 192 Ariz. 58, 64,

¶¶ 31-33, 961 P.2d 1006, 1012 (1998) (Peasley violated the

discovery rules, failing to ensure that the defendant received a

fair trial), and State v. Trostle, 191 Ariz. 4, 16, 951 P.2d

869, 881 (1997) (Peasley made inflammatory remarks about the

defendant and made an impermissible comment on the defendant’s

failure to testify).16 We acknowledge that these cases did not

lead to Peasley being formally disciplined nor did Peasley’s

misconduct cause the convictions in those cases to be reversed.17

15
We do not rely on these decisions as aggravation, but we do
consider them in deciding the weight to be given the mitigating
factor of unblemished disciplinary record. See Horwitz, 180
Ariz. at 22 & n.3, 881 P.2d at 354 & n.3 (taking judicial notice
of official court record in respondent’s criminal trial); In re
Ronwin, 139 Ariz. 576, 579-82, 680 P.2d 107, 110-13 (1983)
(taking judicial notice of actions filed by bar candidate in
federal court).
16
These decisions do not specifically mention Peasley’s name,
but during his disciplinary hearing, Peasely conceded he was the
prosecutor in those cases.
17
In Rodriguez, the court commented on Peasley’s misconduct,
but remanded the case for a new trial on other grounds. 192
Ariz. at 64, ¶ 31, 961 P.2d at 1012. In Trostle, the court
found the error to be harmless. 191 Ariz. at 16, 951 P.2d at
881 (“Any error was harmless beyond a reasonable doubt.”).

- 29 -
Nevertheless, these cases demonstrate that his misconduct in

this matter was not entirely out of character. For this reason,

we decline to give the factor of unblemished disciplinary record

much weight.

2.

¶53 Although the hearing officer found interim

rehabilitation to be a mitigating factor, the Commission

rejected this as a mitigating factor. Peasley argues that

interim rehabilitation should be a mitigating factor because he

had taken steps to reduce his workload and to prepare for trial

more thoroughly. Interim rehabilitation is no longer a

mitigating factor under the Standards. See Standard 9.32. But

we may still consider this factor in mitigation because the

purpose of attorney discipline is not to punish but rather to

protect the public. See Alcorn, 202 Ariz. at 74, ¶ 41, 41 P.3d

at 612. Nevertheless, the facts do not indicate that overwork

caused Peasley’s misconduct. Neither Peasley nor the hearing

officer points to any causal connection between Peasley’s

workload and his intentional presentation of false evidence.

Thus, a reduced workload and additional preparation would not

have prevented the misconduct that occurred here. Accordingly,

we do not give this factor any weight.

3.

¶54 The Commission also rejected the hearing officer’s

- 30 -
finding of the mitigating factor of physical disability in the

1997 Minnitt retrial. Peasley argues that the Commission

applied the wrong criteria in rejecting this factor. We agree.

Referring to the “[four]-pronged criteria” of Standard 9.32(i),18

the Commission rejected the mitigating factor of physical

disability in part because it concluded that Peasley “failed to

demonstrate a sustained period of rehabilitation, and that a

recurrence of the misconduct is unlikely.” This reliance on a

failure to demonstrate a sustained period of rehabilitation and

the unlikelihood of recurrence was error. Such factors are only

relevant when a lawyer claims mental disability or chemical

dependency as a mitigating factor. See Standard 9.32(i).

Peasley did not claim mental disability or chemical dependency.

Instead, he contended that he suffered from a physical and

18
These criteria are the following:

1. there is medical evidence that the respondent is
affected by a chemical dependency or mental
disability;

2. the chemical dependency or mental disability
caused the misconduct;

3. the respondent’s recovery from the chemical
dependency or mental disability is demonstrated by a
meaningful and sustained period of successful
rehabilitation; and

4. the recovery arrested the misconduct and
recurrence of that misconduct is unlikely.

Standard 9.32(i).

- 31 -
medical disability “stemming from stress, overwork and ill

health.” See Standard 9.32(h). Nonetheless, we conclude that

the evidence does not support this mitigating factor.

¶55 Physical disability is a mitigating factor only if

there is a direct causal connection between the physical

disability and the misconduct. Standard 9.32(h) & cmt. The

stronger the connection between the disability and the

misconduct, the greater the weight it must be given.19

¶56 Nothing in the record supports the finding that

Peasley’s physical disabilities caused his misconduct in the

1997 Minnitt retrial. The hearing officer found that Peasley

suffered from vision problems, pain on his left side, periodic

vertigo, and had difficulty focusing and concentrating during

the Minnitt retrial. Although the hearing officer found these

conditions to be a mitigating factor, we do not. Peasley did

not establish a causal relationship between his physical

problems and his misconduct. Peasley’s physical condition in

19
The commentary to Standard 9.32 states:

Direct causation between the [physical] disability
. . . and the offense must be established. If the
offense is proven to be attributable solely to a
disability . . . it should be given the greatest
weight. If it is principally responsible for the
offense, it should be given very great weight; and if
it is a substantial contributing cause of the offense,
it should be given great weight. In all other cases
in which [it] is considered as mitigating, it should
be given little weight.

- 32 -
1997 does not explain his intentional misconduct in the Minnitt

retrial. Thus, we reject the mitigating factor of physical

impairment.

4.

¶57 Peasley also claims that his public and private

humiliation should be considered in mitigation. Public and

private humiliation is not listed as a mitigating factor in the

Standards, but we previously have found humiliation to be a

mitigating factor in certain circumstances. See Walker, 200

Ariz. at 161, ¶ 25, 24 P.3d at 608. Peasley relies on Walker

for the proposition that because he suffered months of personal

and public humiliation as a result of these proceedings, we

should find mitigation.

¶58 The kind of humiliation this court examined in Walker

was simply not the kind of humiliation that results from having

one’s misconduct subject to disciplinary proceedings. To the

contrary, the humiliation discussed in Walker resulted from

actions that occurred before the inception of disciplinary

charges, not as a result of the disciplinary charges themselves.

Specifically, Walker, after sexually harassing a client, was

arrested in his office and taken to jail in handcuffs; the

charges against him were made public by the local press; he was

prosecuted for prostitution and sexual indecency; he entered a

diversion program to avoid prosecution; and he was the subject

- 33 -
of a malpractice suit. Id. We concluded that what happened to

Walker was “sufficient deterrence to other attorneys.” Id. Any

humiliation that Peasley may have suffered was a result of these

disciplinary proceedings, not because of other factors like

those in Walker. Therefore, we decline to find the mitigating

factor of public and personal humiliation in this case.

5.

¶59 Peasley contends that we should recognize the delay in

disciplinary proceedings as a mitigating factor. See Standard

9.32(j). We agree significant delay occurred in this case.20 It

took almost two years for the State Bar to issue a probable

cause order from the time the initial complaint was filed with

the State Bar. The formal complaint was filed a year after the

probable cause order was issued — although during that time the

parties had engaged in negotiations. The hearing officer then

issued his decision more than two years after the formal

complaint was filed. Although not all of the delay was the

20
The initial complaint was filed by McCrimmon’s lawyer in
September 1997. The State Bar did not forward the complaint to
Peasley until March 1998. A probable cause order was not filed
until May 1999. The formal complaint was finally filed in May
2000. The hearings before the hearing officer were conducted
from June 2001 through December 2001. The hearing officer
issued his report on July 1, 2002.

- 34 -
State Bar’s fault, that delay negatively impacted Peasley.21

Therefore, we consider the delay in this case to be a mitigating

factor.

6.

¶60 Finally, with respect to the other mitigating factors,

we agree with the hearing officer and the Commission that the

evidence supports the mitigating factors of full and free

disclosure to the disciplinary board or cooperative attitude

toward the proceeding, see Standard 9.32(e), and good character

and reputation, see Standard 9.32(g).

D.

¶61 The last step in determining if a particular sanction

is appropriate is to assess whether the discipline is

proportional to the discipline imposed in similar cases.

Alcorn, 202 Ariz. at 76, ¶ 49, 41 P.3d at 614; see also In re

Wines, 135 Ariz. 203, 207, 660 P.2d 454, 458 (1983) (finding

that while proportionality is appropriate, discipline is

tailored to each individual case). We found no cases in Arizona

or any other jurisdiction with a similar fact pattern. But in

Arizona and other jurisdictions, disbarment or a lengthy

suspension are proper only in the most serious of circumstances.

For example, this court disbarred a lawyer for making false

21
We recognize that part of the delay after the formal
complaint was filed was either due to the complexity of the case
or the result of Peasley’s own litigation tactics.

- 35 -
statements to clients about filing a lawsuit, preparing a false,

backdated letter for the State Bar during its investigation,

submitting a false affidavit to the bar, and lying under oath

during the disciplinary proceedings. In re Fresquez, 162 Ariz.

328, 329-31, 335, 783 P.2d 774, 775-77, 781 (1989). We also

ordered disbarment when a lawyer, among other things, failed to

diligently and competently represent several clients in civil

matters, made factual misrepresentations to the court, failed to

communicate with his clients, and failed to cooperate with the

State Bar’s investigation. In re Elowitz, 177 Ariz. 240, 241,

243, 866 P.2d 1326, 1327, 1329 (1994). Finally, this court

mandated a three-year suspension when a lawyer manufactured

evidence, committed perjury, and suborned perjury during a State

Bar investigation. In re Fioramonti, 176 Ariz. 182, 187-89, 859

P.2d 1315, 1320-22 (1993).22

¶62 The Supreme Judicial Court of Maine upheld disbarment

as the appropriate sanction when a defense attorney allowed his

client to testify falsely at his criminal trial. Board of

Overseers v. Dineen, 481 A.2d 499, 501 (Me. 1984). The court

declared that “[t]here is no more egregious violation of a

22
Fioramonti is distinguishable from the present case for two
reasons. First, while Fioramonti’s actions were egregious, no
third party was harmed. 176 Ariz. at 188, 859 P.2d at 1321.
Second, although disbarment was the presumptive sanction for
Fioramonti’s misconduct, he was suspended due to the existence
of mitigating factors. Id. at 189, 859 P.2d at 1322.

- 36 -
lawyer’s duty as an officer of the court, and no clearer ethical

breach” than deliberately eliciting false testimony from his

client. Id. at 504.

¶63 The above cases indicate that disbarment in this case

would be proportional to the discipline imposed in other cases

involving serious misconduct.

IV.

¶64 As mentioned previously, “[t]he purposes of

professional discipline are to protect the public, the legal

profession, and the justice system, and to deter others from

engaging in misconduct.” Horwitz, 180 Ariz. at 28-29, 881 P.2d

at 360-61 (citing In re Neville, 147 Ariz. 106, 116, 708 P.2d

1297, 1307 (1985), and In re Swartz, 141 Ariz. 266, 277, 686

P.2d 1236, 1247 (1984)). In addition, this court “must also try

to instill public confidence in the bar’s integrity.” Id. at

29, 881 P.2d at 361 (citing In re Loftus, 171 Ariz. 672, 675,

832 P.2d 689, 692 (1992)).

¶65 Peasley’s intentional elicitation of false testimony

against two defendants in a capital murder trial in 1993, re-

presentation of the same false testimony in the 1997 retrial of

one of the defendants, and exploitation of that false testimony

in the closing argument in both trials, could not have been more

harmful to the justice system. The credibility of the criminal

justice system relies heavily on the integrity of those who work

- 37 -
in the system. Moreover, a prosecutor has the added duty to see

that justice is done.23 A prosecutor who deliberately presents

false testimony, especially in a capital case, has caused

incalculable injury to the integrity of the legal profession and

the justice system. In such a circumstance, the public’s

interest in seeing that justice has been fairly administered has

been violated in a most fundamental way. Peasley’s misconduct

has severely undermined the public’s trust and confidence in

Arizona’s criminal justice system. Therefore, in this case,

“[a]ny sanction less than disbarment would be an inappropriate

statement of what the bar and this court should and would

tolerate.” Id.

¶66 In weighing the aggravating and mitigating

circumstances, we determine that Peasley’s multiple offenses and

dishonest motive are exceptionally serious aggravators in this

matter. As such, we conclude those factors outweigh the

mitigating factors of significant delay, cooperative attitude

toward the disciplinary proceeding, and good character and

reputation. Thus, disbarment is required.

23
See Ariz. R. Sup. Ct. 42, E.R. 3.8 cmt. (“A prosecutor has
the responsibility of a minister of justice and not simply that
of an advocate. This responsibility carries with it specific
obligations to see that the defendant is accorded procedural
justice and that guilt is decided upon the basis of sufficient
evidence.”).

- 38 -
 V.

¶67 Finally, Peasley raises several objections to the

State Bar’s Disciplinary Clerk’s verified statement of costs and

expenses. The statement asks for a total of $29,201.91.

¶68 An assessment of costs and expenses is one of the

permissible sanctions in bar disciplinary proceedings. Ariz. R.

Sup. Ct. 52(a)(8).24 Rule 52(a)(8), in effect at the time of

Peasley’s proceedings, stated in part, the following:

Misconduct shall be grounds for one or more
of the following sanctions:

* * *
Assessment of the costs and expenses of
discipline proceedings, imposed by order of
a hearing officer or the commission, and
otherwise by judgment entered in this court
upon a statement of costs and expenses filed
with the disciplinary clerk. The state bar
shall file with the disciplinary clerk a
statement of costs and expenses on proven
counts within seven (7) days after a hearing
officer report is filed. Assessment, based
upon the recommendation of the hearing
officer, as affirmed or modified by the
commission, including any costs and expenses
of adjudication, shall be included in the
order or judgment . . . .

A.

¶69 The procedural background of the requests for costs

and expenses is as follows. The hearing officer issued his

24
The rule was substantially revised and renumbered,
effective December 1, 2003. See Ariz. R. Sup. Ct. 60(b).

- 39 -
report on July 1, 2002, which ordered Peasley to pay costs and

expenses. Within a week, the bar submitted its statement of

costs and expenses requesting a total of $16,686.44. The

hearing officer never ruled on the bar’s request.

¶70 In its order, the Commission reduced the costs and

expenses by $7330.24, which reflected the bar’s expenses in

using a computer program in preparation for the disciplinary

hearing. Nevertheless, the verified statement filed by the

Disciplinary Clerk with this court on October 10, 2003, included

the expenses of the computer program, as well as additional

costs and expenses of court reporters, for a total assessment of

$29,201.91.

B.

¶71 Pointing to Rule 52(a)(8), Peasley first argues that

he should be assessed only those costs and expenses incurred

with respect to the proven counts. He contends that expenses

involving certain witnesses and experts should not be assessed

as these individuals “had nothing to do” with the proven counts.

He suggests “a rational approach would be to deem that the state

bar, having proven two of its five counts, established [forty

percent] of its case.” The bar therefore should be limited to

recovering forty percent of its costs and expenses. The State

Bar counters that none of the requested costs and expenses

pertain solely to the unproven counts. We agree with the bar.

- 40 -
The bulk of the bar’s case involved the misconduct in the

Minnitt and McCrimmon joint trial and the Minnitt retrial. We

consequently decline to reduce the costs and expenses to forty

percent.

¶72 Citing Rule 46(g)(9),25 which allows an assessment for

expenses “necessarily incurred by the state bar and the

disciplinary clerk’s office,” Peasley next argues that the

expenses incurred for a computer program used by counsel for the

bar were not necessary. The program was used to scan more than

4800 pages of the El Grande murder trial transcripts into a

software program, which permitted bar counsel to search the

transcripts by word and phrase. It also allowed counsel to

project selected portions of the transcripts on a large screen

to assist the witnesses and the hearing officer during the

hearing. The Commission declined to assess these expenses

against Peasley. From our review of the record, it does not

appear that the computer program was particularly necessary for

bar counsel to present her case. Accordingly, we agree with the

Commission and conclude that the expenses of the computer

program should not be assessed against Peasley.

¶73 Peasley also objects to an assessment of expenses for

two experts the bar consulted in preparing the case for hearing.

Because these experts were neither called nor disclosed, Peasley

25
Current Rule 46(f)(12).

- 41 -
argues they were not “witnesses” as contemplated by Rule

46(g)(9) (“Expenses shall include, by way of illustration and

not limitation, . . . charges of expert witnesses . . . .”).

The bar argues that the expenses it incurred in consulting with

the experts were “justified.” We are not persuaded. One of the

experts, an attorney, advised bar counsel in connection with

preparing the complaint, and the other, a doctor, was consulted

concerning Peasley’s medical condition in 1997, which was raised

by him as a mitigating factor with respect to the 1997 retrials.

Neither expert was noticed as a witness nor were any reports of

those experts disclosed to Peasley. Accordingly, we agree with

Peasley that he should not be assessed the expenses of the bar’s

consultation with these two experts.

¶74 Peasley next argues that he should not be assessed

$10,853.92 in expenses for court reporters and transcripts.

These expenses were added when the Disciplinary Clerk filed the

verified statement of costs and expenses on October 10, 2003.

Peasley contends that because these costs were not included in

the State Bar’s verified statement of July 8, 2002, they were

not timely requested. As quoted above, Rule 52(a)(8) requires

the State Bar to file “a statement of costs and expenses on

proven counts within seven (7) days after a hearing officer

report is filed.”

- 42 -
¶75 The bar argues that the total costs of court reporter

services are not known until the case is transmitted to this

court. It is at that time the transcripts are prepared, and

thus, such “costs can be computed.” But, the transcripts at

issue here (with the exception of one) were filed and the

accompanying invoices were submitted to the State Bar in 2000

and 2001. Thus, the necessary information to include nearly all

of the costs of the court reporter services was available before

the hearing officer issued his report in July 2002.26

¶76 Nevertheless, we believe that these costs should be

assessed against Peasley. Rule 52(a)(8) provides that an

assessment “be included in the order or judgment.” Such an

assessment shall include “any costs and expenses of

adjudication.” Id. Although the rule declares that the

assessment be “based upon the recommendation of the hearing

officer,” the Commission has the authority to modify the

recommendation. Id. Because the rule permits modification of

any assessment recommended by the hearing officer and also

requires that any final order or judgment include the assessment

(including the “costs and expenses of adjudication”), we

conclude that the additional expenses of the court reporting

26
The only court reporter services that were not known at
that time were the costs of such services for the proceedings
before the Commission. The invoice for that transcript was
received by the disciplinary clerk on December 2, 2002.

- 43 -
services can be assessed against Peasley.

¶77 As a final point, Peasley argues that “Rule 52(a)(8)

contemplates that the assessment of costs and expenses be

determined initially by the hearing officer,” and because that

did not occur in this case, the State Bar’s request must be

denied in its entirety. The bar responds that the rule permits

the hearing officer or the Commission to assess costs and

expenses. Indeed, Rule 52(a)(8) does provide for an

“[a]ssessment of the costs and expenses of discipline

proceedings, imposed by order of a hearing officer or the

commission, and otherwise by judgment entered in this court upon

a statement of costs and expenses filed with the disciplinary

clerk.” (Emphasis added.) Although the rule is not a model of

clarity, it does contemplate an assessment of costs by the

hearing officer, the Commission, or this court. Under Peasley’s

interpretation of the rule, the assessment of costs and expenses

would be fixed at the conclusion of the hearings before the

hearing officer.27 If that were the case, no costs and expenses

could ever be assessed for the costs of the proceedings before

the Commission or this court. We do not think the rule intended

27
As noted in footnote 20, the rule with respect to the
assessment of costs and expenses has been amended. See Ariz. R.
Sup. Ct. 60(b). The amended rule provides that such an
assessment will occur upon the completion of the disciplinary
proceedings, whether that occurs upon final order of the hearing
officer, the Commission, or this court. Id. R. 60(b)(2)(A)-(C).

- 44 -
such a result. Therefore, we reject Peasley’s argument on this

point.

VI.

¶78 Based on the foregoing, we order that Peasley be

disbarred and that he be assessed costs and expenses consistent

with this opinion.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Rebecca White Berch, Justice

_________________________________________
Andrew D. Hurwitz, Justice

- 45 -