IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA EX REL. RACHEL H.MITCHELL,

MARICOPA COUNTY ATTORNEY,

Petitioner,

v.

HON. DAVID J. PALMER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF 

ARIZONA,IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

TAMIRA MARIE DURAND,

Real Party in Interest. 

No. CR-21-0397-PR

Filed April 11, 2024

Appeal from the Superior Court in Maricopa County

The Honorable David J. Palmer, Judge

Nos. CR2019-005593-001; CR2020-001680-002

REVERSED AND REMANDED

Order of the Court of Appeals, Division One

Filed December 9, 2021

No. 1 CA-SA 21-0241

VACATED

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Krista Wood (argued), 

Amanda Parker, Deputy County Attorneys, Phoenix, Attorneys for State of 

Arizona
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

2

Michael P. Denea (argued), Michael P. Denea, PLC, Phoenix, Attorney for 

Tamira Marie Durand

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor 

General, Alice M. Jones, Deputy Solicitor General, Section Chief of Criminal 

Appeals, Joshua C. Smith, Assistant Attorney General, Phoenix, Attorneys 

for Amicus Curiae Arizona Attorney General

JUSTICE BEENE authored the Opinion of the Court, in which VICE CHIEF

JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, and KING joined. ∗

JUSTICE BEENE, Opinion of the Court:

¶1 A prosecutor’s conflict of interest erodes confidence in the 

judicial system and undermines the fairness of criminal trials. Courts must 

preserve the reality—and appearance—of fairness by disqualifying a 

prosecutor when such conflicts arise. Here, we examine a unique 

prosecutorial situation: when a crime victim works in the same office 

responsible for prosecuting the individual accused of the crime. In this 

Opinion, we explicate the factors trial courts should consider when 

deciding whether to disqualify the entire prosecutor’s office when such a 

situation arises.

¶2 Forty years ago, this Court outlined four factors that a trial 

court should consider when deciding whether the appearance of 

impropriety should disqualify counsel. Alexander v. Superior Court, 141 

Ariz. 157, 165 (1984). Two years later, in Gomez v. Superior Court, 149 Ariz. 

223, 226 (1986), this Court reiterated these factors—now commonly known 

as the Gomez factors—as “matters a court must consider when ruling upon 

∗ Chief Justice Robert M. Brutinel and Justice William G. Montgomery have 

recused themselves from this matter.
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

3

a motion to disqualify opposing counsel.” In State v. Marner ex rel. County 

of Pima, 251 Ariz. 198, 200 ¶ 11 (2021), we clarified that a court must apply 

the Gomez factors “whenever a defendant seeks to disqualify an entire 

prosecutor’s office.”

¶3 The trial court here did not consider the Gomez factors when 

disqualifying the Maricopa County Attorney’s Office (“MCAO”). We, 

therefore, vacate the trial court’s disqualification order and remand for an 

application of the Gomez factors, as well as for consideration of Durand’s 

due process rights, as articulated in this Opinion.

BACKGROUND

¶4 In two separate indictments, a grand jury indicted Tamira 

Durand for several fraud-related offenses. One indictment alleged that 

Durand illegally obtained a credit card in the name of Scott Blum. See A.R.S. 

§ 13-2310. Blum is a prosecutor with MCAO—the agency responsible for 

prosecuting Durand.

¶5 To resolve the case, the State offered Durand two plea 

agreements. Displeased with the State’s offer, Durand responded by 

submitting a plea deviation request seeking to reduce the time she would 

spend incarcerated under the agreements. In her request, Durand raised 

the “inherent possibility of conflict” because Blum, one of the listed victims

in her case, appeared to be a prosecutor with MCAO. If he was, Durand 

indicated that “it would be proper for the Maricopa County Attorney’s 

Office to withdraw from representation and enlist another agency to 

prosecute this case.”

¶6 In response, MCAO admitted that Blum was a prosecutor 

with the office but nevertheless denied Durand’s request. When denying 

her deviation request, MCAO informed Durand that there was no 

possibility of conflict because Blum worked in a separate division of the 

office and had been “walled off from the beginning” of the case.
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

4

¶7 The parties then participated in a settlement conference to 

further discuss the possibility of resolving the case by plea agreement.1 

Before the conference, Durand’s counsel again raised the issue of MCAO’s 

purported conflict. In response, the prosecutor suggested that the matter 

be continued to address the alleged conflict, but Durand declined. Instead,

Durand asked to proceed, waiving any potential conflict for the limited 

purpose of discussing a possible settlement.

¶8 After several unsuccessful settlement attempts, Durand filed 

a motion to disqualify MCAO, alleging that Blum’s status as a listed victim 

created a conflict of interest. She argued that her “due process rights will

be violated if she is prosecuted by an agency with a conflict of interest” and 

that “there may be pressure to extend an offer that is less favorable to the 

defendant or even force the case to trial” because of Blum’s involvement.

In its response, the State asserted that Blum’s alleged conflict was not 

imputed to the entire office, there was no appearance of impropriety, and 

that the prophylactic screening procedure implemented by MCAO to avoid 

a conflict was adequate.

¶9 The trial court granted Durand’s motion, concluding that the 

“interest of justice” warranted disqualification. But the court did not 

invoke Gomez or consider the Gomez disqualification factors in its order. 

Even so, the court ordered MCAO to transfer the prosecution of this case to 

another prosecutorial agency in Arizona.

¶10 The State subsequently filed a petition for special action with 

the court of appeals. The court accepted jurisdiction but denied relief. The 

State then petitioned for review. We granted review because the question 

of whether a prosecutor’s office should be disqualified when an employee

is a victim in its criminal case is an issue of statewide importance and likely 

to recur. We have jurisdiction pursuant to article 6, section 5(3) of the 

Arizona Constitution.

1 Durand alleges that Blum attended this, as well as a subsequent, 

settlement conference. The record before us, however, does not 

conclusively establish whether this occurred.
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

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DISCUSSION

¶11 We apply an abuse of discretion standard to a trial court’s 

decision to disqualify counsel. Marner, 251 Ariz. at 200 ¶ 8. However, 

“[w]e review conclusions of law de novo.” Id. “An error of law in reaching 

a discretionary conclusion may constitute an abuse of discretion.” State v. 

Chambers, 255 Ariz. 464, 467 ¶ 13 (2023)(quoting State v. Thompson, 252 Ariz. 

279, 290 ¶ 26 (2022)).

¶12 The party seeking disqualification must demonstrate that the

requested remedy is appropriate. State ex rel. Romley v. Superior Court, 184 

Ariz. 223, 228 (App. 1995). This is because a party should only “be allowed 

to interfere with the attorney-client relationship of his opponent” in

“extreme circumstances.” Alexander, 141 Ariz. at 161.

I.

¶13 When ruling on a motion to disqualify opposing counsel, a 

trial court must consider the four Gomez factors:

(1) whether the motion is being made for the purposes of 

harassing the defendant, (2) whether the party bringing the 

motion will be damaged in some way if the motion is not 

granted, (3) whether there are any alternative solutions, or is 

the proposed solution the least damaging possible under the 

circumstances, and (4) whether the possibility of public 

suspicion will outweigh any benefits that might accrue due to 

continued representation.

Gomez, 149 Ariz. at 226 (quoting Alexander, 141 Ariz. at 165).

¶14 But Durand did not merely seek to disqualify opposing 

counsel; she sought to disqualify an entire prosecutorial office. Our 

guidance in Marner governs this situation. There, we clarified how a trial 

court should analyze a defendant’s request to disqualify a prosecutor’s 

office. We concluded that “the trial court should consider [the Gomez]

factors whenever a defendant seeks to disqualify an entire prosecutor’s 

office, regardless of whether the basis for the motion is a conflict of interest, 
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

6

misconduct, or [the] appearance of impropriety.” Marner, 251 Ariz. at 200 

¶ 11. We explained that the trial court should conduct this analysis because 

it is most familiar with the facts of a case, and “is in the best position to 

determine whether an appearance of impropriety is sufficient to undermine 

public confidence,” and consequently, “whether disqualification is 

appropriate under the circumstances.” Id. ¶ 12. Therefore, trial courts must 

consider the Gomez factors when ruling on a motion to disqualify a 

prosecutor’s office. Id.

¶15 Here, the State points out that the trial court failed to even 

consider the Gomez factors when it evaluated Durand’s motion to disqualify 

MCAO. Instead, the court summarized the parties’ disqualification 

arguments before granting Durand’s motion “in the interest of justice.” 

This was error. See Chambers, 255 Ariz. at 468 ¶ 17 (concluding the trial 

court erred in granting motion to disqualify prosecutor’s office without 

considering Gomez factors). And this error prevents us from meaningfully 

reviewing the court’s ruling.

¶16 Accordingly, we reverse the trial court’s order disqualifying 

MCAO and remand for it to evaluate Durand’s motion by applying the 

Gomez factors. However, the circumstances of this case implicate the 

defendant’s due process rights as well as the victim’s rights under the 

Arizona Constitution. We therefore emphasize that the trial court should 

assess those rights within the Gomez framework. We now explain this 

process.

II.

¶17 In Arizona, both criminal defendants and crime victims enjoy 

constitutional protections. Due process requires that a criminal defendant 

receive a fundamentally fair trial. California v. Trombetta, 467 U.S. 479, 485 

(1984) (“Under the Due Process Clause of the Fourteenth Amendment, 

criminal prosecutions must comport with prevailing notions of 

fundamental fairness.”); accord State v. Melendez, 172 Ariz. 68, 71 (1992)

(“The touchstone of due process under both the Arizona and federal 

constitutions is fundamental fairness.”). A defendant’s right to a 

fundamentally fair trial is critically important because it “preserves both 
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

7

the appearance and reality of fairness, ‘generating the feeling, so important 

to a popular government, that justice has been done.’” Marshall v. Jerrico,

Inc., 446 U.S. 238, 242 (1980) (quoting Joint Anti-Fascist Refugee Comm. v. 

McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J., concurring)).

¶18 Concomitantly, the Arizona Constitution protects a crime 

victim’s right to justice and due process in the Victims’ Bill of Rights (the 

“VBR”). The VBR and its implementing legislation grant victims extensive 

rights, including the right to be informed of—and attend—all criminal 

proceedings where the defendant has a right to be present. Ariz. Const. art. 

2, § 2.1(A)(3); see also A.R.S. §§ 13-4405 to -4427. Victims also have the right 

to refuse interviews as well as depositions, and have specific privacy rights, 

including the right to certain safeguards to minimize contact with the 

defendant, and to prevent the release of personally identifying information. 

Ariz. Const. art. 2, § 2.1(A)(5); see also A.R.S. §§ 13-4430, -4431, -4433, -4434. 

Moreover, in conjunction with these rights, this Court has emphasized that 

the VBR requires the state to communicate with the victim throughout a 

criminal proceeding to ensure that the victim’s rights are preserved. State 

v. Lamberton, 183 Ariz. 47, 50 (1995).

¶19 In this case, Durand argued that her “due process rights will 

be violated if she is prosecuted by an agency with a conflict of interest.” 

The State disagrees, asserting that a conflict does not exist and that the 

Gomez factors militate against disqualification. The State further maintains

that it has “done everything in its power to eliminate any appearance of 

impropriety by implementing an effective screen since the beginning of the 

case.” In its amicus brief, the Attorney General agrees with the State and 

adds that “[t]he creation and maintenance of an ethical screen is a classic 

example of an alternative solution that ameliorates any potential harm and 

ensures that an ethical conflict has no impact on a client’s representation by 

the remaining lawyers in an organization.” MCAO and the Attorney 

General rely on Romley to support their contention that the screening

procedure put in place sufficiently protects Durand’s right to a fair trial. 

But their reliance is misplaced.

¶20 In Romley,MCAO hired a former defense attorney as a deputy 

county attorney. 184 Ariz. at 225. MCAO then adopted screening 
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

8

procedures to protect against inadvertent disclosure of confidential 

information and instructed its new prosecutor not to discuss any previous 

representation of criminal defendants with MCAO employees. Id. at 226.

¶21 In recognizing that an effective screening procedure may be 

sufficient to defeat a motion to disqualify, the Romley court explained that 

a successful screen “must be designed both to eliminate opportunities for 

inadvertent disclosure and to provide a genuine appearance of a security 

wall around the subject attorney.” Id. at 228. That is, a successful screen 

must preserve both the reality and appearance of fairness. After this 

explanation, the court of appeals vacated the trial court’s order 

disqualifying the prosecutor’s office, concluding that MCAO’s screening 

procedure was adequate because (1) it prohibited the new prosecutor from

interacting with MCAO attorneys who were prosecuting his former clients,

and (2) it instructed all MCAO employees not to discuss the new 

prosecutor’s previous cases with him. Id. at 230.

¶22 The screening procedure approved in Romley is not adequate

here, however, for two reasons. First, the screening in Romley was 

established to prevent MCAO’s vicarious disqualification because the 

subject attorney had “participated personally and substantially” in certain 

ongoing cases “while in private practice.” See id. at 226 (quoting Ariz. R.

Sup. Ct. 42, Ethical Rule (“ER”) 1.11). Here, Blum’s conflict—which may 

give rise to an appearance of impropriety—is that, as a victim, he “is likely 

to be a necessary witness” in Durand’s trial. See Ariz. R. Sup. Ct. 42, ER

3.7(a). Unlike in Romley, where the subject attorney had a previous 

attorney-client relationship with the defendants being prosecuted by 

MCAO, Blum’s conflict does not arise from a prior client relationship but 

from his own interest as a victim. Because of this, screening efforts may 

impact whether an appearance of impropriety exits, but they do not 

necessarily insulate an office from a conflict. See Romley, 184 Ariz. at 229 

(“The premise underlying the non-disqualification policy of ER 1.11(c) is 

that a prosecutor usually has no particular motive to intentionally breach 

the security wall created by the screening mechanism.”).

¶23 Second, and more importantly, a Romley-style screening could 

never be effective because Blum, the focus of MCAO’s screen, is not merely
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

9

an MCAO employee but also a crime victim whopossesses the full panoply 

of victims’ constitutional rights. Any complete screening process would 

unlawfully impinge upon his rights because it would restrict his ability to 

exercise his constitutional rights as a victim, including appearing at 

proceedings or consulting on plea deals. Our constitution will not 

countenance such a restriction. Accordingly, though a complete screening

like the one in Romley may ameliorate any potential harm to Durand, it 

would impermissibly vitiate Blum’s constitutional rights.

III.

¶24 This Court’s jurisprudence recognizes that certain

prosecutorial conflicts may implicate a defendant’s due process rights. See 

e.g., Chambers, 255 Ariz. at 468–70 ¶¶ 19–28; Marner, 251 Ariz. at 201 ¶ 15. 

And in R.S. v. Thompson, 251 Ariz. 111, 118 ¶ 20 (2021), we concluded that—

when a defendant’s due process right to a fair trial and a victim’s state 

constitutional rights directly conflict—the due process right prevails. See

also Morehart v. Barton, 226 Ariz. 510, 516 ¶ 23 (2011) (directing trial courts 

to enforce victims’ rights unless the result would deprive the defendant of 

a fair trial); State v. Riggs, 189 Ariz. 327, 330 (1997) (“[I]f, in a given case, the 

victim’s state constitutional rights conflict with a defendant’s federal 

constitutional rights to due process . . . the victim’s rights must yield.”); 

State v. Bible, 175 Ariz. 549, 602 (1993) (“It cannot be doubted that victims of 

crime, and their families, have certain rights. It is equally clear, however, 

that these rights do not, and cannot, conflict with a defendant’s right to a 

fair trial.” (internal citations omitted)). In such circumstances, 

disqualification of a prosecutorial office will preserve both the defendant’s 

due process rights and the exercise of the full panoply of victims’ rights. 

Accordingly, on remand, the trial court should consider whether the

circumstances in this case constitute a conflict that violates Durand’s due 

process right to a fair trial.

¶25 No bright-line rule for determining whether a conflict such as 

the one presented in this case constitutes a due process violation has been 

established; thus, courts must analyze each case according to its specific 

facts. As the Supreme Court has observed:
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

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[D]ue process “is not a technical conception with a fixed 

content unrelated to time, place and circumstances.” Rather, 

the phrase expresses the requirement of “fundamental 

fairness,” a requirement whose meaning can be as opaque as 

its importance is lofty. Applying the Due Process Clause is 

therefore an uncertain enterprise [that] must discover what 

“fundamental fairness” consists of in a particular situation by 

first considering any relevant precedents and then by 

assessing the several interests that are at stake.

Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24–25 (1981) (citation omitted) 

(quoting Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 

U.S. 886, 895 (1961)).

¶26 We believe the Gomez factors, as clarified in this Opinion, 

provide a suitable analytical framework for a trial court under these 

circumstances. As previously indicated, “neutrality in adjudicative 

proceedings” is vital because it “preserves both the appearance and reality 

of fairness.” Marshall, 446 U.S. at 242. And if a defendant’s due process 

rights to a neutral and fair trial directly conflict with a victim’s state 

constitutional rights, the defendant’s rights prevail. R.S., 251 Ariz. at 118 

¶ 20. Accordingly, when applying the Gomez factors, the trial court must 

analyze the parties’ relevant interests in determining whether the alleged 

conflict violates the defendant’s right to a fundamentally fair trial. 

Specifically, the court must determine whether the defendant’s right to a 

fair trial will “be damaged in some way if the motion [to disqualify] is not 

granted,” and whether the appearance of impropriety “will outweigh any 

benefits that might accrue due to continued representation.” See Gomez, 149 

Ariz. at 226 (quoting Alexander, 141 Ariz. at 165).

¶27 Here, the parties do not brief, and we do not attempt to 

address, every conceivable due process violation this circumstance 

presents. But the following are examples of issues a trial court should 

consider when applying the Gomez factors. For instance, if a victim has a 

higher level of prominence and authority in the prosecutor’s office,

permitting that office to prosecute the defendant could damage the 

defendant’s due process right to a fair trial. The more intra-office influence
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

11

the victim has, the greater the risk the prosecution could be unduly affected. 

Even if the victim cannot directly influence the prosecuting attorney’s 

handling of the case, there may be a risk of impropriety if the victim has 

internal influence over the prosecutor. These types of situations could 

implicate the Gomez factor concerning whether the defendant will be 

damaged if the motion is not granted. Additionally, the nature and 

circumstances surrounding the offense may be important and could affect

the Gomez factor that weighs the possibility that public suspicion will 

outweigh any benefits that might accrue due to continued representation. 

For example, prosecuting a serious or violent crime on behalf of a fellow 

employee may motivate a prosecutor to aggressively pursue serious 

charges or sentences, whereas prosecuting a minor infraction is less likely

to inspire similar truculence. Similarly, the court should consider whether

the exercise of a victim-employee’s rights (e.g., to be present at hearings)

would likely cause public suspicion or the appearance of bias. A trial court 

should consider situations like these when determining whether a 

prosecutor’s office may remain on a case without rendering the prosecution 

unfair or creating the appearance of impropriety.

¶28 These examples are clearly not exhaustive, but rather 

illustrative of the circumstances that a trial court should consider when 

deciding whether a conflict of interest contravenes a defendant’s due 

process right to a fair trial. Because a motion to disqualify involves a

fact-intensive inquiry, and will likely necessitate a hearing, we do not adopt

a bright-line rule requiring the disqualification of a prosecutor’s office when 

a victim is an employee of that agency. Rather, a trial court should consider 

all relevant evidence when making this decision.

IV.

¶29 Finally, because the circumstance presented in this case is

likely to recur, we delineate best practices for prosecutorial offices when 

they discover that an employee is also a crime victim.

¶30 Section 13-4434(A) prevents the release of a victim’s 

personally identifying information. The trial court, nonetheless, “may 

order the victim’s identifying and locating information to be disclosed . . . if 
STATE EX REL. MITCHELL V. HON. PALMER/DURAND

Opinion of the Court

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it is necessary to protect the defendant’s constitutional rights.” 

§ 13-4434(D). However, before the court can disclose the victim’s 

information, “the victim must be notified and has the right to be heard by 

the court.” Id. Subsection (D) also states that once a court discloses a

victim’s identifying information, “the defendant’s attorney may not 

disclose the information to any person other than the attorney’s staff and a 

designated investigator,” and that a victim’s information cannot be 

disclosed to the defendant “without specific authorization from the court.”

¶31 Therefore, upon learning that an employee is a crime victim, 

the state should file an ex parte motion under § 13-4434(D), notifying the 

trial court of the possible conflict. In compliance with subsection (D), the 

court should determine whether the victim’s identifying and locating 

information must be disclosed. Though it is difficult to conceive of a 

situation where disclosing that a prosecuting office employs a victim is not

necessary to protect a defendant’s rights, we decline to fashion a bright-line 

rule requiring disclosure. Instead, we are confident the superior court will 

properly weigh all competing interests when deciding whether disclosure 

is necessary and, if so, how to make that disclosure. This procedure 

comports with relevant statutes and allows the trial court to protect the 

constitutional rights of both the victim and defendant.

CONCLUSION

¶32 For the foregoing reasons, we reverse the trial court’s order 

disqualifying MCAO, vacate the court of appeals’ order, and remand to the 

trial court for further proceedings consistent with this Opinion.