Special Action Proceeding Pima County Cause No. CR20182803004
Mark
Brnovich, Arizona Attorney General By Drew C. Ensign, Deputy
Solicitor General and Robert J. Makar, Assistant Attorney
General, Phoenix Counsel for Petitioner
Joel
Feinman, Pima County Public Defender By Dawn Priestman and
Corrinna Molnar, Assistant Public Defenders, Tucson Counsel
for Real Party in Interest
Judge
Espinosa authored the opinion of the Court, in which
Presiding Judge Eppich and Judge Eckerstrom concurred.
OPINION
ESPINOSA, Judge.
¶1
In this capital murder prosecution, the Arizona Department of
Corrections (DOC) challenges by special action the respondent
judge's order requiring it to provide to counsel for
real-party-in-interest Tim Weaver, Weaver's Security
Target Group (STG) file, which pertains to his membership in
the Aryan Brotherhood (AB), without redactions. We exercise
our discretionary jurisdiction to review this interlocutory
ruling and, because the respondent erred, we grant relief.
See Ariz. R. P. Spec. Act. 1(a) (special-action
review available when there is no adequate remedy by appeal);
Green v. Nygaard, 213 Ariz. 460, ¶ 6 (App.
2006) (discovery order is interlocutory, non-appealable
order, and appellate review by special action may be
appropriate).
Background
and Analysis
¶2
Section 31-221(A), A.R.S., identifies the kinds of documents
DOC must maintain in its master file. Subsection (A)(8)
refers to "[a]ny other pertinent data concerning the
person's background, conduct, associations and life
history as may be required by the department with a view to
the person's reformation and to the protection of
society, " which includes information about gang
activity such as the STG file. Section 31-221(C) provides
that all DOC records are subject to disclosure under A.R.S.
§ 39-121, the public records inspection statute, except
records "(1) Revealing the identity of a confidential
informant. (2) Endangering the life or physical safety of a
person. (3) Jeopardizing an ongoing criminal
investigation." Subsection (D) permits "[a]
prisoner [to] view the prisoner's own automated summary
record file, excluding those categories listed in subsection
C, " and subsection (E) prohibits a prisoner from having
"access to any prisoner records other than . . . the
prisoner's own automated summary record file . . .
." Section 31-221(G) lists the documents that are
included in the automated summary file, and the STG file is
not among them.
¶3
The interpretation and application of a statute is a question
of law, which we review de novo. Starr Pass Resort Devs.,
LLC v. Harrington, 245 Ariz. 495, ¶ 3 (App. 2018).
Special-action relief is appropriate when the respondent
judge has abused his or her discretion. Ariz. R. P. Spec.
Act. 3(c); see also Salvation Army v. Bryson, 229
Ariz. 204, ¶ 8 (App. 2012). And an abuse of discretion
includes an error of law. Salvation Army, 229 Ariz.
204, ¶ 8; see also Grant v. Ariz. Pub. Serv.
Co., 133 Ariz. 434, 456 (1982) (court abuses its
discretion when record fails to provide substantial support
for its decision or court commits error of law in reaching
decision).
¶4
DOC disclosed Weaver's STG file to his two attorneys,
redacting the names of certain inmates and their family
members based on § 31-221(C)(1) and
(C)(2).[1] In the respondent judge's May 2, 2019
ruling, entered after a hearing and his in camera inspection
of the unredacted file, he stated he had found "nothing
in the unredacted documents that would prohibit release to
the Defendant." He added, "The STG records date
back to 2009, and they do not . . . identify any confidential
informants, and no information in the documents could
reasonably be considered to endanger anybody's life or
physical safety." DOC subsequently submitted the
declaration of Lance Uehling, DOC's STG Supervisor. After
another hearing, the respondent again concluded that DOC had
not shown redaction was warranted.
¶5
The record we have been provided, including a federal
district court's decision in a previous case Weaver
litigated in that court, provides information about the STG
policy, process, and records. Established by DOC in 1991 as
an effort to control gang activity in Arizona, the policy
includes a process of identifying and validating an
inmate's membership in gangs and segregating them from
the general prison population. An inmate validated as a
member of a gang such as the AB may disavow membership
through the debriefing process or Step-Down Program. During
debriefing, a validated STG member renounces his affiliation,
and he provides information regarding the STG's structure
and activity. The debriefed member is then placed in
Protective Segregation and may be placed in permanent
Protective Segregation status. Significantly, Weaver himself
had previously asserted in the federal proceedings that
debriefing creates a serious risk to an inmate's safety
because a debriefed inmate is required to inform on STG
structures, activity, and membership and essentially becomes
a "snitch."
¶6
In his declaration, STG Supervisor Lance Uehling stated that,
based on his more than nineteen years of experience with DOC,
the AB is "a criminal syndicate inside and outside of
prison . . . and one of [DOC's] most dangerous Security
Threat Groups." He further stated Weaver is a member of
the AB, "which has a history of threatening and
extorting the family members of inmates as a way of
controlling the inmate." He reviewed Weaver's STG
file, stating it contains a list of AB members and some of
their family, adding, "[e]ven though the list was
compiled 10 years ago, or more, that information in the hands
of current [AB] members would endanger the life and safety of
some of the people on the list, " including "at
least five names of family members of debriefed inmates"
and the family members of three inmates who are not in
"good standing" with the AB. He added that he had
personal experience with the AB because they had obtained his
home address and threatened him and his family, for which
some inmates were prosecuted in 2015. Finally, Uehling stated
he believes release of Weaver's "unredacted STG file
will endanger the life and safety of members of the
public."
¶7
The information before the respondent judge established that
debriefed inmates are not materially distinguishable from
confidential informants for purposes of § 31-221(C)(1).
Additionally, it established that the redacted portions of
the STG file include the identities of debriefed inmates or
former inmates, their families, and the family members of
inmates not in "good standing" with the AB, records
"[e]ndangering the life or physical safety of a
person." § 31-221(C)(2). In view of this unrefuted
evidence, the respondent's disclosure order was
erroneous.
¶8
We lastly note that although Weaver asserts "this issue
is not one of weighing competing interests, " he also
contends that his constitutional rights to present a complete
defense on the merits and in mitigation should outweigh the
state's interests in shielding the redacted names.
Notwithstanding comments the respondent judge made during the
hearings, he did not balance Weaver's claimed need for
the information to defend against the capital murder charge
against DOC's statutory obligation to redact the
information. Indeed, Weaver insisted below, and the
respondent ultimately agreed, that DOC had not sustained its
burden under the statute and therefore a balancing of
interests was not required. In his response, Weaver
nonetheless maintains his Sixth Amendment right to present a
defense and Eighth Amendment entitlement to collect
information in mitigation should override any state interest
expressed by the statute in redacting the names. But these
are questions of law and fact that must be resolved in the
first instance ...