Clements' lawyers claim bias, file motion to replace judge

Lawyers for the man accused in the kidnapping and killing of 6-year-old Isabel Celis are seeking a new judge, saying the current judge’s “interest or prejudice” would prevent a fair and impartial trial.

Christopher Clements was charged in 2018 with the separate kidnappings and killings of Isabel and 13-year-old Maribel Gonzalez. Isabel was discovered missing from her bedroom on the morning of April 21, 2012.

Maribel disappeared on the way to a friend’s house on June 3, 2014. Her body was found days later in a desert area off of Avra Valley and Trico roads, near where Isabel’s remains were eventually recovered.

Clements was not identified as a suspect in either case until 2017, when he led investigators to Isabel’s remains in exchange for the dropping of unrelated charges. He was found guilty last year by a separate jury in Maribel’s abduction and was sentenced to natural life in prison for first-degree murder and another 17 years for kidnapping, which will be served consecutively.

Jurors in Clements’ trial in Isabel’s case heard from 30 witnesses over the course of 10 days. They deliberated for two days before Pima County Superior Court Judge James Marner declared a mistrial on March 3 based on the jury’s inability to reach a unanimous decision.

Marner presided over both of Clements’ trials.

After the jurors were excused from service following Marner’s declaration of a mistrial, Marner said he was going to back to the jury room to thank the jurors for their service, according to the motion to remove Marner from the case, filed Monday in Pima County Superior Court by Scottsdale-based attorney Eric Kessler.

“Judge Marner did not invite the attorneys to meet with him and the jury, nor did Judge Marner conduct his... discussion with the jury on the record or with a court reporter,” according to the motion.

The motion included a copy of an Arizona Daily Star article published on March 15, based on interviews with four jurors, detailing their deliberation process and their interactions with the lone holdout.

The jurors told the Star that after Marner declared a mistrial, he came back to the jury room to thank them and told them about Clements’ previous conviction in connection with Maribel’s kidnapping and murder.

“While Judge Marner thought it appropriate to inform the jury of a substantial fact that was properly withheld from the jury... Judge Marner did not inform the jury of other critical facts withheld from the jury that led Tucson Police Department to suspect Sergio Celis of complicity in (Isabel’s) disappearance,” the motion said.

Marner should not have said anything to the jurors about any facts that were withheld, according to the motion.

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“Judge Marner’s decision to improperly tell the jury negative information about Mr. Clements, yet withhold comment about incriminating facts regarding Mr. Celis, shows bias and prejudice against Mr. Clements,” the motion said. “As a result, the ... article in the Daily Star only reflected negatively on Mr. Clements, even though Judge Marner was aware that the defense raised a third-party culpability defense and would most assuredly do so again in a retrial of these counts.”

The motion said that the article gives the impression to the public that Marner was “commending and commiserating with” the jurors that voted to convict Clements, while “lamenting” that the holdout juror couldn’t be told during trial about Clements’ conviction in Maribel’s case.

“Obviously, Judge Marner’s discussions with the jurors went well beyond expressing his appreciation for their service to the judicial system,” the motion said.

The motion included an advisory opinion from the Arizona Supreme Court’s Judicial Ethics Committee about contacting or speaking to members of a discharged jury. The opinion said:

Lawyers for all parties should be given an opportunity to be present when a judge speaks with members of a discharged jury.

The judge must tell the jurors before the meeting that he or she cannot answer questions about pending matters — in this case, a retrial — and must disallow juror statements about pending matters.

The judge must also “expressly and firmly prohibit” any discussion of deliberations.

If a juror volunteers information the judge would be prohibited from hearing outside the presence of all parties, the information must be treated like any other unsolicited communication to the judge and promptly disclose it to all parties on the record. The parties must also be given the opportunity to speak about the matter.

The motion said that because Marner’s statements appeared in the article, “the public’s confidence and integrity in the judicial system is compromised.”

Clements’ lawyers said that while no comments about Clements or Sergio Celis were appropriate or permitted, Marner exhibited “obvious bias and prejudice” against Clements by disclosing very negative information.

“Mr. Clements’ already slim chances of getting a fair jury in Pima County were just reduced to no chance at all,” the motion said. “Judge Marner’s unfortunate decision to disclose properly excluded information will be another basis to seek a change of venue. Prospective jurors now know or suspect that evidence in Mr. Clements’ retrial will likely be withheld from them.”