Review board: Top Tucson City Court judge should not keep post

A city commission has voted against the reappointment of the presiding judge for Tucson City Court.

The five-member City Magistrate Merit Selection Commission voted at its Aug. 24 meeting to not recommend the reappointment of Judge Antonio F. Riojas after some local attorneys raised concerns that he was not appointing lawyers to defendants at their first court hearings, reports show.

The commission reviews the performance of City Court judges and makes recommendation to city leaders about whether they should be reappointed. The commission voted unanimously to not recommend the reappointment of Riojas for another four-year term.

Riojas has been a judge in Tucson for 28 years, including serving as the Presiding Judge for City Court for the past 20 years.

"We recognize that Judge Riojas’ job is a difficult one made all the more so by the lack of resources needed to conduct the court’s business," the commissions' report said. "But it is not the role of our City’s highest judicial officer to save money at the expense of the accused’s constitutional rights; it is to honor those rights even when it is inconvenient—indeed, especially when it is inconvenient."

The commission’s decision stems from concerns several local attorneys raised earlier this year after defendants were not being assigned counsel during their arraignments, which is standard practice. City Court cases typically include lower-level offenses like DUIs and traffic violations.

In December, Mary Trejo, the chief Public Defender, emailed Riojas, stating that the Public Defender’s Office was at capacity and could not take out-of-custody appointments, a report of Riojas’ actions said.

Trejo sent another email in February saying that they had hired two more attorneys and were now able to accept court appointments “effective immediately.”

A month later, a local attorney reached out to Riojas after he learned that DUI defendants were not being appointed counsel at their arraignments. In the email, the attorney wrote that he was concerned that counsel was being appointed at the pre-trial conference, which are typically set 30 to 60 days after the first-time a person appears in court.

“There are many decisions that must be made by counsel and a DUI defendant within the first few weeks of a citation,” the email said. “There is often investigation that must be done immediately due to changes in road designs, construction zones, etc. A delay by the court on a finding of indigence/appointment of counsel will result in a violation of the rights of DUI defendants . . . The court cannot wait in determining indigence when constitutional rights are at issue.”

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Riojas responded to the email, stating that the practice of not appointing counsel until the first pretrial was initiated at the request of the Public Defender’s Office.

The attorney replied that the matter deals with constitutional rights, and it is not a choice that could be made by the Public Defender’s Office or the court. Riojas responded that he was not aware of any court rule or controlling case that is contrary to the current process and suggested the attorney file an appeal if he disagreed, the report said.

Following the emails, the attorney, along with a few others, sent a joint letter of concern in April to the Presiding Judge of Pima County Superior Court Jeffrey T. Bergin. The letter expressed serious concerns about the new appointing counsel policy, stating that the court is “denying a defendant representation during a critical phase of the case.”

“There was no acknowledgement on the part of the court that defendants’ rights are being violated,” the letter said. “Presiding Judge Riojas intends to take no action on the issue. In short, City Court will maintain a policy to violate defendant’s fundamental right to an attorney.”

The day after the letter was sent, Riojas emailed Trejo, saying, “we may have to appoint PD’s at arraignment,” the report said.

The commission interviewed Riojas, who told them "he had no choice" under the circumstances and rescinded the policy soon after receiving the attorney's letter. He also said he conducted no independent research into the issue and had no plans to look into the cases that were affected by the policy since it was only a small amount.

"There was nothing in Judge Riojas’s interview that suggested he understood the gravity of his error. Quite the opposite, he took no reasonable steps to avoid it in the first place and has no intention of taking steps to mitigate the harm his policy caused," the report said. "His commitment to due process is encapsulated by his response to our questioning: “it only happened in a small number of cases.” 

When interviewed by the Star, Riojas said the defendants were not appointed a public defender initially and would instead meet with the prosecutor, where some people may have been offered plea agreements.

When the policy was in place, Riojas said no one was coerced into taking a plea and they were given choice, stating there was no harm in waiting or no adverse consequences.