The attorney for former death-row inmate Rickey Dale Newman has asked a Crawford County Circuit Court judge to disqualify the special prosecutor in the case because of a conflict of interest.
Julie Brain, who is representing Newman, 57, filed a motion in the case Dec. 29 arguing that it is a conflict of interest for special prosecutor Ron Fields to prosecute Newman and to represent other criminal defendants against the state in the same court.
Circuit Judge Gary Cottrell appointed Fields special prosecutor Aug. 27 after Crawford County Prosecuting Attorney Marc McCune recused himself and his office from the case. The prosecutor chose to recuse after Brain filed a motion to disqualify him.
Fields, a former prosecutor for Sebastian and Crawford counties, is a private attorney in Fort Smith and has handled several criminal cases in Crawford County. He was on today's criminal arraignment docket before Cottrell as the attorney for a man charged with drug offenses.
Fields said Monday that he planned to file a response opposing Brain's motion, which he said was not a surprise. He said that if he is disqualified, he would expect Brain to seek to disqualify his replacement.
He said he was chosen as special prosecutor because he has acted as special prosecutor before -- including in a murder case -- in other jurisdictions and was out of the state when Newman initially was prosecuted. Fields was in Washington, D.C., working for the Drug Enforcement Administration at the time.
Newman was convicted and sentenced to death in 2002 for the Feb. 7, 2001, slaying of Marie Cholette, 46, whose mutilated body was discovered in a homeless camp on the west edge of Van Buren. In his one-day trial, Newman admitted his guilt and asked the jury to give him the death penalty.
He successfully petitioned the Arkansas Supreme Court to waive his appeals and to be executed. Just days before his scheduled July 2005 execution, he allowed Brain to file a petition on his behalf in U.S. District Court in Fort Smith to stay the execution and to revive his appeals.
In January 2014, the Arkansas Supreme Court ruled that Newman had been incompetent to stand trial in 2002 and ordered him back to Crawford County for retrial on the capital murder charge. His trial is scheduled to begin the week of April 6 in Van Buren.
Brain wrote in the Dec. 29 motion that after Fields' appointment as special prosecutor, she discovered that the Arkansas Rules of Professional Conduct bar a defense attorney who is actively representing criminal defendants from serving as a special prosecutor in the same jurisdiction.
Brain quoted a court case in Washington state as authority for her argument. She wrote that in that case, State v. Tracer, 272 P.3d 199, 204 (Wash. 2012), the court ruled, '"A conflict of interest exists when an attorney represents a criminal defendant in superior court and simultaneously acts as a prosecuting attorney in the same county.'"
In a footnote, Brain wrote that the Washington Rules of Professional Conduct Rule 1.7, which deals with conflict of interest and was referred to in the Tracer case, is identical to the Arkansas Rules of Professional Conduct's Rule 1.7.
She wrote that courts in New Jersey, Utah, Oklahoma and California have made similar rulings.
Brain's motion stated that courts in Arkansas have not ruled on the issue.
Fields pointed out the lack of an Arkansas court ruling against an attorney acting as prosecutor, deputy prosecutor or special prosecutor and having a private law practice. He said there is a tradition in Arkansas for attorneys in some cases to work as prosecutors and to have private practices.
Brain pointed to a 2009 opinion by the Arkansas attorney general's office that said several authorities hold "an attorney for the government may not simultaneously represent other clients against the government."
The opinion, which was sought by McCune, stated the practice would sour the public's perception of the administration of justice and would be a conflict of interest under Rule 1.7 of the Arkansas Rules of Professional Conduct.
NW News on 01/07/2015