Opinion
Supreme Court No. CV-07-0144-SA
November 6, 2007
Appeal from Pinal County, Superior Court No. CR-14946.
ORDER
Michael and Rudi Apelt have been sentenced to death for murder. See State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993); State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993). After the Supreme Court of the United States held in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits the execution of mentally retarded defendants, the Apelts filed petitions for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32 claiming that they are mentally retarded. See State v. Arellano (Apelt), 213 Ariz. 474, 143 P.3d 1015 (2006).
The State had originally listed the trial prosecutor, Catherine M. Hughes, as a witness in the Rule 32 proceedings. Ms. Hughes later filed a notice of appearance as a special assistant attorney general on behalf of the State; the State then advised counsel for the Apelts that Ms. Hughes would not be called as a witness. Rudi Apelt subsequently filed a motion to disqualify Ms. Hughes (which Michael Apelt joined), indicating his intention to call Ms. Hughes as a witness.
The superior court granted the motion. The State then filed a special action in this Court, seeking relief from the superior court's order; the State also filed an emergency motion for stay of the order. On April 27, 2007, this Court denied the motion for stay, without prejudice to its renewal after Ms. Hughes' testimony was completed in the superior court. The State renewed its motion for stay after that testimony was completed, and this Court entered a stay of the disqualification order on May 1, 2007.
We today accept jurisdiction of the petition for special action and grant relief. Whatever the propriety of the order disqualifying Ms. Hughes at the time it was entered, there is no justification for continued disqualification after the completion of her testimony in this bench trial. We are confident that the experienced superior court judge will not be affected in her evaluation of Ms. Hughes' testimony by the fact that she has subsequently acted as counsel for the State in this matter and we can perceive no prejudice to the defendants from Ms. Hughes' participation in these proceedings as counsel for the State after the completion of her testimony.