## Facts

- Jesse Andres Flores and Manuel D. Gongora were indicted on multiple dangerous felony counts (endangerment and weapons misconduct) arising from a drive-by shooting at J.M. and J.M.’s family.
- In a separate, unrelated matter, J.M. had been indicted on multiple dangerous felony counts (attempted murder and aggravated assault) that did not involve Flores or Gongora.
- The Maricopa County Attorney’s Office prosecuted both the drive-by case (against Flores and Gongora) and the unrelated case (against J.M.).
- Gongora moved for a determination of counsel, arguing the prosecutor had a conflict and an appearance of impropriety because J.M. was both a victim-witness in one case and a defendant in another; Flores joined.
- The asserted concern was that J.M. might feel pressure to cooperate with the State in hopes of receiving leniency in his own prosecution.

## Issues

1. Whether a prosecutor’s office must withdraw or be disqualified when it prosecutes a victim in a separate, unrelated criminal case while prosecuting defendants accused of victimizing that person.
2. Whether the criminal defendants have standing to seek disqualification based on a claimed conflict affecting the victim.
3. Whether special action review is available to challenge a pretrial order disqualifying the prosecutor.

## Decision

- The Court of Appeals accepted special action jurisdiction because the disqualification order was interlocutory and not adequately reviewable by appeal, and the issue was likely to recur.
- The court held the defendants lacked standing to assert a conflict belonging, if at all, to the victim.
- The court held no disqualifying conflict arose merely from the prosecutor’s simultaneous handling of the two unrelated prosecutions.
- The court vacated the superior court’s order requiring the State to withdraw from one of the two cases.

## Legal Principles

- A prosecutor is not per se conflicted, and need not be disqualified, solely because the prosecutor’s office is prosecuting a victim in an unrelated criminal matter while prosecuting the alleged victimizers in another case.
- Disqualification cannot rest on speculative concerns about witness pressure or a generalized “appearance of impropriety” absent a legally cognizable conflict.
- Generally, only a client or former client has standing to challenge representation based on a conflict of interest; non-clients may not assert a third party’s alleged conflict for tactical advantage.
- Special action review is an appropriate vehicle to challenge a pretrial order disqualifying the prosecutor when no adequate remedy by appeal exists and the issue is likely to recur.

## Conclusion

The court set aside the order requiring the prosecutor to withdraw, ruling that the defendants could not seek disqualification on the victim’s behalf and that no conflict requiring withdrawal arose from the prosecutor’s office concurrently prosecuting the victim in an unrelated case.


State ex rel. Romley v. Superior Court, 891 P.2d 246 (Ariz. Ct. App. 1995)