The Ninth Circuit heard arguments Thursday in a nine-year-old case
seeking to expunge the conviction of the man accused of starting the
1970 Pioneer Hotel Fire in Tucson, Arizona.

Louis
Taylor was sentenced to life in an Arizona state prison in 1972, two
years after 29 people died in one of the most devastating fires in
Tucson’s history. Taylor was arrested and charged with 28 counts of
murder before a forensic investigation was even initiated to determine
whether the fire was arson, according to the complaint Taylor filed in
federal court in 2015. Though some witnesses said under oath they saw
Taylor helping to extinguish the fire and carry victims to safety, an
all-white jury convicted the then-16-year-old Black boy.

Taylor spent four decades behind bars until pleading no contest in 2013 in exchange for his freedom as part of a deal with Pima County prosecutors.

Sentinel archive (2013): Louis Taylor: ‘Persevered through grace of God’

Taylor
sued the county and the city of Tucson in 2015 for racial
discrimination, wrongful arrest, prosecutorial misconduct, civil
conspiracy and negligent investigation. In 2021, he amended his complaint
to request that the 2013 plea and conviction be expunged as
unconstitutional so that he can seek damages for the 42 years he spent
in prison. He claims the case should have been dismissed then for lack
of evidence, but he took the plea as the only way to escape prison.

Pima County asked U.S. District Judge Rosemary Marquez to dismiss the complaint for lack of jurisdiction, but Marquez refused, finding she has the power to expunge a state court criminal conviction if the jury comes to certain findings.

Two years later, the county asked the Ninth Circuit to issue a writ of mandamus, declaring that potential action outside of the trial judge’s power. 

“Based
on that clear error, we are going to trial based on a lawless remedy,”
county attorney Nicholas Acedo told a three-judge Ninth Circuit panel
Thursday morning in San Francisco. 

U.S. Circuit Judge Richard Paez asked why the county requested mandamus now rather than wait until after the trial plays out.

“If there’s no basis for it, if it is an erroneous ruling, you can appeal that,” the Bill Clinton appointee told Acedo.

Acedo
said allowing the case to proceed to trial poses an ethical issue that
might disqualify him from representing the county. He will likely be
called to testify, and the Arizona State Bar’s rules of ethics preclude
one from acting as both a witness and an advocate in a trial. So he may
be disqualified from representing Pima County.

The case has lasted nearly 10 years and includes more than 10,000 documents.

“Nobody could possibly step in at this moment and take over the case, and that’s the prejudice to my client,” Acedo said. 

John Leader, representing Taylor, dismissed that argument entirely. 

“The
rules of ethics plainly allow him not to withdraw to avoid hardship
with the client,” he told the panel. “The district court has not
disqualified him, and we will not move to disqualify him.”

U.S.
Circuit Judge Patrick Bumatay, a Donald Trump appointee, recommended
Acedo receive an ethical opinion from the state bar on the matter. 

Additionally,
Acedo said waiting for the conclusion of trial to file a traditional
appeal would run a time risk, as most witnesses are aging or already
dead. The state’s expert witness on fire investigations died in 2023. 

Leader
argued that that’s the only appropriate remedy, as the situation isn’t
drastic enough to call for a writ of mandamus at this juncture. 

“The district court left the door open to appeal this,” he said. “The petitioners are free to do that.”

Leader
argued that Judge Marquez’s order didn’t suggest an expungement of the
conviction, but rather an expungement of the record, which is less
legally gray in terms of feasibility. Though, he still insists that
expungement of the conviction itself is lawful and necessary.

Bumatay
disagreed, saying Marquez’s order clearly establishes her perceived
authority to expunge a conviction. And he said there is no case law
establishing such a precedent. 

Leader countered that there’s
never been a civil rights case brought under Section 1983 seeking to
expunge a conviction, but that doesn’t mean it isn’t possible. 

Acedo
added at the end of his rebuttal that if the 2013 plea and conviction
are overturned, it’s possible for the original 1972 conviction to come
back in play, which theoretically would put Taylor back behind bars. 

U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, seemed to agree with him. 

The
case is set to go to trial on April 22 and could last anywhere from
three to eight weeks, the attorneys say. While a jury could find the
original 1972 conviction unconstitutional, it’s unclear what it’s status
would be if the 2013 conviction is expunged.