STATE OF ARIZONA, Pеtitioner, v. THE HONORABLE SHERRY STEPHENS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DONALD JAMES MEJAK, Real Party in Interest.
No. 1 CA-SA 05-0210
Court of Appeals of Arizona, Division 1, Department B
March 21, 2006
212 Ariz. 554, 136 P.3d 240
¶ 20 An attempt is substantively different from a completed crime because an attempt to commit an offense does not require that all the elements be present for the commission of the offense. Attempt requires only that the defendant intend to engage in illegal conduct and that he take a step to further that conduct. See
¶ 21 The State, however, charged Mejak not with attempt, but with the completed offense of luring. But a defendant cannot be held criminally responsible for a completed crime when it is impossible to commit the offense. See id.; see also People v. Rizo, 22 Cal.4th 681, 94 Cal.Rptr.2d 375, 996 P.2d 27, 30 (2000) (stating that a defendant cannot be charged with anything more than attempt if he possesses the “requisite criminal intent,” but the facts are such that an element of the crime is lacking). The luring statute requires that an actual minor or a peace officer posing as a minor be lured. Because the person Mejak lured was not a minor or peace officer posing as a minor, he could not violate the criminal statute under which he was indicted.
¶ 22 Accordingly, we conclude that the indictment is insufficient as a matter of law to charge Mejak with the crime of luring. Therefore, the trial court should have granted the motion to dismiss.
III
¶ 23 For the above reasons, we vacate the order of the superior court denying Mejak‘s motion to dismiss, and remand to the superior court with instructions to dismiss the indictment.
CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, ANDREW D. HURWITZ and W. SCOTT BALES, Justices.
In the Matter of the Application of Lee Keller KING, Applicant.
No. SB-03-0152-PR
Supreme Court of Arizona, En Banc.
June 28, 2006
212 Ariz. 559, 136 P.3d 878
State Bar of Arizona by Robert B. Van Wyck, Chief Bar Counsel, Patricia A. Sallen,
OPINION
TIMMER, Judge.*
¶ 1 This court recently denied the application to practice law submitted by an individual previously convicted of first-degree murder. In re Hamm, 211 Ariz. 458, 123 P.3d 652 (2005). In the wake of Hamm, we review the recommendation of this court‘s Committee on Character and Fitness to admit Lee Keller King, who was previously convicted of attempted murder. Because King has failed to satisfy his burden to demonstrate his character and fitness to practice law in Arizona, we reject the Committee‘s recommendation and deny King‘s application.
BACKGROUND
¶ 2 In 1977, twenty-four-year-old Lee Keller King was a certified peace officer, employed as a reserve deputy constable in Harris County, Texas. In that capacity, King served civil court papers, performed patrol duties with full-time officers, and attended numerous hours of basic training. King was authorized to carry a handgun while in uniform and, when dressed in civilian clothes, was permitted to keep the weapon in the glove compartment of his car.
¶ 3 On December 30, 1977, King was upset because he had been “passed over” for a full-time deputy constable position. While off duty1 and out of uniform, King went to a neighborhood bar, became highly intoxicated, and argued with two male acquaintances who King knew to be convicted felons. Although reports about what occurred next conflict somewhat,2 it is undisputed that King left the bar in the early morning hours of December 31, and the two men soon followed. King then used his semi-automatic service weapon to shoot each man several times at close range, emptying his fully loaded weapon and firing some bullets through the bar door. Neither King nor any other witness reported that King warned the victims to stay back before shooting them. One man was shot in the upper thigh and back, with an exit wound through the neck, leaving him in a critical condition that required surgery. The other man was shot in the abdomen and upper leg, splintering the bones and causing serious damage. Both victims were unarmed. De-
¶ 4 After the State of Texas indicted King on two counts of attempted murder, King entered a guilty plea to one count of attempted murder pursuant to a plea agreement. In September 1978, King was sentenced to a seven-year prison term. After an unsuccessful appeal on bases King cannot recall, he began serving his sentence in June 1979 before the court suspended his sentence and placed him on probation four months later.3 During his term of probation, King underwent mental health counseling and group therapy. In February 1985, a court set aside King‘s conviction.
¶ 5 After King left the criminal justice system, his life took an admirаble turn. He graduated from college and law school and passed the Texas bar examination. The Texas Board of Law Examiners concluded that King possessed the requisite good moral character to practice law in Texas, and he was admitted to practice in 1994. Thereafter, King practiced law in Texas without incurring any disciplinary charges, he married, adopted his wife‘s child, and the couple had two additional children.
¶ 6 In 2003, King moved to Arizona to work in his law firm‘s Phoenix-area office. He passed the Arizona bar examination and submitted his Character and Fitness Report to the Committee on Character and Fitness4 as required by Arizona Supreme Court Rule 34(a), 17A Ariz.Rev.Stat.5 After conducting an evidentiary hearing on October 14, 2003, the Committee recommended that this court deny King‘s application for admission, finding that he had failed to prove his good character and fitness to practice law in Arizona. The Committee concluded that although King had presented strong evidence оf rehabilitation and positive social contributions since the shootings, the Committee was unable to overlook the seriousness of his crime. This court declined King‘s subsequently filed petition for review on April 19, 2004, effectively denying King‘s application.
¶ 7 King re-applied for admission six months later and another hearing was held on April 21, 2005. The landscape of this hearing differed from that of the prior hearing. Specifically, membership in the Committee had changed, King had secured legal representation, and King presented more extensive evidence concerning his character and fitness to practice law. By a vote of eight to three, the Committee recommended King‘s admission to the bar and notified the court of its decision by letter four days later. The Committee offered no explanation for its decision.6
¶ 8 Pursuant to
ANALYSIS
I.
¶ 9 King bears the burden of proving by a preponderance of the evidence that he possesses the requisite character and fitness qualifying him for admission to the Arizona bar.
¶ 10 In summary, when an applicant convicted of a serious crime applies to practice law in Arizona, we conduct a conditional, two-part inquiry. We first consider whether the applicant has satisfied the burden of proving complete rehabilitation from the character deficits that led to the commission of the crime. If not, our inquiry ends and we will deny the application. If the applicant proves complete rehabilitation, we then decide whether the applicant has otherwise demonstrated present good moral character. With these principles in mind, we turn to King‘s application.
II.
¶ 11 The weight of the added burden of demonstrating complete rehabilitation is determined by the gravity of the past criminal conduct. Id. at 464, ¶ 22, 123 P.3d at 658. The more serious the unlawful act, the greаter the burden. Id. “[I]n the case of extremely damning past misconduct,” such as first-degree murder or, in the circumstances here, attempted murder, “a showing of rehabilitation may be virtually impossible to make.” Id. (quoting In re Matthews, 94 N.J. 59, 462 A.2d 165, 176 (1983)). Undoubtedly, King‘s act in shooting two unarmed men at close range multiple times without apparent verbal warning constitutes the type of “extremely damning” misconduct that mandates an extraordinary showing of rehabilitation. Although neither victim died, King inflicted serious injuries upon them while holding a position of public trust as a peace officer.9
¶ 12 The extraordinary showing required of King affects the quantum of evidence required to satisfy the preponderance-of-the-evidence standard rather than the burden itself. Phrased differently, King‘s misconduct tips the scales against admission at the outset, thereby requiring him to produce an extraordinary amount or quality of evidence to meet his burden of proof.
¶ 13 To prove complete rehabilitation, King must establish that he has both (1) accepted responsibility for his past criminal conduct, Hamm, 211 Ariz. at 464, ¶ 23, 123 P.3d at 658, and (2) identified and overcome the weakness that led to the unlawful conduct, In re Arrotta, 208 Ariz. 509, 513, ¶ 17, 96 P.3d 213, 217 (2004). We “weigh those factors tending to show rehabilitation against those tending to show a lack thereof” to decide whether King has met his burden. Hamm, 211 Ariz. at 465, ¶ 25, 123 P.3d at 659.
A.
¶ 14 Evidence in the record both supports and negates King‘s contention that he has accepted responsibility for the 1977 shootings.10 King demonstrated his acceptance by informing judges, lawyers, law professors, former employers, and a host of friends, acquaintances, and colleagues of his crime over an extended period of time, impressing upon many of them heartfelt feelings of remorse.11 And in both hearings before the Cоmmittee, King admitted shooting the victims and expressed remorse, calling the shootings “a mistake I made that I will carry with me for the rest of my life.”
¶ 15 Conversely, in his written applications for admission to law school and to the Arizona bar, both created years after his conviction had been set aside, King minimized his personal responsibility for the shootings. In his application for law school submitted in the early 1990s, King described the circumstances of the shooting and explained that in light of these facts, the lack of any witnesses on his part, his strained emotional state, and anti-police sentiment of the day, it was in his best interests to plead guilty to one charge and “throw [himself] on the mercy of the Court rather than to attempt to clear [himself] in a jury trial.” Although King appropriately stated that he was “stricken with remorse” immediately after the shootings, we are nevertheless left with the impression that King intended his readers to infer that he had a defense to the shootings but chose to plead guilty to one charge after weighing his chances for success. His suggestion that only circumstances beyond his control prevented him from mounting a successful defense is inconsistent with the notion of acceptance of responsibility.
¶ 16 In his application to this court, King provided a shorter account of the shootings, noting his intoxication and fear of the victims, whom he knew to be convicted felons aware of his peace-officer status. He explained that he pled guilty to one charge “rather than attempt to fight [the charges] at
¶ 17 Finally, King‘s statements to the Committee suggest he has not candidly аssessed his actions on the morning of the shootings. Specifically, although he related details of the crime that support his assertion that he shot the victims in a drunken panic when they approached him, he repeatedly cited a failed memory when asked about facts that dispute that version of events. For example, because King claimed no memory of these events, the Committee could not meaningfully question King about witness statements that he threatened to shoot O‘Brien and acted as the aggressor by returning to the bar door with his gun. The Committee was also prevented from probing the basis for King‘s fear of the victims because he could not remember why he argued with them or why he felt threatened by them. King‘s memory of details that only favor his version of the events compels us to discount his claim that he does not remember salient facts about the shootings.
¶ 18 In light of the above-described evidence, King has failed to make an extraordinary showing that he has accepted responsibility fоr the shootings. Id. at 464, ¶ 22, 123 P.3d at 658. Because we weigh all factors tending to show rehabilitation, however, we must examine other evidence concerning King‘s rehabilitation before deciding whether he has satisfied his burden of proof. Id. at 465, ¶ 25, 123 P.3d at 659.
B.
¶ 19 To prove complete rehabilitation, King must also identify the weakness that caused him to engage in criminal misconduct and then demonstrate that he has overcome that weakness. Arrotta, 208 Ariz. at 513, ¶ 17, 96 P.3d at 217.12 King has not proven either factor.
¶ 20 While before the Committee, King did not explicitly identify the weakness that caused his criminal misconduct. Although he stated that at the time of the shootings he was intoxicated, depressed, and stressed, he never plainly said that this combination of factors caused him to engage in such extreme criminal misconduct. Indeed, he expressed that he was “not sure anything can adequately explain” what occurred the morning of the shootings.
¶ 21 At oral argument before this court, King argued that a mix of stress and alcohol abuse caused the misconduct. The record before us, however, does not reflect thаt King identified the character flaw that led him to fail to appropriately cope with stress and/or to abuse alcohol.
¶ 22 King offered no evidence identifying the weakness that prevented him from appropriately coping with the stress he was experiencing in late 1977. For example, King did not introduce any evidence from a mental health professional identifying emotional problems King was suffering in 1977 that would explain his inability to appropriately respond to stress or his resort to alcohol abuse. See Arrotta, 208 Ariz. at 514, ¶ 22, 96 P.3d at 218 (recognizing that in many instances a counselor can assist a person to understand reasons for misconduct). And even though King participated in counseling while on probation, he cannot recall any diagnoses, although he believes he was counseled for depression and “probably” low self-esteem. But many people have low self-esteem, experience employment disappointments, and suffer financial strain without unleashing their emotions in the violent manner chosen by King on the morning of the
¶ 23 In short, nothing illuminates why King lacked appropriate skills to cope with stress or abused alcohol during the pertinent period of his life. Without such knowledge, we cannot be assured that King has appropriately addressed and overcome the weakness leading to his criminal misconduct. See id. at 513, ¶ 18, 96 P.3d at 217 (applicant for reinstatement failed to show he understood or even identified cause of misconduct).
¶ 24 King has similarly failed to persuade us that he has overcome the weakness that led to his misconduct. We credit the fact that King has not engaged in serious misconduct or had an alcohol-related incident since the 1977 shootings. This circumstance is particularly significant as King has encountered many stressors since the shootings, including incarceration, probation, schooling, practicing law in Texas,13 taking on family responsibilities, and exрeriencing financial difficulties that led to bankruptcy. We disagree with the dissent, however, that the manner in which King has led his life since the shootings, however admirable, compels a conclusion that he has overcome the weakness that led to the shootings. See infra ¶ 52. The mere passage of time without incident is insufficient standing alone to evidence King‘s triumph over the weakness that caused his misconduct. Arrotta, 208 Ariz. at 515, ¶ 29, 96 P.3d at 219 (“Merely showing that [an individual] is now living and doing those things he ... should have done throughout life, although necessary to prove rehabilitation, is not sufficient to meet the applicant‘s burden.“) (citation omitted); Matter of Robbins, 172 Ariz. 255, 256, 836 P.2d 965, 966 (1992) (to same effect). Rather, to ensure King‘s complete rehabilitation before entrusting him with the responsibility of practicing law in Arizona, he must persuade us that he has directly addressed and overcome the weakness that led to the shootings. Arrotta, 208 Ariz. at 515, ¶ 29, 96 P.3d at 219.
¶ 25 We give weight to King‘s testimony that he participated in counseling while in the Texas justice system and during college and law school. According to King, as part of his probation, he underwent weekly individual, and eventually group, counseling sessions, which were designed in part to address his alcohol abuse. He also attended “some meetings of Alcoholics Anonymous,” and worked through a twelve-step program designed to overcome addiction.14 While in college, he again attended individual and group counseling sessions to help him cope with the stress of being a student. King also attended weekly meetings of Adult Children of Alcoholics during law school. Finally, during his last year of law school and for two years thereafter, he attended weekly counseling sessions with a “master‘s social work psychological counselor.” According to King, this treatment, along with his religious beliefs, increased his sense of self-worth, helped him take responsibility for his actions, and taught him coping mechanisms to deal with stress that do not involve “going out and getting drunk and getting in trouble.”
¶ 27 King also provided contradictory testimony regarding his alcohol abuse. Although he reported that he worked through Alcoholics Anonymous’ twelve-step program to help with “addiction,” which required him to admit he was powerless over alcohol,15 he continues to drink alcohol occasionally and denies that he is or was an alcoholic. King‘s continued, albeit moderate, use of alcohol indicates either he has not overcome the weakness leading to his alcohol abuse or does not believe that alcohol abuse caused the emotional turmoil that led to the shootings. And again, King fails to provide any evidence from a substance abuse specialist or counselor that would enable us to assess whether King has an ongoing addiction so that even social drinking might compromise his ability to practice law. See In re Beers, 339 Or. 215, 118 P.3d 784, 788, 791 (2005) (admitting applicant with criminal record stemming from drug and alcohol abuse based in part on psychologist‘s testimony that applicant did not suffer addiction). Without this or equivalent evidence, King has not shown that he has truly conquered the weakness that led to his misconduct. Consequently, although the lengthy passage of time without incident and King‘s participation in counseling provide some evidence that he has overcome the weakness causing his misconduct, the impact of this evidence is compromised by other evidence.
C.
¶ 28 In weighing all the factors concerning King‘s rehabilitation, we conclude that King‘s demonstration falls short of the “virtually impossible” showing needed to erase the stain of his serious criminal misconduct. Although significant and commendable evidence shows rehabilitation, contrary evidence dilutes its strength. For this reason, we deny King‘s application for admission to the bar. In light of our decision, we need not consider whether King has otherwise proven his present good moral character.16 Hamm, 211 Ariz. at 465, ¶ 25, 123 P.3d at 659.
¶ 29 By our decision today, we do not effectively exclude all applicants guilty of serious past misconduct from practicing law in Arizona, as the dissent suggests. See infra ¶ 32. Nor do we lightly view the choice of applicants such as King to live as good citizens after paying for past misdeeds, as the dissent implies. Indeed, it is out of respect for and belief in rehabilitation that this court has refrained from mimicking other professions by drawing a bright-line rule to disqualify convicted felons from practicing law in Arizona. See infra ¶ 30. Such applicants, however, must overcome the additional burden born from their past misdeeds as reflected in our two-part inquiry. King has not done so.
CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice and MICHAEL D. RYAN, Justice.
HURWITZ, Justice, dissenting.
¶ 30 The State Bar of Arizona has repeatedly urged us to disqualify from the practice of law all applicants with records of serious past misconduct. Such a bright-line rule would hardly be irrational. Felony convictions disqualify applicants from participation in a number of other professions,
¶ 31 Our opinions, however, have twice expressly rejected the Bar‘s suggested per se approach.17 In In re Hamm, we stated that “the rules and standards governing admission to the practice of law in Arizona include no per se disqualifications” and that we therefore “consider each case on its own merits.” 211 Ariz. 458, 462 ¶ 16, 123 P.3d 652, 656 (2005). I concurred in that holding, which is entirely consistent with our willingness to consider the readmission of attorneys disbarred after felony convictions upon proof of rehabilitation. See In re Arrotta, 208 Ariz. 509, 96 P.3d 213 (2004) (involving reinstatement application of attorney convicted of mail fraud and bribery). I also concurred in the Court‘s conclusion that despite his admirable post-conviction record, Mr. Hamm had not discharged his difficult burden of demonstrating current good moral character. Hamm, 211 Ariz. at 468 ¶ 40, 123 P.3d at 662.
¶ 32 The majority purports again to reject a per se rule today, stating that, notwithstanding serious past misconduct, an applicant can prove the current good moral character required by Arizona Supreme Court Rule 3618 for admission to the Bar. Op. ¶ 9 & n. 8. In practice, however, the Court has adopted the very bright-line rule it purports to abjure. If Mr. King has not demonstrated rehabilitation and current good moral character, it is difficult for me to conclude that any applicant previously convicted of a serious felony ever can.
I.
¶ 33 The majority accurately recites the background facts of this case, Op. ¶¶ 2-7, and I need not recount them here. But several uncontested facts not emphasized in the majority opinion deserve particular focus.
¶ 34 Mr. King comes to us with an extraordinary item on his resume—he is a long-standing member of the Texas Bar. King graduated from law school, took and passed the Texas Bar examination in 1994, and was admitted to practice after a formal hearing before the Texas Board of Law Examiners. Under Texas law, his admission necessarily involved a finding that he was then of good moral character. See Tex. Rules Governing Admission to the Bar, Rule IV(f)(2) (West, Westlaw through 2006) (requiring that an applicant with a felony conviction demonstrate current good moral character as a prerequisite to admission).
¶ 35 While we are of course not bound by another state‘s determination that an applicant possesses good moral character, neither should we simply disregard such a finding.19 More importantly, the years since 1994 strongly bear out the wisdom of Texas‘s conclusion. Mr. King worked for several firms in Texas from 1994 to 2003, specializing in personal injury law. He is in good standing with the Texas Bar and has never been the subject of a disciplinary grievance or sanction. King belongs to an Inn of Court, an organization emphasizing professionalism and ethics among lawyers. He has worked as a paralegal since coming to Arizona and receives high prаise from his employers.
¶ 36 Nor is there a single blemish on King‘s personal record. King has had no serious difficulties with the law since 1977.
¶ 37 King‘s application is supported by some fifty letters of recommendation, each of which praises King‘s good moral character and good works. These letters come from peers, colleagues, supervisors, friends, clients, professors, clergymen, judges, and lawyers.20 The letters of recommendation are uniformly supportive of King‘s application, some in glowing terms. No one appeared before the Committee or submitted a letter opposing King‘s admission. King аlso presented compelling character testimony at the Committee hearings. Peter William Murphy, a professor at the South Texas College of Law, defense counsel for the International Criminal Tribunal, former trustee for the American Inns of Court, and former teacher and moot court coach to King, testified that King‘s rehabilitation from his past crime was like nothing he had ever seen. Professor Murphy unreservedly recommended King to the practice of law, explaining that he believed King to possess the requisite good moral character and fitness.
¶ 38 Perhaps most telling is that, after considering all of this evidence at a formal hearing, our Committee on Character and Fitness (“Committee“) recommended King in April 2005 for admission to the State Bar. The Committee did so after hearing from King personally on two occasions; its recommendation is therefore obviously based on a determination that King was credible and had established his rehabilitation. “[W]e give serious consideration to thе facts as found by and the recommendations of the Committee.” Hamm, 211 Ariz. at 462 ¶ 15, 123 P.3d at 656.21
II.
¶ 39 Notwithstanding this compelling and extraordinary record, the Court nonetheless concludes that Mr. King is not fit to practice law in Arizona. It does so not because it concludes that he currently lacks good moral character, but rather because it believes that King has not sufficiently demonstrated rehabilitation from his 1977 crime. I respectfully disagree.
A.
¶ 40 The majority denies Mr. King admission to the Bar because he has fallen “short of the ‘virtually impossible’ showing needed to erase the stain of his serious criminal conduct.” Op. ¶ 28. By making the required showing of rehabilitation “virtually impossible,” the majority pre-ordains the result. I do not believe, however, that our rules and case law support the application of the “virtually impossible” standard in this case.
¶ 41 We have long held that an applicant has the burden of establishing his qualifications to practice law. See, e.g., In re Greenberg, 126 Ariz. 290, 292, 614 P.2d 832, 834 (1980).
¶ 42 The “virtually impossible” language appears for the first time in our case law in Hamm. We correctly noted there that an applicant “who is attempting to overcome the negative implications of a serious felony on his current moral character ... must overcome a greater burden for more serious crimes.” Id. We then agreed with a statement made by the New Jersey Supreme Court that “in the case of еxtremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make.” Id. (quoting In re Matthews, 94 N.J. 59, 462 A.2d 165, 176 (1983)).
¶ 43 It is important, however, to note that the applicant in Hamm had been convicted of the most serious crime recognized under Arizona law—first degree murder—the paradigm of “extremely damning past misconduct.” Because Hamm‘s crime was the most serious our law recognizes, his burden of establishing good moral character was appropriately very difficult. Mr. King, however, was not convicted of first degree murder, but rather of attempted murder. Mr. Hamm killed two people; Mr. King injured two.22 Our legislature has expressly recognized that attempted murder, while a serious offense, is much less “damning” misconduct than first degree murder. See
¶ 44 The majority ignores these substantial distinctions between Mr. Hamm‘s and Mr. King‘s past misconduct, simply equating first degree murder with attempted murder as “extremely damning prior misconduct.” Op. ¶ 11. I do not believe that the “virtually impossible” test, which is in practice outcome-determinative, should be applied to all prior serious misconduct. Indeed, were that the case, we would not have considered the application for reinstatement in Arrotta from an applicant who had committed mail fraud and bribery. See 208 Ariz. at 512 ¶ 12, 96 P.3d at 216. Rather, I believe, as I thought the Court held in Hamm, that the quality of proof of rehabilitation should increase as the seriousness of prior misconduct increases. In Mr. King‘s case, the appropriate burden, in light of his serious crimes, is not “virtual impоssibility” but rather “an extraordinary showing of rehabilitation and present good moral character.” Hamm, 211 Ariz. at 468 ¶ 40, 123 P.3d at 662.
B.
¶ 45 Although Mr. King faced a difficult burden in establishing rehabilitation and good moral character, I conclude that he has discharged it. Rehabilitation, like good moral character, is not a concept susceptible to easy objective measurement. But surely the most compelling evidence of rehabilitation is the way that King has led his life since his criminal conduct and the first-hand observations of those with whom he has interacted during that period. Over the course of almost
1.
¶ 46 In concluding that Mr. King has failed to demonstrate rehabilitation, the Court first suggests that he has failed to take responsibility for his misconduct. I find no such evidence in this record. As the majority acknowledges, in the Committee hearings, “King admitted shooting the victims and expressed remorse, calling the shootings ‘a mistake I made that I will carry with me for the rest of my life.‘” Op. ¶ 14. The Committee, which had the opportunity to observe and question Mr. King, obviously believed the sincerity of that statement.
¶ 47 The majority, however, discounts the Committee‘s conclusion on several grounds, none of which I find persuasive. First, the majority suggests that in explaining, in a law school application in the early 1990s, why he pleaded guilty to one count of attempted murder, Mr. King somehow attempted to minimize his culpability for the crimes. Op. ¶ 15. Read in context, however, the statement in the application was simply a factual explication of the factors that went into a guilty plea—the lack of witnesses, his impaired memory of the event, the likely hostility of jurors to his actions, and the fact that the plea involved dismissal of one count of attempted murder. The application did not call for expressions of remorse, and I wоuld not penalize Mr. King for not gratuitously offering them. Nothing in his explanation in the application, nor in subsequent descriptions Mr. King has given about his actions and the subsequent criminal justice proceedings, suggests to me that Mr. King is denying responsibility for his actions. He began to do so by admitting his guilt to the Texas court,23 and has continued to do so repeatedly throughout his career since, most recently in his appearance before the Committee. Rather than parse a section of a law school application filed fifteen years ago for evidence of lack of remorse, I would rely on the Committee‘s first-hand observations of the applicant within the last year.
¶ 48 Nor can I conclude that Mr. King‘s impaired memory of the events of the fateful evening demonstrate either lack of candor or failure to accept responsibility. The arrest report makes clear that when apprehended, Mr. King was intoxicated to the point of incapacitation; he was so incoherent that the police officers were unable to read King his Miranda rights. Under these circumstances, his failure to recall every detail of the events is more a demonstration of honesty than evasion. The majority‘s suggestion that Mr. King has “selective memory” is again in stark contrast to the conclusions of the Committee members who had the face-to-face opportunity to consider his credibility.
2.
¶ 49 The Court also concludes that Mr. King has failed to identify the weaknesses that caused his misconduct or address those weaknesses. Again, I am unable to agree.
¶ 50 Mr. King has consistently recognized that his misconduct was caused by a combination of alcohol abuse and job-related stress. The majority acknowledges this, but speculates that there was also a deeper “character flaw that led [King] to fail to appropriately cope with stress and/or to abuse alcohol” to which King has failed to admit. Op. ¶ 21. The majority condemns King for not submitting evidence from a mental health expert diаgnosing this supposed character flaw and attesting to King‘s triumph over it. Op. ¶ 22.
¶ 51 The record, however, indicates that King has undergone counseling, during both his probation and in the years since his absolute discharge, including personal, psychological and alcohol-related sessions. He has never been diagnosed as an alcoholic or as having a mental health condition requiring
¶ 52 More importantly, Mr. King‘s life since 1977 has conclusively demonstrated that he has triumphed over whatever demons led him to commit his crime. What better evidence can there be to prove an applicant has overcome a weakness than twenty-nine years of consistent, incident-free conduct in stressful situations? If Mr. King had a continuing problem with alcohol, surely there would have been some indication of this in the almost thirty years since his crime. If Mr. King had a continuing problem dealing with stress, surely there would have been some indication of this in his more than ten years of practicing personal injury law, a pursuit hardly free from stress.
III.
¶ 53 Our goal in ensuring that members of the Bar possess good moral character is to protect the public. See Matter of Shannon, 179 Ariz. 52, 77, 876 P.2d 548, 573 (1994). In this case, King‘s spotless record as a practicing attorney, together with the glowing recommendations of his clients, colleagues, adversaries and judges before whom he has appeared, adequately assures us that the citizens of Arizona would be safe with King practicing law.
¶ 54 I therefore respectfully dissent from today‘s opinion. I would accept the Committee‘s recommendation and admit King to the practice of law. Although the Court today suggests that some hypothetical future candidate with a record of serious past misconduct might someday qualify for admission to the Bar, Op. ¶ 29, I wonder whether the public and future applicants would be better served by adopting the per se approach the majority opinion purportedly rejects. If Mr. King‘s application cannot meet our “non per se” standards, I doubt that any ever will.
Notes
A bar employee told police that King was upset about a work-related issue. After one victim told King to stop bothering him, King left the bar but soon returned and pounded on the door, which had been locked after his exit. When one victim and another man looked outside, they reported that King was at the door with a gun. The victims and possibly another man then walked outside to take the gun from King, who shot the victims.
One victim interviewed at the hospital on the morning of the shootings told police that the incident started with namecalling, that neither he nor the other victim was armed, and that the shootings were “unprovoked.”
According to King, he left the bar with the intention of going home. When the two men soon followed, King felt threatened, pulled his gun from the glove compartment, and shot the men in a panic as they approached. Although he does not recall attempting to shoot himself, he remembers cutting himself with the knife in an act of self-hatred for his deed. King does not recall seeing O‘Brien before the shootings, does not recall events as described by O‘Brien or the bar employee, and does not recall why he argued with the victims or felt threatened by them.