Magistrate Judge David Duncan Retires After 17 Years On The Bench
A colorful sea of smiling faces decked out in formal attire flows into the federal courthouse in Phoenix on a bright Friday morning.
The sun beams down through a glass lens in the ceiling of the Robert Broomfield Special Proceedings Courtroom and illuminates babies bouncing on knees and families in a joyful embrace.
They’re gathered for a naturalization ceremony. Carlson Taminang is waiting to see his mother Rose and brother Desmond become United States citizens.
“Yeah I’m very very excited,” Taminang says. “This is an opportunity of a lifetime we’re having so, I feel awesome.”
Everyone is excited. But maybe no one more so than Magistrate Judge David Duncan. He joked to the courtroom that he and his colleagues often fight over the honor of presiding over a naturalization ceremony.
“I am thrilled to be here,” Duncan said. “Because there is no grander job that we have.”
Duncan told those in attendance that it was a special day for him as well - his last as a judge.
“I will join you all when we leave the courtroom today,” he said, “in looking for some way that I can, in a different way, help my country.”
A Tenacious Investigator
Duncan announced his retirement in May citing medical concerns. He says he’s losing sight in his eyes and it’s impacting his ability to do his job.
While the news shocked many in the legal community, Duncan’s former colleague, attorney Larry Hammond, says the reasoning behind it doesn’t surprise him.
“David is one of those guys who is maybe, some people would say, a little bit over the top,” Hammond chuckles. “He was a perfectionist and his work here was always excellent.”
Hammond hired Duncan at the firm Osborn Maledon in the 1980s after he graduated from the University of Arizona Law School and clerked for Federal District Court Judge William Browning in Tucson.
“For any law firm, he was an attractive candidate,” Hammond said. Over the next decade, Duncan became one of their best attorneys.
“A lot of our work at that time was False Claims Act work - suing people who were defrauding the government,” Hammond said. “David was tenacious. A lot of those cases require intense investigation and David was the guy we could count on to do that.”
The Importance Of Language
Duncan would continue working on False Claims Act cases at the U.S. Attorney’s Office. Ann Harwood was an Assistant United States Attorney at the time.
“He’s very bright and he’s an excellent writer,” Harwood said. “I would ask him to review my written work product and he would do the same with me.”
She says they would help each other craft their complex legal arguments within the page limits allowed by the court.
“Writing is at a premium,” she said. “Someone once told me the judge needs to be able to sitting on the toilet and be able to read your brief and understand it what you’re talking about without having to look at anything else.”
Harwood says Duncan was known for writing with a certain flourish. “If you could say, ‘I went to the drug store,’ David would say ‘I went to the apothecary.”
After his appointment as a magistrate judge in 2001, Duncan would take great pains to explain his thought process in court, often using metaphor.
Duncan often referred to the Arizona Department of Corrections monitoring its own compliance with a court ordered stipulation as “the fox guarding the hen house.”
When attorneys representing the state challenged Duncan’s oversight of a settlement agreement, he told them “It’s not as if I’m trying to put my nose where it doesn’t belong. I’m putting my nose where you all asked me to put it. You asked for me to be the person who would preside in this case, so you consented to me. You chose me, and you chose somebody who didn’t just fall off the turnip cart.”
Larry Hammond said Duncan had the right temperament and communication skills to succeed as a magistrate judge.
“For many people, the first time they ever walk into a federal court is when they or their loved ones have been charged with a crime,” Hammond said. “So the first person they see in authority is the magistrate.”
“There are some who don’t like the job, because it takes too much time,” Hammond said. “And they run through the process almost by rote. David never did. From the very beginning he understood that this is the first time people are going to see what the federal judicial system is about.”
When asked about the patient manner he would take with the accused in his court, Duncan said it stems from his respect for the rule of law.
“Sadly a lot of people don’t have a familiarity with it. It’s like they’ve come to a different planet,” Duncan said of the reaction from some who entered his court. “In that kind of environment, if you don’t explain it to people, if you don’t welcome them to their courthouse and make them feel that they have a right to be heard, then you erode and endanger the rule of law. People will feel that ‘this is not a system that helps me.’”
Duncan would often thank witnesses for coming to his court, even if they had been subpoenaed, explaining how their testimony was essential to his task of finding the truth.
Parsons Versus Ryan Prison Health Care Settlement
Armida Herrera was Duncan’s judicial assistant for his entire 17 years on the bench. “I’m the sort of behind the scenes, making sure that everything flows pretty easy and flawless,” she said.
Herrera said their small, tight knit team was able to tackle a busy schedule filled with civil and criminal matters depending on the week.
“We have a lot of detention hearings, preliminary hearings and arraignments,” she said. “Certainly initial appearances do take a lot of time but it’s not the only thing that we do.”
Karyn Smith served as Duncan’s courtroom deputy for four years. “I couldn’t have asked to be assigned to a better judge,” she said. “He’s fair, he’s smart, he’s kind. The people that come into our courtroom every day are - to him - the same as the people that he works with every day. He doesn’t differentiate between prisoners and court staff - everyone is treated with equal respect.”
In 2014, Judge Duncan was assigned to a settlement between the people in state prisons and the Arizona Department of Corrections, over poor health care conditions, known as Parsons v Ryan.
After years of rigorous oversight, Duncan fined the state $1.4 million for failing to comply with the terms of the settlement.
On his second to last day as a judge, Prison Law Office attorney Corene Kendrick led Duncan on a tour of state prisons in Florence.
She said one inmate told Duncan he wasn’t getting proper cancer treatment. “Judge Duncan said ‘I’m here to talk to you, and listen to you, as one human would listen to another human.’”
Kendrick said that compassionate approach toward the inmates was evident throughout Duncan’s oversight of the case. “His institutional knowledge of how the prison health care system works, the players, and the history of the case is unparalleled,” Kendrick said. The case will now be reassigned to another judge by Chief Judge Raner Collins.
Named plaintiff Victor Parsons says while serious problems remain, Duncan had a major impact on the prison health care system in Arizona.
“I’d like to say thank you,” Parson said of Duncan in an interview from prison. “Thank you on behalf of everybody incarcerated because he’s definitely making changes for the better and for people to have a better life.”
A Judge From An Early Age
When asked if he always wanted to be a judge, Duncan laughs and says “My mother told me that was so. She said ‘You’re gonna be a judge because you always have an opinion about right and wrong and if something wrong is done, you take it and try to make it right.’”
Attorneys for the state made several motions to remove Duncan from the Parsons case. In his denials of those motions, Duncan reminded the attorneys that they had consented to have him oversee the case, after he successfully mediated the settlement agreement.
“It’s listening,” Duncan said of his success with getting parties to settle. “You have to listen to what people want and to help them understand that settling the case is probably going to get them more of what they want than going to trial.”
“It’s not so much that I have a magic ability, it’s just that the parties themselves need to make that leap of faith,” he said. “Sometimes, because of my experience, I can talk to them about what is ahead and offer some insights that help them see that settlement is in their best interest.”
Throughout his time as a Judge, Duncan said it was important to him to see that people without the means to defend themselves were given a fair chance at representation.
“I think all judges understand that in this country, people’s rights need to be respected without regard to whether they have the money or the knowledge to vindicate those rights,” he said. “We cannot be their lawyer, but we should, with unrepresented people, make sure that they have their day in court.”
At one point during the Parsons settlement, when it appeared the prisoners were being purposefully denied specialty care, he stood and addressed the court saying he was “standing up for the inmates of the Arizona Prison system.”
While his retirement came quicker than he expected, Duncan is remaining positive about the future. He says he’s excited about what will come next and he feels grateful to have been able to live out that childhood ambition to try and set right the wrongs he saw in the world.
“I think all of us in society have a desire, an obligation to do that,” Duncan said. “I’ve been lucky it’s been my job.”