A motion to remove Judge Steven Conn from the retrial of a man accused of murdering an infant was denied Tuesday in Mohave County Superior Court.
Judge Richard Weiss denied the motion by Mohave County Public Defender Dana Hlavac in the case of John Lee DeBarge Sr.
"I don't believe the defense meet its burden that Judge Conn would be impartial," Weiss ruled.
DeBarge is again charged with felony first-degree murder and one count of child abuse the death of a 10-month-old girl in September 1990.
He was tried, convicted and sentenced in July 1991 to life in prison by a Mohave County jury.
A federal judge overturned the conviction in 2001.
The ruling was upheld by a federal appellate court in April 2002.
During Tuesday's hearing, Hlavac argued that Conn's former employment with the Mohave County Attorney's Office would give an appearance of bias in the case.
Conn for a short time worked with Chief Deputy Mohave County Attorney Jace Zack, who is the prosecutor in the case.
Hlavac also argued the infant's grandfather recently returned to the area to serve as the Mohave County Sheriff's Office prisoner transport deputy, sometimes for Conn's court.
Weiss questioned the relevancy of the deputy serving in Conn's court.
Hlavac said recently discovered evidence indicated injuries to the infant before the incident that killed her.
He also has said a possible defense witness is believed to have provided child-care services to the infant, and that witness is related to an employee in Conn's court.
Zack argued the witness is a sister-in-law to the judge's employee and that Conn probably doesn't even know the witness.
"It doesn't create the impression of bias or even the appearance of bias," Zack said.
Zack also said evidence of pre-existing injuries to the victim surfaced years ago during DeBarge's appeal.
DeBarge's case will now be reassigned back to Conn's court.
Hlavac and co-counsel Randy Papetti, a Phoenix attorney, also previously filed a motion to disqualify the Mohave County Attorney's Office from the case.
That motion remains in limbo until Conn rules on it.
Sarah's House, the victim witness program that is a division of the Mohave County Attorney's Office, was named after the child.
The motion claims the close relationship the county attorney's office has with Sarah's House could taint prosecution's neutrality and influence its handling of the case.
In 2001, a U.S.
District Court judge from Alaska overturned DeBarge's conviction, citing ineffective defense counsel.
The judge ruled the defense attorney failed to research the subject of the infant injuries, did not provide medical experts on his client's behalf and did not cross-examine the state's medical witnesses, county district court records show.
In April 2002, the 9th U.S.
Circuit Court of Appeals in San Francisco upheld the district judge's ruling.
During DeBarge's first trial, the state argued the infant died from extensive skull fractures while in DeBarge's care.
The defense attorney for DeBarge argued the infant fell from a highchair.
Medical experts testified for the state that the death was not accidental and that the injuries were not caused by a fall from the highchair.
The jury found DeBarge guilty and he was sentenced to life in prison with the possibility of parole in 35 years for the murder conviction and a concurrent sentence of 22 years in prison for the child abuse charge, records show.
DeBarge is free on $50,000 bond.
He lives in Phoenix.