Monday, April 23, 2012

Maricopa prosecuter benched

Andrew Thomas and his erstwhile assistant Lisa Aubuchon, both lawyers, have been ordered disbarred. The Godsheriff's Counsel will lose their day jobs. Will Jumping Up and Down Joe be next?

Good bloody riddance, Guambat reckons.

The context for this immorality play is in these two posts from way back in 2009, here and here. The arm of the law is sometimes long, most always slow to embrace.

First, a bit of the nastiness that got them here.

Thomas, Arpaio raise the stakes by blogger Robert Robb.
County Attorney Andrew Thomas and Sheriff Joe Arpaio are alleging that there is a massive corrupt conspiracy involving at least four Superior Court judges, the entire Board of Supervisors and senior county management.

The heart of the Thomas-Arpaio conspiracy claim, as advanced in the federal racketeering case they filed, is the allegation that the judges and the Board of Supervisors entered into a corrupt bargain: The judges would shield the supervisors and senior county management from investigations and charges of criminal wrongdoing and the supervisors would fund a new office building for the judges.

Thus far, Thomas and Arpaio have adduced very little evidence to support this claim of a corrupt bargain involving the judges. All they have advanced are three circumstantial factors: (1) the judges ruled against Thomas and Arpaio; (2) the judges engaged in conduct that Thomas and Arpaio believe showed bias against them; and (3) the judges and the Board of Supervisors shared a law firm (Polsinelli Shughart) that worked on both the new court building and disputes between Thomas-Arpaio and the supervisors.

None of these circumstances, standing alone, even remotely constitute criminal behavior.

A judge making an erroneous decision isn't a criminal act. And there's a remedy. It's called an appeal.

A judge exhibiting bias isn't a criminal act. And there's a remedy – a complaint filed with the Commission on Judicial Conduct.

A law firm having a conflict isn't a criminal act, and there are remedies: a bar complaint against the firm or a complaint with the Commission on Judicial Conduct if a judge doesn't properly disclose a relationship with a law firm appearing before him.

But for the residents of Maricopa County, here's what it comes down to: either we have a massively corrupt judiciary and county government, or we have a prosecutor and sheriff assaulting the independence of the judiciary and the rule of law.

Fast forward.

Thomas, Aubuchon to be stripped of legal licenses
Only Thomas would not indicate Tuesday whether he would appeal, but he called his disbarment "a political witch hunt." He is expected to hold a news conference today to discuss his case.

While the sanctions may be appealed to the state Supreme Court, it is at the court's discretion whether to consider the appeals. The court can uphold the disciplinary ruling without comment, remand the case to the disciplinary judge for further consideration or accept jurisdiction and write an opinion with or without holding further hearings.

Aubuchon's attorneys have so far handled her case for free, but Maricopa County administrators must now decide whether to continue to pay the legal bills for Thomas and Alexander.

"We've given this guy far more than we've received from him in terms of benefit of the doubt," said county Supervisor Andy Kunasek. "I cannot in good conscience spend any more taxpayer money when they found beyond a reasonable doubt that he's abused his office and abused his obligations as a lawyer."

The actions of Thomas and Arpaio against the Board of Supervisors, judges and others have cost county taxpayers at least $10.6 million, mostly in legal bills, according to a Republic analysis. A legal settlement reportedly imminent with Supervisor Mary Rose Wilcox, who was targeted by some of their activities, could raise that figure by $1 million, The Republic has learned.

[Read more; click the article headline link. Look, ALWAYS do that in this blog. It shouldn't have to be repeated.]

Ex-Lawyers of the Day: Baby, You Did (Many) Bad, Bad Things
The former Maricopa County attorney and one of his deputies were disbarred for a strikingly long list of ethical violations (a second deputy’s law license was suspended as well).

It sounds like working in the Maricopa County Court system was more like Robespierre’s Reign of Terror than it does Phoenix. Hopefully this shakeup will improve the overall morale of the courts there, and lead to a better local justice system for everyone involved.

[Read more; click the article headline link. OK, you understand the drill from now on.]

OPINION AND ORDER IMPOSING SANCTIONS (Excerpted and re-contextualized. Again, read the whole bloody piece at the link. It's a 247 page indictment.)
Pursuant to Article VI of the Arizona Constitution and by Administrative Order No. 2010-41 entered on March 23, 2010, Chief Justice Rebecca White Berch of the Arizona Supreme Court appointed the Colorado Supreme Court Office of Attorney Regulation under the direction of Regulation Counsel, John Gleason, as Independent Bar Counsel.

The Hearing Panel was comprised of a volunteer public member, the Rev. Dr. John C. N. Hall, a volunteer attorney member, Mark S. Sifferman and by virtue of his position, the Presiding Disciplinary Judge, William J. O’Neil.

Formal hearings were held before the Hearing Panel over 26 days commencing September 12, 2011 and concluding November 2, 2011. The alleged violations included, but were not limited to, Conflict of Interest and Prosecutorial Misconduct.

Until one decides that virtue matters—until it becomes a personal mission—no training will produce the commitment needed to pursue or maintain integrity. While in a discipline case conduct is measured against rules and standards, it is more than those regulations.

At some point in his career, a leak formed in the dike of Andrew Thomas’s ethical restraint. In short time, it rapidly grew. Whether known or not, intended or not; it was existent and became obvious. When it formed it may have been impossible to ascertain. That it formed and accelerated at an alarming rate is beyond any reasonable doubt. Complacency to such an increasing loss of ethical restraint is perhaps the greatest enemy to integrity. He seemingly became complacent to the legion of structural fractures throughout his character that followed. Within a few short years the hole had become a radical moral dislocation.

We note that any referral to the bar against him was viewed by Mr. Thomas as a form of “intimidation” and a “threat”. Yet Mr. Thomas ordered Ms. Alexander to research any negative comments regarding him and he formed an “ethics” committee of his deputy county attorneys to consider whether to file a complaint with the Commission of Judicial Conduct regarding the behavior of judges in cases or others”. Thomas Testimony, Hr’g Tr. 25:1–4.

Hypocritically, he did not view these actions as intimidating or threatening. It is another insight into his ethical ruin.

Mr. Thomas began with an evisceration of the protective shield of experienced supervision, accountability reviews and proper protocols long existent in the Maricopa County Attorneys’ Office. Those with the most experience were removed from oversight.

Mr. MacDonnell and others straightforwardly informed Mr. Thomas that Lisa Aubuchon was in a fundamental way not ethically capable. They cautioned Mr. Thomas that she was too willing to prosecute regardless of the evidence. She did not seek justice but rather to win. For her, winning justified any means.

The need for such fundamental integrity was clear to his experienced attorneys, but sadly its absence was attractive or wanted by Mr. Thomas. He found her willingness to charge ahead without investigating or fundamental analysis, to be “brave.” The result was Respondents became alive in imagined interests of others that never existed. Evidence of the truth was never needed for such vain imaginings and more importantly, never sought nor wanted. For Respondents it did not matter how they produced their results as long as their desired outcome could be achieved.

They prosecuted innocent people, without evidence, and did not blink.

Unshackled, a treacherous power to “get” people, regardless of the fact that they were innocent,was set loose. The result is unmistakable from the hundreds of exhibits and the mountains of transcripts within this case. Rather than do the serious work of real investigation and evidence based analysis, they discarded such required effort with a vengeance and replaced it with any gossip or innuendo that would serve their goal.

They knew there was no evidence to find. News releases preceded news conferences and the news reports that followed became their verification. There was an intentional abandonment of even a semblance of true investigative techniques. They pretended to see “corruption” in everyone who disagreed with them and declared that vision as a noble cause.

Consistently, when any word of criticism was leveled at his actions, or State Bar inquiries submitted to Respondents, a committee of high level prosecutors was marched out and instructed to consider filing complaints. Millions of public dollars were spent not only to defend but root out such “corrupting forces.”

Mr. Thomas chanted his mantra that unnamed “retired judges” had complained to the State Bar regarding their actions and the Chief Deputy Sheriff, un-summoned we are told, appeared to investigate, demanding answers. Mr. Thomas’s testimony was clear; reporting him to the Bar “was potentially criminal.” Thomas Testimony, Hr’g Tr. 197:13–25, Oct. 26, 2011.

But the evidence in these proceedings was also clear: his premise was a public ploy. That unknown, unnamed “retired judges” had reported him was completely unsubstantiated, the details unremembered by Sally Wells and completely and consistently denied from the beginning by the purported source, Mr. Kanefield.

The threat of criticism against him still propels a powerful response to invoke his ever dominant weapon of “potential criminal prosecution” to punish those who dare exercise their constitutional right to differ with him.

Former Maricopa County Attorney defiant at disbarment ruling
Former Maricopa County Attorney Andrew Thomas says he is the victim of the very corruption he fought as the county attorney.

Thomas, speaking publically [sic; Guambat has also been caught up by Ms Spellchecker for like error] for the first time since a state bar tribunal stripped him of his law license says, “The rule of law is no more in Maricopa County.”

Thomas angrily denounced the decision saying, “As a result of what happened yesterday, our system of justice has been destroyed. I did my job and we were stymied every step of the way.”

He attributes the ethics investigation to a state bar and judiciary angry because his investigations uncovered evidence implicating senior judges and other friends of the court in corrupt behavior.

Thomas vowed to continue fighting. He says, “Other men far greater than I have gone to jail in defense of principles they believe in and so they would not kowtow to a corrupt order.

"People like Gandhi, Dr King. People who stood for something, and I will tell you that there are some things that are worth fighting for and
someone has to clean up this town. I’m going to stand firm.”
Thomas defends record as chief county prosecutor
He complained that the county had repeatedly fired his lawyers, "stacking the deck" against him. And, as evidence of ongoing corruption, he criticized current County Attorney Bill Montgomery and Arizona Attorney General Tom Horne for not prosecuting politicians who accepted free tickets to sporting events.

He struggled to be heard over the noise of the protesters. The activist gadfly Randy Parraz of Citizens for a Better Arizona repeatedly interrupted Thomas' remarks to ask why Sheriff Joe Arpaio was not in attendance. Thomas looked uncomfortable when his own supporters shouted Parraz down, calling out epithets against illegal immigrants and even calling the counter-protesters "communists."

"Someone has to fight for justice," he said. "I've stated my case. I did my job. The loser is the people of Arizona."

Moments later, Aubuchon, also ordered disbarred, took the podium to say she would likely appeal because, among other reasons, Chief Disciplinary Judge William O'Neil had played a part in the events that led to her disbarment. He presided over a hearing in which a judge targeted by her and Thomas was granted a restraining order against criminal charges.

"Unfortunately, Judge O'Neil didn't have the courtesy to learn how to pronounce my name," Aubuchon said. And in fact, all through the proceedings, which spanned from September to Tuesday, he repeatedly called her something that sounded like "Ms. Am-bi-shan."

Another Thomas supporter, Paul Yoder, said the liberal media and "corrupt" state Supreme Court are too focused on discrediting Thomas. "There are elements in our justice system in Arizona much more interested in discrediting Sheriff Joe and our side than in giving true justice to Arizona," Yoder said. "You can't get true justice in Arizona, and that's why" Thomas was ordered disbarred.

State Bar links Arpaio to actions that led to Thomas downfall
The panel concluded there was enough evidence from other sources to make the determination that Arpaio, his former chief deputy David Hendershott, Thomas and his former deputy Lisa Aubuchon, worked in unison to frame retired Maricopa County Superior Court Judge Gary Donahoe.

“That’s their opinion,” Arpaio told the Arizona Capitol Times.

But former U.S. Attorney for Arizona Paul Charlton said the finding was striking because the panel said the conspiracy could be proven beyond a reasonable doubt in a criminal trial.

The panel found Thomas and Aubuchon violated seven ethical rules in connection with the prosecution of Donahoe. Two of those rule violations were for “violation of a criminal law,” which in this case involved perjury and a federal law that makes it illegal to conspire against a person’s constitutional rights.

Thomas charged Donahoe with bribery, hindering prosecution and obstructing a criminal investigation on Dec. 9, 2009. The charges stemmed from the judge disqualifying the County Attorney’s Office from investigating the financing of a planned downtown courthouse and other legal decisions that were unfavorable to the county attorney and sheriff.

Donahoe had previously scheduled a hearing on the day he was charged to hear arguments on the dispute between the county and Thomas over his authority to appoint special prosecutors to investigate County Supervisor Don Stapley.

Investigators from the County Attorney and Sheriff’s Office testified that there had been no investigation of Donahoe that could legitimately lead to charges, and that Aubuchon and Hendershott were insistent that the charges be filed immediately.

The text from an old State Bar of Arizona complaint Hendershott filed against Donahoe was copied onto the criminal complaint and served as the basis for the charges, but none of the investigators would attest to the truthfulness in court. Aubuchon eventually found a detective, Gabe Almanza, who reluctantly signed the criminal complaint.

“Mr. Thomas and Ms. Aubuchon are criminally accountable for the conduct of Detective Almanza because they knowingly caused him to sign and file a false sworn document and/or they ratified his conduct after he had signed the complaint,” the panel wrote.

The panel concluded there was absolutely no evidence to charge Donahoe and the only reason it was done was to prevent him from holding the hearing involving Stapley.

The concluding pages of the Opinion and Order of disbarment linked above wraps up this story.
The purpose of attorney discipline is to maintain the integrity of the profession in the eyes of the public, protect the public from unethical or incompetent lawyers, and deter other lawyers from engaging in illegal or unprofessional conduct.

We find they knew they had no evidence and prosecuted people anyway. There was no “noble cause.” There was only self–interest. The harm done to the public, individuals, and the profession was stunning on every front.

Ironically, counsel for Lisa Aubuchon, who has aided both plaintiffs and defendants throughout his long career, well–identified the concern.
The facts should be developed by a fair and impartial investigation, which compiles all of the facts, including exculpatory facts, and presents them to the probable cause panel. The developed facts should be just that - “facts” and not simply conclusions of the investigative body.
The Concurring Opinion of Public Panelist Rev., Dr. John C.N. Hall, concluded,
In reading through the thousands of pages of stipulated exhibits in the hearing of this matter, one exhibit seems exceptionally poignant.

On December 28, 2010, a letter was written by Paul K. Charlton to Sheila Polk requesting her to dismiss the Stapley I matter that Andrew Thomas had transferred to her. In the letter, Charlton speaks of how Andrew Thomas' behavior reminded him of a speech by former U S Attorney General Robert H. Jackson, who later became a Justice on the U. S. Supreme Court and the lead prosecutor at the Nuremberg war crimes trials.

Jackson's words speak clearly to the prosecutorial misconduct and ethical violations of the respondents in this hearing. The expanded quote that Charlton shares from Jackson follows:
“If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

[… T]he best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”



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