Andrew Thomas ignored warnings by staff about filing charges against county officials

by Yvonne Wingett and Michael Kiefer - Nov. 10, 2010 12:00 AM

The Arizona Republic

Top prosecutors in the Maricopa County Attorney's Office had repeatedly cautioned Andrew Thomas over the last year and a half against filing criminal charges and a racketeering suit against judges and county officials.

But according to detailed interviews and e-mails gathered for an administrative investigation of a prosecutor at the center of those cases, Thomas ignored the advice and instead bypassed experienced prosecutors to assign the cases to attorneys who would prosecute them.

Lawyers in and out of the County Attorney's Office told Thomas that he did not have sufficient evidence. One prosecutor later said he was shocked the agency had filed a complaint against a judge. Another told Thomas the racketeering suit was so bad, it should have been written on toilet paper. Supervising prosecutors warned Thomas that lawyers he assigned to handle the cases were too inexperienced.

Thomas pursued the cases in spite of the warnings; all were later withdrawn or dismissed.

The interviews and many of the e-mails came to light during an administrative review of Deputy County Attorney Lisa Aubuchon's conduct. She was fired after the investigation was completed.

The information obtained by The Arizona Republic through public-records requests and other sources is also being reviewed by the U.S. Department of Justice. The Republic has learned that the information will play heavily in the agency's abuse-of-power investigations of Thomas, Sheriff Joe Arpaio and others.

To secure an abuse-of-power conviction, prosecutors must prove a public official used his or her office to target foes. They must show there was intent to knowingly and willfully commit the abuse, or illustrate a pattern of using the office to retaliate.

To prove intent, prosecutors will have to rely on circumstantial evidence, such as e-mails and other records that could show a pattern and practice of abuse.

Thomas, Aubuchon, Arpaio and Chief sheriff's Deputy David Hendershott have consistently portrayed their actions as a crusade for justice.

But Tucson defense attorney Mike Piccarreta says even law-enforcement officials convinced of their missions occasionally cross the line.

"Being a true believer does not exonerate you for abuse of power or for committing a criminal act," he said. "If you don't have facts, and you're pursuing charges anyway, that's strong evidence - or if your mind is closed to objective facts."

Arpaio declined comment, but a spokeswoman said he did not abuse the power of his office.

Thomas believes the prosecutions were justified.

"My only comment for the latest, umpteenth story about the apparent . . . investigation is that I acted in good faith to enforce the law in an unprecedented situation involving county officials," he said.

Aubuchon said that any conclusion of wrongdoing because people were left out of the discussion is "way off base."

Stapley, Wilcox cases

Over the course of two years, Thomas and Arpaio launched a series of corruption investigations against county supervisors. Yavapai County Attorney Sheila Polk was brought in to prosecute charges against Supervisor Don Stapley. She believed the case had merit but tangled with Hendershott, who wanted her to issue subpoenas to investigate Supervisor Mary Rose Wilcox and others - cases Polk felt lacked sufficient evidence.

Thomas took the cases back and, in December 2009, brought up indictments against Stapley and Wilcox on other alleged financial crimes.

Records reviewed by The Republic showed that on one occasion, Polk testified that she warned Arpaio about potential "vindictive prosecution." His response, according to Polk: "Nobody tells me to get off my own cases." Arpaio and Thomas pursued the cases, which later collapsed.

The Donahoe case

Thomas then charged Superior Court Judge Gary Donahoe with bribery, hindering prosecution and obstruction of justice. Donahoe earlier had removed Thomas' office from an investigation into the county's court tower.

In press conferences, Thomas could not explain the bribery charges he brought against Donahoe, telling reporters, "If I'm not explaining this well, I hope you'll help me." And, the probable-cause statement filed with the charges virtually repeated information Hendershott wrote in a judicial complaint against Donahoe.

According to records:

- E-mails and interviews with county prosecutors revealed their dismay at the lack of evidence in the Donahoe case. Division Chief Tony Novitsky said he was,"quite frankly, shocked," about the Donahoe complaint.

- Prosecutor Paul Kittredge, who worked the Wilcox case, balked at referencing the Donahoe matter in a case he was handling: "I did not sign on for direct involvement in the hindering prosecution case," he wrote in an e-mail to Aubuchon.

Racketeering lawsuit

Thomas and Arpaio also filed a federal racketeering suit against the entire Board of Supervisors, Donahoe, three other judges and two attorneys.

According to records:

- Thomas' second-in-command Phil MacDonnell sent him an e-mail saying, "The idea of a civil RICO case based on current evidence is unfounded . . . our RICO expert thinks it makes no sense." Even Thomas' loyal spokesman Barnett Lotstein, told Thomas and MacDonnell, "Accusing the (Board of Supervisors) of running a criminal racketeering enterprise is extreme and doomed to defeat unless the evidence is compelling and incontrovertible."

- Aubuchon repeatedly refused to give the office's racketeering expert, Peter Spaw, "a precise list of what investigative materials are in existence," to support the suit. Spaw had battled with Hendershott and Thomas advising them against the case and was shocked when the suit was filed anyway. He called the complaint "embarrassingly deficient," and told Thomas it should have "been on toilet paper."

Thomas responded to Spaw that he actually authored part of the complaint.

- The racketeering case was assigned to Rachel Alexander, an attorney in the civil division known for conservative blogging. Alexander's supervisor, Mark Faull, told MacDonnell that Alexander "lacks sufficient attorney legal experience and training to be assigned as lead (attorney) to a case of this complexity." The advice was ignored.

Ethics investigations

An out-of-county judge threw out the Wilcox indictment and accused Thomas of targeting a political rival. The rest of the cases collapsed.

The State Bar of Arizona, which licenses attorneys, asked the Arizona Supreme Court to investigate potential unethical conduct by Thomas, Aubuchon and Alexander.

That prompted Arpaio to send a letter to county attorney staffers, warning them not to cooperate with state Bar investigations, citing attorney-client privilege and threatening "charging you with violations of applicable statues."

Thomas resigned as county attorney to run for Arizona attorney general, but was defeated in the Republican primary election.

By then, the federal grand-jury investigation was already under way.

For months, federal authorities have been trying to review e-mails from the offices of Arpaio and Thomas, which could provide insight into their states of mind and participation in the cases. The pair are fighting to keep the e-mails confidential, claiming attorney-client privilege.

The Republic has learned that the e-mails are being reviewed by a third party by order of a federal judge. That process has delayed parts of the investigation.

The findings of the ethics investigation spurred by the state Bar are expected to be released soon.

Source

Formal Bar complaint filed against Thomas, aides

by Michael Kiefer and Yvonne Wingett - Feb. 4, 2011 12:00 AM

The Arizona Republic

The State Bar of Arizona charged former Maricopa County Attorney Andrew Thomas and two of his deputies with ethics violations, initiating a formal review process of their actions against county political rivals between 2006 and 2010.

The three were charged Thursday with, among other things, conflicts of interest and filing criminal and civil cases against political opponents without probable cause or sufficient evidence.

The complaint does not recommend specific action, but a previously completed investigative report recommended disbarment for Thomas and former Deputy County Attorney Lisa Aubuchon, and suspension for former Deputy County Attorney Rachel Alexander.

It will be up to a three-person panel, including a special disciplinary judge, to decide their fates after a trial that could take place as early as this summer.

The state Bar actions also could weigh on settlement discussions involving some of the more than $106 million in notices of claim and lawsuits filed against Maricopa County in the aftermath of the county political battles and corruption investigations launched by Thomas and Sheriff Joe Arpaio.

Thursday's complaint formalizes allegations detailed in the Dec. 5 investigative report, accusing the three of filing cases "based not on facts but on their personal animosity toward all the defendants."

Thomas declined comment. His attorney, Don Wilson, said, "The only comment I have is that we are looking forward to the opportunity to defend Mr. Thomas and to restore his good name."

The state Bar alleges one or more of the trio:

- Failed to cooperate with the investigation and filed "frivolous and meritless motions intended to delay, obstruct and burden the process of the screening investigations."

- Filed bribery and obstruction charges against Superior Court Judge Gary Donahoe knowing "there was and is no evidence at all, much less probable cause to believe that Judge Donahoe engaged in bribery."

- Pursued a grand-jury investigation of Donahoe, county supervisors and other officials despite conflicts of interest.

- Filed a meritless and frivolous federal racketeering lawsuit against officials and judges.

- Charged county Supervisor Don Stapley with alleged crimes for which the statute of limitations had expired.

The ethics inquiries were launched last spring after a Superior Court judge ruled that Thomas prosecuted county Supervisor Mary Rose Wilcox for political reasons. The state Bar asked the Supreme Court to look into the matter, and the court appointed Colorado investigator John Gleason to avoid its own potential conflicts of interest.

Gleason's team interviewed about 100 people and reviewed thousands of documents, including pleadings and grand-jury transcripts.

Thomas, Aubuchon and Alexander have 20 days to respond in writing to Thursday's complaint. A hearing must be set within 10 days of receipt of the responses.

The trial will be heard by the presiding disciplinary judge, a lawyer and a member of the public. The panel could impose disciplinary actions ranging from dismissal of the complaint to suspension and disbarment. That decision could then be appealed to the Arizona Supreme Court.

In September, the court appointed former Pinal County Superior Court Judge William O'Neil as presiding disciplinary judge. His participation likely will be challenged by Thomas and the others, since O'Neil ruled against Thomas and Aubuchon in their prosecution of Donahoe.

Here is a copy of the complaint file against Andrew Thomas by the state of Arizona.