• Lawsuit 1 Wilson complaint
• Lawsuit 2 Schuerman complaint
• Lawsuit 3 Donahoe complaint
• Ethical violations by Maricopa County Attorney Andrew Thomas?

Source

5 suing Maricopa County over probes, lawsuits by Arpaio and Thomas

by Yvonne Wingett and JJ Hensley - Dec. 1, 2010 12:00 AM

The Arizona Republic

Five former and present Superior Court judges and Maricopa County officials are suing the county, claiming Sheriff Joe Arpaio and former County Attorney Andrew Thomas targeted them in criminal investigations and lawsuits without merit to retaliate for court rulings and budget cuts.

Three of the lawsuits were filed Tuesday in Maricopa County Superior Court. Another on behalf of two claimants was filed Nov. 23.

All seek punitive damages and ask that the cases go to trial, claiming physical maladies, mental anguish, tarnished reputations and loss of consortium.

Suits were filed by Judge Gary Donahoe; former judges Barbara Mundell and Anna Baca; Deputy County Manager Sandi Wilson; and Susan Schuerman, executive assistant to Supervisor Don Stapley.

"Reputations are so fragile," said private attorney Michael Manning, who is representing three of the claimants. "And each of these clients suffered a significant negative impact to their reputations."

Over two years, Arpaio and Thomas launched a series of corruption investigations against county supervisors, judges and others.

Those conflicts have cost the county at least $5.6 million in the past two years, according to an Arizona Republic analysis of public records. Most of the money was paid to attorneys.

A Republic review of public records related to those investigations found that top prosecutors in the Maricopa County Attorney's Office repeatedly cautioned Thomas against pursuing some of those investigations.

All of the lawsuits are tied to those investigations. They accuse Arpaio, Chief Deputy David Hendershott, Thomas and former Deputy County Attorney Lisa Aubuchon of abuse of power, failure to properly train employees, invasion of privacy, substantive due-process violations and defamation.

Arpaio, Hendershott, Thomas and Aubuchon also are under investigation by the U.S. Department of Justice, which for months has been presenting evidence to a federal grand jury.

Meanwhile, the State Bar of Arizona, which licenses attorneys, has asked the Arizona Supreme Court to investigate the conduct of Thomas, Aubuchon and another attorney tied to the cases. The findings of that ethics investigation are expected to be released soon.

Jack MacIntyre, a sheriff's deputy chief, reasoned that the spate of lawsuits was related to the Board of Supervisors' recent decision to appoint attorneys unfamiliar with Arpaio to help defend the Sheriff's Office.

Thomas took it a step further, denying the allegations and demanding a day in court to defend his actions.

"Any attempt to settle these cases without giving Sheriff Arpaio and me the opportunity to defend ourselves and finally have a chance to question these individuals under oath would be a fraud on the taxpayers," he said.

Of the Mundell and Baca complaints, Aubuchon said, "I clearly disagree with the allegations and look forward to proving they are false."

In the lawsuits:

- Wilson says Arpaio and Thomas targeted her after she recommended budget cuts to their agencies. She alleges Thomas and Aubuchon continued to defame and harass her even after they left office. She had offered to settle for written apologies or $2 million.

- Donahoe alleges Thomas and Hendershott filed a criminal complaint against him to create a conflict of interest that would force him off cases involving other legal battles between Thomas, Arpaio and other county officials. Donahoe's complaint alleges their investigation into the county's court-tower project "was simply the Trojan Horse for Arpaio and Thomas's assault on their political enemies. The only 'crime' committed by Judge Donahoe was to issue a ruling adverse to Arpaio and Thomas." Among other allegations, Donahoe claims Arpaio and Thomas ignored a grand-jury decision to kill the case against him, continued to publicly portray the judge as the subject of a criminal investigation and chose a man who Donahoe says threatened to kill him as the process server designated to deliver the complaint to him. Donahoe had offered to settle for $4.75 million.

- Former judges Mundell and Baca allege Arpaio and Thomas named them in a "baseless" racketeering lawsuit to "intimidate, harass, discredit and humiliate" them. They also claim Arpaio and Thomas intentionally tarnished their reputations and character through news releases, TV interviews and Internet postings. Each had offered to settle for $4.75 million.

- Schuerman, Stapley's assistant, alleges that prosecutors and investigators tapped her phones, followed her, sent sheriff's deputies to patrol her street and publicly denigrated her to intimidate her into cooperating with their criminal investigation into Stapley. She had offered to settle for $1.75 million.

County Manager David Smith said he was still searching for a mediator to help resolve the cases.

Andrew Thomas to be disbarred?

Source

Investigator to recommend disbarment in Thomas ethics case

by Yvonne Wingett, Craig Harris and Michael Kiefer - Dec. 6, 2010 11:54 PM

The Arizona Republic

Former Maricopa County Attorney Andrew Thomas and Lisa Aubuchon, a onetime deputy prosecutor, vowed Monday to keep practicing law and to vigorously fight new allegations of ethical and criminal misconduct that, if proved, could result in their disbarment.

Thomas, Aubuchon and former Deputy County Attorney Rachel Alexander misused their prosecutorial powers over the past three years to retaliate against judges and county officials, according to a report released Monday by Colorado ethics investigator John Gleason, who investigated the officials for the state Bar of Arizona.

It is rare, legal experts say, for an elected prosecutor to face such disciplinary actions in connection with performance of official duties.

Gleason alleges in the nearly 100-page report that the attorneys violated 33 ethics rules involving, among other things, conflicts of interest, dishonesty, misrepresentation, filing a frivolous suit and filing charges against county officials solely to embarrass or burden them.

Among the examples cited was one in which, Gleason alleged, Thomas and Aubuchon engaged in criminal conduct and "conspired with each other and with others to injure, oppress, threaten or intimidate (Superior Court) Judge (Gary) Donahoe" by filing a criminal complaint against him without probable cause. The reason alleged: They wanted him off a case they were pursuing.

Thomas and Aubuchon immediately denounced the charges as false and said they looked forward to defending themselves. Thomas accused the Bar and Maricopa County of stacking the deck against him.

He said the Bar is using its "unlimited resources" to drum up charges against him, while the county has stopped paying for his attorneys, making it difficult to defend himself.

"For the last three years, the State Bar of Arizona has been on a political witch hunt against me," said Thomas, who met with reporters outside the state Supreme Court building Monday afternoon. "What has culminated today is a travesty. The message sent today is that if prosecutors go after politically powerful people, they will be in danger of losing their ability to practice law in this state."

Thomas called Monday's filing "the first round in a 15-round fight," and he vowed to go the distance in fighting the allegations. When he presents his side, he said, Arizonans will realize the level of corruption he challenged.

Aubuchon said Monday that she did nothing wrong in working on those investigations. Although she declined an interview, she said in a written statement that her actions were justified. She called Gleason's findings "absolutely unbelievable" and "replete with false statements."

"I look forward to disputing each and every allegation made," she wrote, reiterating her belief that Maricopa County government is corrupt.

Attempts to reach Alexander were unsuccessful. The report was unclear as to what level of discipline would be recommended against her. Court officials declined to comment.

Thomas resigned his county attorney's post in April to run for state attorney general and lost. Aubuchon was fired in September by then-County Attorney Rick Romley for misconduct and abuse of her prosecutorial power.

Both Thomas and Aubuchon have since opened up their own law firms. Alexander is a political consultant and maintains her own political website.

Aubuchon has filed a $10 million notice of claim against the county for wrongful termination and is formally appealing her firing. The Bar action is not expected to affect Aubuchon's appeal. The investigation

Gleason and his team, over eight months, interviewed about 100 people, reviewed thousands of documents and reviewed pleadings and grand-jury transcripts. His report concluded that the attorneys acted "not in order to seek justice but to retaliate against those who had made decisions contrary to Thomas' perceived interests."

Gleason's conclusion is expected to have implications in a federal grand-jury investigation that is examining abuse-of-power allegations against Sheriff Joe Arpaio; his chief deputy, David Hendershott; Thomas; Aubuchon and others.

The findings also could weigh heavily on settlement discussions and legal battles that will arise during negotiations involving $56 million in notices of claims and lawsuits filed against Maricopa County by judges, county officials and others in the wake of the corruption investigations undertaken by Arpaio and Thomas.

Retired Supreme Court Chief Justice Charles Jones ruled there was probable cause to let the examination of the lawyers move from an investigation into a formal disciplinary case to be decided by a three-member panel. Jones was asked to review the investigation's conclusions before setting in motion the disciplinary process.

Formal complaints against the attorneys are expected to be filed in mid-January with the disciplinary clerk of the Supreme Court. Their cases then will go before a panel made up of presiding Disciplinary Judge William O'Neil and a lawyer and member of the public who have yet to be appointed.

The earliest the panel could hear the cases is this summer. Although Gleason has recommended disbarment if his findings hold up, the panel could decide a range of other actions against the attorneys, including dismissal of the cases, admonition, probation or suspension.

The decision by the panel is final, although each party has the right to appeal the panel's decision to the Arizona Supreme Court.

Law professor Bennett Gershman of Pace University in New York, an expert on prosecutorial misconduct, although not commenting on Monday's developments, said it was rare for local prosecutors to be investigated for duties performed in the course of their jobs.

"You have to show the prosecutor was acting in the mind-set to try innocent people," Gershman said. "Most prosecutors believe they were engaging in prosecutorial activity, and they go over the edge maybe because they were overzealous. Sometimes, prosecutors try so hard that they cross the line. It's very difficult to prove."

Rick DeBruhl, spokesman for the state Bar, could not recall the last time an elected prosecutor was disbarred or disciplined.

In the past five years, just 57 of the organization's 16,000 active attorneys have been disbarred, he said.

DeBruhl did not know how much the Bar spent on the investigations. The money to pursue such cases comes from legal fees paid by members and no tax dollars are used, he said.

Thomas said the Bar had housed Gleason at the Arizona Biltmore resort in Phoenix during the investigation, citing that as an example of unlimited spending to discipline him. DeBruhl countered that Gleason charged the Bar $40 an hour for his services, and spent $89 a night to stay at the resort. Case origins

The ethics inquiries were launched last spring after a Superior Court judge ruled that Thomas had prosecuted county Supervisor Mary Rose Wilcox for political reasons.

"You cannot put yourself above the rule of law," Wilcox said Monday. "To waste taxpayer dollars like they did for political vindictiveness is just a travesty of justice."

After the ruling on Wilcox's case, the state Bar asked the Supreme Court to look into Thomas and his prosecutors. The court appointed Gleason, saying the appointment of someone outside the state averted potential conflicts of interest.

Gleason flew in and out of Phoenix over several months to conduct interviews and gather information. At one point, he was followed by private investigators hired by Aubuchon's legal counsel. Details of report

Among other findings, Gleason's report alleged:

- That Thomas and Aubuchon filed charges against Donahoe knowing there was no probable cause.

"At the very worst, the probable cause statement alleged that Donahoe was 'biased' against Sheriff Arpaio," but even if that were true, it is not enough to assert a crime, the report said.

The report alleged that Arpaio "came up with the idea of charging the judge" in December 2009 because there were concerns in the Sheriff's Office that Donahoe would remove Thomas' office from investigations regarding county personnel.

Jack MacIntyre, a sheriff's deputy chief, responded Monday that Arpaio never came up with the idea of charging the judge. MacIntyre said the report contained third-hand information that was not correct. And although the report indicates the Sheriff's Office was working in conjunction with Thomas and Aubuchon, MacIntyre said all decisions to file charges were made by Thomas and his office alone.

"These were prosecutorial decisions made by a prosecutorial agency," MacIntyre said.

- That Thomas and Arpaio engaged in perjury, a criminal act.

The report alleges that they knew the criminal complaint against Donahoe would be filed in Superior Court and that a sheriff's detective would be swearing to facts and allegations against Donahoe that were false.

- That a federal racketeering complaint filed by Thomas, Aubuchon and Alexander against county officials and judges was "meritless and frivolous."

The complaint was only to "burden and/or embarrass the defendants," it alleges, and "the motive for filing the RICO action was retaliation against those who had acted against Thomas" and his office.

- That Thomas and Aubuchon had conflicts of interest in pursuing a grand-jury investigation of Donahoe, county Supervisor Andy Kunasek, County Manager David Smith, Deputy County Manager Sandi Wilson and private Board of Supervisors attorney Tom Irvine. The investigation involved looking into a sweep of county offices for illegal listening devices.

- That Thomas and Aubuchon brought up charges against county Supervisor Don Stapley knowing they were outside the statute of limitations.

Gleason wrote, "Thomas and Aubuchon did not prosecute Stapley to seek justice, but rather to pursue the political and personal interests of Thomas."

Gleason also indicated that the first investigation into Stapley by Arpaio and Thomas may have been initiated by Aubuchon or another former deputy county attorney, Mark Goldman. Goldman has since served as Aubuchon's legal counsel.

According to the report, Goldman "has been identified as attending MACE meetings and handing out information about Stapley" at a 2007 meeting of the unit.

The years-long conflicts among Arpaio, Thomas and the supervisors has cost $5.6 million over the past two years, according to a Republic analysis of public records.

Source

Attorney-discipline case launched against Thomas

Posted: Monday, December 6, 2010 3:10 pm

Jacques Billeaud, The Associated Press

A judge ruled Monday there is enough evidence to launch a formal disciplinary case against former Maricopa County Attorney Andrew Thomas for allegedly basing a lawsuit and criminal investigations of county officials on his animosity toward them.

A report by an attorney who ran the ethics investigation said Thomas brought criminal cases against two county officials to embarrass them, and charged a sitting judge with bribery and obstruction of justice when Thomas knew the charges were false.

Thomas, who was embroiled in a two-year dispute with county officials, denied the allegations, calling the ethics case a witch hunt.

The disciplinary case arises from a judge's determination in February that Thomas prosecuted a county official for political gain. The ruling prompted the State Bar of Arizona to ask the Nevada Supreme Court to appoint an independent counsel to conduct an ethics investigation into Thomas.

On Monday, retired Supreme Court Chief Justice Charles Jones ruled there was probable cause to let the ethics investigation — of Thomas and former prosecutors Lisa Aubuchon and Rachel Alexander — become a formal disciplinary case. The case will be decided by a three-member panel.

The ethics allegations stem from a nasty legal dispute that pitted Thomas and his chief ally, Maricopa County Sheriff Joe Arpaio, against judges and other county officials. Thomas and Arpaio contend they were trying to root out corruption, while county officials say the investigations were baseless and an abuse of power.

Thomas and Arpaio's investigations resulted in criminal charges against two county supervisors and one judge. All three cases were dismissed after the judge's February ruling that Thomas prosecuted one of the three officials for political gain and had a conflict of interest in pressing the case.

If Thomas is found to have violated the professional rules of conduct, he could face a wide range of punishments, including an informal reprimand, censure, suspension or disbarment.

John Gleason, a Colorado attorney who ran the investigation, wrote in his report that the allegations against Thomas and Aubuchon warrant disbarment if they are proven.

His report said Thomas brought criminal charges against Maricopa County Supervisors Don Stapley and Mary Rose Wilcox to embarrass them, and that some charges against Stapley were barred by the statute of limitations.

The report said Thomas and Aubuchon criminally charged Maricopa County Superior Court Judge Gary Donahoe with hindering prosecution, obstruction of justice and bribery when they knew the charges were false.

It also said Thomas, Aubuchon and Alexander had no good-faith basis for filing a lawsuit that accused a group of county officials and judges of conspiring to hinder an investigation into the construction of a court building and an investigation of Stapley. The report said the lawsuit demonstrated a lack of basic legal competence and was an illegal attempt to intrude on the independence of the courts.

Gleason also concluded Aubuchon was dishonest in failing to tell an out-of-county prosecutor who was going to handle two investigations of county officials that a grand jury in Maricopa County had already ended its inquiry into both matters.

Thomas said the discipline case is a political witch hunt on behalf of the state's legal establishment and sends a dangerous message to prosecutors that they could lose their law licenses if they go after powerful people.

"A price was put on my head," said Thomas, who resigned in the spring to launch an unsuccessful campaign for Arizona attorney general.

Aubuchon was fired from the prosecutor's office a few months ago. Alexander left the office earlier this year.

Aubuchon declined to be interviewed but said in a release that Gleason's report was biased and contained false statements that she didn't specify. There were no business phone listing for Alexander.

Gleason declined to say whether he found evidence of criminal wrongdoing by the three attorneys, who face no restrictions in practicing law.

The panel that will decide the disciplinary case against the three former prosecutors is composed of Presiding Disciplinary Judge William O'Neil, and a lawyer and member of the public who have yet to be appointed.