by Michael Kiefer and Yvonne Wingett Sanchez - Apr. 10, 2012 11:01 PM
The Republic | azcentral.com
The decision to disbar former Maricopa County Attorney Andrew Thomas and one of his former lieutenants raises new questions about whether the public will fund their anticipated appeals and how the disciplinary panel's findings may play into federal abuse-of-power investigations of Thomas and Maricopa County Sheriff Joe Arpaio's office.
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In an hourlong hearing Tuesday, a disciplinary panel convened by the Arizona Supreme Court repeatedly found clear and convincing evidence of ethical misconduct -- even criminal acts -- that it said merited disbarment for Thomas and former Deputy County Attorney Lisa Aubuchon and suspension for six months and a day of former Deputy County Attorney Rachel Alexander.
The case has drawn national attention for its rarity: An elected prosecutor's on-the-job activities being put under harsh scrutiny. Later Tuesday, legal experts held the case up as a model for how to hold prosecutors accountable for misconduct.
"This case is one of those few cases where the disciplinary mechanism worked -- and worked in a dramatic and powerful way," said Bennett Gershman, a Pace University law professor and an expert on prosecutorial misconduct. "This is a huge victory for good-government people and people who believe that prosecutors should be accountable for misconduct."
The sanctions are to take effect May 10, but at least two of the three prosecutors are likely to appeal, according to their lawyers, and they can ask for the sanctions to be stayed until their appeals are heard. Disbarment would strip them of their ability to practice law in Arizona and could hinder their ability to practice in other states.
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.
The disciplinary panel ruled that harsh punishment was fitting because the former prosecutors together pressed unwarranted criminal charges, obtained indictments, filed a federal racketeering lawsuit and initiated investigations against Thomas and Arpaio's political enemies from 2006 to 2010, when Thomas resigned as county attorney to run for state attorney general.
Presiding Disciplinary Judge William O'Neil referred to the public expense of their activities, noting in a 247-page order: "Respondents Thomas and Aubuchon joined hands to inflict an economic blizzard on (the) public and multiple individuals which is paled only by the intentional infliction of emotional devastation their icy calculated storm left in its wake. That harm is irrefutable, yet still finds Respondents without a shred of remorse."
O'Neil referred to the prosecutors as incompetent, blinded by a misguided belief that they were rooting out government corruption when they were instead persecuting political rivals without probable cause.
Though the U.S. Attorney's Office on Tuesday declined comment on the panel's order, it may have implications for a long-running federal investigation into whether Thomas, Arpaio and their deputies abused their power.
The order clearly states that Thomas, Aubuchon and Alexander conspired with Arpaio and former sheriff's Chief Deputy David Hendershott to retaliate against judges, the Board of Supervisors and other county officials and that they conspired to file criminal charges against then-sitting Superior Court Judge Gary Donahoe without probable cause.
The order states that the charges were filed to keep Donahoe from holding a court hearing that might have been unfavorable to Thomas.
"Were this a criminal case, we are confident that the evidence would establish this conspiracy beyond a reasonable doubt," the panelists wrote.
But the panelists decided to not consider that conspiracy in its assessment of sanctions, saying, "This court is fully aware that it is not a criminal court."
Legal observers speculated that the panel was sidestepping potential arguments about double jeopardy if Thomas and the others are criminally charged.
"This is uncharted territory," said attorney Karen Clark, an expert on attorney ethics, adding, "I think it's unfortunate that we've had a series of prosecutors disbarred."
Clark served as Bar counsel in the case of former Deputy Pima County Attorney Ken Peasley, who was disbarred in 2004 for his handling of two murder cases in the 1990s.
Peasley's was a relatively quick proceeding. Even the case of North Carolina prosecutor Mike Nifong, who was disbarred for prosecuting Duke University lacrosse players in a sexual-assault case, pales in comparison with the scope of the Thomas case.
Gershman said the Arizona case was "far more serious" than Nifong's because there was a pattern of ethical violations, not just an isolated event.
"You're dealing with an office that for years engaged in a vendetta against the Board of Supervisors, judges, lawyers and a whole range of people that Thomas and Arpaio thought hurt their law-enforcement agenda," Gershman said. "This was a reign of terror by Thomas, with Arpaio, with Aubuchon and Arpaio's top lieutenant, and cronies. Thomas and Arpaio were the two most powerful law-enforcement officials in the county, and they were mutually enforcing each other's power -- they were working together in tandem for each other's benefit."
The Thomas case was based on 33 allegations: Thomas was named in 30 of them, Aubuchon in 28 and Alexander in seven. They were bunched around six subjects or incidents that mirror the history of Thomas' infighting with judges and the county.
Counts 1 through 3 focused on Thomas' conflicts with the county over who chose outside attorneys to handle county legal matters.
Counts 4 through 11 dealt with an indictment brought against Maricopa County Supervisor Don Stapley in late 2008, alleging he had committed misdemeanors and felonies in not accurately reporting his finances in county documents. That case was thrown out, and it was later determined that many of the misdemeanor counts had already passed the statute of limitations. Over the course of that case, Aubuchon made false statements, and the panel determined the charges were brought for political reasons and to burden or embarrass Stapley.
Counts 12 through 14 revolved around Thomas and Arpaio's investigation of a court-tower construction project in downtown Phoenix. The prosecutor and the sheriff felt that improper appointments had been made to the project and that money was being wasted. The investigation continued even after Donahoe precluded Thomas' office from handling the case.
Counts 15 through 20 concerned a federal racketeering lawsuit that Thomas and Arpaio filed against judges and county officials, alleging conspiracy. The panel called the lawsuit frivolous, its report stating: "In the hands of the reckless respondents, the (racketeering) action was nothing short of ... fumbling with the law, like children wielding a buzzing chainsaw, cutting off Thomas' political opponents at the knees. Yet, the incompetent trio failed to plead even the most the basic elements required of a legitimate (racketeering) complaint."
Counts 21 through 23 dealt with December 2010 indictments against Stapley and Wilcox. The panelists concluded Thomas and Aubuchon intended to embarrass or burden the supervisors with the indictments. Wilcox's indictment was thrown out in court. Stapley's was dropped.
Counts 24 through 30 focus on criminal charges filed against Donahoe. The panelists concluded Thomas and Aubuchon themselves committed criminal acts, including perjury and conspiracy, in filing the complaint, which was also dropped.
Counts 31 through 33 detail other indictments that Aubuchon and Thomas attempted unsuccessfully to obtain against county officials.
Thomas, Aubuchon and Alexander nonetheless paint themselves as victims and still maintain they were sincerely trying to fight corruption in county government.
"Today, corruption has won and justice has lost," Thomas said in a formal statement. "I brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license. Arizona has some of the worst corruption in America, according to a recent national survey. The political witch hunt that's just ended makes things worse by sending a chilling message to prosecutors: Those who take on the powerful will lose their livelihood."
Scott Zwillinger, Alexander's attorney, said his client was acting on the orders of her superiors.
Ed Moriarity, Aubuchon's attorney, said his client was disappointed in the verdict and that the findings of perjury and dishonesty were unexpected.
"There's just no evidence whatsoever," he said. "The fact of the matter is that if every lawyer in every case was subjected to the scrutiny that was given to this case, no lawyer would be able to practice -- and the lawyers should be aware of that."
O'Neil held otherwise, writing in the panel's report that the prosecutors "pretended to see 'corruption' in everyone who disagreed with them and declared that vision as a noble cause. Motivated by such declared revelation they compounded their corruption by embracing duplicity, deceitfulness and deception. For them, the destruction of their enemies apparently justified their actions. They ignored the law and rules to achieve their objective."
O'Neil wrote, "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."
He also was critical of Thomas' unwillingness to provide checks and balances in guiding the activities of the Sheriff's Office, writing, "It was respondents who encouraged any untoward actions with a resolute refusal to act independently of the sheriff. With either a wink and a nod or a collaborative voice they supported actions that became increasingly questionable, rather than independently following their seemingly never-assumed role as arbiters of justice."
Reaction was swift when the sanctions were announced Tuesday morning. The courtroom crowd gasped, smiled and nodded their heads as O'Neil read that Thomas and Aubuchon committed perjury -- a Class 4 felony -- by knowingly asking a sheriff's detective to swear to the truthfulness of the complaint against Donahoe while knowing the criminal charges they brought against the judge were false.
"One of the most devastating things is when the audience clapped," Moriarity, Aubuchon's attorney, said. "It's like somebody clapping at a funeral."
Immediately after the hearing, Wilcox called Thomas a coward for not attending the hearing and called on him to issue a public apology. Kunasek called the verdict a "vindication of the institution." Stapley, meanwhile, said it sent a message to prosecutors that their office is "to be a minister of justice -- not a mercenary of politics."
Rick Romley, Thomas' immediate predecessor and temporary successor, said he wondered how matters ended up as they did.
"The question is, how did it get so messed up? How did our checks and balances get so screwed up that we had to live years through this torment," Romley asked.
Chief Deputy Yavapai County Attorney Dennis McGrane said, "I would like to think disbarment would have happened for far less than what he did."
"The conduct displayed here was way beyond the line," McGrane said.
Gila County Attorney Daisy Flores said the verdict was appropriate.
"The power and duties of the prosecutor should never be taken lightly," she said, "And truly, prosecutors every day in Arizona do their jobs responsibly and ethically."
O'Neil wrote that the proceedings should also serve an added purpose.
"The evidence is overwhelming against respondents," he wrote. "We hope the openness in which these proceedings were held will help restore the public's faith in our legal institutions and deter attorneys from similar misbehavior."
Republic reporters JJ Hensley and Michelle Ye Hee Lee contributed to this article.
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