Case may end Andrew Thomas' career
Disciplinary hearing starts for former county attorney
by Yvonne Wingett Sanchez and Michael Kiefer - Sept. 13, 2011 12:00 AM
The Arizona Republic
Andrew Thomas wasn't there to hear it when the independent counsel for the State Bar of Arizona laid out a case against him that could end his legal career.
Thomas faces disbarment, but the former Maricopa County attorney did not attend Monday's opening statements in his disciplinary hearing at the Arizona Supreme Court.
His co-defendants and former deputies, Lisa Aubuchon and Rachel Alexander, sat silently in the front row of the gallery in a dark-paneled courtroom as other attorneys explained why they should or should not face sanctions for their investigations of or legal complaints against judges, county supervisors and others they believed engaged in "corruption."
"The evidence and testimony that we will present will establish a four-year period of prosecutorial abuse by Mr. Thomas and Ms. Aubuchon," said John Gleason, the attorney prosecuting the case. "Under the direction and supervision of Mr. Thomas, he and Ms. Aubuchon engaged in personal retribution against their enemies."
"If you crossed paths with the county attorney, Sheriff (Joe) Arpaio, or former (sheriff's) Chief Deputy David Hendershott, you should expect to be sued, criminally charged, or both, by the county attorney," Gleason said.
"The evidence will show that the primary purpose of the prosecutions was to punish those individuals with whom Mr. Thomas and Ms. Aubuchon disagreed."
A three-member panel will weigh evidence in the disciplinary hearing, which could stretch into November. The burden is on state Bar counsel to prove the allegations against the three attorneys. The panel must make a decision on their fate within 30 days of the last day of the hearing.
The three former prosecutors are charged with a total of 33 ethical violations stemming from actions against other county officials and judges between 2006 and 2010. Charges against them include conflicts of interest; filing criminal and civil cases to embarrass or burden rivals, or filing without probable cause or sufficient evidence; criminal conduct; and conduct involving dishonesty and fraud.
Among the allegations are that Thomas and Aubuchon filed bribery and obstruction charges against Superior Court Judge Gary Donahoe without probable cause; that they pursued a grand-jury investigation of Donahoe, county supervisors and other officials despite conflicts of interest; and that they filed misdemeanor charges against Supervisor Don Stapley in 2008 despite the statute of limitations having lapsed.
Alexander's role is limited to joining Thomas and Aubuchon in what Gleason described as a "meritless and frivolous" federal-racketeering lawsuit against officials and judges.
The three also are accused of failing to cooperate with the Bar investigation, and instead attempting to delay and obstruct the extensive initial investigation conducted by Gleason and his team.
Gleason said he and his co-counsel, James Sudler, would prove their case with new testimony from judges, investigators with sheriff's and county attorney's offices, county supervisors, and others to show the depths of the unethical conduct. The disciplinary hearing will be the first time most of the witnesses will tell their stories under oath.
Gleason promised a glimpse into a "Bizarro World" of investigative techniques, where indictments were written before investigations began, and where tips came from newspaper articles, not shoe-leather detective work. Search warrants, he said, were drafted based on "creative writing . . . and a little fluff above, and a little fluff below."
But Thomas' lawyer, Don Wilson, said Thomas sincerely believed he was rooting out corruption at the highest levels of county government.
"He tried to investigate it, he tried to prosecute it," Wilson said, but, "he was stonewalled and stymied. He confronted bitter and powerful antagonists. He confronted a hostile judiciary."
The consequences, Wilson said, were that the county Board of Supervisors stripped Thomas of his civil litigation department and its budget, and interfered with his ability to hire special prosecutors to try the cases against them.
Thomas brought charges against Stapley in 2008, Wilson said, because of what he believed were improper dealings among Stapley, then-Presiding Superior Court Judge Barbara Mundell, and private attorney Tom Irvine, who represented both the county and the courts in planning a $340 million court-tower project in downtown Phoenix.
Aubuchon's attorney, Ed Moriarity, offered a summary of what he believes was a conspiracy among politicians and judges to bring his client to this point.
Presiding Disciplinary Judge William O'Neil has already ruled that the defendants cannot gather new evidence to try to prove that they were right in bringing cases against county officials. Still, Moriarity hinted that he would still try to prove that all of Aubuchon's actions were justified but were thwarted.
"Let's face it head-on: This is not a normal case . . . this is a political case. You will see the evidence and know what I mean by the time I am finished," he said.
Furthermore, Moriarity said, the press and even the Bar have distorted facts of the case for a "selective prosecution."
Alexander's lawyer, Scott Zwillinger, argued his client should not be part of the hearing. She was simply doing her job, he said, and was working at the direction of her boss.
She was drafted into the racketeering suit, he said, because Thomas told her it was a "crisis." Alexander's initial role in the racketeering suit was to research whether Aubuchon could sue the same people she was prosecuting criminally.
The answer was no, Zwillinger said, at which point Alexander was asked to take over the racketeering case, even against her better judgment.
Zwillinger questioned why Alexander was singled out for disciplinary proceedings when her supervisor and private attorneys from consulting law firms were not.
"Each of the charges brought against Rachel will fail," Zwillinger said. "Why is Rachel here? The answer is: she shouldn't be."
The hearing continues today with testimony scheduled from retired Superior Court Judge Kenneth Fields, former Deputy County Attorney Sally Wells and Irvine.