Oct
03

More excerpts from Aubuchon dismissal letter

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Mr. Ahler’s September 8th letter also included the following:

The evidence which has been gathered during the internal investigation makes it clear there was no evidence upon which to charge Judge Donahoe with the crimes of bribery, hindering or obstruction of justice. The motivation for filing the charges on the morning of December 9, 2009 was to prevent a hearing that Judge Donahoe had set for 1 :30 p.m. that afternoon to consider a motion filed by the Board of Supervisors and County Administration requiring that any specially appointed deputy county attorneys attending the grand jury first be authorized to act by the Board.

Between the time the Motion re: Unauthorized Special Deputy County Attorneys was filed by counsel for the Board of Supervisors on November 13,2009 and the filing of the criminal charges on December 9, 2009. the following occurred:

November 13. 2009 – Motion re Unauthorized: Special Deputy County Attorneys

November 26, 2009 – State’s Motion to Strike Motion in Unspecified Criminal

Matter (challenging Motion re: Unauthorized Special Deputy County Attorney).

November 30, 2009·- E-mail from Judge Donahoe’s office setting hearing for

12/9/2009 at 1 :30 p.m.

December 1,2009 – RICO action filed identifying Gary Donahoe as a

“conspirator. ”

December 4, 2009 – You request Donahoe to appoint out-of county judge to hear

motion re: specially appointed deputy county attorneys to attend grand jury.

December 8, 2009 – You prepare direct complaint charging Judge Donahoe with

the crimes of bribery. hindering and obstruction of justice.

December 9, 2009 – Direct criminal complaint filled against Donahoe prior to the

1 :30 p.m. hearing.

December 9, 2009 – Judge Donahoe is served with the criminal complain!.

December 9, 2009 – Judge Donahoe cancels I :30 p.m. hearing.

December 9,2009 – MCAO issues press release essentially acknowledging that

criminal charges were brought for the purpose of preventing the hearing from

taking place. (ABU 00207).

It is obvious that because Judge Donahoe would not recuse himself, send the matter to an out of county judge or continue the hearing, a decision was made to file criminal charges against him. Indeed. during your interview you admitted that was the reason you filed the criminal complaint. A mad rush was made in the afternoon of December 8, 2009 to put together the criminal complaint. (See interview of Martha Trujilllo.) Then, you attempted to get the complaint filed that evening after hours, by requesting a Maricopa County Attorney’s OfJice

investigator swear out the complaint. Del. Tim Cooning. upon receiving the criminal complaint and realizing what was being alleged and about whom, had the good sense to contact his supervisor. Dct. Cooning knew that questions may be asked by the IA judge. Det. Cooning knew nothing about the mailer and correctly concluded that he would be unable to provide truthful and complete answers to questions that might be posed. The probable cause statement (Form 4) that was attached to the direct complaint does not establish probable cause for any of the crimes identified. It is merely a reiteration of the judicial misconduct complaint Chief Hendershott of the Maricopa County Sheriffs Office filed against Judge Donahoe.

A seasoned criminal prosecutor, such as you, either knew or should have known that the form 4 did not contain sufficient facts to support probable cause much less meet MCAO standards of “reasonable likelihood of conviction.” The “Supplemental Report” regarding Judge Donahoe was prepared on December 9, 2009, the day after the direct complaint was prepared and does not support  any of the criminal charges asserted. Again, a review of all the material maintained in your office or sent to the Department of Justice has occurred and there is no admissible evidence to support the crimes charged. The Grand Jury reached the same conclusion when it voted to “end the inquiry.” On January 4, 2010 you presented information to the 494 Grand Jury, including matters related to Judge Donahoe. On March 3, 20 10 the Grand Jury voted to “end the inquiry.” The definition or “end the inquiry” means that after the Grand Jury hears the evidence they have determined that there is no probable cause and that additional evidence or witnesses will not make a difference. When the 494 Maricopa Grand Jury was empanel led on December 9, 2009 they were instructed as follows concerning the meaning of end the inquiry: “The case is so bad there’s no further evidence that could be brought to you folks . [The] case is so bad you don’t want to go any more into the case than you just have. There’s no law that you can conceive indicting this person under. That’s what ending inquiry means.”

Equally troubling to me is that you forwarded to Gila County Attorney, Daisy Flores, the “Bug Sweep” investigation involving the MCBOS and some members of the County Administration, one of the matters which the Grand Jury voted to “end the inquiry.” First. it is unclear whether you had the authority to send this matter to Ms. Flores. Secondly, you failed to inform Ms. Flores that the Grand Jury ended the inquiry. In my judgment, this was a dishonest act because you failed to completely and truthfully provide Ms. Flores with all relevant information. Your disingenuous conduct was compounded by the fact that Yavapai County Attorney Sheila Polk had previously reviewed this same matter in June 2009 and had come to the conclusion that there was no crime committed. The fact that Ms. Flores promptly returned the material does not affect your initial wrongful conduct.

Categories : Criminal Law

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