Dec
19

More excerpts from the proposed findings filed by Bar Counsel

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384. The Filing of Charges Against Judge Donahoe. As described above in Section III.D.1, Judge Donahoe had scheduled a hearing for the afternoon of December 9, 2009 regarding the Notice and Motion filed by Thomas Irvine and Edward Novak on behalf of the County.601 The motion filed for the Board by Irvine and Novak sought an order prohibiting special deputy county attorneys from appearing before a grand jury.

385. On December 9, 2009, under Thomas’s authority and with his approval, Aubuchon through MCSO detectives filed a criminal case against Judge Donahoe.602 Thomas made the decision to file a direct complaint against Judge Donahoe following a meeting with Aubuchon, Hendershott, and Arpaio.603 Thomas and Aubuchon denied that they wanted to file the charges against Judge Donahoe to stop that hearing.604 However, as discussed below, the Hearing Panel concludes that the evidence is clear and convincing that Thomas, Aubuchon, Sheriff Arpaio and then-Deputy Chief Hendershott decided to file the charges against Judge Donahoe so that he would not hold the December 9, 2009 hearing.

386. Aubuchon and Detective Gabe Almanza signed the direct complaint.605 It charged the judge with hindering, obstruction and bribery.606 There was no investigation in this matter prior to the filing of the direct complaint.607 Only after the direct complaint was filed did MCSO create a report.608

387. Aubuchon attempted to file the charges against Judge Donahoe a day earlier on December 8, 2009, after a meeting with Thomas, Arpaio and Hendershott.

388. On the afternoon of December 8, 2009, Chief Deputy Hendershott of MCSO called Sgt. Rich Johnson about filing a case against Judge Donahoe.609 Chief Deputy Hendershott told Sgt. Johnson that they needed it done “now.”610 MCSO Sgt. Brandon Luth, Sgt. Johnson and Deputy Chief Young called Aubuchon on the afternoon of December 8, 2009, to ask her what was going on and what they needed to charge.611 Aubuchon stated they needed a Form 4, a DR (departmental report) and a probable cause statement.612 Aubuchon told the MCSO officers she wanted to charge bribery and related charges.613 Sgt. Luth did not know what to write.614 Sgt. Luth’s orders were to put the case together and accompany Detective Cooning to “walk it throught” that evening.615

389. Later in the afternoon of December 8, 2009, Aubuchon, Chief Young, Sgt. Luth, Sgt. Johnson and Chief Hendershott met.616 Chief Hendershott told them about the racketeering lawsuit, and that they thought Judge Donahoe was going to throw MCAO off all County investigations.617 Chief Hendershott said that he had met with Thomas, Aubuchon, and Sheriff Arpaio, and that Sheriff Arpaio came up with the idea of charging the judge.618 Chief Hendershott told Sgt. Luth to use as the material for the Form 4, or probable cause (“PC”) statement, a complaint that the Chief Deputy had submitted to the Commission on Judicial Conduct against Judge Donahoe.619 Chief Hendershott printed off his complaint and wrote the charges on it. 620 At the hearing in this case, Hendershott was unable to describe any criminal conduct by Judge Donahoe.621

390. Sgt. Luth drafted the PC statement using Chief Deputy Hendershott’s judicial complaint622 at Aubuchon’s direction.623 The PC statement addresses Judge Donahoe’s:

a.alleged conflict of interest;

  1. his failure to take action against Supervisor Stapley about alleged disclosure of grand jury information;

c.problems with the Sheriff’s Department transporting prisoners to court;

  1. bias against the Sheriff’s Office;

e.setting a hearing about a motion to remove MCAO from prosecuting cases against MCBOS and County Management.

The PC statement is substantially about perceived difficulties MCSO was having with Judge Donahoe, but not about crimes he may have committed.

391. Sgt. Johnson called MCSO’s dispatch unit and obtained a Departmental Report number for the case.624 At about 5:00 p.m., Sgt. Luth took the Donahoe charging documents to Aubuchon. She read them. She said that “it worked for her.”625 Aubuchon signed the complaint as Deputy County Attorney.

392. Aubuchon attempted to have an investigator from MCAO file the direct complaint in Superior Court in the late afternoon or early evening of December 8, 2009. Aubuchon assigned the task of filing the direct complaint to MCAO investigator Lt. Richard Hargus.626 Lt. Hargus then asked MCAO Detective Timothy Cooning to meet an MCAO clerk in front of the court at 5:30 p.m.627 Det. Cooning did so, and the clerk handed him the Donahoe file. Cooning read the file, returned to his office, and informed Lt. Hargus that he felt uncomfortable swearing to the truthfulness of the complaint against Donahoe because he had not investigated the case.628 Cooning also was uncomfortable signing the probable cause statement because it was unclear what crimes had been committed and who had investigated them.629

393. Lt. Hargus told his superior, Commander Stribling, that Lt. Hargus and Detective Cooning did not want to file the complaint because there was no probable cause to support it.630 Commander Stribling agreed that none of his detectives should be put in the position of walking through a complaint on a sitting Superior Court judge when he knew nothing about the investigation that led up to the filing of the complaint.631 The commissioner assigned to the evening court might ask the detective questions, and the detective would not know what to say.

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