Jan
01

County Attorney Andrew Thomas’ Decision to take Lovejoy to trial

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As recounted in Judge Wake’s recent ruling:

Andrew Thomas, then the Maricopa County Attorney, assigned Leonard Ruiz, third in command at the County Attorney’s Office and chief of the trial division, to supervise Lovejoy’s case. Ruiz was never told why he received the assignment. He could not recall another instance of a person with his seniority at the County Attorney’s Office being asked to assist in prosecuting a misdemeanor animal cruelty offense. Deputy County Attorney Anthony Church, who specializes in animal cruelty cases, received the assignment to handle day-to-day tasks associated with the Lovejoy prosecution. Soon after he received the assignment, Church formed the opinion that the case against Lovejoy was weak: [F]rom all the information I had gathered from the police report, [Lovejoy] cared very much about the animal, and I had a hard time believing that he would consciously recognize that the dog was in the back of the car and leave the dog there intentionally or ‚or, you know, understanding that he would be coming back but knowing the dog was back there.

On March 7, 2008, Church and Ruiz jointly requested an “incident review.” An incident review involves submitting the case to a board of senior attorneys who evaluate whether the case should go forward. Church and Ruiz’s written request summarized Simonson’s findings and added, A defense interview with Detective Rob Simonson took place in early February. According to Detective Simonson there is no evidence, which he can point toward, to show that Lovejoy did not simply forget that the dog was in the car. Detective Simonson told the defense attorney the only evidence that exists to prove the reckless mindset is that Lovejoy put the dog into the car and Lovejoy failed to take the dog out of the car, causing the dog’s death. (Doc. 101-2 at 4.) Church and Ruiz then quoted the animal cruelty statute under which Lovejoy was charged (see p. 5, above) and the definition of “recklessly” (see p. 8, above) and concluded: Recklessness requires that the person actually be “aware” of the risk being created by his conduct. In re William G., 192 Ariz. 208, 963 P. 2d 287 (App. 1997). This case needs to be set for incident review to determine whether we have probable cause to prosecute this case and whether we can ethically prosecute this case. (Id. at 5 (emphasis in original).) On March 11, 2008, another Deputy County Attorney, Jeff Trudgian, submitted a memo to Chief Deputy Philip J. MacDonell regarding the Lovejoy case. The memo begins, “Mr. Thomas requested research on the issue of whether “awareness’ of the risk, as needed for a finding of recklessness, can entail forgetfulness “ specifically, as applied to a K-9 police officer with specialized training regarding animal handling.” (Id. at 8.) Trudgian analyzed various cases and the relevant statutes and concluded, The problem is the element of “conscious disregard” that the results would occur or the circumstance exists. It cannot be argued that a person who truly forgot an animal in a vehicle consciously disregarded a known risk. . . .  . . . [T]he facts appear legally insufficient for conviction. (Id. at 10 (emphasis in original).)

On March 28, 2008, yet another Deputy County Attorney, Linda Van Brakel, submitted a memo titled “Lovejoy analysis” to Jim Beene, whose position is unidentified. The memo quotes Church and Ruiz’s statement of facts (contained in their incident review request) and then analyzes the relevant law as applied to those facts. Similar to Trudgian’s memo, Van Brakel’s states, Lovejoy knew the dog was in the car because he placed him there, but the evidence shows he completely forgot about him. In other words, although Lovejoy was no doubt aware of the risk of leaving a dog in a hot car that long, he did not consciously disregard that risk. He simply forgot. That may be negligent, but it is probably not criminally reckless. (Id. at 27 (emphasis in original).) Van Brakel considered but rejected a recklessness argument based on sleep deprivation: Lovejoy should have realized that he was sleep-deprived and might forget about the dog. However, police officers working graveyard shifts, swing shi[f]ts, off-duty jobs, and getting called out at all hours, are commonly sleep deprived and this might be considered normal for a police officer. In other words, loading the dog in the car under the circumstances probably did not create a substantial risk of harm constituting a gross “flagrant and extreme” deviation from the conduct of a police officer or K9 officer. Leaving him in the car, of course, would create a substantial risk of harm constituting a gross deviation from the conduct of a K9 officer, but we lack the “conscious disregard” of such a risk. (Id.) Van Brakel ultimately concluded, “I do not believe there is a reasonable likelihood that it can be proven beyond a reasonable doubt that Lovejoy acted with criminal recklessness, causing Bandit’s death.” (Id. at 31.) The record before the Court does not reveal whether County Attorney Thomas reviewed any of this material. However, he turned down Church and Ruiz’s incident review request.

In a less than shocking turn of events, Andrew Thomas disregarded all of the advice he was given about prosecuting Officer Lovejoy and turned the case over to his ever-faithful servant, Lisa Aubuchon (who is facing currently facing disciplinary proceedings with her former boss).

Contact a Phoenix Criminal Lawyer today if you are facing criminal charges.

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