State of Arizona v. Lovejoy

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This not guilty verdict was including among a number of high profile cases entrusted to now disgraced former prosecutor Lisa Aubuchon.  Judge Neil Wake recounts in his recent ruling denying the Defendant’s motion for summary judgement:

Lovejoy’s case went to a bench trial in front of a Justice of the Peace on August 15, 2008. After Aubuchon presented the State’s case, Lovejoy’s defense attorney moved for a directed verdict: Judge, the statute as we’ve been talking about all morning requires the culpable mental state of recklessly. And for the State to prove that, they have to show that Sergeant Lovejoy was aware of a substantial and unjustifiable risk, i.e., the dog was in the car, and that if he left him in there, he would die or become injured. . . . They have shown that he left the car “ the dog in the car. No one is disputing that. They haven’t shown . . . that he knew the dog was back there, but disregarded the risk that he might die. (Doc. 93-1 at 56.) In response, Aubuchon argued, We don’t have to show that he knowingly left the dog in the car. . . . *** We are not arguing that he knew he left the dog in the car, because we would have charged it that way. We’re arguing that he’s reckless. And it is his very conduct and the choices he made that shows he substantially disregarded that risk. Everybody knows that in August in Arizona it is hot in a car. And a trained K-9 officer should be on heightened awareness about what will happen if he forgets the dog in the car. (Doc. 93-1 at 57.) At the close of argument, the Court announced without elaboration, “At this time I’m going to deny the directed verdict.” (Doc. 93-1 at 62.) Lovejoy then put on his defense, after which the Court stated: “All of these so-called distractions [presented by the State as evidence of recklessness] . . . don’t equal “ it doesn’t equal to me to be recklessness. State did not meet their “ their burden here and I find [Lovejoy] not guilty.”

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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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More excerpts from Judge Wake’s ruling in the Lovejoy – Arpaio case

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Judge wake goes on to recount the factual allegations regarding the Sheriff’s news conference:

While Lovejoy was driving in, Arpaio held a press conference announcing that Lovejoy had been arrested. Lovejoy claims he learned of his supposed arrest when a reporter reached him on his cell phone while still driving to the station. When Lovejoy arrived at the station, Summers and Simonson arrested him (without handcuffs) and moved him through the processing, booking, and initial appearance process. An unspecified Sheriff’s Office employee asked the commissioner presiding at the initial appearance to set bail, but the commissioner refused and released Lovejoy. That same day, the Sheriff’s Office issued a news release‚regarding the arrest. Arpaio testified at his deposition that he reviewed it and approved‚the news release “[t]o be disseminated to the media.” … The news release quotes Arpaio as saying that the decision to book Lovejoy into jail was “difficult” but “Lovejoy must be treated like anyone else in similar circumstances. I have a strict policy on animal abuse and neglect whereby offenders are booked into jail.’” … At his deposition, Arpaio confirmed that he made this statement. The news release further quotes Arpaio as saying, “Our investigation determined that Bandit’s death was not an intentional act on Lovejoy’s part, but it was reckless and for that, Lovejoy must be charged.’” … When asked about this statement at his deposition, Arpaio replied, “That’s what the investigate‚ investigators said, I presume.”  He was then asked, “You knew when you stepped in front of the cameras [at the press conference] to announce that [Lovejoy] was being charged and put into jail, booked into jail, that [he] had not done anything intentional to hurt that poor dog, didn’t you?” Arpaio responded, “Well, I’m not going to get into the law, whether it’s intentional or not.”…

It doesn’t take a high profile case like this for a rush to judgement to damage one’s rights.  If you or a loved one are being investigated for a criminal offense, contact a Scottsdale Criminal Attorney today.

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Maricopa County Sheriff’s motion for summary judgment denied

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District court Judge Neil Wake recited the following undisputed facts:

That night, he had trouble sleeping because he did not feel well. Around 2:00 a.m. on Saturday, August 11, Lovejoy’s lieutenant at the Chandler Police Department awoke Lovejoy with a phone call. The lieutenant reported a possible sighting of a serial rapist that had recently been terrorizing the Chandler community. Lovejoy’s lieutenant asked Lovejoy to report for duty. Lovejoy agreed, but instead of getting out of bed, he fell back asleep because he was extremely tired. About an hour later, Lovejoy’s lieutenant called again. Lovejoy then got out of bed, put on his uniform, put Bandit into his police SUV, and began driving toward the scene. As he drove, he spoke with his lieutenant again by cell phone. In frustration, the lieutenant told Lovejoy to return home. Lovejoy did so and placed Bandit in his backyard kennel, but Lovejoy did not go back to sleep because he was upset with himself for falling asleep after his lieutenant’s first phone call that morning. By this time, Lovejoy had slept only about six-and-a-half hours over the previous two days. Lovejoy volunteered for an extra-duty traffic control shift that morning beginning at 6:00 a.m. He was not required to bring Bandit with him but he brought Bandit anyway because, he says, he wanted to be prepared if the serial rapist was again spotted. Although the record is somewhat hazy, it appears that Lovejoy and Bandit both remained in the SUV for the entire shift, which ended at 9:00 a.m. Lovejoy believes that Bandit had fallen asleep in his kennel by this point because daytime was Bandit’s usual sleep time. While driving home, Lovejoy received various cell phone calls and was still talking on his phone when he pulled into his driveway, exited his vehicle, and walked into his house. Lovejoy did not take Bandit out of the SUV. For the rest of the day, Lovejoy attended to various family obligations, including helping his stepson with a minor car accident, shopping with one of his daughters, and going out to dinner with his wife. He used his personal vehicle for all of these tasks.

At about 10:30 that night, he returned to his police SUV to get it ready for another extra-duty shift, smelled an unusual smell, and discovered Bandit dead in his kennel. Lovejoy was distraught. He soon called fellow Chandler Police Officer Ron Emary to help him report the incident, but he could barely do more than babble over the phone. Emary arrived on the scene soon after, as did Chandler Police Department Commander Joseph Gaylord, who photographed the scene, cleaned up Bandit’s kennel, and took Bandit’s body to an animal hospital for cremation.

As those who followed this story are aware, Officer Lovejoy was later charged by the County Attorney’s Office and found not guilty of animal cruelty.  If you or a loved one are charged with any criminal offense, you should immediately seek legal advice from a Phoenix Criminal Defense Attorney.

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Posting an “Appearance Bond”

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Frequently asked questions about bonds and pretrial release in Arizona


What is an Appearance Bond?

Posting bond

An appearance bond, also known as a bail bond (bond) allows a person (the defendant) who is in custody (jail) to be released pending further court appearances. The purpose of the appearance bond is to guarantee the arrested person’s appearance at a time and place specified by the court. The amount of the bail bond varies with the seriousness of the charge and is set by the court.

Is it always necessary to post a bond?

No. Under certain conditions, the court will release a defendant without bond. The court may accept the defendant’s promise to appear at a time and place specified by the court. This is known as being released “Own Recognizance” and is typically seen in cases where people are charged with a DUI in Scottsdale, Arizona.   A defendant may also be released upon another person’s (designated by the court) promise to ensure the defendant’s appearance as required by the court. This is called a “Third Party Release.”

What will the court accept as bond?

The court will accept cash for the full dollar amount of the bond.  Most courts will accept cash, certified money orders, or cashier checks; however, not all courts accept personal checks, business checks, or credit cards. Contact the court or jail fort detailed information. Courts also accept paper bonds posted by bail bond agencies.

Who can post bond?

Everyone can post a bond paid in cash for the person who is charged with the crime.  Bail bond companies are able to file paper bonds which basically require them to pay in cash if the defendant thereafter fails to appear or otherwise violates the terms of their release.

What happens if the defendant fails to appear as ordered?

The court will schedule a bond forfeiture hearing and all parties involved will be notified of the date and time. Depending on the outcome of the hearing, the court:

A. May order the bond forfeited;

B. May also order a warrant for the defendant’s arrest:

C. May allow the defendant another chance to appear.

If a bond is forfeited, can the person who posted the bond get their money back?

No, so be sure to keep this in mind before posting a bond on someone else’s behalf.

What happens to collateral given to a bail bond agent should a defendant fail to appear and be court orders the bond forfeited?

The court will order the cash value of the bond paid by the bail bond company. Property given as collateral can be sold by bonding companies to provide cash for the bond, if necessary. Any contract regarding the collateral and/or cash deposits is between the bonding company and the person obtaining the bond.  The court cannot and will not intervene.

What happens if a defendant appears as ordered?

A. The court may order the bond be returned (exonerated) to the bond poster. Once the judge orders exoneration, the court prepares to refund a cash bond to the bond poster or provides written clearance to be given to a bail bond company. Once clearance is provided, the bail bond company initiates the release of collateral; or,

B. If the defendant posted the bond, the court may order that the bond be converted to pay fines, fees, surcharges, or restitution on the case at hand and/or other cases involving the defendant. The court does not need the defendant’s consent to order the conversion: or,

C. The court may order the bond be converted to fines fees, surcharges, or restitution on the case at hand and/or other cases the defendant may have IF the person, who posted the bond, not the defendant; agrees to the bond conversion; or,

D. The court may order the bond remain in effect until the defendant’s next appearance.

After the bond has been released, the bonding company should return title to the collateral used to secure the bond. You may need to supply the bonding company with a copy of the court order releasing the bond.


Bond Poster – Person who posts an appearance bond

Collateral – Property or titles given by a person to a bail bond agent who then posts the bond.

Convert – Use of the bond money to pay what the defendant was ordered by the court to pay. The order could include victim restitution, fines and surcharges, attorney fees, or jail fees

Defendant – Person charged with a criminal act.

Exonerate – Return of bond money to the bond poster.

Forfeit – Bond money is turned over to the city; county or state by the judge’s order.

Paper bond – The paper given to the court by the bail bond agent showing that collateral was given.

Be careful! The form used when bond is posted may have several options that allow the court to use the money to “Pay for the monetary obligations owed on this case and other cases this defendant may have in this court.” Please read the form carefully and only mark those statements that you agree with; you cannot change your mind later.

Categories : Criminal Law
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Bar Counsel requests a finding that Thomas testified falsely at his own disciplinary hearing

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In their recently filed proposed findings, bar counsel including the following:

408. Thomas and Aubuchon’s Testimony About Probable Cause to Charge Judge Donahoe. At the hearing in this matter, Thomas testified that he brought the bribery charge against Judge Donahoe because the Judge was an “accessory” to the “Mundell-Stapley-Irvine triangle.”674 Thomas stated that he charged Judge Donahoe as an accomplice “because he was repeatedly beating back investigations into not only the court tower, but any of the principals who were involved in other matters or at the periphery of that deal, which [Thomas] considered corrupt.”675 According to Thomas, Judge Donahoe was an accessory to bribery because he did the following:

a. Quashed a grand jury subpoena concerning the Court Tower;

b. Disqualified MCAO from the Court Tower matter; and

c. Quashed a search warrant of an office in the Stapley matter.676

409. The Hearing Panel finds this testimony to be unbelievable. There was no mention in the PC statement attached to the direct complaint against Judge Donahoe that Judge Donahoe was an accessory to an alleged bribe involving Mundell, Stapley and Irvine.677 Thomas had attached the complaint and he assumed the PC statement to his news release about charging Donahoe.678 The fact that there is not one mention of Thomas’s theory in the PC statement indicates that his explanation is an attempt to create probable cause where there was none. No other witness in this hearing, including Aubuchon, testified that the theory for charging Judge Donahoe was that he was an accessory.

410. Further, this testimony is unbelievable because the three acts that Thomas points to as criminal were judicial decisions that Judge Donahoe made. There was no evidence presented to this Hearing Panel that MCAO or MCSO had evidence that Judge Donahoe accepted a bribe for making these judicial decisions. Thomas’s testimony that these acts constituted acts of an accessory to bribery is totally incredible. The Hearing Panel finds that Thomas engaged in misrepresentation at the hearing on this issue.

411. Aubuchon testified that the PC statement set forth probable cause to believe that Judge Donahoe engaged in bribery, hindering and obstruction.679 The Hearing Panel finds that testimony incredible. A reading of the PC statement indicates that it does not set forth any evidence of criminal conduct by Judge Donahoe. No lawyer, especially one with extensive criminal prosecution experience, could conclude otherwise. For Aubuchon to testify that it did set forth probable cause indicates that she engaged in misrepresentation to this Hearing Panel. As noted above, no other evidence except that in the PC statement was presented to this Hearing Panel that Judge Donahoe engaged in crimes.

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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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Closing arguments and proposed findings filed in Thomas case

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Proposed findings submitted by Bar Counsel included assertions that Thomas and Aubuchon could not have reasonably believed there was probable cause to charge Judge Donahoe with crimes. Based on the facts set forth above, there was no evidence Judge Donahoe committed any acts that corresponded with any elements of the crimes charged. To the extent Thomas and Aubuchon claim they did believe there was probable cause, that claim is either incredible or is so unreasonable that no ordinarily prudent person could possibly have come to the same conclusion. … [T]he purpose of charging Judge Donahoe was to retaliate against him for actions he had taken earlier, in particular the removal of MCAO from the investigation of Court Tower matters in February 2009. Judge Donahoe’s ruling on the Court Tower matter was the subject of a special action that Thomas and Aubuchon filed, review of which was denied for the final time on December 1, 2009, eight days before they charged Judge Donahoe with felonies. … Thomas and Aubuchon engaged in conduct involving dishonesty, fraud, and deceit when they knowingly brought charges against Judge Donahoe that were false and made without any investigation or evidence.

In other areas of the proposed findings, Bar Counsel asserted: Aubuchon signed the direct complaint that she and Thomas filed against Judge Donahoe. The direct complaint, prepared by Aubuchon, contained a signature line for a “complainant” from MCSO. Detective Gabe Almanza signed the document as “complainant” and did so under oath. Detective Almanza had not conducted any investigation into alleged criminal conduct by Judge Donahoe. Thomas and Aubuchon knew that the criminal charges they brought against Judge Donahoe were false, that Detective Almanza swore to a false complaint, and that a complaint is a sworn document as defined by A.R.S. § 13-1701. Therefore Thomas and Aubuchon are criminally accountable for the conduct of Detective Almanza because they knowingly caused him to sign and file a false sworn document and/or they ratified his conduct after he had signed the complaint. Thomas and Aubuchon committed perjury because they acted with the culpable mental state to engage in perjury and did so through the acts of another. Accordingly, they are criminally responsible under A.R.S. § 13-303 for the acts of another. By committing perjury, Thomas and Aubuchon violated ER 8.4(b).

For more information on Andrew Thomas, I’d encourage you to visit the website of author Daniel Horne and check out his book, Accidental Felons.

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Excerpts from Aubuchon response

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Aubuchon submitted a September 17th response to Ahler wherein she wrote the following:

Kale Baker. an investigator who has zero experience in criminal matters, is second-guessing my charging decisions. Early on in her interviews with me, it became obvious that Ms.Baker. a person who has also accused .  Judge Gary Donahoe of inappropriate conduct and has had her judgment questioned by a federal judge, had not been able to find any factual or ethical wrongdoing. As such, she began targeting the “bad judgment” angle and the very tone of those interviews was negative from there on out. Without the benefit of any real evidence to back it up. Ms. Baker made several statements indicating her belief that my actions were politically motivated rather than based on facts and evidence provided by law enforcement agencies. Desperate to achieve the ICA Romley administration’s goal of finding cause to fire me? Obviously. An expert on judgment? Hardly.

Leonard Ruiz, who is so risk adverse that he would take a case to trial only if it were videotaped and now claims my judgment is so bad it warrants termination. has obviously forgotten about the last evaluation I received from him (also Exceptional). Instead. Leonard has focused on the countless internal battles he has lost since then because he was scared of the targets and the political ramifications of going after them despite the mounting evidence against them. Bitter? Yes. An expert on judgment? Not quite.

Tony Novitsky. who can’t seem to make up his mind whether he wants to be married or not or who he wants to be married to for the months that he does want to be married. is not someone I look to for advice when it comes 10 judgment calls. But there he is, front and center in your investigation and an expert witness on what is good or bad judgment. Indecisive? Yes. An expert on judgment? Hardly.

Without question, judgment is subjective; an opinion. In many instances, there is no absolute right or wrong. However. you have inserted yourself into this process and. in a manner of a few months. have decided that my judgment is bad and now intend to fire me. You can’t find any procedural or ethical violations. but you’re going to fire me anyway because you think I have bad judgment. In and of itself, I think that is bad judgment on your part. Let me remind you that I have never had a no true bill from a grand jury. I have never had a Rule 20 granted at trial and I have never had a case reversed on appeal. Although I have lost some cases, there has never been a finding that there was a lack of sufficient evidence to go to the trier of fact. Not only did the County Attorney approve the decisions to pursue these cases. But experts  such as Bob Barr agreed they were appropriate.

Just because I may be a tougher prosecutor than most doesn’t mean my judgment is bad. Being criticized by people for believing the death penalty is appropriate in 80% of cases where the person has been charged with First Degree murder does not mean I have bad judgment. It reflects only a different philosophy about punishment.

In conclusion, your findings arc unfounded and clearly an attack on the decisions of the prior administration. Especially now that we know ICA Romley’s administration will vacate the office in two months. second guessing the decisions of the prior administration that ICA Romley has openly criticized and worked against and, now in the eleventh hour, focusing your efforts on the discipline of a 20-year career prosecutor with an exemplary record who was complying with the decisions of her supervisors in that prior administration not only reeks of politics, but is totally absurd.

Categories : Criminal Law
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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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