Archive for Politics

Oct
03

Excerpts from Aubuchon response

Posted by: | Comments Comments Off on Excerpts from Aubuchon response

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
Comments Comments Off on Excerpts from Aubuchon response
Oct
03

More excerpts from Aubuchon dismissal letter

Posted by: | Comments Comments Off on More excerpts from Aubuchon dismissal letter

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
Comments Comments Off on More excerpts from Aubuchon dismissal letter
Oct
03

Lisa Aubuchon officially terminated from the Maricopa County Attorney’s Office

Posted by: | Comments Comments Off on Lisa Aubuchon officially terminated from the Maricopa County Attorney’s Office

In a September 8, 2010 letter, Chief Deputy Paul Ahler wrote the following:

Your actions contributed to the unseemly spectacle of the largest prosecutorial agency in the State filing a civil lawsuit against judges, public officials and county employees only to voluntarily dismiss the lawsuit within a few months after it became painfully obvious to all that it lacked merit. You misused the awesome power of the prosecutors office to bring unsubstantiated criminal charges against a sitting judge solely for the purpose of delaying a hearing. Again, the charges were voluntarilly dismissed a short time later. These two events created such concern among seasoned and experienced prosecutors that Yavapai County Attorney Sheila Polk felt compelled to speak out forcefully in an opinion letter that was published in the Arizona Republic on December 22, 2009.

***

Her comments, in my view, were directly on point and I believe that your actions were a serious disservice to citizens and this state. Additionally, a number of employees within MCAO commented that the actions taken by you created difficult relations between prosecutors and other judges who were totally uninvolved in the specific events in question. Your actions brought discredit to county service.

Pursuant to Rule 9.03A. Mmicopa County Merit System Rules, this is your NOlice
or the Findings or the Internal Investigation that wus conducted on bchulf of the Maricop<l
Coullty Attorney’s Oflicc and Int ent to Di scipline based on those lindings.
I have carefully reviewed Ihe report authored by Katheri ne E. Baker, along with
th..: supporting documentation which includes your personnel file, interview transcripts, hear ing
transcripts and the materi al wh ich you provided and requested to be considered. I I have taken
into conside ration the filct that YOli are an experienced prosecutor having been employed by the
MeAO since 1996. I have also reviewed transc ripts from grand jury 494 GJ 156, Mr. 130b Barr’s
affidavi ts and the written commentary you provided in response to the release of Grand Jury
l11<.1ter inl s. I have also sought the comments and opinions of the lion. Stt:ven D. Sheldon (rct.).
Although I was not required to consult with <lny independent cxpert. I sought his input to ensure
thm the disc iplinary deci sion J rcached was appropri ate.
Richard M. Romley, Interim Maricopa County Attomey, has delegatcd to me the
authority to determine the di scipline to be imposed. Based on the material I reviewed, as listed
above and provided wi th this lelter. it is my intcnt to lerminme YOli from yo ur position as Deputy
County Atto rne y. I have adopted al! the Findings and Conclusions orMs. Baker’s vcry thorough
invest igation. I have concluded that a si ngle viohltion of Maricopa County Mcrit Rules or
Maricopa County Attorney’s Office policies and procedures under the circumstances described
be low is suffic ient to warnmt term ination. The b~sis for your termination i::; set forth in detail in
the entirety of thl: attached report and spec ili <.~ally at pages 46-126. It is inco rporated herein by
fe fe rence.
Categories : Politics
Comments Comments Off on Lisa Aubuchon officially terminated from the Maricopa County Attorney’s Office
Jun
02

Thomas and Arpaio – a history of abuse

Posted by: | Comments Comments Off on Thomas and Arpaio – a history of abuse

In his notice of claim, the attorney for Judge Donahoe gave an account of the other well documented cases where the two officials abused the power of their offices for political gain:

This is  far  from the first  time Thomas and Arpaio have abused their power and authority  by  retaliating  against political  opponents  or  helping  and  encouraging  their allies  do  so.  In  fact,  they  have  a  long  established  custom,  pattern,  and  practice  of doing this.

A stunning example of  this arrogant abuse of power was shown  in  the manner in which Arpaio and Thomas treated the  transfer to Yavapai County Attorney, Sheila Polk,  of  the  investigation  into  various  County  officials  after  conflict  of  interest charges were made  against Thomas.  Sheriff Arpaio,  particularly,  grew  increasingly unhappy with  Polk’s  handling  of the matters,  specifically  her  rightful  resistance  to issuing  overly  broad  subpoenas  that  she  believed were  nothing more  than  “fishing expeditions.”  Once Polk demonstrated that she was “too independent” for the  likes of Arpaio  and Thomas, Thomas  simply  took  the  case back  to  be  handled  by  his office, despite the conflict of  interest.

Polk  later  characterized  Thomas’  and  Arpaio’s  abuses  of  power  as “totalitarianism,”  and  noted  that:  “Our power,  granted  to  us  by  the  people,  is  not  a personal  tool  to  target political enemies or avenge perceived wrongs.”  MCSO Chief Deputy  Hendershott,  not  surprisingly,  responded  to  Polk’s  comments  by  doing precisely what  she  cautioned against:  he  claimed that she,  too,  was  now part of  the alleged  “conspiracy”  and  should  be  investigated  by  the  FBI  for  hindering  Sheriff Arpaio’s corruption investigations!

Arpaio  and  Thomas  have  a  history  of  working  against  their  political opponents,  including  state  legislators  and  the  judiciary.  Several  years  ago,  Arpaio and Thomas  joined  to  form  an  anti-corruption  task  force,  called  Operation MACE. The  purpose,  ironically,  was  to  root  out  abuses  of the  public  trust.  The  first  target was  the  Maricopa  County  Community  College  System.  They  seized  hundreds  of boxes of  records and alleged that money appeared to be missing.  But nothing further happened with the  investigation.  In fact,  the  first  indictments from Operation MACE had nothing  to  do  with  the  community colleges.  Instead,  they  brought petty charges against  a  former  state  senator  from  Yuma,  Russ  Jones,  based  on  activity  during  a 2006 election.  The same allegations had been made against Jones during the election, and  were  dismissed  by  the  Arizona  Supreme  Court.  Jones  eventually  lost  the election.  And yet, Arpaio and Thomas brought the  same charges, again, alleging that Jones  presented  false  objects  for  filing  and  willfully  concealed  his  activities.  Not surprisingly, a trial court quickly dismissed the charges.

Arizona’s  Attorney  General,  Terry  Goddard,  has  also  been  the  subject  of investigation.  A  host  of  press  releases  were  issued  at  the  beginning  of  the investigation,  “evidence”  was  distributed  to  the  media,  and  allegations  were  made that  the Attorney General’s  office was  stonewalling.  Not  surprisingly,  even  after  4 years, there have been no  indictments or charges.

In another  instance,  in the dead of night,  the Sheriffs “Selective Enforcement Unit” pulled Mike Lacey and Jim Larkin from  their homes,  arresting them on a petty misdemeanor charge of publishing  in  their newspaper,  the Phoenix New  Times,  false grand  jury  subpoenas  that Thomas  and Arpaio  knew were  unlawful.  In  a  stunning retaliatory assault on the First Amendment, Arpaio and Thomas pursued this political prosecution  solely  in  retribution  for  articles  critical  of  them  that  the  paper  had published over the years.  The arrest, done on the pretext that the paper violated some non-applicable  statute,  generated  a  deafening  public  outrage  at  the  abuse  of power and process.  This time,  even Arpaio’s charges were  dropped,  the  Special Prosecutor who  spearheaded the  investigation was  fired,  and  all  involved,  including  the Sheriff, ran for cover, denying any and all  responsibility for ordering the arrests.

More  recently,  Daniel  Pochoda,  the  Arizona  director  of the  American  civil Liberties Union  (ACLU) was  acquitted on a charge of misdemeanor trespassing after he  was  arrested  and  prosecuted  for  his  mere  presence  at  an  immigration-related demonstration at a local furniture store.  Mr.  Pochoda was on the scene to meet with a client.  He  was  returning  to  his  car,  not  having  participated  in  the  demonstration, when four  Sheriffs deputies arrested him.  This  stunning abuse of power took a jury less than half  a day to hear and decide:  not guilty.

A SWAT  Team style  raid on the home of Dr. Sandra Dowling,  the Maricopa County School Superintendent, was  followed  by  indictment on baseless  charges  that she  allegedly  embezzled  or misused  $3.5  million  in  public  funds.  The  24  count felony  indictment was  later  dismissed with prejudice.  Though  she  was  vindicated, Arpaio and Thomas had succeeded in ousting her and closing the Pappas Schools: her reputation ruined, her life’s work demeaned and denigrated.

These instances of  abuse of  power, as horrifying as  they are, pale somewhat in comparison  to  the  latest  round  of baseless  retaliatory  investigations  and  suits,  both civil  and criminal,  that Thomas, Arpaio and  their minions have brought against other elected  officials,  County  management,  and  now  members  of  the  judiciary  – all designed for  no  other purpose  than  to  intimidate and punish  those  that disagree with their viewpoints.  This escalation of evil, this reign of  terror,  is  inexcusable.

If you or a loved one is being wrongfully prosecuted in Phoenix, contact attorney Joshua Davidson today.

Categories : Politics
Comments Comments Off on Thomas and Arpaio – a history of abuse
Jun
02

Sheriff’s grudge against presiding criminal judge recounted

Posted by: | Comments Comments Off on Sheriff’s grudge against presiding criminal judge recounted

Superior Court Judge Donahoe’s attorney discussed the conflict between the Judge and Sheriff in his recently filed notice of claim:

The  Sheriff had  other,  more  personal  reasons  for  waging war  against  Judge Donahoe.  Some months earlier, a violent sex offender in court for a hearing escaped from  the Sheriffs custody during a lunch recess.  To  date,  he  remains at  large.  Soon after,  the  Sheriff  allegedly  implemented  new  security  procedures,  but  failed  to provide adequate  staff to  carry out  these procedures  in a timely  fashion.  The upshot was  that  criminal  defendants  in  the  Sheriffs  custody were  either perpetually  being brought  to  court late  for  various hearings or were not appearing  at  all.  These delays affected  attorneys,  judges,  jurors  and  defendants.  When  the  judges  with  criminal calendars  complained,  they  were  told  there  was  no  one  available  to  bring  the defendant to  the courtroom.  It fell to Judge Donahoe, as Presiding Criminal Judge,  to try to  resolve the problem.

Judge  Donahoe  met  repeatedly  with  MCSO  personnel  in  an  attempt  to improve  the  inmate  delivery  system.  The  court  administration  made  significant operational  changes:  consolidating  divisions,  reducing  courtrooms,  and  limiting hearings  to  only  certain days – all  in  an  effort to  assist  the  Sheriff in getting  inmates to  court on  time.  Nothing worked.  The  Sheriff continued  to  bring  them  late,  if he brought them at all.

The Sheriff has  a statutory  obligation  to  “attend all  courts”  and  “obey  lawful orders and directions  issued by  the judge.”  A.R.S.  § 11-441 (A)(4).  The Sheriff was directly  ordered  by  Judge Anna Baca  to  adhere  to  the  requirements  of that  statute. When  the  Sheriff failed  to  improve  his  inmate  delivery  performance,  the  criminal judges began  issuing Orders  to  Show Cause why  the  Sheriff should  not  be  held  in contempt  for  his  repeated  refusals  to  bring  the  inmates  to  court  on  time.  Judge Donahoe  held  a  hearing  on  the  various  OSCs  and  entered a  contempt order against MCSO  Deputy  Chief Trombi  (who  admitted  responsibility  for  getting  inmates  to court),  along with monetary  sanctions,  for  the  repeated  failures  to  deliver  inmates  to court.  Judge  Donahoe’s  Order  was  an  affront  to  Sheriff  Arpaio.  He  is  not comfortable abiding by any rule of  law that is not his own.

Finally,  Judge Donahoe handled  the  contempt charge brought against MCSO Deputy  Stoddard  – a  courtroom  deputy  who  sneakily  and  unethically  read  and removed  papers  from  a  defense  attorney’s  file  in  open  court  and  had  them  copied.  Judge Donahoe  found  him  in  contempt and ordered him  to  apologize  to  the  defense attorney.  Both the Trombi  and  Stoddard  contempt  findings were  upheld  on  appeal, though some of  the  sanctions were  overturned.  But these  actions of Judge Donahoe added  fuel  to  the  fire  of  enmity that had been raging between and among the Sheriff, County Attorney,  the BOS, and now  the  Superior Court.  It wasn’t long before Judge Donahoe was burned by these flames.

If you have been wrongfully accused of a crime, contact Phoenix Criminal Lawyer Joshua S. Davidson today for a confidential consultation.

Categories : Criminal Law
Comments Comments Off on Sheriff’s grudge against presiding criminal judge recounted
Jun
02

The Court Tower Project and Thomas’ misguided investigation

Posted by: | Comments Comments Off on The Court Tower Project and Thomas’ misguided investigation

Judge Donahoe’s attorney recounted the genesis of prosecutor Thomas’ retaliation against Judge Donahoe:

Thomas,  incensed by what he  considered  to  be  a usurpation of his  power,  not to  mention  the  cuts  to  his  budget,  both  real  and  threatened  by  the  BOS,  enlisted Arpaio and the  two  targeted a County project – they urged the BOS  to  scrap plans for the  long-planned  and  saved-for $347 million Downtown Court Tower.  This  project had  been  in  the  planning  stages  for  12  years;  money  had  been  put  aside  for  its construction  over  that  time,  and  the  BOS  refused  to  scrap  the  project.  Thomas  and Arpaio responded by launching a criminal investigation into  the BOS’ approval of  the Court Tower and Thomas  issued an astoundingly  broad grand jury subpoena seeking years worth of information about  the  project  from  the County.  The BOS  hired Tom Irvine  to  represent  its  interests.  He  moved  to  quash  the  subpoena  largely  on  the grounds  that  Thomas  had  conflicts  in  investigating  the  BOS regarding  the  Court Tower after  he  had  given  it  advice  on  the  same  topic.  In  true Alice  in  Wonderland fashion,  Thomas  then  announced  that  Irvine,  too,  was  now  part  of their  criminal investigation.

Judge  Donahoe,  as  Presiding  Criminal  Judge,  heard  the  matter  and  in February  2009  ruled  that Thomas  had  a  conflict  in  his  dealings with  the County  in that  he was  now  criminally  investigating a client  (the County and BOS)  that  he  had previously  given  legal  advice  to  on  the  same  topic.  Judge  Donahoe  disqualified Thomas,  quashed  the  Subpoena Duces Tecum, denied Thomas’ motion  to  disqualify Irvine, and his motion to assign the matter to  an out-of-county  judge. One month  later, Judge Donahoe denied Thomas’ request  that Stapley be held in  criminal  contempt of court  for  disclosing  information  relating  to  a  grand jury by sharing the Judge’s February 2009 ruling (which he  learned of  through his position as Supervisor)  with  his  criminal  defense  attorney  in  the  case  brought  against  him by Thomas.  Judge Donahoe declined  to  hold Stapley  in  contempt,  finding  that his  right to  counsel  in  the  criminal matter  trumped  any  secrecy  that  should  be  accorded  that ruling.  He also granted the BOS’ request to allow the ruling to be made public.

In  a  motion  for  reconsideration,  Thomas  alleged  for  the  first  time  that  a conflict existed  that  required  Judge Donahoe  to  disqualify himself.  He claimed  that the BOS’  lawyers, Tom  Irvine  and Ed Novak,  also  represented  the  Superior Court  in matters  involving  the  Court  Tower  and  that  Judge  Donahoe  should  have  disclosed that conflict and disqualified himself.  Judge Donahoe rightly denied the motion for a number of  reasons:  as  an employee of  the State, he  had no  conflict with the County’s project;  he  did  not  know,  before  the motion  for  reconsideration,  that Mr.  Irvine  and Mr. Novak  had  any  involvement with  the Court Tower;  he  knew  that Mr.  Irvine did not  represent  him  or  his  employer  in  the  Court  Tower matter;  he  had  and  has  no interest  in  or  involvement  with  the  Court  Tower  project  and  played  no  role  in  its design,  construction, or  funding,  nor had  he  ever discussed any aspect of  the project with Mr.  Irvine or Mr. Novak outside  any  court  hearing.  Thomas challenged Judge Donahoe’s  ruling  in  first  the  Court  of Appeals  and  later  the  Supreme Court.  Both declined to review the ruling.

If you have been wrongfully accused of a crime, contact Phoenix Criminal Lawyer Joshua S. Davidsontoday for a confidential consultation.

Categories : Politics
Comments Comments Off on The Court Tower Project and Thomas’ misguided investigation
Jun
02

Notice of claim continued

Posted by: | Comments Comments Off on Notice of claim continued

Judge Donahoe’s attorney continued:

Even  before  the  attack  on  Judge  Donahoe  and  the  judiciary,  County government  was  awash  in  political  intrigue,  retaliatory  lawsuits,  and vindictive criminal  investigations.  But  the  judges  and  the  Superior  Court  had  managed  to escape  the worst of the  fallout  from  the  acrimony  between County management and Thomas  and  Arpaio.  Disputes  over  the  anti-immigration  policies  of  the  County Attorney and  the Sheriff, budgetary constraints imposed by  the BOS on those offices, and fights over control of  litigation all coincided to  create a perfect storm of  antipathy and  contention  between  and  among  these  officials,  which  ultimately  resulted  in  the indictment of Don Stapley, Chairman of  the BOS.  Thomas, aided in his  investigation by Arpaio, brought 118  felony  counts against him for  alleged disclosure violations  in materials he  is  required  to  file  as  an elected official.  The BOS,  citing  irreconcilable conflicts with Thomas,  stripped his office of  the  right to  represent the County  in civil matters  (and  part  of his  budget)  and  set up  a  separate  civil  division  to  handle  those cases.

Categories : Politics
Comments Comments Off on Notice of claim continued
Jun
02

Judge files notice of claim against sheriff and former county attorney

Posted by: | Comments Comments Off on Judge files notice of claim against sheriff and former county attorney

An attorney representing Maricopa County Superior Court Judge Gary Donahoe has filed a notice of claim against a number of current and former government officials including the sheriff and former prosecutor Andrew Thomas.  Here is an excerpt from the well-drafted letter authored by acclaimed attorney Michael Manning:

The Racketeering suit was an  ineptly  drafted  rant,  the  silly and  sophomoric  sputtering  of  Lisa  Aubuchon, Thomas’  central  sycophant.  Though  inept,  it  dripped  with  disdain  and disappointment  for  a  judiciary  that  dared  to  disagree.  Eight  days  later,  not  fully satisfied with the  sullying effects of  their Racketeering  slanders,  and at  the urging of Arpaio,  Thomas  escalated  their offense  by  filing  a criminal  complaint against  Judge Donahoe,  charging  him with  three  felonies:  hindering  prosecution,  obstructing justice, and bribery of  a public official!

Judge  Donahoe’s  alleged  “crime”:  he  issued  rulings  adverse  to  Arpaio  and Thomas.  The  Racketeering  suit  and  criminal  charges  against  Judge  Donahoe were the  pitiful  product of an  ugly  alliance  between Thomas  and Arpaio  to  exact  revenge for  those  adverse  rulings,  to  cause  Judge  Donahoe  to  remove  himself from  hearing those cases  and  to  strike  fear  into other members of  the judiciary should they dare  to disappoint Thomas and Arpaio by ruling against them.  Their message was clear:  rule against  us  and  we  will  flex  the  muscle  of our  offices  and  press  the  weight  of the criminal  justice  system  against  you  – and  no  process,  politics,  press,  or  rule  of law will  stand  in our way.  Even  seasoned and  cynical  political  observers and  those with some  ideological  alliance with Arpaio  and Thomas were  stunned by  the  third world-like  audacity  of these  elected  officials.  But,  of course,  these  were more  than  just elected officials – they were  law  enforcement officials  acting  in malevolent  concert, launching  a  nakedly  baseless  attack  on  the  judiciary  – and  with  such  transparent maliciousness.

Not  surprisingly,  given  the  sophomoric  lawyering  and  the  baseless  nature  of the  allegations,  Thomas  and  Arpaio were  forced  to  abandon  both  the  Racketeering suit  and  the  criminal  complaint.  But,  the  dismissals  were  not  really  voluntary  and there was no  apology  for  Judge Donahoe.  These dismissals came only after a Tucson judge disqualified Thomas from prosecuting Supervisor Wilcox because of a number of conflicts of interest and  then dismissed the  indictment against her.  In  that  ruling, the judge noted that Thomas acted unethically,  retaliated against those who disagreed with  him,  sought  political  advantage  by  prosecuting  those  who  oppose  him politically,  and  allied  himself with  Sheriff Arpaio,  who  “misused  the  power  of his office”  by  targeting opponents with criminal  investigations.  These damning  findings by  the  judge memorialized what most  people  knew:  that  Thomas  and Arpaio  had mounted  their  destructive  assault  on  Judge  Donahoe  to  retaliate,  intimidate,  and punish.

If you have been wrongfully accused of a crime, contact Phoenix Criminal Lawyer Joshua S. Davidson today for a confidential consultation.

Categories : Politics
Comments Comments Off on Judge files notice of claim against sheriff and former county attorney

In 2002, officer Lovelace fatally shot a woman who was suspected of illegal obtaining prescription drugs at a drive-thru pharmacy in Chandler.  Lovelace was thereafter charged with murder by the Maricopa County Attorney’s Office.  A jury found Lovelace not guilty of the charge during a criminal trial that ended in the summer of 2004.

Lovelace was terminated from the department and the city had to pay several million dollars to settle legal claims arising from his conduct.  According to news reports, Lovelace will now be working as a detention officer with the Pinal County Sheriff’s Office.

Lovelace’s criminal case was extensively litigated by his criminal defense attorney  before the trial commenced.  In fact, the case was actually dismissed at one point after the court ruled that prosecution did not present the evidence to the grand jury in a full and fair manner.  After the court’s ruling, the prosecution presenting the case to another grand jury and obtained another indictment.  In remanding the case back to the grand jury, the court held:

 Arizona law has never required the grand jury to receive or consider all potentially exculpatory evidence. In State v. Superior Court (Mauro), 139 Ariz. 422, 678 P.2d 1386 (1984), the Court held that the prosecutor’s duty to present exculpatory evidence to the grand jury extended only to “clearly exculpatory evidence”, defined as “evidence of such weight that it would deter the grand jury from finding the existence of probable cause.” Mauro, Id. at 425, 678 P.2d at 1390. However, an accused is entitled to due process during grand jury proceedings. State v. Emery, 131 Ariz. 493, 506, 642 P.d 838, 851 (1982). Due process requires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. Id. State v Emery. The duties of fair play and impartiality imposed on those who attend and serve the grand jury are meant to insure that the determinations made by that body are informed, objective, and just. Crimmins v. Superior Court in and for Maricopa County, 137 Ariz. 39, 668 P.d 882 (1983). Arizona case law has specifically mandated that false, misleading or inaccurate evidence may not be presented to the grand jury, and, if it is, a remand is warranted. Maretick v. Jarrett, 391 Ariz. Adv.Rep. 9, 63 P.3d 120 (En Banc 2003); Escobar v. Superior Court 155 Ariz. 298, 746 P.2d 39 (App.1987). It appears to the Court that several errors occurred in Detective Kieffer’s testimony before the grand jury. First, Detective Kieffer testified that Defendant said when he shot Ms. Nelson he remembers looking at her and seeing: “….. that her arms were up on the steering wheel at about 10:00 o’clock and 2:00 o’clock” (GJT p.19) That was not the way Defendant described it in his taped interview dated October 11, 2002. Defendant, in fact, stated: “I know that I was facing her at a slight angle, not directly perpendicular. Less than perpendicular when I shot. So where I was exactly all I know is the car was coming at me…. It’s at a slight angle and she’s….. has her left arm still up. So she’s slightly turned and she’s making….. So she’s leaning slightly to her right and she’s looking right at me as she’s turning.

There is nothing in the transcript of Defendant’s interview that confirms that he said that Ms. Nelson’s arms were up on the steering wheel at about 10:00 and 2:00 o’clock. Second, the Affidavits of Attorney Dale Norris and Chandler Police Officer Daryle Palmer, both of whom witnessed the interview of Defendant, state that Defendant never stated or demonstrated that when he shot Ms. Nelson her left hand was at the 10:00 o’clock position. Daryle Palmer stated that Defendant indicated he first saw Ms. Nelson turning her steering wheel with her right hand in a counter-clockwise motion, turning the vehicle towards him. Defendant further indicated that just before he discharged his weapon, Ms. Nelson had her left arm up and was leaning slightly to her right. Officer Palmer stated that, as Defendant demonstrated this movement, the left side of Ms. Nelson’s body was more forward than her right side, her left hand was not on the steering wheel, her left forearm was raised and moved toward the passenger side, which caused her left upper arm, which was close to her body, to be rotated slightly clockwise. Dale Norris stated that Defendant said and demonstrated that Ms. Nelson was turning hard to the left and her right hand was high on the steering wheel. He said that Defendant stated and demonstrated that Ms. Nelson’s left arm was held high and visible above the door while turning the vehicle. Defendant indicated and demonstrated that Ms. Nelson was leaning to the right away from Defendant before he discharged his weapon. Finally, Mr. Norris stated that Defendant demonstrated that when turning her body to the right, Ms. Nelson was exposing the rear of her left shoulder to Defendant. The Court FINDS it noteworthy that the State has not offered an affidavit from Detective Kaminsky, who conducted Defendant’s interview, controverting the Palmer and Norris affidavits. These descriptions of what Officer Palmer and Mr. Norris heard and observed during Defendant’s interview become even more important since the following questions were asked by the prosecutor and the following answers were given by Detective Kieffer during the grand jury proceeding.

Q…..”What we have the medical examiner finds the bullet enters the back of her left arm; correct?

A. Yes, sir.

Q. Travels from back to front?

A. Correct.

Q. And comes to rest in this right breast?

A. Correct.

Q. The officer said that he was facing her when he fires?

A. Correct.

Q. With her arms up on the steering wheel?

A. Correct.

Q. That’s inconsistent with what the medical examiner found because the

medical examiner found the left arm had to have been up against the

chest wall?

A. Yes.

Q. The arm would not have been extending?

A. Correct.

Q. It’s possible, I suppose, that at the time the shot was fired she

could have — in order to get that back to front, she could turned

very sharply to right and then exposed her left arm to where the

officer said he was?

A. Correct. Correct.

Q. That’s not how he described seeing her?

A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).

Detective Kieffer’s testimony, that Defendant did not describe that Ms. Nelson turned to the right and then exposed her left arm to where the Defendant said he was positioned, was misleading. In fact, Detective Palmer and Mr. Norris, who were both present during the interview, stated that is precisely how he described it. The Court notes that neither Mr. Norris nor Officer Palmer prepared supplements to become part of the departmental report regarding this incident. Detective Kieffer was not present during Defendant’s interview and did not have the information from Officer Palmer or Mr. Norris when he testified before the grand jury. The prosecutor also did not have the benefit of any supplements prepared by Mr. Norris and/or Officer Palmer. Accordingly, it cannot be said that the prosecutor and/or the officer intentionally mislead the grand jury regarding what the Defendant described. However, in the telephonic conference between Court and counsel on May 8, 2003, Mr. Imbordino acknowledged that, if had been aware of the information provided by Palmer and Norris, he would have had to present it to the grand jury.

With regard to Detective Kieffer’s testimony as to the 10:00 o’clock and 2:00 o’clock position of Ms. Nelson’s arms, that testimony was simply a misunderstood interpretation of what Defendant stated in his interview. Regardless of the fact that there was no intentional misleading of the grand jury, the duties of fair play and impartiality imposed on those who attend and serve the grand jury require that the presentation of the evidence be a fair presentation. In this case, the incident took place in a matter of seconds. The exact position of Ms. Nelson’s body in her vehicle at the time of the shooting in relation to Defendant’s position is a crucial issue to be determined by the finder of fact. The State has the right to use Defendant’s statement in the grand jury presentation, but its use must be precise and accurate. It is important in the interests of justice that a full and fair presentation of the relevant evidence regarding the position of Ms. Nelson’s body in her vehicle be presented to the grand jury. That was not done and, accordingly, IT IS ORDERED granting Defendant’s Motion to Remand. The matter is remanded to the grand jury for further proceedings in accordance with the ruling of the Court. IT IS FURTHER ORDERED vacating any pending trial or trial management conference dates.

Comments (2)
Jun
11

Court denies County Supervisor Don Stapley’s Motion to Dismiss

Posted by: | Comments Comments Off on Court denies County Supervisor Don Stapley’s Motion to Dismiss

Don Stapley is facing over 100 charges in the Superior Court arising from allegations that he completed financial disclosure forms containing omissions and misstatements.  His attorneys attempted to get the charges dismissed on the grounds that the county attorney had previously provided legal advice related to the disclosure forms.  In denying Mr. Stapley’s motion the court held:

The evidence is undisputed that the Defendant as a member of the Board of Supervisors for Maricopa County consulted with Deputy Maricopa County Attorneys assigned to the County Attorney’s civil department/division on matters relating to his official duties and provided financial information. It is also undisputed that generally the subject of that disclosure is also the subject matter of certain counts in the indictment against the Defendant. There is no evidence that any of the information disclosed to the civil Deputy County Attorneys was used to obtain the indictment against Defendant.

It is the Defendant’s position that because confidential information was obtained by the Maricopa County Attorney’s office that was part of the indictment, a conflict of interest was created. This conflict disqualified the Maricopa County Attorney’s office from appearing before the Maricopa County Grand Jury as an authorized prosecutor to present evidence under Rule 12.5, AZ Rules of Criminal Procedure. Defendant further argues that the appearance of an unauthorized person before the Grand Jury denies him Due Process and irreparably taints the indictment. This taint in turn requires dismissal.

The State’s argument in response is that there was no conflict of interest disqualifying the Maricopa Country Attorney since there is no attorney-client relationship. The Attorney-Client relationship, according to the State, is one created by statute, A.R.S. § 11-532(A) (9), which provides that the County Attorney is the legal advisor to the Board of Supervisors. The State further argues that this relationship does not extend to individual members of the Board.
The State’s position is that giving advice to individual members on how to deal with conflict of interest issues and on the financial disclosure forms as well as presenting evidence here to the Grand Jury is not egregious misconduct requiring dismissal.

At the hearing on these motions, a former civil department Deputy County Attorney and a current civil department Deputy County Attorney (civil deputies) testified. The testimony established that prior to this indictment, the civil deputies did not explain to newly elected county officials, including members of the Board of Supervisors, the scope of the attorney-client relationship with the Maricopa County Attorney’s office. The current civil deputy testified she gave “general advice” on conflict of interest issues and financial disclosure forms, but not “specific advice” on how to fill out the forms. She testified she gave individual advice relating only to a member’s role as a Supervisor and would not give advice on what information to include on the financial disclosure forms.

The former civil deputy testified that he gave legal advice to individual members if it was in furtherance of his representation of the Board of Supervisors. He also gave advice in the past to members of the Board of Supervisors on financial disclosure forms as to what items to include on the forms and viewed this as part of his role as a civil deputy. He viewed this as part of the attorney-client relationship and as confidential information. He has given advice to the Defendant on disclosure forms but cannot recall any specifics. He also noted however that if an individual member disclosed something that would concern the entire Board, he would discuss the matter with other Board members.

There is no doubt that the better practice would have been for the Maricopa County Attorney to refer the entire investigation at its inception to another State prosecuting agency, such as the Attorney General or another county attorney, given the relationship with the Board of Supervisors as its legal advisor. This Court must however review all the evidence to determine if, under the specific circumstances here, the Maricopa County Attorney was disqualified because an attorney-client relationship was created with the Defendant. State ex rel. Romley v. Superior Court, 184 Ariz. 223, 227 ( App. 1995).

As the Arizona Supreme Court noted in In re Petrie, 154 Ariz. 295, 299-300 (Ariz. 1987), the relationship is determined by looking at the parties’ conduct. For example, is there evidence that “… the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession….” and what was the expectation of the client.

Here there is no dispute that the Defendant received legal advice and assistance from civil deputies within the Maricopa County Attorney’s Office. The inquiry does not end here however. The test is a subjective one and requires this Court to look “…to the nature of the work performed and the circumstances under which the confidences were divulged….” In re Petrie, supra. A reasonable person in the Defendant’s position when soliciting legal advice and assistance from the civil deputies about business ventures that could be conflicts of interest and/or would be reportable on the elected official’s financial disclosure statements would have been aware that the Maricopa County Attorney is also a prosecuting agency in addition to acting as the legal advisor for the Board of Supervisors. This is not a situation where the Defendant first engaged a private attorney for legal assistance, divulged confidences and later was prosecuted by the same attorney on the same matters. It was not reasonable under the circumstances here for Defendant to expect that the Maricopa County Attorney was his attorney on all matters. The legal advice and assistance from the civil deputies related to Defendant’s role as a member of the Board of Supervisors. As Mr.Wolcott, the former civil deputy, pointed out, the individual legal assistance was only given to individual members as necessary to further the business of the Board of Supervisors, the County Attorney’s client.

There was an attorney-client relationship created but it was limited in scope. This hybrid or limited scope attorney-client relationship does not given the same protections one would expect from representation by private counsel. The confidences divulged to the civil deputies were not used to obtain an indictment against the Defendant. Unlike the situation before the Honorable Gary Donahoe in 462 GJ 350, the County Attorney here is not attempting to use privileged communications with its client, the Board of Supervisors, or investigating the client’s (the Board of Supervisors) activities upon which it gave legal advice.

This Court is not convinced that the type of attorney-client relationship created between Defendant and the Maricopa County Attorney would disqualify the County Attorney from appearing before the Grand Jury to present evidence of criminal activity by Defendant so long as no confidences were divulged. The Motion to Dismiss is denied.

Contact Phoenix DUI and Criminal Defense Attorney Joshua Davidson today if you are facing criminal charges in Maricopa County Superior Court.

Categories : Criminal Law, Politics
Comments Comments Off on Court denies County Supervisor Don Stapley’s Motion to Dismiss

Disclaimer

The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

Admin

Contact Us

Law Offices of Joshua S. Davidson, PLC (480) 248-7022