- April 2012 Issue
- The Prosecutor on Trial: Ex-Maricopa County Attorney Faces Disbarment for Political Acts
The Prosecutor on Trial: Ex-Maricopa County Attorney Faces Disbarment for Political Acts
Posted Apr 1, 2012 5:00 AM CST
By Terry Carter
Updated: On April 10, 2012, an Arizona Supreme Court disciplinary panel disbarred Andrew Thomas and his former deputy Lisa Aubuchon.
Nothing was usual when Colorado bar discipline prosecutors John Gleason and James Sudler flew into Maricopa County, Ariz., in March 2010. For security reasons, they used assumed names and stayed at nine different hotels over the next year, as well as rotating through three rental car agencies.
Appointed by Arizona’s chief justice to investigate allegations that Maricopa’s elected prosecutor abused his powers to take down political enemies—even filing bizarre criminal charges against a judge just to prevent a scheduled hearing—they arrived with targets on their backs.
Precautions were worked out by the heads of security at the Colorado and Arizona supreme courts, mindful of the intimidation and harassment faced by many who crossed then-County Attorney Andrew Thomas and his closest ally and enforcer, the self-proclaimed “America’s toughest sheriff,” Joe Arpaio.
While the discipline case was to be decided by early April, appeals are certain either way.
There has been nothing before—in scope and import—like this spectacle, which ended in November. Many professional responsibility lawyers consider this the mother of all discipline trials, though technically it was an administrative hearing.
At age 38 and with virtually no prosecutorial experience, Thomas, a Harvard Law School grad, took office in 2005 after a tough-on-crime campaign, then was re-elected as a populist hero whose battles against illegal immigration helped spark a number of states to enact immigration laws out of frustration with what they see as the feds being feckless on the job. Thomas was instrumental in the movement launched from his state, and the issue is now before the U.S. Supreme Court in Arizona v. United States.
Early in his tenure, the prosecutor started feuding with other elected officials, judges and county managers. He used the bully pulpit of news conferences and opened criminal investigations against those who criticized or questioned his handling of immigration enforcement and other issues.
The detailed, 33-charge bar complaint accuses Thomas and Lisa Aubuchon, his former go-to assistant for prosecuting politically charged matters, of, among other things, filing criminal and civil cases without probable cause or evidentiary basis; bringing them to embarrass, burden or delay; dishonesty and fraud; incompetence; conflicts of interest; and engaging in criminal conduct (by causing an unknowing sheriff’s detective to swear to a false affidavit for charging a judge with crimes after others had balked.) It seeks their disbarment.
The bar also recommended a three-month law license suspension for Rachel Alexander, an obscure conservative blogger-cum-assistant prosecutor who was hired by Thomas for her new-media expertise. Then, brushing off warnings from senior aides and Alexander’s own concerns about her inexperience, he tapped the young prosecutor to handle a federal civil-racketeering case against judges, elected county leaders and other political foes that was widely ridiculed as risible.
Indeed, one required predicate act said simply that two lawyers had laughed at the original complaint’s author, Aubuchon, in a courtroom.
The criminal charges Thomas and Aubuchon filed against now-retired Presiding Criminal Judge Gary Donahoe, as well as the RICO case that included him, loom largest in the discipline case.
At its core, the racketeering complaint alleged that, in exchange for a new courthouse, several judges were blatantly throwing civil and criminal cases filed by Thomas’ office against county supervisors and others—even though the building project had long been in the works and was already paid for. Investigators had combed through thousands of documents and found nothing to support the key allegation—that a supervisor pressured the chief judge to hire a certain lawyer for the project—which was based on a second- or third-hand rumor that went uninvestigated and unproven.
Belying the drama about to unfold at the Arizona Supreme Court on Oct. 26, Thomas went unnoticed by most when he entered the capacious courtroom, his first appearance at his own discipline hearings that had begun on Sept. 12. His absence was more notable because Aubuchon, and to some extent Alexander, had spent many days there seated behind their lawyers.
Thomas slipped in through a side door shortly before the 9 a.m. start time, sitting perfectly still in a chair near the witness stand—in the shadows off to one side of the naturally lit room and beyond a row of thick, wood-paneled pillars lining the edge of the public gallery.
Though his testimony was much anticipated by the legal and political communities, there were only about two dozen spectators, including the press, in a courtroom that can hold five times that many. Three factors contributed to the low turnout: The sprawling state government campus that includes the state supreme court is isolated at the far western edge of downtown Phoenix with scant public parking; video was streamed live from the court’s website and is archived there; and untold numbers of lawyers and others multitasked in front of computer screens through a small fortune of potentially billable hours.
Thomas, his close-cropped reddish-brown hair now sandier from gray highlights, was visibly nervous at the outset—his voice sharply cracked an octave between the syllables of Harvard when detailing his background—but soon bore his trademark, crisply consistent self-assurance.
He was punctilious, buttoning his suit jacket when standing to be sworn in and undoing it while retaking his seat, as well as quick to smile at and seek eye contact with Presiding Disciplinary Judge William O’Neil and his two co-panelists: Phoenix attorney Mark Sifferman and an Episcopal priest, the Rev. John Hall, the lay member of the panel.
Thomas sat erect and toward the front edge of his chair, which was off to one side and up on the bench with the panelists, where the high court’s five justices ordinarily sit.
Responding to an early question about ethics rules concerning conflicts of interest, Thomas uttered a phrase that would encapsulate the theme of much of his testimony: “My understanding was and remains. ...” State of mind is pertinent to some of the charges and Thomas, as had Aubuchon on the stand just before him, repeatedly made the point that back at the time he believed he did the right things, and he still does.
The former prosecutor’s understanding of facts and history was challenged repeatedly in examination by bar counsel Gleason and Sudler.
Local newspaper coverage highlighted one instance in which Thomas’ testimony seemed conveniently revisionist, noting that his “recollection of events varied widely from what the Arizona Republic reporters saw—and wrote.”
Thomas sought reversal of memes, sometimes in dramatic fashion. During his tenure from January 2005 through April 2010, for example, in news stories, editorials and other commentary about Thomas’ sometimes questionable tactics—particularly when working in tandem with Arpaio—critics repeatedly made comparisons to Third World regimes.
“Better fitted for a Third World dictatorship,” former U.S. Attorney for Arizona Paul Charlton told a newspaper in 2009 after one of Thomas’ political foes and Charlton’s client, then-supervisor chairman Don Stapley, was charged with a slew of crimes.
But Thomas turned that on its head when explaining why he decided to charge Judge Donahoe with bribery, hindering and obstruction of justice, as well as file a racketeering suit against four judges, all five members of the county board of supervisors, three attorneys, and the county manager and his chief deputy.
The final straws, Thomas told the panel, came when the supervisors rejected his attempt to bring in two celebrity lawyers from Washington D.C.—Joseph diGenova and his wife, Victoria Toensing—as special prosecutors to investigate them and the judges; and when he felt his effort was not being treated fairly in the courts, particularly when Donahoe agreed to hear an unusual notice and motion concerning the possibility that those out-of-state lawyers already were working, unauthorized, with a grand jury. (The judge canceled the afternoon hearing after being charged that morning with the three felonies.)
Boldly flipping criticism of that series of events, Thomas blamed the problems on the actions of the board and the judges whose findings upheld them, telling the disciplinary panel, “These are things I’ve seen in Third World countries, but I literally have never heard of these things happening in the United States.”
The Republic’s editorial page the next day, while critical of all sides in the county’s rough-and-tumble politics, addressed Thomas’ struggle to explain the reasoning behind the various cases, saying the prosecutor’s decisions had been “self-serving, to be sure. Even paranoid. They were devoid of any appreciation for the limits of prosecutorial power.”
THE FEDS AWAIT
Meanwhile, the threat of even greater prosecutorial power sat, literally, as a backdrop in the courtroom. While Thomas faces the professional equivalent of the death penalty, the disbarment case is widely viewed as a trial run for bigger things in federal criminal court.
A federal grand jury is more than three years into an investigation of far-reaching allegations of abuse of power and corruption against Thomas, Arpaio and a host of their associates and underlings. Any eventual charges likely would concern civil rights violations, criminal racketeering or both. And FBI agents occasionally attended the Thomas hearings—as they had those for Aubuchon’s merit system challenge to her firing in 2010 after her boss left—and can access the videos online for free discovery.
Thomas, whom many believe had his eye on higher office in Washington, D.C., and the nationally acclaimed sheriff had fallen into a mutually convenient relationship early in the prosecutor’s tenure. At first glance, they seemed an odd couple: the grizzled 25-year DEA agent who went on to be elected sheriff again and again since 1993, and the squeaky-clean-cut, Ivy League lawyer 34 years his junior.
Arpaio had been indifferent to immigration issues until he saw Thomas gain populist traction with them. Once on board, the sheriff went at it so relentlessly and ruthlessly that in December the U.S. Justice Department released a report charging that his office engaged in “unconstitutional policing” through racial profiling and a “pervasive culture of discriminatory bias against Latinos.” The two sides began negotiations on how to deal with the findings.
On the criminal side, the FBI has obtained evidence that Arpaio was keeping two sets of books while diverting about $100 million from funds earmarked by law for such expenses as jail and courthouse bailiff services. Instead, he was spending it on illegal-immigration sweeps and various political corruption investigations, including those at the heart of Thomas’ disciplinary hearings. Earlier complaints that hundreds of sex crimes went uninvestigated because of the sheriff’s questionable staffing priorities have returned to the news pages.
Thomas was willing to pay the price of compromised principles for his relationship with the sheriff, who had a deep Arizona base and a national following. (Arpaio has been courted by five Republican presidential hopefuls; he endorsed Rick Perry in November.)
When Arpaio wanted two alt-weekly newspaper executives arrested, Thomas ignored the warnings and misgivings of his senior staff lawyers and made it happen. He hired a friend, a civil litigator, as a special prosecutor—ultimately he would give that lawyer $4.1 million worth of work in less than five years. The charges immediately exploded with public embarrassment for Thomas, who dropped them the next day.
When Arpaio wanted to press criminal charges and make an example of Chandler Police Sgt. Thomas Lovejoy, whose K-9 dog died after being left in a vehicle in the hot sun, Thomas again went against detailed warnings from multiple levels on his legal team that there was no evidence of recklessness, finally putting Aubuchon on the case. She prosecuted and lost.
The Lovejoy matter was not in the bar complaint because it didn’t fit the theme of Thomas going after his political foes, and it was mentioned only in passing during testimony. But just weeks after the hearings ended, a federal judge ruled in a civil suit Sgt. Lovejoy brought against Arpaio that a rational jury could find that Thomas and Aubuchon “simply did not exercise independent judgment.”
U.S. District Judge Neil Wake, a no-nonsense jurist appointed by President George W. Bush, wrote in denying a summary judgment motion that a jury could find the prosecutors “rubber-stamped” Arpaio’s wishes based on “Aubuchon’s complete acceptance of the sheriff’s office’s statutory interpretation.”
IN PHOENIX AND RISING
Andrew Peyton Thomas finished at Harvard Law in 1991 (Barack Obama was a classmate) and moved to Phoenix for a job in the civil litigation department of the big local firm Jennings, Strouss & Salmon. Though tasked with civil matters, Thomas had long pondered criminal legal theory.
In 1994 he left the firm to work in the state attorney general’s office and also published a book he wrote while in law school, a diatribe against an overly permissive society titled Crime and the Sacking of America: The Roots of Chaos.
In it Thomas recommended, among many other unorthodox possibilities, doing away with attorney-client privilege; mandatory “neighborhood watch” duty for able-bodied men of no criminal record; and public humiliation for drug dealers and other criminals by putting them in a “modified stockade program” for “displaying them before their neighbors in large, open-air holding pens with their names and crimes prominently displayed.”
Thomas went on to work as a criminal justice policy adviser to then-Gov. Fife Symington III, but he left soon after to become the chief lawyer for the state corrections system.
In 2002 he easily won the Republican nomination for attorney general but lost the election, though he managed to make waves with strong stands against crime, abortion and, especially, illegal immigration. Then in 2004, Thomas was elected Maricopa County attorney, having campaigned for state-based laws and initiatives against illegal immigration, pledging to pursue “fetal homicide” cases (he’d been the lobbyist for Arizona Right to Life), and opposing same-sex marriage.
His challenge to the status quo was so strong—at once crusading against the judiciary, political corruption and illegal immigration—that even in the conservative bastion of Arizona, one courthouse wag told the Arizona Republic early in his tenure that “the establishment will take care of Andrew Thomas.”
Thomas first stepped into the national spotlight’s glow in 2006, his second year in office, and the angle was unflattering. He had prosecuted a 16-year-old juvenile on child pornography charges despite serious flaws in the case. Appearing on ABC’s 20/20 television news magazine, Thomas still insisted the boy was guilty of the most serious charges though he had let the youth plead down to three lesser felonies for showing a Playboy magazine to classmates.
Even before that, Thomas had begun publicly feuding with the Maricopa County Board of Supervisors and butting heads with the judiciary. When he doubled (and would ultimately triple) the millions of dollars spent hiring outside lawyers for county work, a lot of it going to his friends and political supporters, the board pushed back. When Thomas indicted the board’s chairman and then another supervisor and began investigations of yet others, the supervisors decided that as their lawyer he had a conflict of interest and opened their own civil legal shop, snatching $6 million from his budget in 2008 to do so.
Meanwhile, Thomas repeatedly held news conferences, filed suits and otherwise criticized the courts in general and certain judges in particular when things didn’t go his way, including in cases concerning his spats with the supervisors.
The friction began soon after he took office, with a sudden 30 percent increase in the number of criminal prosecutions, reaching 40,000 annually, amplified by Thomas’ new policy of offering fewer plea bargains and thus effectively gumming up the criminal justice system’s machinery.
Then Thomas unsuccessfully sued the chief judge in federal court over the constitutionality of a Spanish-language program aimed at preventing DUI recidivism (at the same time the board of supervisors stopped Thomas’ financing of televised public service announcements in Spanish that amounted to political campaigning on his behalf).
And the prosecutor aggressively and publicly battled the court over its concerns about unclear evidentiary requirements for a new voter initiative denying bail to illegal immigrants charged with felonies, even demanding that one criminal judge cease handling any cases brought by Thomas’ office—tantamount to resigning—because of bias.
Ultimately, Thomas would become convinced that his political opponents were engaged in a criminal conspiracy against him and the mandate given him by voters.
“I don’t believe Andy had any animosity toward anyone in this,” says Don Wilson of Broening Oberg Woods & Wilson. The Phoenix professional responsibility lawyer representing Thomas was hesitant to take the case but came to believe his client faced a series of questionable actions and tactics by the supervisors and the courts. The bar charges had hammered at animosity as a motive for the prosecutor’s actions, which also can go to state of mind in some matters.
When Chief Justice Rebecca White Berch reached out for Colorado bar counsel to investigate and prosecute Thomas and his assistants, it was only after a series of embarrassments, including the State Bar of Arizona’s sometimes ham-handed attempts, beginning in 2007, to deal with what many believed were ethical breaches by Thomas.
The problems stemmed in part from the actions of individual bar leaders, but mostly had to do with the flawed discipline system itself, which has now been radically overhauled. In a nutshell, the state bar wore too many hats and thus had its own conflicts of interest even as it alleged the same against Thomas.
For example, in 2007, responding to the county attorney’s repeated attacks on judges and the courts, the president of the State Bar of Arizona and others in its leadership formed “rapid response teams” to counter the criticism by educating the public. They took to television, radio and newspapers, citing Thomas’ improper jabs at the judiciary and explaining why it was wrong for him to do so. At the same time, the bar’s disciplinary arm was investigating him on those very matters, with some bar leaders in overlapping roles for the presumably separate endeavors.
In a special petition to the supreme court in May 2008, Thomas’ lawyers alleged that the system itself was corrupt, even before the inquiry was completed. As a result, the bar’s investigator, a former president, was cashiered and a retired judge appointed as an independent investigator to take over the case. The matter quietly went away a year later.
But it got new life in 2010 when a judge from another county threw out a criminal case Thomas brought against Mary Rose Wilcox, a Maricopa County supervisor. Pima County Superior Court Judge John Leonardo took aim at a Thomas-Arpaio juggernaut.
He wrote that Thomas had “attempted to gain political advantage by prosecuting those who oppose him politically,” and noted a conflict of interest between Thomas’ duty to impartially exercise prosecutorial discretion and his “political alliance” with Arpaio, who “misused the power of his office to target” members of the board of supervisors.
“That finally opened the door for a full investigation of Thomas’ actions,” says Mark Harrison of Phoenix’s Osborn Maledon and a dean of the nation’s professional responsibility bar. Harrison, part of the previous rapid-response efforts to defend the judiciary, had warned against earlier investigations of Thomas because “however misguided, improper and possibly illegal some of his actions might have been, they were done under the color of law. It was premature.”
About the same time the first investigation was dropped, groundwork began in the spring of 2009 for development of a new discipline system. With Colorado bar counsel Gleason as a consultant to the judiciary and the bar, Arizona would adopt its own version of the vaunted Colorado model, moving the prosecutorial and judicial functions out of the bar and under the supreme court’s wing, and professionalizing them by relying much less on part-time lawyer volunteers. This ensures greater due process and more thorough and impartial proceedings, and thus less opportunity for raw politics.
While no one in an official position says so, the new discipline system launched in January 2011 (though the possibility was discussed for a number of years) was expedited and implemented largely because of Thomas.
And, it soon turned out, for him.
Thomas’ case was at the top of the docket for the new Office of the Presiding Disciplinary Judge, situated within Arizona’s supreme court. The judge is independent of the bar, though it pays his salary, and hears cases along with two volunteers: one lawyer and one layperson—preferably both representing the respondent’s jurisdiction.
There would be one more glitch. For the new investigation, the chief justice first appointed Scott Rhodes, a prominent Phoenix professional responsibility lawyer who had been on the task force developing the new system. But within days he resigned amid allegations that he, too, had conflicts of interest.
Berch quickly looked again across the Colorado border and to Gleason.
The hearing panel was inundated with testimony and evidence that Thomas received warning after warning over several years from his top aides, his staff investigators and others, as well as court rulings, that he might be crossing ethical lines and pursuing cases that appeared to have no basis except for being purely political.
Thomas’ No. 2 person in the office, then-chief deputy Phil MacDonnell, for example, wrote in an email exchange that there was no proof of a board-judge conspiracy and the RICO filing was a “misuse of the law.”
MacDonnell also told the panel he advised Thomas that Aubuchon lacked judgment “and she’s too eager to prosecute,” as well as unable to dispassionately analyze the merits of a case. “She tended to be more ‘He’s guilty.’ ”
MacDonnell told the panel that when Thomas got an indictment of Stapley, then-supervisory board chairman, “I basically told him, ‘You are crazy to file this case. It will destroy you.’ ”
Sally Wells, who was No. 3 in the office, was less forthcoming in her testimony. When bar counsel presented her with a slew of exhibits, one by one, including letters and emails indicating Wells’ knowledge of or involvement in various matters, she repeatedly was unable to recall anything about them.
Assistant bar counsel Sudler later asked MacDonnell whether Wells had memory problems.
“No. She was a detail person. That was her strength, focusing on details,” MacDonnell replied, not intending the resulting chuckles in the courtroom. (MacDonnell and Wells are no longer with the county attorney’s office.)
Thomas often used rationalizations to parry attempts to dissuade him. He and Aubuchon appeared to do the same at trial.
When asked on the witness stand to explain their reasons for charging Judge Donahoe, both seized on a flippant comment by Barbara Marshall, chief of the prosecutor’s appellate division, who had no knowledge of the matters but was asked by Thomas to join him and other senior staffers to discuss what to do.
After listening to her boss tick off a litany of complaints about the judge’s rulings against the office, Marshall blurted out, “Charge him with obstruction of justice.” Some laughed, as she intended, Marshall testified, and the topic immediately turned back to possibilities such as a continuance or motion to vacate.
“But it clearly was not a serious statement,” Marshall told the panel, then unwittingly illustrated her penchant for hyperbolic sarcasm by adding that “it would have been the first time anything I said was taken seriously without any follow-up discussion.”
In a subsequent interview, Marshall says no one mentioned the comment after that meeting until she brought it up herself much later when being questioned in 2010 for a merit system investigation that led to Aubuchon being fired.
“It’s in the transcript of my interview,” Marshall says now. She is certain Aubuchon would have seen it, adding that the investigator’s report indicated it was said jokingly. “If I’d never said anything it would never have come up because they wouldn’t have remembered it. I met with Thomas’ lawyers for an interview a few weeks before the [discipline] hearings and they didn’t mention it at all.”
But Aubuchon did when testifying before the discipline panel, as did Thomas soon after. Both said that Marshall’s suggestion was instrumental in their decision to charge Donahoe.
Bar prosecutors rendered portraits of Thomas as being driven by ideology and ambition, Alexander by ideology, and Aubuchon simply by competitiveness and aggressiveness.
While Thomas and, especially, Aubuchon were quick and sure of themselves in sometimes rapid-fire examinations, Alexander seemed paralytic and disconcerted in her testimony. Her affect was in abject counterpoint to the certitude and brio of Alexander’s regular postings on her blog, Intellectual Conservative.
Looking tired and frightened on the stand, the former prosecutor did so poorly that her lawyer asked to bring her back another day for a kind of rehabilitation. She did worse. Alexander was easily ruffled and often seemed to miss the endgame implicit in questions.
Panelist Hall noticed that several higher-ups in the county attorney’s office referred to their former boss in testimony as “Mr. Thomas,” but Alexander repeatedly said “Andy.” Hall asked if she called him by that nickname in office meetings and in hallways.
“I might have addressed him as Andy,” she replied, relaxing with a slight laugh and speaking more animatedly. “My little brother is named Andy, so for me it’s kinda you call him Andy, not Andrew.”
The panelists appeared stunned as bar counsel Gleason read from an item by another conservative blogger that Alexander posted to her own webpage on Oct. 5, the very day Judge Donahoe gave perhaps the most emotional testimony of the hearings, detailing his response to being charged with crimes. Donahoe cried as he described his dysfunctional family, including his stepfather and brother going to prison, drama from which he thought he’d escaped, “and all of a sudden all of this is back on my plate, all of this emotion; this was horrible.”
The blog item said incorrectly that Donahoe had been “forced to resign in disgrace,” when in fact he delayed his planned retirement because of the controversies. The hearings were “a trumped-up, meritless witch hunt,” the blog went on, and “the more sunlight shines on this issue in Arizona, the more the cockroaches who are prosecuting conservatives will start to scatter.”
Alexander told the panelists—among those tagged as “cockroaches”—that she ran the item because she found herself “beat up in the media almost every day,” including comments calling her “fat and ugly” on an alt-weekly’s website.
“Somebody finally wrote a nice one,” she said of the piece by John Hawkins, proprietor of the Right Wing News blog. “That’s why I put it up there.” It has remained.
The primary goal of lawyer discipline is not punishment of errant lawyers, but to protect the public. Thomas’ lawyers have argued that, merited or not, both occurred in August 2010, less than two weeks before the Republican primary in his bid to become attorney general.
THE VOTERS DECIDE
Thomas’ campaign was blown out of the water by public revelation of grand jury materials that showed he repeatedly pursued two criminal cases despite overwhelming indications that he was wrong. Many believe it ended his once charmed political career.
The documents gave a damning picture of Thomas and David Hendershott, Arpaio’s longtime chief deputy, who vigorously continued their efforts even after the grand jury questioned two cases, as well as the prosecution’s motives. The grand jurors voted to “end the inquiry” into Donahoe along with one concerning supervisors spending county money to sweep their offices for bugs they thought Arpaio’s deputies may have planted.
Unfazed and urged on by Hendershott (later forced to resign from the sheriff’s office), Thomas shopped the cases around to other county prosecutors to no avail, and finally to the Justice Department, also without success.
“No one expects Andy will ever hold public office again,” said his lawyer, Wilson, in an interview when touching on the purpose of bar discipline. “So it’s not likely he would ever even be able to do what he is accused of doing here, abuse of prosecutorial power.”
Wilson and a clutch of three law partners swarmed around Thomas like protective Secret Service agents as he left the courtroom to take an elevator down to the exit, though few people were even in the lobby and none were angling to approach him.
Outside they hurried their charge across the small parking lot and into a large sedan with dark-tinted windows. Again, few were there and no one approached Thomas. A couple of television news cameras, rather than being shoulder-held for their operators to give chase, stood nearby on tripods. A lone political activist wearing a jester’s cap of bright primary colors danced along behind the vehicle as it drove away.