By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Ronald Lebowitz has been the county's counsel about Mark Battilana's dismissal since September 1996. Lebowitz was in private practice when he began work on the case, and kept the case after being hired as a deputy county attorney in May.
Lebowitz's affidavit is opinionated--and often histrionic and insulting--in describing Wetherell and those who did not cooperate with the investigation of Battilana. It extols sheriff's employees who aided the ouster of Battilana, and condemns employees who were perceived as not cooperating with the Battilana investigation.
Lebowitz declined to comment.
Although the Lebowitz affidavit bears the imprimatur of the County Attorney's Office, a spokesman distanced that office from the document. Asked if Lebowitz's affidavit was a product or property of the County Attorney's Office, Bill FitzGerald replied, "No."
FitzGerald says that after the scheduled December 2 hearing before the Law Enforcement Merit System Commission, Lebowitz will withdraw from the Battilana case.
Lebowitz's affidavit makes sweeping statements such as: "At no time, regardless of the number of times stated within the Wetherell affidavit, did Director [David] Hendershott or anyone else in a command position in the Sheriff's Office order, direct, tell, or infer to Wetherell that [deputies] Dale Tupper or Gary McGuire would be rewarded for providing information about or testifying against Battilana." (Emphasis his.) Such a claim would require Lebowitz to have been privy to every conversation between Wetherell and Hendershott, and between Wetherell and "anyone else in a command position"--seemingly an impossibility.
One Lebowitz footnote states, "Neither the Sheriff nor anyone on his staff subscribes to that dark side of a propagandist's philosophies, i.e., that a lie becomes respectable and is ultimately accepted as the truth if it is big and told often."
The affidavit mocks sheriff's employees whom Lebowitz characterizes as sympathetic to Battilana's cause. He says witness Paul Mason "projected a personality almost as engaging as a digital clock."
Lebowitz says another potential witness, Les Nutting, "appeared to me to be untrustworthy and a 'closet' malcontent--a not terribly intelligent 'burn-out' who was holding fast to a sinecure and was probably less than competent.'"
FitzGerald said, "That's not the county attorney ridiculing county employees. The County Attorney's Office is merely where he [Lebowitz] now operates with the authority of his license."
He adds that when the county attorney hires a private lawyer who retains an existing case, "We don't have anything to do with it."
In the affidavit, Lebowitz assures the hearing officer in the Battilana case that Lebowitz's version of events should be believed, and not Wetherell's, because, "My own veracity attaches to licensure with the State Bar of Arizona which would be compromised for nobody."
Lebowitz says it was he, and not Hendershott, who suggested that deputies who were not helping to oust Battilana be given lie-detector tests. "I concluded that the uncooperative witnesses had poor attitudes toward their responsibilities as peace officers, had deliberately concealed the truth, had little respect for an oath, and were preparing to appear at the hearing (on Battilana's behalf) with impunity, stating almost anything with reckless abandon regarding the consequences of knowingly testifying falsely," Lebowitz wrote. The polygraphs were never administered.
Wetherell's affidavit has Hendershott using profanity on several occasions. Lebowitz responds, "Director Hendershott is not given to engaging in such tacky language." A footnote adds, "My first thought, upon reading these statements attributed to Director Hendershott by Wetherell is that Wetherell should get together with his writers and create more crispy dialogue, even when he is attempting to create cheap melodrama."
Lebowitz's affidavit discloses that the sheriff asked the U.S. Secret Service to analyze paper to determine whether it came from a specific division of the sheriff's office. He describes the paper in question as "flyers being distributed containing swastikas, the Sheriff's home address and the Sheriff's home telephone number--all of which was viewed as a security risk." Lebowitz does not say what the Secret Service determined. Another footnote accuses Battilana of passing out pictures of fight promoter Don King with Sheriff Joe Arpaio's face superimposed on King's.
Excerpts of the introduction to Lebowitz's affidavit follow:
Summary of Lebowitz Affidavit
On November 2, 1998, I received and began to review a copy of Robert Wetherell's ("Wetherell") affidavit ("the affidavit" or "the Wetherell affidavit").
Personal motivations of Wetherell notwithstanding . . . a review of his affidavit reveals that nothing contained therein seriously refutes any substantive charge or the evidence supporting it (documentary and testimonial), as presented by the Sheriff's Office against Mark Battilana (portions of Wetherell's testimony included).
The Wetherell affidavit reveals a personality which appears to be stuck in a quagmire of paranoia, imagining cabals and conspiracies underlying every act of government, leading to the wild accusations of a malcontent, all of which lack substance when examined under the revealing light of scrutiny.
After developing a lengthy relationship with Wetherell--believed to be sound professionally and good personally, and after offering consolation to Wetherell during his periods of personal turmoil subsequent to the Battilana hearing (events referenced, infra), it was disappointing to discover that I too was included among those persons falsely accused of things supposedly said and done.