Power Play

Turoff is a longtime Republican activist whose name recently hit the news when she served as a behind-the-scenes messenger for Dennis Wilenchik with presiding criminal Superior Court Judge Anna Baca during the New Times case.

Judge Baca later stated in court that Wilenchik's attempt through Turoff to communicate privately with her had been improper and heavy-handed, an analysis with which the attorney mightily disagreed. At the time, the judge was poised to rule on key legal motions in the battle to get the paper to turn over staff files and e-mails, plus records of the Internet viewing habits of readers.

Wilenchik later claimed he had tried to set up the secret meeting so that there could be a let's-give-peace-a-chance moment between Thomas' office and the Superior Court, not to unethically sway the judge in his volatile battle with New Times.

Earlier this year, a Virginia man wrote on Rachel Alexander's Web site: "Judges increasingly act as if the rule of law means people must obey whatever drools down the lips of any social engineer who is cloaked in a black robe . . . The Delphic voice of the gods behind the judicial curtain is actually a bunch of guys and gals who have fooled us."

Andrew Thomas' point of view couldn't have been stated better by the county attorney himself. So, when Thomas gave his handpicked attorney Wilenchik the green light to attack Tim Ryan, the war between him and the judiciary escalated hugely.

Proposition 100 became law on January 1 after overwhelmingly winning voter approval in the November 2006 election.

As with many other ballot propositions and legislatively enacted statutes, its implementation suffered growing pains.

The troubles were systemic: Courts now were compelled to hold special hearings to determine whether criminal defendants could be held without bail as illegal immigrants under the provisions of Prop 100.

Those hearings required the allocation of new resources, financial and otherwise, from everyone involved, including the courts, prosecutors, defense attorneys and police officers.

For its part, the County Attorney's Office transferred several senior civil attorneys to the Initial Appearance Court to handle the dozens of Prop 100 hearings that sprang up after the new law took effect.

Thomas, who had championed the proposition and other anti-illegal immigration measures, claimed that Prop 100 removed all discretion from Arizona judges in determining bail eligibility of suspected undocumented defendants charged with specified serious felonies.

But the county attorney was wrong.

The language of the new law ordered judges to detain defendants without bond in those specified felony cases "if the person charged has entered or remained in the U.S. illegally and if the proof is evident or the presumption great as to the present charge."

That wording would prove problematic.

Prop 100 hadn't specified what "proof evident/presumption great" meant, other than to imply it was roughly the same as "clear and convincing."

Legal scholars usually explain clear and convincing as resting somewhere between reasonable doubt (the standard in criminal cases) and preponderance of the evidence, which is 51 percent burden of proof in civil cases.

It was tricky stuff. Questions soon arose in courts statewide about what prosecutors had to do to prove with about 75 percent certainty that a criminal defendant was here illegally.

"We're in an adversarial system, not an inquisitorial system, as most of Europe is in," explains state Supreme Court Chief Justice Ruth McGregor. "The judge can't just go out and gather evidence. A judge depends on evidence being brought to him or her to make decisions. If it's not brought by the prosecution or the defense bar, you have to base your decision on the record that's before you."

Many Americans may not realize that undocumented immigrants have the same constitutional rights as U.S. citizens. (The only legal rights U.S. citizens have that non-citizens don't are the right to vote and the right to serve on a jury.)

In Maricopa County, experienced Initial Appearance Court commissioners were concerned that the right to protect one's self against self-incrimination could be jeopardized if they asked defendants whether they were in this country illegally.

Though some Prop 100 defendants were held without bond from the start, others were released on bail or on their own recognizance, which Andrew Thomas and his people seized upon as a political gold mine.

Then, in late March, Thomas found what he believed was a horror story, the release and deportation to Mexico of a violent felony suspect who returned to Mesa and allegedly stabbed his cousin to death.

Upon further review, the suspect had been released not because of a bad judge, but because prosecutors didn't hold a preliminary hearing or indict the guy within the 10-day legal limit.

Still, Thomas repeated that this case was proof positive that the county's judges and commissioners held personal agendas against Prop 100.

Presiding county Judge Mundell tried to counter the rising public storm against the courts, writing, "Proposition 100 is being used as a weapon — not to hold proven illegal immigrants accused of serious crimes without bond — but as a political attack on Superior Court judges and commissioners."

She accused Thomas of using "half-truths and manipulated data as the basis of his accusations."