Power Play

Mundell tells New Times that she invited many "stakeholders" in Proposition 100 — prosecutors, defense attorneys, and others — to discuss the ongoing problems.

Thomas went to the Old Courthouse downtown with his team, but the meeting didn't go well. Mundell recalls that the County Attorney repeatedly asked her what punitive measures she would be taking against court officials who, in his view, had been responsible for the Mesa murder suspect's release.

"I explained to Mr. Thomas that we wouldn't be talking about that case if his prosecutor had done his job correctly," Mundell says. "He didn't say anything more about it."

The judge herself is of Mexican descent, a point that many court critics continue to harp on in letters to the editor, on radio talk shows and elsewhere, as if to say that, naturally, she'll always be willing to cut illegal aliens a break.

Also around this time, Justice McGregor pulled together the state's 15 presiding county court judges to discuss how they were implementing Prop 100.

"We found that counties were applying it differently, and it needed to be applied consistently," the justice tells New Times. "Disputes involving new laws and new systems are not uncommon, and usually make their way through the system, get worked out gradually. This was no exception."

In April, McGregor issued an order designed to tweak and clarify ways to implement Prop 100. She designed a new form that police officers must fill out for every arrest to "set forth facts that indicate whether a defendant entered or remained in this country illegally."

The justice says she expected there wouldn't be full compliance with her administrative order overnight: "We get that in all kinds of cases involving new rules and laws, especially in criminal cases. That's how it goes."

Then, in July, another new law signed by Governor Janet Napolitano lowered the troublesome burden of proof for prosecutors in Prop 100 cases to a "probable cause" standard, or about 15 percent certainty. That was far lower than the 75 percent burden that had been a stumbling block for many judges.

Though the problems surrounding Prop 100 seemed to slowly be sorting themselves out at the courthouse by midsummer, Andrew Thomas wasn't about to let that get in the way of a hot political issue.

Tim Ryan may have first slipped onto Thomas' radar screen after publication of two stories on Prop 100 in the East Valley Tribune.

In the first, published April 28, reporter Gary Grado summarized comments made by the judge about the logistical challenges in executing the proposition. Ryan also spoke about the delicate act of balancing the new law with other long-standing legal interests, such as a defendant's right to due process.

Then, on May 17, Thomas told the Tribune that county court judges were continuing to erect roadblocks to keep prosecutors from making cases to hold Prop 100 defendants without bail.

"This appears to be the latest example of judicial undermining of Prop 100," Thomas told the paper, adding — accurately in this instance — that judges were refusing to accept hearsay (secondhand statements) from police officers as evidence.

Ryan wouldn't respond directly in the Tribune to Thomas' remarks. But he did note, in general, that hearsay evidence must be "reliable" to be considered by a judge, and that a police officer testifying secondhand about a case is unreliable.

In October, Dennis Wilenchik, who had taken up the fight against Judge Ryan and the Superior Court on behalf of Thomas, alleged that Ryan had "chosen to use his elevated position of authority and the judicial forum as a means to impose his personal agenda on the Maricopa County Attorney's Office and on individual deputy county attorneys for reasons wholly unrelated to the matters directly pending in front of him."

Wilenchik claimed as part of his sprawling legal motion that "Judge Ryan was quoted on this particular subject in the East Valley Tribune in direct opposition to the Maricopa County Attorney's comments."

The motion included a slew of allegations, leading with accusations that the judge deliberately was circumventing Prop 100, and that he had wrongly dismissed cases against criminal defendants.

Ryan also was accused of having humiliated two prosecutors in court memoranda, causing them great personal distress.

Wilenchik wrote that "hyperbolic, scathing, and blistering" court orders filed by Ryan about two prosecutors proved how ill fit the judge was to sit on cases involving the county attorney.

That Dennis Wilenchik — long known in the courthouse as a lawyer who defines hyperbolic, scathing, and blistering — would use that language to describe Ryan brought a chuckle to those in the legal community who know him.

Ryan set a hearing on the issue for the morning of October 2, a day after Wilenchik filed his papers.

Wilenchik set the tone by quickly telling Judge Ryan, "We want to give you the opportunity on behalf of the public safety and welfare to do the right thing and recuse yourself."

"Doing the right thing. I don't understand what you mean by that, counsel," the judge responded.

Ryan repeatedly asked Wilenchik to explain the specifics of his alleged "bias and prejudice" against prosecutors, which is mandatory in all such recusal hearings.