Power Play

County law enforcement's attack on the judiciary didn't work, but the war's far from over

Maricopa County law enforcement violated the constitutional rights of this newspaper and its readers in October, going so far as to subpoena the identities of anyone who'd looked at New Times online in the past four years. When the paper's leaders revealed the apparent grand jury probe on our cover, they were arrested.

It wasn't much of a leap for Sheriff Joe Arpaio and County Attorney Andrew Thomas to go after a publication that's uncovered abuses in their offices for years. They'd already proven themselves adept at trampling the rights of prisoners, political enemies, and Mexican migrants.

Arpaio sought criminal prosecution of New Times for publishing his address in 2004 as part of our investigation of his commercial real estate transactions, and Thomas responded by appointing a special prosecutor who subpoenaed not only the records and e-mails of the paper's writers and editors, but information on the Internet-viewing habits of our readers.

Judge Warren Granville is the subject of repeated official complaints by the county attorney.
Judge Warren Granville is the subject of repeated official complaints by the county attorney.
Presiding County Judge Barbara Mundell has battled Andrew Thomas since 2005.
Presiding County Judge Barbara Mundell has battled Andrew Thomas since 2005.
Judge Ed Burke rejected efforts by Thomas to get a senior judge booted off all criminal cases.
Judge Ed Burke rejected efforts by Thomas to get a senior judge booted off all criminal cases.
Arizona Supreme Court Chief Justice Ruth McGregor says judges are under attack like never before.
Arizona Supreme Court Chief Justice Ruth McGregor says judges are under attack like never before.
Sheriff Joe Arpaio's not so afraid of alleged death threats that he won't appear in public. Here he is at yet another media opportunity, this one in downtown Phoenix.
Sheriff Joe Arpaio's not so afraid of alleged death threats that he won't appear in public. Here he is at yet another media opportunity, this one in downtown Phoenix.
Maricopa County Attorney Andrew Peyton Thomas has targeted judges from the start of his administration.
Maricopa County Attorney Andrew Peyton Thomas has targeted judges from the start of his administration.

Public outrage, sparked by the arrests of the paper's top executives, forced the county attorney to drop charges of violating grand jury secrecy against Village Voice Media executive editor Michael Lacey and CEO Jim Larkin. It also forced him to drop the Arpaio-inspired probe of the paper for supposedly violating an arcane law that makes it illegal to publish law officers' addresses in cyberspace but allows such publication in newspapers and magazines.

It's no wonder that Thomas' special prosecutor, Dennis Wilenchik, didn't hesitate to jail newspapermen and attempt to invade the privacy of countless thousands of Web viewers; Thomas and Wilenchik already had launched a full-scale assault on the county's judiciary.

We live in an era when judges are under attack nationally (there have even been threats of assassination), but Thomas put his anti-migrant spin on the movement. He demanded that all 95 Superior Court judges be removed from ruling on his attempt to keep the criminal court's associate presiding judge from handling his office's cases. The problem was, as he saw it, that Judge Timothy Ryan was ruling against Thomas' prosecutors on too many illegal alien cases.

His ploy didn't work this time, but there's no reason to think that Thomas will give up his fight against the judiciary.

In this week's installment of our continuing series "Target Practice," we go behind the scenes to examine county law enforcement's unprecedented attack on the Superior Court. The county attorney, aided by his ally Arpaio, is capitalizing on a national trend against the judiciary to push a migrant-bashing political agenda that Thomas hopes will one day put him in the governor's office.


Two things that Rochelle Ryan read on the morning of October 4 scared her half to death.

She was checking out a story on the Internet at her home in Chandler a day after a zealous private attorney handpicked by Maricopa County Attorney Andrew Thomas tried to make a public trophy of her husband, Timothy.

The setting for the verbal assault had been the fifth floor of the East Court building in downtown Phoenix.

Tim Ryan isn't a criminal defendant or a litigant. He is the associate presiding criminal judge of the Maricopa County Superior Court, the second-in-command on the criminal bench.

The headline on the Arizona Republic Web site read: "Judge Says He Won't Quit Court Cases."

Rochelle Ryan already knew that the county attorney's hired gun, Dennis Wilenchik, had accused her husband of being "a danger to public safety" because he allegedly protected undocumented immigrants charged with serious crimes. She also knew that Thomas was trying to get Tim Ryan booted off the criminal bench, an unprecedented move in this jurisdiction.

What really got to her was something attached to the end of the online story. At 4:50 that morning, someone had posted an anonymous response: "The judge, like all judges, is an arrogant pig. I say string the guy up from a streetlight in downtown Phoenix until his flesh rots off."

A few hours later, someone wrote, "Does anyone remember [assassinated Republic reporter] Don Boles [sic]? The reported [sic] who was blown up in his car. Not sure why, but you gotta admit it was darn effective. He's not writing [sic] anymore . . . Do you catch where I'm going with this? What's good for the reported [sic] is certainly good enough for [the judge]?"

Tim Ryan was getting the couple's children ready for school when his wife told him about the threats.

He quickly e-mailed presiding Superior Court Judge Barbara Mundell, "I see it as a crackpot comment, but my wife has a point that I should be worried about crackpots who act on these types of threats."

Ryan said he was going to contact the Chandler Police Department to see whether it would send officers to patrol their neighborhood "so my wife can sleep at night."

Judge Mundell and others at the courthouse immediately contacted their in-house security detail, which, in turn, called the Maricopa County Sheriff's Office.

Sheriff's deputies provide security inside county courtrooms (they often are assigned to a specific judge, and get to know him or her personally), and also are responsible for transporting jail inmates to the courthouse for hearings.

None of this could be considered an overreaction in light of what has been a growing number of politically based death threats against judges around the nation.

Also, Sheriff Joe Arpaio has a team of detectives in his Selective Enforcement Unit whose primary task has been to investigate anyone perceived to have threatened Arpaio. It made sense that the unit would be ready, willing, and able to look into death threats against a judge.

In May 2002, the New York Times quoted the sheriff about a foiled plot to kill him and then-Arizona governor Jane Dee Hull:

"It only takes one time to die," Arpaio said.

But that was Arpaio carrying on about his favorite subject — himself — not about threats against a judge who had gotten crossways with Arpaio's ideological blood brother, County Attorney Andrew Thomas.

What happened next in the Ryan case speaks volumes about the dangerously dysfunctional relationship between the 95-member local judiciary and the county's two most powerful elected law enforcement officials.

According to an incident report filed by sheriff's deputy R.W. Carney, he and another deputy met Judge Ryan at the courthouse about 10:30 on the morning that Ryan had reported the published threats.

Carney wrote in his half-page report, "Judge Ryan gave me a copy of the article that appeared in the Arizona Republic, and a copy of the blog posted by the online name of [redacted], which is attached to this report."

Carney said he would forward a copy of his report to the MCSO's special-investigations unit "for follow-up."

Judge Ryan tells New Times he also spoke with a sheriff's detective, who asked him to provide a copy of the Web site comment that likened killing judges to the infamous murder of Don Bolles.

Ryan, who says he has had a trusting relationship with the courthouse-based sheriff's deputies since becoming a judge in 2005, did as instructed, adding that it took MCSO detectives a few days to collect the document.

That was the last he heard from the Sheriff's Office on the matter.

Weeks later, the judge contacted the U.S. Department of Justice about the Web comments. He says he has been told the FBI is looking into the case.

The distinction is stark between the Sheriff's Office's lackadaisical probe into the threats against Ryan and the no-stone-unturned approach that the MCSO takes in investigating anyone who may mean harm to Sheriff Arpaio.

Earlier this year, the Republic reported that the financially strapped Sheriff's Office had spent more than $500,000 investigating a dubious plot to kill Arpaio. One of several alleged threats against the sheriff's life over the years, this one was based on "information" from a paid source.

According to the informant, the plot was hatched by the anti-immigration Minuteman Civil Defense Corps, which supposedly was in cahoots with a local Latino activist and talk-show host to have the sheriff assassinated. The group allegedly was going to pay members of a Mexican drug cartel $3 million to murder Arpaio, with the motive of spurring average citizens to rise up in outrage against illegal immigrants.

The informant's cockamamie story never panned out, though Arpaio continues to claim publicly that the investigation remains open.


"If judges are doing their jobs, on occasion they will make other branches [of government] really angry," U.S. Supreme Court Justice Anthony Kennedy once said.

He could well have been talking about Maricopa County.

Andrew Thomas has been really angry with the local judiciary since the day he assumed office in January 2005.

As for Joe Arpaio, well, he is just angry, period, with anyone who does not agree with his view of the world. Those on his hit list have included certain media, former County Attorney Rick Romley, who wouldn't go along with some of the sheriff's publicity-driven stunts; and people charged (forget convicted) with crimes. More recently, Arpaio added illegal immigrants and local police chiefs, the immigrants because they're a handy hot-button topic and the chiefs because they generally don't subscribe to his blitzkrieg approach to tackling the issue.

Thomas especially has been determined to intimidate county criminal judges into doing his bidding — letting them know that, if they don't, they will face the consequences.

The consequences have included a series of complaints against one highly respected judge with the Arizona Commission on Judicial Conduct, and public dressing-downs of judges, as when Thomas commissioned private attorney Dennis Wilenchik to try to impress upon Judge Ryan and the bench what might happen if they rule in ways that displease the county attorney.

Thomas' message to the judges is, we are in charge here and you, ladies and gentlemen, are figureheads who will do our bidding; otherwise, my office will make your lives miserable.

As for Arpaio, many at the courthouse are convinced that an extraordinary November 5 shutdown of criminal proceedings — allegedly because of a budget crunch and "misunderstandings" that kept deputies from getting inmates to their hearings — was designed to let the judges know who's really in charge.

The tag team of Thomas and Arpaio has the great advantage of the bully pulpit. The county attorney and sheriff have a stage from which they can spew tough-guy rhetoric about the need to corral the rampaging hordes of criminals from south of the border, and about weak-kneed judges who supposedly pamper the brown-skinned bandidos in court.

Their intimidation tactics don't play with some county jurists but work with others with less resolve. The latter includes a judge who recently told New Times, "When I go to the criminal bench, I'm just going to try to keep my head low and hope that nobody notices me."

This source, like several others in this story, requested anonymity out of fear of retribution from the county attorney and the sheriff.

A veteran deputy county attorney tells New Times that his office's higher-ups crave whatever dirt they can get on anyone in the local judiciary.

"Our supervisors continually ask us to give them examples of how judges allegedly are mistreating [us]," says the prosecutor. "They want every detail, and the newbies [in the office] are more than happy to oblige. It's ridiculous."

There have been instances in recent history when governmental branches in Maricopa County haven't gotten along, including one in the early 1990s when Judge Michael Ryan (no relation to Timothy) hauled then-County Attorney Rick Romley into court after Romley publicly revealed details of a plea bargain offered to a state legislator during the AzScam political scandal.

Ryan, who now is an Arizona Supreme Court justice, told Romley, "If I have to bring you in here again, make sure you bring your toothbrush."

But such clashes have been rare. Mostly, the powers that be at the courthouse and in the County Attorney's Office have overcome natural tensions by talking it out.

These days, communication simply doesn't occur between Andrew Thomas and the current judiciary, says everyone contacted for this story.

"Just about the only way we find out about one of their policy changes or their problems with something going on over here is through their press releases," says presiding Judge Barbara Mundell.

"It's just not healthy, and it's something I have tried several times to change, to no avail," Mundell says. "County Attorney Thomas should know that it's vital for judges not to make their decisions based on politics and public opinion, and that's not going to change."

Says Gordon Griller, a former longtime chief administrator of the Maricopa County Superior Court system, "It's obvious to anyone following the day-to-day drama in the justice system that things really are far more caustic now than ever.

"Joe [Arpaio] seems much more difficult now than he used to be. I don't know Andrew Thomas. But elected officials who just do what they're going to do when they want to do it regardless of the effect on the system . . . Well, it's hard as a citizen not to get riled up against that," adds Griller, who now consults for the National Center for State Courts.

Arizona Supreme Court Chief Justice Ruth McGregor says, "It takes a lot of courage day by day to do the right thing, and it's so important for judges to stay firm against efforts to get them to make decisions on a political basis.

"That's not easy to do when you know it's likely that political powers will come after you if you make a decision that upholds the Constitution and interprets the law properly, but may not be what the popular opinion is at a given time."

But Barnett Lotstein, a special assistant to Andrew Thomas, claims allegations that his boss has it in for the local judiciary "are absurd and are a tempest in a teapot. We aren't in any kind of so-called attack mode against judges. We have a fine relationship with most of them."

Lotstein is the deputy county attorney who wrote in the Arizona Capitol Times last June, "There is an ever-growing list of instances in which the court has demonstrated a disregard for the will of the people."

Judge Tim Ryan, Thomas' most recent judicial target, is a former county prosecutor who worked in the office's Family Violence Unit in the 1990s and was known for his compassion for victims.

That was ancient history when then-Special Prosecutor Dennis Wilenchik filed paperwork in early October demanding that Ryan remove himself from all criminal cases involving the County Attorney's Office.

The attorney claimed the judge repeatedly had demonstrated a "bias and prejudice" against county prosecutors, especially those bringing cases against suspected illegal immigrants falling under the provisions of Proposition 100, an amendment to the Arizona Constitution that denies bail for undocumented immigrants accused of serious crimes.

A few weeks later, Wilenchik — at the behest of Thomas — added the entire county judiciary to his client's hit list, writing in court documents that he wanted to bar all 95 judges from considering the bias and prejudice motion because "Judge Ryan's personal agenda closely mirrors that of the Maricopa County Superior Court."

Overnight, Dennis Wilenchik's virulent and unsubstantiated criticisms of Ryan at the October 3 hearing became the stuff of legend, first at the courthouse and then nationally, after the Phoenix attorney imploded in the highly publicized case against New Times.

Wilenchik's courtroom rants against Judge Ryan can be viewed on YouTube.com. The State Bar of Arizona also took notice of Wilenchik's astonishing rudeness and his lack of specifics in his attack on Ryan by opening an investigation into the attorney and his financial benefactor, County Attorney Thomas.


As the Sheriff's Office was studiously under-investigating the Ryan death threat case, Dennis Wilenchik was investigating New Times with an eye on filing criminal charges against the paper.

Among other demands, Wilenchik, wearing his special prosecutor's hat, ordered that the paper turn over to him detailed information on every person who had looked at the paper's Web site since 2004, including viewers' IP (Internet protocol) addresses and other personal data.

Wilenchik later would claim that he had subpoenaed the paper's records to discern whether readers' IP addresses matched those of people known to have threatened Arpaio since publication of the sheriff's home address on New Times' Web site in July 2004 as part of the paper's investigation of his real estate transactions.

Publication of the sheriff's address on the Internet allegedly violated a state law aimed at protecting law enforcement officials. (There's no sanction in the arcane statute for broadcasting such information or printing it in newspapers or magazines, but it cannot be published on the Web.)

New Times exposed Wilenchik's bizarre machinations in a story by New Times owners Michael Lacey and Jim Larkin on October 18 ("Breathtaking Abuse of the Constitution"), after which he or a member of his law firm approved the late-night arrests by sheriff's deputies of the paper's executives on misdemeanor charges of violation of grand jury secrecy.

The embarrassing published revelations followed by the arrests forced County Attorney Thomas not only to drop the charges against Lacey and Larkin and end the investigation of New Times, but to fire Wilenchik as special prosecutor.

Consider this: There were never allegations that anybody thought about harming Arpaio based on the address information on New Times' Web site. But two potentially identifiable people did make what could be construed as death threats against a sitting judge — yet county law enforcement never sought their IP addresses.

All this came after the Sheriff's Office had just spent about a half-million dollars investigating what appears to have been a phony plot to kill the sheriff.

"Quite a contrast, huh?" says Judge Ryan.


Andrew Thomas has always had bigger targets than a weekly newspaper that wasn't kind to him from the start.

Soon after he assumed office in 2005, Thomas began to engage in increasingly caustic public skirmishes with the Maricopa County Superior Court.

In February 2006, he filed a federal lawsuit against the court, alleging that its race-based drunken-driving probation programs are discriminatory and unconstitutional. In question were three court rehabilitation programs for convicted drunken-driving offenders on probation — a general DUI court and others for Spanish speakers and Native Americans.

The county court established the federally funded programs in 2002, before Thomas assumed office. Thomas claimed that they are racist and hark back to the long-discarded "separate, but equal" model that once was the law of the land.

Thomas hired Washington, D.C., attorney Michael Carvin at taxpayers' expense to represent the county in its lawsuit against the Superior Court. Carvin was one of the lead lawyers for George W. Bush in the 2000 election controversy in Florida, but he couldn't pull off this one. A federal judge dismissed the County Attorney's lawsuit earlier this year on technical grounds.

The county attorney complained loudly in 2006 about alleged delays by judges and defense attorneys in death penalty cases, another passionate issue with local voters. It turns out that many of the delays were caused by Thomas' prosecutors, many of whom have become overwhelmed with work in light of office policies against offering tenable plea bargains in most cases.

Thomas also has shown no hesitation in going after individual judges.

His top aides continue to file complaints with the Arizona Commission on Judicial Conduct against county Judge Warren Granville, a career prosecutor turned jurist.

In 2006, Granville questioned the propriety of prosecutors' focusing exclusively on a young and indigent black defendant in a Paradise Valley armed-robbery case, when an affluent white youth also had been involved.

Lotstein, Thomas' spokesman, termed Granville's statements "judicial activism at its worst. We would go further and question Granville's fitness as a judge."

The Judicial Conduct panel ruled in two separate complaints last year that statements made by Granville in court documents and in an interview with New Times did not merit censure or other punishment.

But Granville, whose mild manner on the bench belies a staunch law-and-order bent, is not a judge intimidated by attacks against him.

Earlier this year, he railed against the County Attorney's Office in a court document after sentencing skinhead Patrick Bearup to death for his role in the February 2002 murder of a Phoenix man. Bearup was one of four defendants who had taken their victim to the desert north of Phoenix. There, they beat him with a baseball bat, and Bearup cut off one of his fingers to steal his ring before another defendant shot the man twice in the head.

After Bearup's sentencing, Judge Granville noted that prosecutors originally had sought the death penalty against each of the four defendants. Prosecutors then offered a plea bargain of second-degree murder to the man who (under the prosecution's theory) had batted the victim to death, or close to it. The prosecutors also plea-bargained with another defendant, a woman said to have procured the murder.

"Under the State's theory, Mr. Bearup's act of cutting off [the victim's] ring finger, while cruel and heinous, was not a cause of the death," Granville wrote.

Granville told the Arizona Supreme Court that he believed Bearup correctly was convicted of murder, even if he hadn't pulled the trigger. But he concluded that the death sentence ordered by the jury wasn't justified because of the deals tendered to, and taken by, two of the other three defendants.

Granville noted, "It is the County Attorney's motto that 'Let justice be done.' This, of course, coincides with a prosecutor's unique ethical responsibility. This Court finds that justice was not done for Mr. Bearup."

Again, the judge was referring to the death sentence, not the conviction. The fourth defendant in the case, the alleged shooter, still is awaiting trial.

Granville declined to confirm whether the County Attorney's Office has filed another judicial complaint against him.

But his colleagues at the courthouse claim Granville is facing new charges filed by Andrew Thomas' aides with the Judicial Commission, which, by law, keeps complaints secret until decisions are rendered.

Two days after Dennis Wilenchik told Judge Ryan to his face that he was a threat to public safety, Thomas held a press conference and angrily blasted Judge Granville for dismissing child-abuse charges against a Phoenix woman, allegedly so that they could never be re-filed.

The reason for the dismissal was that court personnel couldn't find an interpreter who spoke the defendant's native language, a rare African dialect.

But there's just no way the conservative Granville would toss out a case for keeps on that basis. The court file suggests that neither the prosecutor nor the defense attorney considered it more than a temporary dismissal. Once a translator was found, the charge could be re-filed.

In part because of the timing of Thomas' press conference, which came on the heels of Wilenchik's performance in Judge Ryan's courtroom, insiders who heard about the latest attack on Granville were convinced that the County Attorney was grabbing at anything — whether accurate or not — to condemn the judge.

But most of the media dutifully reported as fact what Thomas called the latest judicial outrage. Michael Kiefer, who covers the courts for the Republic, dug deeper and learned that Thomas' accusation had been based on a typographical mistake: The dismissal was temporary after all. (Why the case prosecutor didn't explain all this to someone at his office is uncertain.)

Kiefer explained the simple error to Thomas, but the county attorney wouldn't budge.

"I am pleased that Judge Granville reversed his decision based on my press conference," Thomas was quoted as saying in a news story.

Though his attempt at playing the public was transparent, the County Attorney was technically correct: The judge had said he would correct the clerical error.


It should have come as little surprise that Andrew Peyton Thomas unofficially declared war on the local judiciary soon after he took office in 2005.

Thomas has written extensively over the years about his vision of criminal justice.

A Harvard Law School graduate, Thomas soon adopted the persona of a vigilant, if colorless, soldier against bad guys, ever willing to do battle against criminals and the people he claims coddle them.

At the top of that list of coddlers are judges and defense attorneys.

About a decade ago, the future county attorney wrote in the conservative Weekly Standard about prosecutors who are "relatively young and inexperienced and of average ability." These simpletons are often overwhelmed, he claimed, by crafty defense attorneys.

Andrew Thomas is a bona fide inciter, not an insider.

His idea of communication with those from other facets of the criminal justice system — particularly judges — hasn't been to get on the phone and hash things out like most people in his position might do.

It's been to hire Dennis Wilenchik, long known to county judges as an attorney more than willing to viciously attack anyone who stands in his way in a legal proceeding.

Should anybody have been shocked by Thomas' choice of lawyers to represent him in his clash with the courts?

In December 1996, while working as an assistant Arizona attorney general, Thomas wrote, "The [U.S. Supreme] Court has grown incapable of overturning any of the landmark criminals' rights rulings, either from an overriding zeal for judicial power or from a broad-based judicial ideology that has grown comfortable with these rights and the social advances they supposedly represent."

He was referring not to the liberal Warren court that ushered in the Miranda warning and a host of other rulings favoring the rights of criminal defendants, but to its far more conservative successor, the Rehnquist court.

Thomas and his political ilk seem obsessed with the belief that judges cannot be trusted, period.

Rachel Alexander, one of his "special assistants" at the County Attorney's Office and cofounder of a Web site called intellectualconservative.com, has published many pieces concerning the state of the judiciary, none flattering.

Last year, right-wing Republican activist Carol Turoff wrote, "Once selected and robed, the system that put(s) [judges] on the bench takes on a glow that belies the stark political realities behind the scenes."

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."

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.

But Wilenchik was unprepared to answer anything specifically. He was there to make speeches.

"Your Honor, I don't have all the answers on the specifics to each and every one of these cases," the lawyer finally said. "I have a simple statement. The court is misperceiving the nature of the motion. I did not [intend today] to go over the specifics of each of these [cases]. If you would like to do that, I would be glad to do that . . . Obviously, I am not involved in each and every one of these items."

Ryan asked Wilenchik whether the county attorney had filed any emergency "special actions" with an appellate court about any of the disputed Prop 100 cases.

The correct answer would have been no.

But rather than reply directly, Wilenchik spewed, "I think it's evident that the court has evidenced a bias and a prejudice that is manifesting itself repeatedly in cases the court needs to consider professionally to step down [from] because it's affecting the court's decision-making and the public safety and welfare."

These, as they say, were fighting words.

Ryan tore holes in Wilenchik's motion, pointing out that, yes, he had dismissed a case involving a possible Prop 100 defendant, but that the defendant was still in custody on another matter, and that he had left prosecutors the option of re-filing the case.

Concerning another case in which Ryan allegedly had shown "bias and prejudice," the judge handed Wilenchik a court document proving that he had imposed sanctions against the defense attorney, not the prosecutor.

In response to a question from Ryan about that document, Wilenchik snapped at the judge, "I don't appreciate the court's tone."

Many in the courtroom gasped at his rudeness, because attorneys don't normally speak to judges that way.

Surprising no one, Ryan soon declined to remove himself from the criminal bench.

Wilenchik then proposed to Ryan that an out-of-county judge handle what would be a subsequent hearing on Andrew Thomas' motion to remove Ryan for cause.

"You're saying that no judge of the Superior Court could handle this?" an incredulous Ryan asked Wilenchik.

"Correct," the lawyer replied.

Wilenchik then told Ryan, "I think what you just did was very improper because you attempted to use me as a witness in this case when I'm not a witness in this case. With all due respect, to put me on the spot . . . "

"When you file a motion, you don't need to have personal knowledge of what you put in your motion?" Ryan asked, rhetorically.

"That's not correct, Your Honor, and you know that, and let's not be facetious here . . . This motion was brought for purposes of protection for what we perceive to be a danger to public safety that is going on."

"Mr. Wilenchik, that's a horrible overstatement."

"Your Honor, I'd like to finish."

"Well," said Ryan, "you don't get to make aspersions and insults to the court, with all due respect. If you're going to keep doing that, you're done."

"I appreciate that you don't want to hear that," Wilenchik said.

"Everybody has to follow the rules. Even you," Ryan said. "Even Mr. Thomas, and everybody else in the County Attorney's Office."


On October 18, Dennis Wilenchik stepped into Judge Ed Burke's courtroom to again argue his case for removing Tim Ryan "for cause" — the judge's alleged "bias and prejudice" against Andrew Thomas' prosecutors.

Burke, who knows Wilenchik, complimented the lawyer as the hearing began, perhaps in an effort to establish a civil tone.

But Wilenchik quickly said he doubted that Judge Burke could make an impartial decision and that he would immediately appeal any ruling against the county attorney (which he never did).

Then he called to the witness stand the first of the two prosecutors whom Judge Ryan allegedly had mistreated in court documents.

Deputy County Attorney Elizabeth Cotter nervously explained to Burke that Judge Ryan had ordered her to a contempt of court hearing after writing about "the gross, wanton misconduct demonstrated by [Cotter] in her absolute refusal to abide by her ethical responsibilities as an officer of the court."

But Cotter admitted that she had failed to appear at an earlier hearing in Ryan's court. That apparently marked the second time she hadn't shown up for a settlement conference with a defendant's attorney.

The prosecutor testified that she wants to be a judge someday, and that she "was very offended by the language the judge chose to use in this public document."

At one point, Judge Burke took over the questioning from Wilenchik, asking Cotter what she would do if she had been in Tim Ryan's shoes.

"If I were that judge," she said, "I probably would have jumped up and down and have gotten that attorney's supervisor into my court ASAP, if not Mr. Thomas to come down himself."

"In your heart and mind, do you feel that Judge Ryan is biased and prejudiced against you personally?" Burke asked.

"I can't answer that, Your Honor. It appears that way."

"Biased against the entire County Attorney's Office?" Burke continued.

"He seems not to administer justice equally, including other cases with colleagues [and] he doesn't hold the defense bar to a level anywhere near what he holds the state to."

For the record, there are a host of criminal-defense attorneys who don't agree with Cotter on that one.

Judge Burke noted that Ryan hadn't issued any sanctions against Cotter (and Ryan didn't issue any at the contempt-of-court hearing the next day).

Burke asked Robert McWhirter, one of the public defenders in the court that day, what he thought of Judge Ryan.

"Judge Ryan is a good judge," McWhirter said, adding that Wilenchik hadn't proved bias or prejudice.

"I've got a whole notebook [from Wilenchik] that says there is [bias and prejudice]," Burke replied drolly. "Two notebooks, as a matter of fact."

McWhirter said, "If the county attorney has a weighty case, it's the trees they've killed in producing this thing."

Before adjourning, Judge Burke noted that complaints of bias against a judge must be specific, not general.

"Anything else is an attack on judicial independence," he said.

In his six-page ruling issued the next day, Burke concluded that Andrew Thomas' special prosecutor hadn't made his case, hadn't even come close.

So, Judge Ryan still sees prosecutors and defense attorneys in his courtroom, and things seem cordial enough.

And though the judge wouldn't directly address his recent struggle with Wilenchik, he did say this about the war over the soul of the Maricopa County courts:

"People may think that judges are all-powerful and untouchable and all that. We're not. If some politician with an agenda chooses to attack us, so be it. All we can do is try to do our jobs and apply the laws as we see them. That's what it's all about."

Show Pages
 
My Voice Nation Help
9 comments
Thomas Trottier
Thomas Trottier

Elizabeth Cottor is a Snake as you can tell by her evil scowl and Shark like facial features. My son was prosecuted by her and she would not so much as even let him speak. If only he could explain at 17 what he had done when he was 16. But since he was prosecuted as an adult, and at that age the court system seems very intimidating, but a fair trial would have saved him 2 years of his life. For an auto accident where a unlicensed drug-taking uninsured driver was actually at fault. Her ethics are indeed tainted by her association with Andrew Thomas and his bottom feeder ethics. I am glad that she will never see her dream of becoming a Judge come true, I prayed faithfully for God to stop her. Prayer works!

JA Moran
JA Moran

maricopa county, and the state of Arizona need political and justice officials that will seek to be "reasonable and fair" that is true justice. Don't use one's position to try and squash your political opponents. The Maricopa County Attorney and Sheriff use any opportunity to get their face infront of a camera and make their point. They should stick to doing their jobs, be "reasonable and be fair", not going after people who disagree with them. We are supposed to be a democracy and in a democratic society people should be free to voice their disagreements. Also you should be free to publish the truth as the facts support, not as some political officials want. Do I need to remind people what happened to the guy who played "Joe Arizona" in political ads and what another person named Joe did to him because he made this other "Joe" look bad ??

J.

Leonard Clark
Leonard Clark

Please, if you feel that these two fascist thugs should be stopped legally, constitutionally and non-violently help us with the recall. We have filed official recall papers and even after the deadline is over for this recallif we are not successful the first time we are going to hound these two criminal and unconstitutional thugs with another legal and constitutional recall.

Please, help us and help Arizona, we are not associated with any politician or political group we are only associated with the U.S. Constitution.Leonard Clark623-206-2039 email: leonardclark385@hotmail.com arizonarecall.comChair of the Arizonans for the U.S. Constitution and recall of Maricopa County Sheriff Joe Arpaio and Andrew Thomas

TreasurerWilliam Crum602-300-8851

Annalisa Alvrus
Annalisa Alvrus

So, judges are NOT political? Judges NEVER make the wrong decisions? Judges NEVER make rulings based on political or personal biases? Judges ALWAYS make rulings pursuant to the law? Should we not expect all three branches of government to constantly check the other branches? Isn't that what our government is supposed to be doing? I usually really, really like Paul Rubin's articles, but I don't care for the pro-judiciary slant in this article. The judges are placed on the bench by the governor, and even though we "vote" to "retain" them, we get very little information about whether they really rule according to the law. And the judicial oversight commission mentioned in the article almost NEVER disciplines a superior court judge. Are all 95+ of them really such perfect employees of the citizenry? Seems awfully hard to believe.

Tony Dogs
Tony Dogs

They really need to disbar this clown. He's a disgrace.

Jim Cozzolino
Jim Cozzolino

Arpaio and Thomas, Reincarnated Hitler's.Scary.....

anon
anon

That's what many lawyers / judges do to deceive the public. Wolves in sheeps' clothing.

anon
anon

AA, Well said! Definitely agree with you. Look at the Bios of these judges on the Court roster -- wonder what the qualifications are to even be a judge, many of the resumes are slim to none.

 
Phoenix Concert Tickets
Loading...