Pursing his lips and hanging on defense attorney Ken Everett's every utterance, County Attorney Andrew "Candy" Thomas did not look as if he was relishing his role as witness Friday morning in the court of Judge Roland Steinle. At one point, the dapper, dour Thomas even directed Deputy County Attorney Laura Reckart to object to a question by Everett during the hearing challenging his wiretaps of alleged Serial Shooter Dale Hausner. For this, Thomas earned a mild rebuke from the judge.
"I can tell you based upon 15 years [in] Maricopa County dealing with Ms. Reckart," said Judge Steinle, "she is a very capable attorney. We will at least assume for the sake of argument here if she thinks she wants to object, she will."
Dutifully following her boss' lead, Reckart objected on the grounds that Everett's question was irrelevant. Steinle overruled the objection.
The entire exchange drew laughter from the courtroom, the only moment of levity in an otherwise stale hearing, wherein Everett repeatedly questioned Thomas' motives for approving emergency wiretaps on then-suspected serial killers Samuel Dieteman and Dale Hausner. Dieteman pleaded guilty earlier this month to two counts of first degree murder. Hausner is facing eight counts of first degree murder, as well as other charges.
Under A.R.S. 13-3015, Thomas approved emergency wiretaps on the two in 2006. As required under the same statute, a judge okayed the County Attorney's emergency order 48 hours after the fact. The content of those wiretaps implicated Hausner and Dieteman in the killings, and led to their arrests. Prior to that, neither the police nor Thomas believed that probable cause existed to arrest the men.
Everett, constantly at odds with a judge who seemed to favor the prosecution, accused Thomas of using the emergency order out of convenience, to obtain probable cause where none existed before. Thomas denied this.
"We wanted to stop the killing," Thomas stated at one point. "That was my goal.”
Later he added, "The statute authorized the position I took."
Thomas argued that, even though they did not have probable cause to put the pair in handcuffs, there was a situation that involved, according to the statute, "immediate danger of death or serious physical injury to any person, and that such death or serious physical injury may be averted by interception of wire, electronic or oral communications before an order authorizing such interception can be obtained." That's the bar set by A.R.S. 13-3015.
Why did Thomas believe there was "immediate danger of death or serious physical injury"? Both Dieteman and Housner were under constant surveillance by the Phoenix police, who had the night before watched as they drove suspiciously down side streets, apparently stalking possible victims. At least, that was the assumption of the cops and of Thomas.
"The Phoenix’s police surveillance of the vehicle the night before and its conduct [seeming] consistent with that of the serial shooters, was a key piece of evidence in my reaching that conclusion [concerning the emergency order]," Thomas contended.
But if a judge was willing to sign off on a warrant to install listening devices beforehand (as happened in this case), and was willing after the fact to approve Thomas' emergency order, why didn't Thomas instruct the cops to obtain a traditional wiretap order from the judge? Defense attorney Everett implied it was because it was expedient for Thomas and the cops if the C.A. used his 48-hour emergency authority. Testimony from two police detectives after Thomas left the witness stand did not contradict this implication by Everett.
Don't get me wrong. With Dieteman set to testify against Hausner, Hausner's eventual conviction seems a sure bet. But in Friday's hearing, which is set to continue May 21 with the testimony of Judge James Keppel -- the judge who approved Thomas' emergency order after the fact, Everett seems to be laying the groundwork for an eventual appeal. That's an appeal Thomas left the door open to by not crossing every "t" and dotting every "i."
As mentioned, Hausner and Dieteman were under constant surveillance by a team of cops. Phoenix police Sgt. Sherrard appeared after Thomas, explained the surveillance of Hausner and Dieteman, and related how the pair were allowed to come and go from their apartment as they wished. The Sergeant also said he would have been available to go before a judge for a conventional wiretap warrant if asked.
Detective Richard LeBel of the PHX PD took the stand later, his expertise being wiretaps and writing affidavits asking judges for same. He contended that writing an affidavit for a conventional wiretap would have taken up too much time, and would have been voluminous, compared with other affidavits. An emergency order from a County Attorney was more convenient, apparently.
Told about Friday's testimony, former County Attorney Rick Romley believed the door had been left open for a defense appeal on the matter.
"There's no question at all," Romley told me. "It's clearly the basis for appeal."
Romley agreed that the affidavit for a conventional wiretap was more complex, that the authorities had to prove that they had exhausted all other means of obtaining info before turning to such an intrusive investigative tool. However, he argued that preparing such a document was by no means an insurmountable task.
"First of all, if they'd already got the affidavit and the authorization for bugging a house, most of the stuff is cut and paste," said Romley. "Most of the stuff in that affidavit would be used in your wiretap. It's not like you had to create it out of whole cloth. That's just hogwash and bull.
"Number two, it doesn't matter what the cop thinks," he continued. "The obligation is on the County Attorney for him to be the sort of temporary judge...The County Attorney has to be asking those kinds of questions. So what if it's tough? OK, it may be tough, but you're going to have to do it anyway in 48 hours [for the emergency order]. Why do you need it immediately? That's the question."
The former County Attorney contested the idea proffered by the Phoenix PD, that it might have taken months to produce the affidavit required for a conventional wiretap.
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"Look, it's hard, I do not want to understate that," admitted Romley. "Wiretap affidavits are much more extensive, a lot more work. But they can be put together in a day. I've seen it done."
Thomas fought having to appear at Friday's hearing, arguing that his appearance might help Hausner on appeal. And indeed it might have, especially considering the doubt it placed upon his decision to grant the appeal by the PHX PD for the emergency wiretap.
Judge Steinle was ordered to hold the hearing by the AZ Court of Appeals, and he did not seem happy about it. He looked eager to get the whole thing over with so he could rule against the defense. I would be extremely surprised if he ruled otherwise. He had already accepted evidence from the wiretaps as evidence, before being ordered to hold Friday's hearing.
Whatever Steinle does, Thomas may have ultimately botched the case against Hausner by using a legal shortcut to get enough on the Serial Shooters to arrest them. One thing's for certain, if the authorities had gone the extra mile to obtain a conventional wiretap warrant, Friday's hearing would not have been necessary.