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.
Ignoring Wetherell's act of personal betrayal for the moment, it is not possible for me (or for any of the others referenced by Wetherell) to accept what he said within his affidavit without responding. Any assumption which Wetherell might have made to the contrary was miscalculated.
Wetherell was called to the witness stand to testify on more than one occasion during the Battilana evidentiary hearing ("Battilana hearing").
Although he did not specifically admit doing so in his affidavit, the logical conclusion to be drawn from his affidavit, when compared to his testimony during the Battilana hearing, were the Commission to take his affidavit as true, is that Wetherell committed multiple acts of perjury during the Battilana hearing and actively suborned perjury in others--all of which could be prosecutable offenses.
Were the Commission to seriously consider what Wetherell has stated in his affidavit, his Battilana hearing testimony should be reviewed for contrasts.
My affidavit constitutes the product of interviews of several people at the Sheriff's Office regarding the substance of Wetherell's allegations. Included among the persons interviewed and to whom much of which contained herein is attributed are Director David Hendershott, Chief Deputy Jadel Roe, Chief Jesse Locksa, Deputy Dale Tupper, Deputy Gary McGuire, Lt. John Kleinheinz, and Richard Dean. Each of those persons would be able to provide the Commission with separate affidavits verifying what is contained herein should the Commission wish them to do so.
Since the conclusion of the evidentiary hearing, Wetherell himself has been the subject of an internal investigation at the Sheriff's Office.
During interviews conducted as a part of that investigation, numerous people provided evidence about Wetherell's questionable behavior, causing the Sheriff's Office to seriously consider Wetherell's future with that office, i.e., should there be a future.
In each instance when Wetherell was confronted with what others stated about him (during internal affairs interviews), Wetherell unequivocally alleged that everyone else was wrong and that only he was right, together with his future and invariable accusations that each such person harbored some personal grudge or ulterior motive against him, leading to the invention or manufacture of events and statements which never occurred.
As a result of the internal investigation, affiant was presented a pre-termination notice or letter of intent, a copy of which is attached hereto and incorporated herein by this reference as Exhibit 1.
In the ensuing weeks, affiant elected to resign rather than contest the allegations contained within the letter of intent (Exhibit 1).
Wetherell's Volta Face regarding the Battilana matter (from, for example, his posture during the Battilana evidentiary hearing), when viewed collectively, can only be characterized as an act of spite and revenge so great and complete that truth was jettisoned by him in the process.
The allegations contained within the Wetherell affidavit are false, fictitious, and even fraudulent--all of which appears to have been designed by Wetherell (or by someone else who prepared said affidavit for Wetherell's signature) to perpetrate fraud upon the Commission in return for personal, albeit petty, satisfaction.
Striving to derail the Hearing Officer's findings (for self-satisfaction), Wetherell has potentially placed into question the veracity of many of Respondent's witnesses.
Should the Commission have the slightest lingering doubts regarding the credibility of those (and several other) witnesses, i.e., particularly Director Hendershott, Chief Deputy Roe, Chief Locksa, Deputy Tupper, and Deputy McGuire, they need merely review the transcripts of their respective testimony to determine what actually occurred.
When reviewing the Wetherell affidavit, certain fundamental improprieties stand out in relief. It is notable that:
a) chronologies were juxtaposed, creating misimpressions;
b) many events were "telescoped," leaving the uninvolved or unaware with misimpressions regarding their evolution;
c) several passages thereof are based upon opinion, belief, speculation, and theory, rather than upon reliable evidence;
d) several so-called "actions" referenced therein suffer from false or incorrect assignment, i.e., attributing to the wrong persons; and, worst of all,
e) several non-events (events which never occurred at all) have been presented in a vain effort to create an illusion of supportive reliability.
Although not related directly to issues currently before the Commission, I am advised that affiant's latest demonstration of pique following events where he did not get his own way, is not singular.
At all times relevant to these proceedings, I was given free rein by the Sheriff to spend as much time as I determined would be necessary, to make whatever tactical and strategic decisions I saw fit to make, and to do whatever I felt was best in representing the Sheriff. The greatest false presumption made by Wetherell throughout his affidavit was that several actions were the product of Director David Hendershott's initiative, when in truth and fact, they were mine--all of which in contemplation of and preparation for litigation.
