A Dog of a Case: Andrew Thomas Again Proves That Indicting the Innocent Isn’t a Good Idea

No dogs were harmed in the making of this column. Suffice it to say, this Chihuahua is not the alleged "victim."

The crime was so heinous, it made headlines across the nation — and sent some animal lovers racing to their phones to make death threats.

Dr. Joshua Winston, according to the Maricopa County Sheriff's Office, had repeatedly punched a Chihuahua in the head, using such force that the poor dog's eye popped out. A Sheriff's Office spokesman said that the dog, Bella, had survived, but it was "wait and see" as to whether the eye would ever see again.

Led from his office in handcuffs, Winston was indicted on a felony charge of cruelty to animals. He was denounced by Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas. TV news crews filmed his perp walk.

But a funny thing happened last month, more than a year after Winston became the most notorious veterinarian in America: The case against him collapsed.

We're not talking technicalities here. We're talking about a charge that was complete bullshit from day one. Testimony at Winston's trial last month shows that he never actually punched the dog. He was merely trying to restrain a high-strung pup for a procedure when an accident happened. The rest was a witch hunt, spurred by a few disgruntled employees and perpetrated by a media-hungry sheriff and prosecutor.

Believe it or not, eye popping isn't even that bizarre, as far as animal injuries go. Experts say that bug-eyed dogs, like Chihuahuas, can have an eye dislodged from its socket under fairly benign circumstances. (There's actually a word for it, proptosis, and a quick Google search shows plenty of dog lovers discussing the problem.)

Dr. Winston's newer staffers were upset, and the doctor felt awful. But the accident apparently didn't even cause long-term damage. Dr. Winston stitched the eye back into place that day; Bella had already regained partial vision by the time of the arrest.

And here's the crazy part: The Sheriff's Office knew it. Deputies actually took Bella to three veterinarians to get expert opinions before making the arrest — but then ignored those opinions when they didn't agree with the sheriff's theory of the case.

All three vets, according to court filings, said they saw no sign that Bella had been punched. (A blow to the eye, one vet pointed out, would cause the eye to "recess" back into its socket, not fall out.) And one of the vets actually told the sheriff's deputy that, in his 17 years of practice, he'd had four different dogs experience the exact same problem while in his care.

Of course, the Sheriff's Office didn't tell the media that — nor did the Maricopa County Attorney's Office share that info with the grand jury. Hey, this was big news, and neither Sheriff Joe nor County Attorney Andrew Thomas ever let the facts get between them and a television camera. And once Winston had been charged, they certainly couldn't lose face by admitting they'd screwed up.

So they actually took this dog of a case to trial!

The state spent tens of thousands of dollars of taxpayer resources to try it. Dr. Winston, meanwhile, was forced to clean out his savings, spending $60,000 for his criminal lawyer and an eight-day trial where his professional life hung in the balance.

In the end, it fell to the jury to determine what Arpaio and Thomas had been too stupid, or too stubborn, to acknowledge: Dr. Joshua Winston wasn't guilty of anything.

It took the jury less than three hours to find him innocent.

I wasn't planning to write about Joe Arpaio or Andrew Thomas this week. It's always the same story with these guys: a rush to judgment, an overzealous application of the law, and some poor slob stuck with a giant legal bill and a life in ruins.

These two are truly the most inept lawmen of our time — and yet this county will probably re-elect both of them anyway, just because of their success in rounding up Mexicans. Say "illegal immigration" frequently enough and brains across Maricopa County turn to mush. Really, I guess we deserve these clowns.

But then I went to Rick Romley's press conference.

Romley was county attorney for 17 years. When he decided to retire in 2004, he endorsed his fellow Republican, Andrew Thomas. (He now works part time for Attorney General Terry Goddard, a Democrat.)

Last week, Romley held a press conference to say that, though he'd originally intended to make no endorsement this year, "I can no longer keep silent." He blamed Thomas, in part, for an atmosphere of "McCarthyism" in the county, then gave a stirring endorsement of Thomas' Democratic rival, Tim Nelson.

It was pretty good stuff, especially since with Romley's endorsement, Nelson has garnered the support of just about every big deal prosecutor in town. And Romley's not even the only Republican — Nelson has been endorsed by former Attorney General Grant Woods and former U.S. Attorney Paul Charlton. These are fine men with excellent reputations; the fact that they're throwing their weight behind Nelson should make every Republican carefully consider their choices.


But in the process of reporting a blog post about the Romley announcement, I talked to Thomas' flacks, Jason Rose and Mike Anthony Scerbo. Both referred me to an excerpt from a book critical of Romley.

Gary Lowenthal, a law professor at Arizona State University, spent one year at the County Attorney's Office during Romley's tenure. According to the excerpt I was given, Lowenthal felt that Romley was overly concerned with keeping his conviction rate high.

"What could be politically troublesome for the county attorney in routine cases was not a refusal to file charges but, instead, the risk that a significant percentage resulted in either acquittal or a dismissal," Lowenthal wrote. "The need to drive up aggregate conviction rates translated into a policy of rejecting prosecutions when the evidence was a little shaky — or the facts lacked 'jury appeal.' Thus, a combination of economic and political forces caused the charging bureau to decline prosecution in many of the cases the police submitted and to send others back for further investigation."

Obviously, nobody wants a prosecutor who's obsessed with keeping up conviction rates for political reasons. But I honestly can't understand why Thomas' people thought the rest of the excerpt was so damning. Shouldn't we want the police to do more investigating in a case where the evidence is "shaky"? Surely, we can agree that it's a giant waste of time and money — not to mention morally problematic — to indict the innocent.

I'm afraid that's exactly what Thomas has been doing. Then, thanks to his ban on making plea bargains for certain offenses, his prosecutors have been taking these lousy cases to trial. And they've been losing.

It isn't just Dr. Joshua Winston, although he's Exhibit A. Remember Tom Lovejoy, the Chandler cop charged with killing his police dog by leaving it in a hot car? Or how about Dan Pochoda, the ACLU legal director who was charged with "trespassing" at a demonstration in front of Pruitt's Home Furnishings? Both of those men were "investigated" by the Sheriff's Office. Both were crappy cases, brought for political reasons.

And both times, the County Attorney's Office wasted a lot of money and time, only to lose at trial.

The proof is in Thomas' own statistics. Using numbers provided by his office last week, I compared Romley's last three years as county attorney with the first three years of Thomas' tenure. Thomas has averaged an additional 120 trials per year — and notched an average of 54 more losses annually.

I don't think those numbers are unrelated: You take bad cases to trial, and you're going to lose more trials.

Indeed, even ignoring the increase in trials, the percentage of defendants found not guilty at trial has been increasing. Romley lost 16 percent of his trials; Thomas has been losing 20 percent. That's not as bad as Tim Nelson was claiming last week, but it's not good. (Nelson, as it turns out, had put in a public-records request with the court, asking for the results of every jury trial. The court gave him an incomplete set, he says, leading to some faulty numbers.)

Beyond the stats, there's a real problem here — a problem that's crystal clear in the excerpt from Lowenthal's book. Lowenthal notes that Romley's office chose not to proceed with felony charges in roughly 50 percent of the cases submitted by police.

The cops weren't happy about it.

"Although the police believed they had sufficient evidence of a crime to support felony prosecution, the prosecutor's office disagreed," Lowenthal writes. "Not surprisingly, within the ranks of law enforcement agencies, there was a great deal of resentment."

I'm sure that's all true. But here's where Thomas' spinmeisters are wrong.

It's not a bad thing for cops to be resentful.

I didn't always understand this. Of course the two agencies should work in tandem, right? But you only have to watch one episode of Law & Order to know that the best prosecutors serve as a sort of check on the cops. They push them to make their cases better, to get more proof, to make sure they've got it right.

Sometimes, they'll even turn them down.

So what would have happened if Andrew Thomas had refused to charge Dr. Joshua Winston? What if he'd taken one look at the sheriff's shoddy "detective" work and told Sheriff Joe that he couldn't possibly charge Winston with a felony?

Arpaio would be angry, I'm sure. The old guy knows that the best way to get on TV is a case involving animals. But certainly, justice would have been better served.


"I never had one board complaint, was never sued for malpractice, and was never written up," Winston told me. "When they investigated this, everything in my background was clean. But a thousand years from now, someone will Google me, and everything I've done has been tainted forever."

None of this is one bit funny, but I have to admit, Winston's lawyer, Tracey Westerhausen, told me a story about the trial that made me laugh out loud. When Westerhausen and the prosecutor were questioning prospective jurors, one man volunteered that he couldn't judge Winston with an open mind: The crime of punching a dog was just too heinous.

Then a female would-be juror piped up.

"I can't believe we're all here over the fact that some dog's eye partially popped out — and the dog is fine!" she said. "What a waste of taxpayer dollars!"

The man was struck from the jury pool, and so was the woman. Fair enough. But I couldn't help but think that even though the woman was dismissed before the trial even started, she summed up this one perfectly.

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