Andrew Thomas and Lisa Aubuchon's Defense in Disbarment Hearing Looks Weak in Opening Statements
Did a cabal of county supervisors, judges, lawyers and others work together to block legit police investigations into allegations of public corruption?
Or did a political hack and his underlings join forces with a corrupt sheriff to trample over civil rights and legal ethics in order to retaliate against their political enemies?
After hearing the opening statements today in the disciplinary proceeding against former Maricopa County Attorney Andrew Thomas, we'd have to go with the latter.
The proceeding before State Bar Disciplinary Judge William O'Neil and two other panelists is expected to last up to 45 days, but now we're even less confident — if possible — that some new piece of evidence will be revealed to make Thomas look like a hero.
State Bar investigator John Gleason laid out the case succinctly against Thomas in his statement, noting the scary fact that when people crossed paths with Thomas, Sheriff Arpaio, or Arpaio's disgraced former chief deputy, Dave Hendershott, they could expect "to be sued, criminally charged or both by the county attorney."
Gleason went first in today's hearing, kicking off the unprecedented case in which a former Arizona county attorney is facing potential disbarment for actions he took in criminal investigations. Thomas' former hatchet-woman, Lisa Aubuchon, also faces disbarment for her role in the questionable attempted prosecutions. Another former deputy county attorney, Rachel Alexander, faces suspension of her law license.
Disbarred attorneys may reapply to work as lawyers in the state — after five years.
Thomas' legal hijinks are well known to New Times readers — we'd warned you about him since before he was elected in 2004. Before Thomas joined Arpaio to attack their enemies within the county, they tried unsuccessfully to close down New Times with a bogus criminal investigation.
Gleason and the State Bar outlined their charges last year against Thomas, Aubuchon, and Alexander following Gleason's investigation into their actions. Today, Gleason couldn't help but use a line from the 2010 report, saying the case involved "a four-year period of prosecutorial abuse by Mr. Thomas and Ms. Aubuchon."
But he went much further, saying Thomas and Aubuchon "repeatedly engaged in repeated persecution" of Thomas' enemies.
Thomas had lots of political foes. He fought with judges about DUI courts for Spanish speakers and a law that denied bail to illegal immigrants. Most importantly, Gleason says, he battled with the county Board of Supervisors over who could appoint outside lawyers to lucrative county work. Thomas wanted to appoint his buddies, while the Supes had other ideas.
Ultimately, Supervisors Don Stapley and Mary Rose Wilcox ended up indicted with multiple felonies, and Superior Court Judge Gary Donahoe was charged in a direct complaint with bribery and other crimes.
Not coincidentally, those three officials, plus a host of other judges, lawyers, and county officials ended up investigated by the Sheriff's Office for various offenses. The infamous federal racketeering complaint filed by Thomas sought to link the cabal, plus other county officials and the entire Board of Supervisors, in a grand conspiracy. The suit was later dropped by Thomas and Arpaio.
The "real reason" for the investigations, charges, and RICO suit, says Gleason, was to retaliate against, embarrass, and burden Thomas' foes. The evidence will show that the criminal charges didn't "carry out the legitimate function of the County Attorney's office."
Aubuchon helped Thomas nearly every step of the way, Gleason says.
In the coming days and weeks, Gleason says the panel will hear from witnesses from the County Attorney's office and MCSO who initially worked on some of the cases, then backed away after seeing serious ethical problems.
Followers of this debacle already have heard about Aubuchon allegedly telling deputies to use "creative writing" in fashioning one shady search warrant. Gleason says Aubuchon also told a deputy to "put a little fluff above, and a little fluff below" another search warrant.
The deputies with Arpaio and Thomas' now-disgraced Maricopa Anti-Corruption Enforcement team will testify that "everything was backward" in the politically charged investigations. Instead of doing an investigation and taking it to the county attorney, the county attorney's people took a case to them and demanded an investigation.
"Bizarro world," was the way one MACE deputy put it, Gleason says.
The multiple felonies alleged against Stapley, Wilcox, and Donahoe were cooked up — but poorly. Stapley, for instance, was accused of failing to list business income on his financial disclosure form — yet many of the charges were brought after the one-year statute of limitations had expired.
Thomas and Aubuchon knew the case was filed after the expiration, Gleason maintains. At least one MACE detective recognized the problem and told Aubuchon, but "nonetheless, criminal charges were filed," Gleason says.
As it turned out, the Board of Supervisors had never adopted the rules for financial-disclosure forms, meaning that failing to fill them out wasn't really illegal. Those charges against Stapley later were dismissed.
Gleason describes the investigation into the building of a new court tower as a "fishing expedition" intended to uncover some — any — improprieties of Thomas and Arpaio's foes.
It shouldn't be much of a problem for Gleason to show that, from the beginning, the investigation lacked any evidence of a motive or crime — New Times revealed as much in a February of 2010 article.
Gleason also paints a portrait of a "chaotic, desperate and angry" attempt to get Judge Donahoe charged with a crime before he could hold a hearing on whether Thomas would get to appoint special prosecutors in the Stapley and Wilcox cases. Mark Stribling, a commander with the County Attorney's office who'll be testifying in the disciplinary proceeding, "refused to allow his officers to participate" in the process, Gleason says.
Thomas and Aubuchon succeeded in charging the judge, however. A deputy who had signed off on the charging document immediately gave a copy to Hendershott, who was on a couch in Arpaio's office.
With the sheriff present, Gleason says, Hendershott took the paperwork and said, "Checkmate."
Hearing Gleason say that, we couldn't help but think of the sheriff's ridiculous claim that he knew nothing of Hendershott's shady investigations. We've already proved — based on official documents — that Arpaio was neck-deep in these scandals, but we'll take this as yet another smoking gun.
There's another side in these disciplinary proceedings — Bizarro World.
As we noted in our earlier post today, Thomas was noticeably absent from today's hearing. His lawyer, Donald Wilson, claims in his opening statement that Thomas was "stonewalled and stymied" in his quest to rid the county of public corruption by "bitter and powerful antagonists."
Problems between Stapley and Thomas actually began soon after Thomas was elected, Wilson says, when Stapley offhandedly told Thomas that he "didn't like" the law that says the county attorney is the lawyer for the Board of Supervisors.
"He wanted to amend it so he could pick his own counsel," Wilson says.
And in early 2005, former Maricopa County Attorney Rick Romley reportedly told Thomas to "watch out" for Stapley, he says.
Neither of those alleged facts impressed us. For one thing, Stapley's just one of five supervisors — he couldn't decide on his own to replace Thomas. The "watch out for Stapley" line doesn't seem like evidence of squat, especially considering in retrospect that it was Stapley who had something to worry about.
The Supes and Thomas settled their dispute on the hiring of outside lawyers with an agreement not to sue each other. After Thomas had Stapley indicted and the board chose to hire Phoenix lawyer Tom Irvine as its counsel, Thomas sued the county. But Thomas' problem with Irvine went even further: He'd heard that in late 2006 or early 2007, Stapley had asked a judge to hire Irvine as a "space planner" for the court tower construction project. The now-retired judge, Barbara Mundell, told Hendershott about the conversation with Stapley.
Thomas, when he heard about it, thought the conversation might be evidence of a "bribery situation," Wilson says.
Wilson says, based on those concerns, he asked Phoenix attorney Mark Goldman to "research connections" between Stapley and Irvine.
Goldman is the Sheriff Arpaio supporter whom Arpaio reportedly once had flown to a shooting range by MCSO helicopter just for fun.
Goldman was "not told to conduct an investigation" with his research, Wilson claims, and had "no discussions about this beyond it being a research investigation — they did not discuss crimes, conduct or statute of limitations."
This, dear reader, is the set up for the explanation of why evidence exists that Goldman apparently researched Stapley's financial holdings and disclosure forms in early 2007. Thomas needs this sort of explanation, because if Goldman were researching the criminal case against Stapley that early, the indictment clearly came after the statute of limitations expired.
Then Wilson's tale gets really hard to believe: In mid-2008, Thomas called Goldman to ask if he still had the notebook containing the Stapley research.
Thomas has "no memory" of why he asked Goldman to get the notebook at that time, Wilson claims, incredibly.
Nor did Thomas think about the statute of limitations — Wilson suggests such nitty-gritty detail was below Andy's pay-grade.
A massive subpoena subsequently filed against the county for documents related to the court tower was simply trying to get at more of the possible conspiracy involving Stapley and Irvine, Wilson says.
No evidence of crimes was ever found in the documents, we'll note here.
On the racketeering case, Wilson claims that senior lawyers in the County Attorney's Office didn't want to work on it because it was a "political hot potato."
That's too convenient of an excuse, of course, since Gleason will have some of those senior lawyers testifying about the ethical breaches they witnessed related to that case.
Wilson tries to connect the dots of the imagined conspiracy between Stapley, Irvine, Donahoe, and other players, but we've never been smart enough to understand that one. Donahoe didn't disqualify Irvine as as Supes lawyer even though Irvine was a "target" in the court tower investigation and Donahoe presided over an appeal of a search warrant by one of Stapley's financial benefactors and Donahoe wouldn't cooperate with investigators... It's all quite mysterious. Yawn.
Some of that stuff sounds like an excuse for bad behavior by Thomas, to be sure, but not a rational explanation for things such as the bogus racketeering suit and meritless bribery charge against Donahoe.
After Wilson concludes, Ed Moriarity, Aubuchon's Montana lawyer, gets his chance. This guy's a piece of work — rotund, silver-haired, with a trimmed, white beard. Sometimes he can barely get his words out as he stammers with excitement. He begins his opening statement with a 10-minute dissertation on why lawyers are great.
"Who is Lisa Aubuchon?" he asks after the long preamble. By that time, we're wondering if he was ever going to get the point.
"She's a mother, she's a wife, she's been married 24 years to her husband, Peter. He's a sales manager in the electronics field," he says.
Her parents were a big influence. Her father was a lawyer and former court commissioner. Aubuchon graduated from law school in 1990. She later went to work for Grant Woods, former Arizona attorney general. He recognized her talents and promoted her, Moriarity gushes.
In 1996, she went to the Maricopa County Attorney's office, where she worked until she was fired.
"She's not a career politician, not in politics," he says. "She was a tough prosecutor. She wouldn't file cases unless she believed them. Unless she knew what she was doing was right."
Aubuchon didn't have any knowledge of the research Goldman was doing on Stapley, he says, and she didn't have anything to do with MACE until 2008.
"She can't wait to get on the stand and talk to you gentlemen and tell you the entire story about what happened," he says.
She didn't really know Stapley, Wilcox, and the others, Moriarity says, and therefore could have had no animosity towards them.
More Bizarro World stuff: Moriarity claims the real reason the sheriff's detectives didn't want to sign the complaint against Donahoe was because they were worried what the judge might do. After all, Moriarity describes, Donahoe had threatened to release inmates from jail if the Sheriff's Office didn't start getting inmates to court on time.
While the part about Donahoe is true, the deputies whom Gleason plans to put on the stand apparently aren't going to say that's why they didn't want to sign the Donahoe complaint.
Moriarity claims Aubuchon is getting the rawest of deals — he says she was even put on virtual "house arrest" during an investigation into her actions. She was on a leave of absence for 10 months, and because she was paid, she had to get permission from the County Attorney's Office to leave her house, he says.
A "checker" came by and questioned her about leaving her house once while she was just taking out the garbage, he says.
Before Aubuchon left, "one of the things she was trying to clear up" was the case against Supervisor Andy Kunsasek related to the sweep of county offices for hidden electronic listening devices. Though Thomas already had resigned his office in an (ultimately failed) quest to seek the post of state Attorney General, Aubuchon sent the case to Daisy Flores, the Gila County Attorney. Even Flores says Aubuchon didn't do anything wrong in doing that, Moriarity claims.
Yet he's leaving something out — Aubuchon sent the case without telling Flores that it had already been rejected by a grand jury.
Moriarity says the defense's "theme" will be that Lisa Aubuchon didn't do anything wrong: "She just did her job."
She simply didn't have the "bad intent" required to prove the allegations in the bar complaint, he says.
Thomas and Aubuchon "did what they thought was in the best interest of taxpayers," he claims.
Both Thomas and Aubuchon later submitted multi-million claims against the county. Thomas withdrew his, but Aubuchon still wants $22.5 million. Really, though, her chief concern is the best interest of taxpayers.
Aubuchon gave Moriarity a big hug when he was done.
Rachel Alexander's attorney, Scott Zwillinger, had the best of the defenses. Alexander's role was minimal compared to that of Thomas or Aubuchon. She's accused only of helping out on the failed racketeering suit. Zwillinger maintains that she had no motive or intent to attack Thomas' political foes — most poignantly, he claims that a County Attorney's Office supervisor monitored, approved, and essentially directed her actions.
Interestingly, Zwillinger and Alexander appear prepared to throw Thomas under the bus as part of her defense.
Zwillinger claims, for example, that an "e-mail trail" records the "final word about strategy decisions" in the racketeering suit came from either Alexander's supervisor, Peter Spaw, or from the big guy himself, Thomas.
Okay, we have to admit that we're not going to sit in on this trial every day for the next month and a half. We'll try to make it for the days with key witnesses — Arpaio is one.
Meantime, we'll be keeping at least one eye on the disciplinary proceeding as it airs on the state Supreme Court's live-streaming website, and we'll post on any major developments.
For Thomas and his former crew, the next 45-or-so days probably will go too quickly.
Click here for a handout given to court observers by Gleason, which contains a sparse timeline and a glossary of terms used in the proceeding.
Click here for the list of witnesses expected in the hearings.
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