Andrew Thomas Battle Against Spanish-Language DUI Probation Has Cost Us a Half-Million Dollars. But Who's Counting?
Four years and hundreds of thousands of dollars ago, Maricopa County Attorney Andrew Thomas filed suit to stop the county's Spanish-language program for DUI offenders.
You've probably heard little, if anything, about the case since Thomas' initial media blitz, when he argued that providing probation services in Spanish somehow violated the Constitution.
But while the county attorney hasn't held a press conference to publicize his string of failures, rest assured: Those failures have indeed occurred.
The problem? Thomas was trying to stop a great program that doesn't even come close to presenting a constitutional issue. Naturally, the program's supporters have beat him time and again. After a series of rulings by judges from here to California, Thomas' logic is in tatters — and his lawyers look like idiots.
NBA Preseason Basketball: Phoenix Suns v. San Antonio Spurs
TicketsMon., Oct. 3, 7:00pm
NBA Preseason Basketball: Phoenix Suns v. Utah Jazz
TicketsWed., Oct. 5, 7:00pm
Arizona Coyotes vs. San Jose Sharks
TicketsFri., Oct. 7, 7:00pm
TicketsSat., Oct. 8, 7:00pm
Indeed, barring a last-minute intervention from the highest court in the land, the Spanish DUI program will almost certainly survive. So much for Thomas' bombast in 2005. (Yes, he did say that the program was "discrimination in its starkest form." And, yes, he did cite Brown v. Board of Education — as if offering services in a language other than English is somehow akin to dooming black children to crumbling schools.)
Really, in many ways, Thomas' handling of this case is indicative of his tenure as county attorney. He'll grandstand, file a frivolous suit, and hire expensive outside lawyers to handle the litigation. Then he'll stand by while those attorneys run up their billable hours. Hey, it's not like he's getting stuck with the bill — he's got us taxpayers for that.
Then, he loses. And loses again. This case has every one of the elements:
Frivolous suit against a worthy program? Check.
Pricey lawyers based in Washington, D.C.? Check.
Loss after loss after loss? Triple check!
First, Thomas' lawyers lost in district court in February 2007. They appealed that, only to have a three-judge panel in the Ninth Circuit Court of Appeals rule against them this past July. They recently appealed a second time, asking the entire bank of appellate judges to reconsider the case.
It would have taken just one judge skeptical of the panel's decision to reopen the case. But Thomas couldn't even get that. On October 15, the bank of judges denied his appeal, too.
Now, Thomas has only one option left — a Hail Mary to the U.S. Supreme Court. But I'm surely not alone in hoping he quits now. Public records I obtained from the county show that the case has already cost taxpayers $498,690.
What makes it even worse: This was no hard-fought legal battle, with a trial and all the attendant expenses. Thomas' suit didn't even make it to a pre-trial hearing. The judge assigned to the case, U.S. District Court Judge Earl Carroll, bounced the suit out of court before anyone took a single deposition. Yes, Thomas chose to appeal Carroll's ruling, twice, but the lawyers managed to ring up a half-million dollars in billings on a case that saw just a single day in court.
Most of that comes from the lawyers on Thomas' side.
The county contracted with local firm Mariscal, Weeks, McIntyre & Friedlander to defend the court program. Taxpayers are on the hook for its work, too, so it's good that Mariscal, Weeks' bill was just $137,063, public records show.
But Thomas couldn't just sue the court system using the hard-working attorneys who've devoted their lives to the County Attorney's Office — or even an attorney at a respected local firm who'd be thrilled with the chance to tackle an interesting constitutional issue.
No, Thomas had to have the best. And so he contracted with the firm Jones, Day — a Washington, D.C.-based behemoth that your grandfather might have described as "white shoe." And by that, he would have meant "really ridiculously expensive."
Jones, Day rang up $361,626 in billings without ever making a coherent argument against the program in question.
And that doesn't even count the billings from the firm's local co-counsel. Dennis Wilenchik, the failed special prosecutor who made such a mess of the New Times investigation two years ago, was brought in by Thomas to work this case, too. It's unclear whether his involvement cost taxpayers on top of the Jones, Day bills. I looked through five years of Wilenchik's billings to the county and couldn't find any itemized for this case.
But I doubt he worked for free. Wilenchik has billed the county for $3.9 million since Thomas took office, records show — more than half of it after Thomas "fired" him as a special prosecutor.
Indeed, prior to the Board of Supervisors' wresting control of civil work from Thomas' office earlier this year, the costs for outside lawyers just kept going up.
In 2007 and 2008, Thomas managed to spend $16 million and $13 million on outside counsel, according to county records. That's a 124 percent increase over what Rick Romley spent on outside lawyers during his final two years in office.
Not coincidentally, the same law firms that were making big bucks handling legal work for Thomas' office are the ones who donated big bucks to his campaigns in 2004 and 2008.
Wilenchik and the lawyers working for him donated $3,100 on the way to that $3.9 million in work, according to a New Times analysis of campaign-finance reports. Burch & Cracchiolo lawyers and their families gave $17,580 to Thomas' campaigns — and earned $3 million in legal fees. Jones Skelton & Hochuli donated $4,855 to Thomas' campaign and won $5.9 million in work since he took office.
There's no record of any contributions from Jones, Day lawyers. It seems more likely that Thomas was just wowed by their résumés.
The lead lawyer on the case, Michael Carvin, is a former Justice Department lawyer who argued before the Florida Supreme Court on behalf of George W. Bush during the 2000 election debacle.
Unfortunately for Carvin, he lost that case, too.
Regardless of Carvin's capabilities, Thomas had a big problem with his lawsuit. Simply put, on its merits, the case stunk.
In press releases and op-ed columns, Thomas claimed that the issue was about a separate court for Spanish speakers. He's tried to make it sound as though Latinos who get charged with DUI get an easier time of it than us poor whiteys.
Really, though, the program Thomas has so desperately tried to stop isn't about getting sentenced for your DUI — it's mainly about getting probation services en español after sentencing.
Here's the deal: Whether you're Anglo or Latino, if you're convicted of drunk driving in Maricopa County Superior Court, your punishment doesn't end with a few days in Tent City. Typically, for a year or two, you have to check in with your probation officer. You have to pee in a cup. You have to go to counseling and admit, time and again, that you're an alcoholic. Screw up any of these steps, and the judge may send you right back to jail.
Under the Spanish DUI program, Spanish-speaking drivers still go to the "real" court to plead guilty. They still go to Tent City and do the time ordered by a "real" judge.
Only after that, when it's time for probation, are they put into the Spanish-language program.
The program, quietly begun in 2002, was borne of frustration. Spanish speakers didn't always seem to "get it," despite treatment and access to probation. And what's the goal of probation, if not to help convicts learn to change their ways?
Now, county leaders tell me, many more of them do. And why not? They're finally getting services, and future check-ins with the judge, in a language they understand.
Only Andrew Thomas could turn a program like that into a civil rights issue!
But forget about all that for a minute. Let's say you agree with Thomas. Let's say the program should be stopped.
In that case, you should be really angry at Andrew Thomas.
And that's because the expensive firm he hired botched the case.
It's Lawyering 101: Any person filing a lawsuit must allege an "injury in fact." I can't just sue Sheriff Joe Arpaio simply because I disagree with his policies. I have to show that those policies have directly injured me.
Clever lawyers know how to find the right co-plaintiffs to make a case. When the Goldwater Institute sued the city of Phoenix over its subsidy of the CityNorth shopping center, for example, it enlisted local businessmen whose shops would suffer from the competing development, even as their tax dollars supported it.
Even as a non-lawyer, it's clear to me what kind of plaintiff Thomas' lawyers needed to pursue the Spanish DUI courts: A non-Spanish-speaking drunk who could show that his probation was tougher than if he were placed in the Spanish program. Or, maybe, a Spanish-speaking drunk who could claim he'd been coerced into "unequal" treatment.
They didn't bother to do that. (Hey, that would take work.) Instead, they just found a pair of motorists who'd been hit by drunk drivers.
They also filed the suit on behalf of Andrew Thomas himself.
Scot Claus, the lawyer for Mariscal, Weeks, which is defending the program, filed a motion pointing out that neither Thomas nor the victims could show actual injury from the program. Thomas' interest is "official," not "personal." And victims, despite their stake in the process, aren't really all that affected by what happens during probation.
Every judge who's examined the case has agreed.
Under law, the judges concluded, Thomas has no standing. (That's based on "well-settled precedent," the appellate judges sniffed.) As for the victims of drunk drivers, the judges found they didn't have standing either. After all, as the appellate panel concluded, the DUI courts "mainly operate to penalize DUI probationers rather than compensate victims."
"Therefore . . . the separate DUI courts do not cause any concrete injury to the individual plaintiffs as victims of DUI probationers," the judges concluded.
I know that brilliant lawyers can't always be bothered with the little stuff. But for $361,626, don't you think someone at Jones, Day might have realized that before filing suit?
Thomas' public relations guy, Mike Scerbo, gave me this comment: "The County Attorney's Office will continue to do its utmost to combat racial discrimination in our criminal justice system."
How much do you want to bet they're still considering a last-chance appeal to the Supreme Court?
How much do you want to bet Jones, Day has already started billing?
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss Phoenix New Times' biggest stories.