A stunning declaration filed in county court on Tuesday by one of the nation's preeminent legal-ethics attorneys says County Attorney Andrew Thomas continues to take the law into his own self-serving hands and should be stopped.
Philadelphia lawyer Lawrence J. Fox wrote to Cochise County Superior Court Judge Wallace Hoggatt on behalf of several Maricopa County criminal-defense lawyers.
Earlier, the attorneys asked Hoggatt to bar Thomas' office from continuing to prosecute their clients because of alleged "conflicts of interest" created by the ongoing prosecutions of two county supervisors and a Superior Court judge. (Hoggatt, who works out of Bisbee, is hearing the matter because it involves Maricopa County judges.)
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Fox, a partner in the 700-lawyer firm of Drinker Biddle and Reath, is a renowned scholar in the legal-ethics field. He lectures on the subject at both Harvard and Yale law schools and has written almost 100 articles on the topic and several chapters in books.
He wrote to Judge Hoggatt that "there is nothing wrong, and there could be everything right, in a county attorney prosecuting public officials, including judges, for their alleged wrongdoing."
However, Fox says Andy Thomas' ongoing prosecutions against supervisors Mary Rose Wilcox and Don Stapley and against presiding criminal Judge Gary Donahoe "clearly provide the impression of being motivated by improper purposes and they certainly create the appearance of impropriety."
Fox writes that the highly charged situation in Maricopa County is "unprecedented" in his experience:
"Having sought to skip the scales of justice by placing the heavy thumb of judicial prosecution, threatened prosecutions, and unwarranted extra-judicial statements to gain an out-of-the-courtroom prosecution advantage, that thumb must be removed the only way it can be."
No, not by literally hacking off one of Andrew Thomas' thumbs and calling things square, though that might be a viable option for some.
Fox asks Judge Hoggatt to disqualify Thomas and his deputy county attorneys "from any further criminal prosecutions in the county," specifically any capital cases.
He also suggests that the judge is obliged to report Thomas to the State Bar of Arizona for possible disciplinary sanctions.
Citing various legal reasons, Hoggatt ruled on Tuesday, February 23, against most of the non-capital defendants who were part of the global motion to disqualify Thomas and his office from prosecuting them.
However, in so doing, the judge noted that the defendants "have presented an image of the Maricopa County Attorney as an out-of-control political prosecutor who engages in grotesque abuses of power."
Hoggatt said that may or may not be true but noted that because county prosecutors have not disputed the allegations, he is left "with no alternative" but to accept the defendants' image of Thomas.
Attorney Fox's opinion still may be front and center for the remaining dozen or so defendants in the disqualification case, almost all of whom are eligible for the death penalty.
Fox points out that almost all the death penalty-eligible defendants represented by one of Maricopa County's public-defender agencies — agencies that, he says, are "totally dependent on the Board [of Supervisors] for their jobs, their salaries, their promotions, their working conditions."
(Fox's theory that the Board of Supervisors is directly responsible for the promotions and working conditions of those who toil for the county's criminal-defense agencies probably would come as a surprise to those employees, who have little or no contact with the executive branch.)
Fox writes that Andrew Thomas and a committee of prosecutors on his staff decide which accused murderers may face death sentences and which ones won't, which presents a problem in the county's current poisonous political climate:
"The very same prosecutor who is making these life-and-death decisions is prosecuting two [county supervisors] for a broad range of racketeering charges of the most serious nature, prosecutions that appear to be part of a wholesale assault on all who cross the county attorney."
Fox writes that the "appearance of impropriety [in Thomas' decision-making] renders the result a cancer on our system of justice."
Andrew Thomas "cannot have it both ways," Fox contends. "If he wants to go into the judge-prosecution business, his office and he must recuse themselves or, failing that, be disqualified from appearing before any judge the office charges or threatens to charge. If he wants to appear in criminal courts before these judges prosecuting other criminal defendants, he must neither threaten nor prosecute any judges.
"To do both simultaneously corrupts our system of justice and introduces into such proceedings influences that are just as sinister as if the judges involved were being bribed with improper payments."
Fox, who once chaired the American Bar Association's committee on Ethics and Professional Responsibility, claims Thomas has "demonstrated a disdain for legal process, refused to accept the authority of the courts, and taken the administration of justice in Maricopa County into his own hands."
In doing so, Fox says, Thomas has violated several rules of ethical behavior spelled out by the State Bar of Arizona.
"Here," he writes, "the court is presented with one of the most important legal officials in the state, blessed with awesome power, a leading officer of the court.
"Yet in his reckless attempt to achieve what I am sure he would characterize as justice and bringing the miscreants to account, Mr. Thomas has forgotten that the ends (no matter how noble) can never justify the means, has created conflicts for his own office and the entire bench, has demonstrated no respect for the law or our sacred legal institutions, has created in the public's eyes a caricature of what our system of justice should be."
Judge Hoggatt has set hearings on March 1 and 2 for the remaining defendants who want him to disqualify the Maricopa County Attorney's Office from prosecuting their cases.
Among the documents the judge has examined are the criminal "bribery" complaint against Judge Donahoe and the quirky civil RICO lawsuit filed by Andy Thomas against the Board of Supervisors, current and retired Superior Court judges, and some local attorneys.
Despite Hoggatt's ruling on Tuesday against some of the defendants, he apparently still wants to hear testimony at next month's scheduled hearings from several judicial administrative assistants to Maricopa County judges or commissioners. Those employees were interrogated at their homes by sheriff's detectives late last year about their bosses and anything they might know about the contentious court tower project in downtown Phoenix.
The cases before Judge Hoggatt are running on a parallel track with the controversial criminal proceedings against supervisors Wilcox and Stapley.
At a bombshell hearing just last week, Thomas and Yavapai County Attorney Sheila Polk testified about their vastly different recollections of what led to the prosecutions of the Maricopa County politicos and how those criminal investigations evolved.
Another out-of-town judge, Pima County's John Leonardo, considered arguments from lawyers for Mary Rose Wilcox that Thomas is biased and prejudiced against her and should be disqualified from prosecuting the case. (Judge Leonardo has yet to rule.)
Lawrence Fox's remarkable declaration concludes that "it may be that judicial officers and others [are] engaged in RICO violations and other high crimes and misdemeanors."
But Fox says Thomas and his office are "totally conflicted" from working cases before the same judges that he has accused of felonies (or has intimidated).
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"The prosecution of judges looks like the misconduct of a disgruntled litigant [Thomas and his team] before them," he writes. "The decisions by judges in cases in which the prosecutor seeks convictions of criminal defendants appear to be, and may in fact be affected by the threats, intimidation and prosecution by the prosecutor of sitting judges."
Fox concedes that "renegade judges" occasionally do turn up around the nation, susceptible to bribes and other influences.
But he insists that such situations are rare, and that it doesn't appear to him to be what's happening in Maricopa County.
Here, Fox says, "what we have is the heavy hand of the prosecutor, not seeking victories in the courts on the merits, not appealing decisions he thinks are worthy of challenge, but seeking victories through arrests, intimidation, and the prosecution of judges and other court officers. This cannot stand."