Andrew Thomas, Sheila Polk Testify in Hearing to Disqualify the Maricopa County Attorney from Prosecuting Mary Rose Wilcox Case
In a hearing yesterday that stretched to more than four hours, both Maricopa County Attorney Andrew Thomas and Yavapai County Attorney Sheila Polk shared their perspectives on the investigation, and prosecution of, Maricopa County Supervisor Mary Rose Wilcox.
The hearing allowed Wilcox's attorney, Colin Campbell, to argue that Thomas must be disqualified from prosecuting the case against Wilcox for three main reasons:
* His office has filed a lawsuit against Wilcox and other county supervisors, claiming they are part of a "criminal conspiracy" to deprive him of his law license. If Thomas is the "victim" in civil litigation, it's a conflict of interest for him to prosecute the same people he's suing.
* Thomas voluntarily gave up all the cases against county officials back in spring 2009. Legally, he can't just take them back.
* Thomas' office once advised Wilcox on the same matter in which they're now trying to prosecute her.
But legal arguments aside, the testimony including a number of bombshells.
Polk told sheriff's investigators that she believed sheriff's deputies offered "no evidence of a crime" when they presented her their case against Wilcox last fall.
And, Polk told sheriff's officers that she believed they needed to develop their second case against Supervisor Don Stapley before going for an indictment -- only for the Sheriff's Office to push ahead with arresting Stapley just days later.
Polk, who was still the prosecutor on that case at that point, says the arrest left her "shocked."
Finally, Polk testified under oath that after she informed Maricopa County Attorney Thomas that she planned to go public with her concerns about his actions, her chief assistant received two abusive voice mails from Sheriff Joe Arpaio's chief deputy, David Hendershott, threatening her.
Hendershott, Polk alleged, told her deputy, Dennis Magrane, in two voice mails, "If Sheila publicly attacks our cases, we will expose her incompetence."
Hendershott added, according to Polk, "Things will get a lot worse for her if she goes ahead as planned."
Polk offered to play audiotapes of Hendershott's voice mails. Visiting Judge John Leonardo ultimately declined her offer.
In the voice mails, Polk testified, Hendershott threatened to, and later averred that he did, contact the FBI "to tell them about [the Sheriff's Office's] complete unhappiness with my handling of the cases and my unethical behavior," Polk reported.
Polk also testified that she had been contacted by Wilcox's lawyer, Campbell, just one week earlier to detail what she believes are abuses of power on behalf of the Maricopa County Sheriff's Office -- and Thomas' office, too.
She described how she was ultimately asked by Thomas to relinquish her role as "independent" prosecutor on county matters after the sheriff bridled at her attempts to reign him in.
As Polk detailed, that meant mainly challenging the Sheriff's Office to provide evidence before issuing subpoenas.
"Tension arose over the appropriate use of grand jury subpoenas," she testified. "Deputy Hendershott requested a lot of subpoenas from us. We issued some, and refused to issue others --" mainly, Polk would testify, because she did not feel such subpoenas should be used to launch "fishing expeditions."
Polk's deputy, Magrane, actually wrote the Sheriff's Office a memo instructing it on the proper use of subpoenas.
Polk also detailed her concerns to Sheriff Arpaio after his men rushed to arrest Supervisor Don Stapley.
Polk was still the prosecutor on the case, and had met with Arpaio and Hendershott just days before to explain to them the case status. Because the judge on first Stapley case, Kenneth Fields, had dismissed nearly half the counts accusing Stapley of failing to properly document his financial interests, Polk told Arpaio and Hendershott that they'd need to dismiss all the counts for the time being.
That would give them time to appeal Fields' decision and return to the case when it was stronger.
Hendershott and Arpaio were chagrined, Polk testified. They wanted her to return the cases to Thomas because they didn't like where things were going.
"They were concerned about the media," Polk said. "How would this look to the media if we dismissed all the counts in the Stapley case?"
The Sheriff's Office had been developing a second case against Stapley -- this one focusing on a fund he set up to run for the National Association of Counties, but which sheriff's officers allege he used to enrich himself instead.
"I told them we were reviewing it," she said. "I thought there was merit to the case, but the case was not ready to file. This was not the type of case you want to file and then gather records and interview witnesses."
But then the Sheriff's Ooffice took matters into its own hands. The charges against Stapley were dismissed on Friday. Humiliated, the Sheriff's Office swung into action and arrested Stapley on the new charges on Monday -- even though the prosecutor they were supposedly working with, Polk, had just told them the case wasn't ready.
Deputies arrested Stapley without an indictment or a direct complaint -- only a flimsy "probable cause" from the Sheriff's Office.
Polk was shocked.
At a meeting the following Thursday, she explained that the sheriff's actions were a serious breach and appeared to be vindictive -- Stapley, she said, had been arrested because the Sheriff's Office was angry that he exercised his right to a defense.
Sheriff Arpaio, she says, "became very indignant."
"His job was to arrest, and my job was to prosecute," Polk explained.
At one point, Arpaio even turned to County Attorney Thomas, Polk says, and asked, "Did she just say I'm vindictive?"
The writing was on the wall for Polk: Soon after, after some hemming and hawing, Thomas took back the cases.
Thomas took the stand immediately after Polk.
In his testimony. Thomas tried to justify his retrieving the cases by saying that he never intended to keep them -- he wanted to hire special prosecutors in D.C. until the supervisors blocked him.
Under oath, Thomas testified that he had regular breakfast meetings with Sheriff Joe Arpaio -- and a good relationship with the Sheriff's Office.
Wilcox's lawyer, Campbell, ridiculed that relationship in his closing argument to Judge Leonardo.
"There's a reason the Sheriff's Office wanted Andrew Thomas [to prosecute Wilcox]," he said. "He knew he could get anything he wanted from Andrew Thomas."
In his testimony, Thomas was sometimes evasive, sometimes overly expansive, often defensive, and occasionally even illuminating, despite himself.
Thomas showed no indignation at any of the sheriff's actions, at times appearing incredulous at Polk's suggestion that the sheriff's arrest of Stapley without an indictment might somehow tarnish the case.
He also attempted to claim that he intervened, in part, because he was concerned about Polk's handling of the case. He'd heard, Thomas testified, that Polk had refused to issue some subpoenas even when her own prosecutor on the case wanted them.
Who had he heard that from, Campbell asked.
Thomas wasn't sure, but he thought it was Chief Deputy Hendershott. (Of course.)
But Thomas seemed incredulous at the idea that the sheriff might be manipulating him -- even as he insisted, at great length, that nearly every other county official was in a conspiracy to bring him down.
He repeatedly termed other officials' actions as "illegal," from the Board of Supervisors hiring a lawyer to look into his conflicts to its decision to set up a new civil division when it could no longer rely on his legal advice.
At times, Thomas seemed unfamiliar with the RICO claims that his own office filed, even though he said he was intimately involved in their writing. He insisted he wasn't asking for damages against Wilcox, even though the lawsuit specifically asks for "triple" damages against all the alleged co-conspirators. And he tried to argue that he was not the victim in the civil suit and hadn't shown a personal injury -- when, in filings on the claim, his deputies had argued just that.
At one time, Thomas tried to object on his own behalf, drawing a reminder from Judge Leonardo that "it's up to your lawyer to make the objection, not you." At another point, he answered a question by asking weakly, "at some point, I don't know if I need to exert the privilege" -- saying his office had "executive privilege" and he didn't have to answer questions about his conversations with his underlings.
Thomas' endless refusals to directly answer a question -- insisting instead on lengthy legal justifications for every question -- drew the biggest laugh of the sometimes tense hearing.
Thomas' attorneys objected to Campbell's questions about the RICO case at one point, saying, "That's been asked and answered 20 times."
"I know that it's been asked," Judge Leonardo drawled. "I don't know that it's been answered."
In his closing arguments, attorney Campbell took several swipes at Thomas. He called the RICO lawsuit "truly outstanding."
"He makes Richard Nixon look like he's not paranoid," he told Judge Leonardo. "Every time he loses, it's part of a criminal conspiracy."
Campbell argued that Thomas had an actual conflict of interest that should bar him from prosecuting the case. But even if not, he said, Thomas clearly had the appearance of a conflict.
"We're looking at how a reasonable person would perceive things," he said, "not just how Andrew Thomas in his mind would perceive things."
Judge Leonardo said he will make a ruling on the disqualification motion as soon as he can.
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