Andrew Thomas' Theories on County Conspiracy (Still) Have Holes
We're biased on this one.
Gotta admit it.
We watched hours and hours of testimony by former Maricopa County Andrew Thomas today, and the guy definitely seemed to have an answer for everything -- but only in the way our mother used that phrase on us in our most smart-alecky moments. Thomas seems to have his answers well-rehearsed, but he just can't convince us he's right about what he deemed a concerted effort by corrupt officials to thwart serious investigations.
The bias we feel isn't because Thomas is a Republican or anything like that. It's a bias against illogical connections and Grand Canyon-sized holes in his stories.
For example, take his explanation on how he ended up charging now-retired Superior Court Judge Gary Donahoe with bribery, obstruction of justice and hindering investigations, despite a lack of clear evidence Donahoe had done anything remotely like that.
Thomas did have "evidence," but he struggled to explain it today just as he did two years ago, when he held a press conference to announce the charges against the then-sitting judge. New Times reported back then that Thomas said:
"If I'm not explaining this well, I hope you'll help me."
"In fairness," Thomas said, after enduring increasingly pointed questions, "I admit this is a hard thing to believe."
Thomas smiled today as he admitted he had trouble back then in explaining the case to reporters.
The problem with that, as we see it, is that Thomas should never have charged the judge -- especially with bribery, of all things -- if he couldn't verbalize why the heck he was doing it.
We weren't at that 2009 news conference, but we noticed a similar scent of cow manure at the presser held the week before by Thomas and Sheriff Joe Arpaio, when they announced their outlandish and fact-light racketeering case against their political foes. After hearing the lawmen lay out their vague case, we asked Thomas which parts he thought were particularly strong.
"The facts speak for themselves," he told us and the other reporters.
But the facts don't speak for themselves. Never have. If they did, Thomas wouldn't be facing disbarment.
When Thomas charged Donahoe by direct complaint with the three felonies, (which, if you didn't know, were all later dismissed), the judge had already been on the naughty list of Thomas and Arpaio.
Donahoe had sparred with Arpaio on the scarcity of jail guards to bring inmates to court, and Donahoe had, in an e-mail, revealed his annoyance with Arpaio's illegal immigrant roundups. Donahoe kicked Thomas' butt in a major way when he ruled in March of 2009 that Thomas' conflict of interest in an investigation of a new court tower construction -- which his office's employees had helped plan -- was so great, it had the "appearance of evil."
Donahoe ruled that Thomas and his office could not investigate that case, noting that:
It strikes this Court that any rationally thinking person would likely conclude that it appears improper for adversaries in a court proceeding to have the same lawyer.
Showing how out-of-control things had already gotten at that point, Arpaio said in a news release after Donahoe's ruling that, essentially, no stinkin' judge could tell him what to do:
"I want the taxpayers of Maricopa County to know that these unjust actions against the County Attorney will not deter the Sheriff's Office investigation and we will move forward with a vigorous investigation of the court tower as well as our other corruption cases."
Yet the court tower investigation, arguably, was little more than retaliation against the Board of Supervisors and their private attorney, Tom Irvine. Days after Thomas announced a 118-count grand jury indictment of County Supervisor Don Stapley, the Board, nervous that Thomas -- who was also the Board's lawyer -- was no longer trustworthy, hired Irvine to look into Thomas' potential conflicts in the case.
That, in turn, led to Donahoe's ruling that Thomas did, in fact, have a conflict.
Donahoe was also named in the racketeering suit filed by Thomas and Arpaio against enemies they considered conspirators out to protect Stapley.
It was against that backdrop that Thomas considered charging Donahoe with bribery and other crimes for which he had little to no evidence.
Thomas said today he first discussed the idea of charging Judge Donahoe about two weeks before the complaint was filed. He called a meeting with deputy county attorneys Lisa Aubuchon, Barbara Marshall and Barnett Lotsten to discuss "the conduct of Judge Donahoe."
Remember, Donahoe had really done nothing at that point but make rulings Thomas didn't like.
But another serious issue was at hand: Donahoe was presiding over an upcoming hearing in which he was being asked by Irvine, on behalf of the Board of Supervisors, to deny Thomas the right to hire special prosecutors in his cases against his enemies, and to prevent him from investigating any County Supervisor.
Thomas said he considered that pending hearing "illegal," and that the group talked about it.
Marshall suggested that Donahoe could be charged with obstruction of justice, Thomas testified today.
Thomas said he mulled it over.
At a second meeting days later with Arpaio, Dave Hendershott (the sheriff's former chief deputy) and Aubuchon, Thomas decided to move forward with a direct complaint.
No actual investigation had been conducted in the case. The county attorney, who was elected in 2004, had never before filed a direct complaint himself.
Donahoe vacated the hearing a few hours after learning he'd been charged.
Thomas said today that hadn't been his intention. He'd not only wanted Donahoe to go through with it, he hoped to encourage members of the media to attend his hearing and see first-hand how an allegedly criminal judge operates.
At that point in the testimony, Bar Counsel Jamie Sudler asked Thomas if he wanted Donahoe tried in the media.
No, Thomas replied -- he simply wanted the public to witness Donahoe's behavior.
Sudler pointed out that Thomas had absolutely no idea how Donahoe would rule in the hearing, and Thomas admitted that was correct.
In other words, Thomas was piling assumptions on top of assumptions. And a judge's career was hanging in the balance.
Thomas said he presumed Donahoe would go ahead with the hearing after being charged.
But that makes little sense.
The complaint against Donahoe, which you can read by clicking here, lists the suspected crimes of Donahoe in an attached probable cause statement. The last bullet point mentions that Donahoe "has set a hearing" to prohibit Thomas from investigating County Supervisors. The accompanying press release by Thomas and Arpaio mentions almost gleefully that Donahoe has "now vacated" the hearing.
Think about it: If a prosecutor accuses someone of crimes and says that something the person has planned for the future is a crime, wouldn't a reasonable person cut their losses and cancel the future "crime?"
At the least, Thomas could have no reasonable confidence that Donahoe wouldn't cancel the hearing after learning he was being charged with felonies.
The State Bar complaint, conversely, alleges that Thomas, Aubuchon and others believed Donahoe would cancel the hearing. (See the complaint here -- the part about Donahoe starts on page 62.)
The Bar complaint points out that no evidence that Donahoe committed bribery or anything else is outlined in the charging document. Thomas admitted today that the probable cause statement doesn't describe any specific incident of bribery.
We just now noticed that the state Supreme Court has posted today's video in its archive section -- so we can point you right to Thomas' testimony about Donahoe. Click here, then click on the October 26 archive video, then scroll to 3:39:00.
Thomas stuck to his story, though, arguing that Donahoe was charged with bribery. Scroll to 3:50:00 to watch Thomas wade through the muck of why he thinks Donahoe committed bribery.
"What did he do?" Sudler asked him.
"He was charged as an accessory to the Mundell-Stapley-Irvine bribery triangle, which I'm happy to flesh out," Thomas replied.
He then explained that now-retired Judge Barbara Mundell "had been forced to hire Tom Irvine by Don Stapley as part of the deal to secure funding from the Board of Supervisors for the new court tower."
Donahoe kept "beating back investigations" into the court tower and "the principals" in other investigations.
Sudler seems incredulous that Thomas could make such a stretch.
Mundell, (whose testimony you can see in the October 3rd archived video), told the disciplinary panel she never felt pressured by Stapley, and that she wanted to hire Irvine because he was a good lawyer and would help with the court tower project. Hendershott's description of his talk with Mundell, which is contradicted by Mundell's testimony, can be found in the October 13 video, starting at about 0:36:00.
Even if Thomas and Hendershott are right about the "triangle," it's still unclear how Donahoe's alleged bribe comes into play.
Ultimately, then, Thomas seems to fail -- again -- to make his case for a bribery charge against Donahoe.
A couple of other explanations by Thomas that seemed weak:
* He didn't make a good case for why he picked Aubuchon to handle the complex racketeering lawsuit, nor why he later selected the relatively inexperienced Rachel Alexander to later replace Aubuchon on the case. Since Aubuchon was frequently used by Thomas in high-profile, political cases and Alexander was a blogger who pumped up Thomas online, it makes more sense that he picked them not for their expertise, but because they were Thomas followers.
* Thomas said he "didn't know" before the civil racketeering case was file that Arizona law prohibits civil actions from being filed against people for complaining about lawyers to the State Bar. The racketeering case, in part, alleges that the complaints to the Bar by various players were part of the conspiracy.
One of Thomas' attorneys, Brian Holohan, questions Thomas beginning at 04:13:00. Maybe he'll convert you to Thomas' view: That the former county attorney is a hero who was smacked down by powerful people after trying to clean up this town.
We're too jaded to believe that.
Thomas is scheduled to be back on the stand tomorrow morning.
Jamie Sudler, independent Bar Counsel
Images: This and the above shot of Andrew Thomas are from court pool photos. (Jack Kurtz of the Arizona Republic took 'em'.)
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