County Attorney Andrew Thomas Fooled Us Twice With So-Called "Independent" Prosecutors Shouldn't That Be Enough?
There are people in town horrified by Maricopa County Attorney Andrew Thomas' demagoguery, by his ambition, and by his blind alliance with Sheriff Joe Arpaio.
I see all that, of course. But what really gets me about Thomas is his chutzpah. This guy never loses fair and square; in his mind, someone has always bribed the referee to ensure his defeat. And even when he's bleeding to death, he's still angrily trying to dictate the terms of his surrender.
Consider the events of the past few weeks. Thomas, it's fair to say, has been getting killed.
First was the coolly devastating testimony of Yavapai County Attorney Sheila Polk. Like Thomas, Polk is a Republican. At one point, the two had a cordial relationship. Yet Polk testified in a hearing February 16 at the behest of defense attorneys representing Supervisor Mary Rose Wilcox. And her testimony was damning.
As Polk explained under oath, Thomas had recused himself from cases involving county officials, appointing her to serve as "independent" prosecutor in his stead.
But Sheriff Arpaio's men started complaining. Polk, apparently, wasn't the pushover that Arpaio's accustomed to. She thought grand juries were not to be used for fishing expeditions. She thought Arpaio overstepped by arresting Supervisor Don Stapley long before any prosecutor was willing to charge him. She also thought there was no merit to the case against Wilcox.
Horrified at the prospect of a county attorney who actually insisted that his goons build a solid case, Arpaio almost immediately began bitching to his buddy Thomas. Polk described how the sheriff's men pleaded with Thomas to kick Polk off the cases: "Take them back! Take them back!"
Thomas dithered — but ultimately he did fire his supposedly independent prosecutor, and then he took the cases back.
Naturally, Thomas did everything that Polk had resisted doing. He charged Wilcox despite a dearth of evidence, charged Stapley despite a weakly formed case, and even charged the county's presiding criminal court judge with bribery, despite being unable to explain exactly what "bribe" the judge had taken.
Polk's testimony made Thomas look weak — and highly unethical. And Thomas hardly corrected that impression when he followed her on the stand. He didn't seem familiar with his office's own racketeering lawsuit against county officials. He couldn't remember dates or times or who first discussed employing such litigation. He couldn't seem to give a straight answer.
Worst of all, he couldn't see why anyone would object to the sheriff's techniques.
As both Polk and Thomas testified, in September 2009, Arpaio arrested Stapley even though the prosecutor ostensibly handling the case, Polk, had insisted it wasn't ready. An angry Polk called a meeting and told Arpaio the arrest had been inappropriate — that it looked like retaliation against Stapley for beating the rap on a previous indictment.
"At one point," Thomas recalled on the stand, "she was saying they shouldn't be involved in the case. That struck me as odd."
So the sheriff had defied the special prosecutor to arrest a political enemy, without as much as a warrant. And Thomas found the special prosecutor's objections odd?
And if the four hours of testimony from Polk and Thomas were truly revealing, the judge's ruling in response was brutal.
One week after hearing Polk testify, Pima County Superior Court Judge John Leonardo found that Thomas had a giant conflict of interest in prosecuting Supervisor Wilcox. He kicked him off the prosecution of the case and dismissed the entire indictment.
At that point, the writing was the on wall: Thomas was forced to dismiss the criminal cases against Supervisor Stapley and Judge Gary Donahoe, too.
It wasn't just a loss. It was a rout.
For most of us, such a giant defeat would lead to serious soul searching.
Thomas had once handpicked Sheila Polk to be his special prosecutor. Yet she concluded that he was abusing his power. And Thomas' office had praised the appointment of the special master who personally selected Judge Leonardo. (His top aide was on record saying that all Thomas wanted was an out-of-county judge, like Leonardo.) Yet Leonardo found that Thomas had serious conflicts of interest, booted him off the case, and dismissed all charges. That had to hurt.
But here's how twisted Thomas is.
It didn't seem to register at all. On the very day of Leonardo's ruling, his flacks returned to their mad spinning. (Leonardo is a leftist! This is really a victory for Thomas! Everyone, everywhere is part of an invisible machine working against him!)
And Thomas — the guy who ought to be reeling from his losses — immediately picked another fight. The county supervisors, Thomas decreed, needed to schedule a meeting that very Friday to appoint another special prosecutor.
Thomas could hand these cases off to any county attorney, anywhere in the state. He could also, presumably, give them to the state attorney general or local U.S. Attorney.
He would not need the board of supervisors to sign off on any one of those options.
But Thomas didn't do that.
He'd lost, and he didn't want a prosecutor so much as he wanted the moral high ground. So he immediately tried to make this about the supervisors.
Why won't they appoint my special prosecutor? What are they trying to hide?
Can any one of us blame the supervisors for telling Thomas to go to hell? He's spent the past year trying to prosecute them (despite his very real conflicts), slander them (despite no evidence of wrongdoing other than those petty financial disclosure forms), and otherwise paint them as corrupt.
Now he's demanding that they sign off on his hand-chosen prosecutor — even when, without their intervention, he could give the cases to any county attorney in the state.
See what I mean about chutzpah?
There's good reason that the supervisors keep insisting that Thomas should give the cases to another county attorney — even as Thomas argues that they should instead appoint a private lawyer to be a "special deputy county attorney."
If the prosecutor is a "special deputy county attorney," as Thomas is demanding, Thomas can control him.
The County Attorney's Office will never admit that, of course. Thomas' special assistant, Barnett Lotstein, told the Arizona Republic last week that they'd put various safeguards in writing: "We will make iron-clad, written-on-the-record representations that the special prosecutor will be absolutely independent."
But, really, how much do you want to bet they once made the same vow regarding Sheila Polk? And yet the minute Polk dared to question the sheriff's investigative techniques, Arpaio began pestering Thomas to take the cases back.
Indeed, Polk has now testified under oath that she eventually learned that Thomas' go-to deputy, Lisa Aubuchon, was continuing to advise the Sheriff's Office on the down-low, even as Polk was supposedly the special prosecutor. So much for "absolute independence" — Thomas' own deputy was secretly working the case!
And Polk's situation isn't even an exact analogy for the new prosecutor Thomas wants to hire.
Polk had a staff of her own and hundreds of other criminal cases to prosecute. She didn't need to be trained and she didn't need to submit billings. She knew what she was doing.
Thomas surely wants to avoid that. By insisting on hiring a private lawyer as a "special deputy county attorney," he's pushing for the exact process that he used to hire Dennis Wilenchik.
As readers may recall, Thomas appointed Wilenchik to investigate New Times in July 2007 after we published Sheriff Arpaio's home address online.
Wilenchik had some huge conflicts at the time of his appointment.
For one thing, he was currently serving as the lawyer for many cases involving Arpaio — making him both prosecutor and civil attorney for the victim. Equally bad? Thomas supposedly had to recuse himself from investigating us because we'd written critically of him. But we'd also written critically of Wilenchik.
Wilenchik gave Thomas a job in the year he ran for the County Attorney's Office; after he was elected, Thomas suddenly began steering millions of dollars in county contracts to Wilenchik's firm. The very same New Times writer who posted Arpaio's address was the writer who'd first exposed the ethical issues surrounding Wilenchik's county work.
Thomas, we now know, was keenly aware that Wilenchik had hostility toward New Times. Just one week before his appointment, Wilenchik wrote Thomas an e-mail trashing us.
And the appointment was just the tip of the iceberg.
The State Bar of Arizona recently dismissed complaints against Wilenchik related to his work as special prosecutor. The complaints were closed without even a reprimand.
As much as we'd disagree with that decision here at New Times, there's a silver lining to the dismissal: Now the files in question are public.
I reviewed them earlier this week, and they couldn't be more relevant to the dispute between Thomas and the supervisors. And that's because they provide plenty of evidence of Wilenchik's absolute dependence on Thomas and his staff.
It isn't just that the Sheriff's Office — the supposed victim in the case — took advantage of its access to Wilenchik to push for New Times to be punished.
It's also that Thomas' staff was involved in the supposedly independent prosecution. Deputy county attorneys gave Wilenchik and his staff tutorials into investigative techniques. One county attorney actually provided the forms that Wilenchik used to issue his grand jury subpoenas.
And forget "independence." Both Thomas and Wilenchik believed that they had "an attorney/client relationship" regarding the case — that Wilenchik was, literally, serving as the lawyer representing the Maricopa County Attorney's Office.
That led to a series of conflicts with the Bar. In January 2008, attempting to explain his actions, Wilenchik wrote a 16-page response to questions from the Bar attorney investigating his conduct.
Thomas' office went nuts when they read it.
Wilenchik, they wrote to the Bar, was "acting as an agent of the Maricopa County Attorney's Office and of the state." That meant, Thomas' lawyers argued, that Wilenchik couldn't turn over any documents or e-mails related to his discussions with anyone on Thomas' staff. Nor could he respond directly to some questions, even if he'd wanted to.
"The Maricopa County Attorney's Office has the right to protect its attorney-client, work product, and executive privileges from disclosure by Mr. Wilenchik," Thomas' lawyer argued.
Can't you just see Thomas' office trying the same argument if another "independent" prosecutor chafes at their attempts of control? Hey, they can't tell you anything about their discussions with our office — that's attorney-client privilege!
Thomas fought hard to seal Wilenchik's responses to the Bar. But while Thomas was successful in making sure the 16-page letter wasn't used in the case against him, he failed on a bigger front: It's now part of the Wilenchik file. So are affidavits from two lawyers working for Wilenchik, Adam Polson and Rob Somers.
And now that the Wilenchik file is open to the public, we can see why Thomas was fighting so hard to keep the document under wraps.
Because, despite Thomas' protestations to the contrary, the documents suggest that Thomas' office definitely consulted on the decision to arrest New Times' executive editor and CEO.
New Times published details of Wilenchik's invasive subpoenas on October 18, 2007. That very day, a group of lawyers at Wilenchik's firm met to discuss the situation. And, according to Polson's affidavit, they got the chief of Thomas' special crimes bureau, Vicky Kratovil, to join them by phone.
"Kratovil also called in or we called her to discuss hypothetical charges against the authors of the article," Polson wrote.
Later that afternoon, Wilenchik got a call from Chief Deputy David Hendershott.
At that point, Wilenchik wrote, Hendershott had already spoken with someone high up in Thomas' office — Chief Assistant County Attorney Sally Wells.
"[Hendershott] called to say he had talked with Sally Wells and she had told him to contact us regarding the arrest," he wrote.
After that phone call, Hendershott sent a deputy to Wilenchik's law firm. Wilenchik introduced the deputy to his staff.
One of the lawyers working for Wilenchik, Rob Somers, later recalled the day's events in an affidavit.
"It was my understanding from Mr. Wilenchik's introduction that the Maricopa County Attorney's Office had advised Chief Hendershott that our office should be involved in any matters relating to the New Times violations of law," Somers wrote.
But, according to affidavits from Somers and others in the room, the lawyers present actually instructed the deputy to issue citations to New Times executives, not make arrests. When they learned of the arrests the next morning, they assumed that Wilenchik must have made the call later.
Not so: According to both Wilenchik and Hendershott, it was all Hendershott.
And Hendershott, we now know, consulted Sally Wells before he ever sent his deputy over to Wilenchik's office.
What did Wells say? Did she give Hendershott advice, or did she just immediately send him over to Wilenchik?
We don't know. We may never know.
But we do know an independent prosecutor when we see one — and it's clear from the Bar files that Wilenchik wasn't one. The Sheriff's Office was running back and forth between Wilenchik and Thomas' top aides. Wilenchik's staff consulted a deputy county attorney the day of the arrests. Hendershott was in contact with Wells. Everybody was mixed up in the same stew.
Really, it reminds me of how Thomas' deputy, Lisa Aubuchon, continued to advise the sheriff on the case against Supervisor Stapley, even after Thomas booted the case to Sheila Polk.
Barnett Lotstein can swear on his grandmother's grave that his office wouldn't meddle with any new independent deputy county attorneys. I don't believe him. I don't believe anyone in the Maricopa County Attorney's Office, not anymore.
These cases will never be independent unless they go to county attorneys outside Maricopa County. Thomas fooled us once by appointing Wilenchik as special prosecutor. He would have fooled us twice if only Sheila Polk had kept her mouth shut and made nice.
We surely aren't naive enough to let him do it again. Are we?
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.