Earlier this year, the county took away the Maricopa County Attorney's Office ability to represent the board of supervisors -- setting up a separate "civil litigation" department that answers to County Manager David Smith instead of County Attorney Andrew Thomas.
Now, if a group of defense attorneys have their way, Thomas could also lose the ability to prosecute cases, at least until his crazy allegations about county judiciary can be resolved.
Last week, prosecutors working for Thomas charged the county's presiding criminal court judge, Gary Donahoe, with three felonies -- including bribery -- with no evidence other than that they disagreed with his rulings. Deputies working for Thomas' ally, Sheriff Joe Arpaio, also visited the staff of local judges in a clear attempt to intimidate. And Thomas' office filed a badly written RICO lawsuit alleging the judges are part of a (seriously now) "criminal enterprise."
Some defense attorneys believe that makes for a huge conflict of interest if those judges are presiding over cases brought by Thomas' office. (Will they worry that if they rule against Thomas, they'll be charged criminally, too? Will they placate the crazy county attorney just to stay out of the limelight? The possibilities do exist...)
So motions have now been filed in a number of cases, asking the judges involved to disqualify the County Attorney's Office from prosecution.
"Clearly, the appropriate procedure is to disqualify the MCAO from any further prosecution and allow the federal complaint and [charges against Donahoe] to run their legal course," wrote attorney Richard Gaxiola in one motion. "This would ensure the reinstatement of the public's trust in our judiciary and Arizona criminal justice system."
Gaxiola told New Times that the motions were originally his idea, but stressed that they've been picked up by a "litany" of defense attorneys -- including one attorney currently handling a capital case.
The attorneys are seeking to halt their cases until the motions can be decided -- and they want to consolidate the motions so they can heard at once, by a single judge.
At least some judges appear to be taking the request seriously.
On a Wednesday, according to court transcripts obtained by New Times, Maricopa County Superior Court Judge John Hanna put it on the record in every case he heard that some court staff had been visited at their homes by sheriff's deputies. He also made note of the motion that Gaxiola had filed to disqualify the County Attorney's Office in an unrelated case.
"The record should reflect that the court is going to hold a hearing on this motion, and the result of this motion may affect cases that the court hears," Hanna said, according to the transcript.
"Obviously, that motion is not before the Court in any of these cases that are being heard today, so we'll just have to let that litigation take its course.
"But I want everybody to know that it's possible that the continued ability of the Maricopa County Attorney's Office to represent the state in criminal cases, at least in this court, may be -- may well be at issue."
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In his motion, Gaxiola wrote that the Arizona Supreme Court has found that the appearance of a conflict of interest is enough to disqualify a prosecutor.
"[T]he appearance of impropriety is present," he wrote. "As an officer of the court, undersigned counsel has duty to bring to the court's attention the appearance of impropriety. Further, the Defendant and the integrity of the criminal justice together with the public's confidence will be prejudiced if the motion is denied."
We expect to hear of more defense attorneys making similar motions. And, sadly, we also expect even more harassment from Thomas and Arpaio as the judges attempt to to deal with it.