Lisa Aubuchon Drove Maricopa County Attorney Andrew Thomas' Political Prosecutions -- Now the Feds May Have Them Both In Their Crosshairs
During his controversial tenure as Maricopa County attorney, Andrew Thomas may have styled himself as a "tough" prosecutor — but insiders knew that the real iron in Thomas' proverbial fist came from Lisa Aubuchon.
The notoriously aggressive Aubuchon took on high-profile political cases with a vengeance.
She served as lead prosecutor on virtually every one of Thomas' so-called corruption cases, filing indictments against county supervisors Don Stapley and Mary Rose Wilcox, pursuing a probe into the county's court tower construction project, and serving as a key player behind the felony charges filed late last year against the county's presiding criminal court judge.
Sarah Fenske and Paul Rubin
No case was beneath her. Even though both ACLU Legal Director Dan Pochoda and Chandler Police Sergeant Tom Lovejoy were charged with misdemeanors, Aubuchon took both cases (for trespassing and animal cruelty, respectively) to trial. Same with a case against the owners of a popular Mexican eatery charged with "dirty dining" in another of the office's publicity-driven prosecutions.
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Not one of Aubuchon's high-profile cases resulted in a conviction.
Now, in what must be a delicious irony for her many detractors, it's Lisa Aubuchon who is under criminal investigation.
When Thomas resigned last month to run for Arizona attorney general, one of the first acts of his successor, Rick Romley, was to put Aubuchon on paid leave, pending the completion of an internal investigation.
And New Times has learned that Aubuchon's future may be even more precarious. She recently wrote to county administrators, asking for their help in retaining a lawyer for a grand jury matter, according to a confidential source.
In the course of determining whether the county should be paying for a lawyer, Aubuchon was questioned about the matter. (Policy holds that employees who are called as grand jury witnesses get a lawyer paid by the county, but potential "targets" or "subjects" do not.) At that point, they determined Aubuchon is potentially a subject of the federal grand jury investigating Sheriff Joe Arpaio and former County Attorney Thomas for abuse of power and other alleged wrongdoing.
Asked for public records related to the matter, county officials refused to release anything, or even confirm their existence, saying their release could "jeopardize an ongoing investigation or future prosecution." Both a county spokeswoman and a spokesman for the Maricopa County Attorney's Office declined comment.
Legal observers say it's highly unusual for prosecutors to face criminal charges for their official conduct. But the county attorney's actions in the last year have been highly unusual, too.
Thomas and Aubuchon filed a racketeering case against county officials and private attorneys alleging a broad criminal conspiracy, only to drop it without proving a thing. They secured such a sloppy grand jury indictment against Supervisor Wilcox that, in one instance, Wilcox faced felony charges for voting to award a grant to a local nonprofit — when public records showed she wasn't even present for the vote in question.
They turned over a series of politically charged criminal cases to an "independent" prosecutor from another county, only to grab them back when that prosecutor didn't do what the Sheriff's Office wanted.
Finally, they brought criminal charges against the county's then-presiding criminal court judge, Gary Donahoe, without convening a grand jury or conducting anything that even paid lip service to a thorough, impartial investigation.
That case, too, fizzled and died.
Paul Charlton is a former U.S. Attorney for Arizona now in private practice at Gallagher & Kennedy. (He represented Supervisor Stapley in Thomas' attempt to prosecute him for filling out his financial-disclosure statements incorrectly.)
Charlton says he is unfamiliar with specifics of the ongoing federal investigation, but he notes that certain decisions by Thomas and Aubuchon could leave them vulnerable.
"Prosecutors are usually fairly well insulated from allegations of criminal conduct because they can usually stand behind a grand jury or behind the court," Charlton says. "They can say, 'Someone else authorized my decision.'"
Maybe not this time.
Sources in and out of the County Attorney's Office say Thomas and Aubuchon didn't bother with protocol in the Donahoe "case," which should have included extended witness interviews and legal analysis by more-seasoned office prosecutors.
Instead, they acted in cahoots with top officials at the Sheriff's Office to pursue a case devoid of actual evidence.
"It opens them up a fair amount to the potential for prosecution," says Charlton.
One key to criminal charges against Aubuchon or Thomas may rest in Title 18 of the United States Criminal Code, Sections 241-242.
That law makes it a crime for anyone — including a public official — "under color of any law, statute, ordinance, regulation, or custom, [to] willfully subject any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."
If two or more people "conspire" in such an effort, they can face up to 10 years in prison on each count.
Legal experts say it is plausible that the feds also could make a case against Sheriff Arpaio under Title 18, thanks to his well-documented pattern of targeting critics and political opponents.
Gary Lowenthal, an emeritus professor at the Sandra Day O'Connor College of Law at Arizona State University, says Title 18 may apply in a federal prosecution against Thomas, Arpaio, and others.
"It would be an unusual approach, but the statute is broad and could make sense on several levels," Lowenthal tells New Times.
"That's one I've always thought would apply here," he says of Title 18. "If you can time after time show that this is an individual abusing their authority, then you have a case."
Charlton notes that Thomas' willingness to pursue uncorroborated criminal charges against Judge Donahoe may prove pivotal.
For one thing, Donahoe was charged with bribery even though the County Attorney's Office admitted he'd never taken anything of value from anyone or in exchange for anything.
In December 2008, after Arpaio and Thomas clashed with county administrators during budget negotiations, the County Attorney's Office issued a sweeping subpoena, demanding all records related to the court tower construction project.
The supervisors fought back, and Judge Donahoe decided in their favor, ruling that Thomas could not "investigate" a project for which his office earlier had provided legal advice.
Donahoe used the phrase "the appearance of evil" in describing Thomas' conflict — a legal term of art that nonetheless sent the Thomasites through the roof.
On behalf of the County Attorney's Office, Aubuchon twice appealed that decision to the state Court of Appeals. She lost both times. She then appealed to the Arizona Supreme Court, only to be rejected there, as well.
Forced to go another route, Thomas chose a special "independent" prosecutor — Yavapai County Attorney Sheila Polk — to handle corruption cases involving Maricopa County officials.
But Polk clashed with Arpaio and his chief deputy, David Hendershott. Hoping to mollify the powerful pair, Thomas asked Polk to return the cases to his office, and he then tried to force the Board of Supervisors to appoint a pair of Washington, D.C.-based attorneys to serve as prosecutors. When the supervisors balked, Judge Donahoe set a December hearing to discuss it.
But that hearing never happened: On the morning of December 7, a sheriff's deputy acting on Lisa Aubuchon's authority filed a criminal complaint, charging Judge Donahoe with bribery and other alleged crimes.
At a bizarre press conference that afternoon, Thomas was asked what the judge — known as a conservative, squeaky-clean type — had done to merit the shocking charges. In response, Thomas said what Donahoe hadn't done — that no money had exchanged hands, as in a typical bribery case.
So a reporter asked again: What exactly did Donahoe do?
The county attorney explained that Arizona's bribery statutes are "quite broad," stumbling as he tried to make his case without saying anything specific.
"If I'm not explaining this well," Thomas told the media, "I hope you'll help me."
Strangely, the gist seemed to be that Judge Donahoe had ruled against the county attorney and sheriff on various high-profile matters.
For example, Thomas/Aubuchon suggested that the judge's rulings in the court tower case had been based on personal support for the tower's construction. (Never mind that the County Attorney's Office had no real evidence of Donahoe's position on the project; the mere fact that Donahoe might someday get a shiny new office was apparently enough for them to run to Arizona's bribery statutes.)
Later, when experienced lawyers read the "probable cause" statement against Donahoe, they expressed amazement at the weakness of its legal argument and lack of facts. "It reads like a letter to the editor," attorney Shawn Aiken noted at a rally of local attorneys in December.
Actually, it read like a complaint letter — because that's exactly what it was.
One week before Thomas' office filed the criminal complaint, a nearly identical document was filed with the Arizona Commission on Judicial Conduct, which oversees the state's judiciary.
It, too, accused Judge Donahoe of "misconduct" — which boiled down to an alleged bias "against the Sheriff and Sheriff's Office and working in concert with chief Judge [Barbara] Mundell to publicly attack the Sheriff's Office for its role in pending investigation(s) in Maricopa County."
The letter was signed by Joe Arpaio's chief deputy, Hendershott.
Aubuchon's criminal complaint copied Hendershott's verbiage so closely that the only changes were the correction of a few typos — plus one extra paragraph referring to the December 7 hearing.
In a normal prosecutor's office, Lisa Aubuchon never would have enjoyed the power that she had under Thomas.
In most offices, a group of veteran prosecutors would meet to consider the evidence in high-profile cases, then vote on whether the case was strong enough to proceed. The buck would stop with the elected officials, but other voices would be heard.
Not so in the County Attorney's Office under Thomas.
Thomas kept himself sealed off from the office's day-to-day affairs — figuratively and literally. (He actually had a wall erected to keep out all but a chosen few.) During his last six months as county attorney, Thomas averaged fewer than three hours a day in office, county records show.
And that isolation may in part explain his alliance with Aubuchon. A nine-year veteran of the office at the time of Thomas' election, Aubuchon was "tough" on crime in a way that Harvard Law School grad Thomas aspired to be.
Grand juries are infamously willing to indict a ham sandwich if a prosecutor asks them to. But Aubuchon wouldn't stop there. Forget any reasonable likelihood of a conviction: Aubuchon also would go after the chips, the drinks, and even the condiments.
Before Thomas became county attorney in January, Aubuchon's supervisors worried that her attitude was leading to overreach.
"Lisa's zealousness has oftentimes been a vehicle for professional success, but it has also led her to make some decisions that have been a cause for concern," her supervisor wrote in 2003. "She has occasionally exercised questionable judgment in the handling of a case, or in the objective analysis of the strengths and weaknesses of a case or an investigation."
Aubuchon recently had been counseled, her supervisor wrote, because she filed a case despite "excessive involvement with the ongoing issues of the alleged victim."
Defense attorneys still tell stories about Aubuchon's refusing even to briefly consider evidence that might clear a suspect. She often charged first and asked questions later, hungry for victory — whether deserved or not.
"I've always had the feeling that Lisa Aubuchon never fully understood what it means to be a prosecutor," Paul Charlton says. "If it's the prosecutor's role to protect the innocent and pursue the guilty, Lisa only understood half that equation for all of her career."
That didn't bother Thomas. During his tenure, Aubuchon earned nothing but praise from her superiors, her personnel file shows.
But today, her career, at the very least, may be in jeopardy. She's parked on leave — with Maricopa County refusing to cover the cost of her defense attorney.
It's been a rapid reversal of fortune for the prickly prosecutor who once had her boss' ear. Just one year ago, Aubuchon's supervisor, Sally Wells, praised her handling of "high profile and difficult" cases, including the court tower investigation.
"The Maricopa County Attorney's Office owes Lisa a debt of gratitude for her sacrifice above and beyond her regular duties," Wells wrote.
Times, clearly, have changed.
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