Lawyers for Arizona Attorney General Tom Horne have hit upon yet another less-than-ingenious strategy to save him and his outreach director, Kathleen Winn, from being found guilty of campaign finance violations and possibly fined $1.2 million.
That is, to accuse FBI agent Brian Grehoski -- one of the federal investigators tasked with looking into Horne's mountain of misdeeds -- of perjury.
Think of it as a Shamu-sized red herring, meant to divert attention from the mountain of evidence against their clients.
Last week, Winn's attorneys Larry Debus and Timothy LaSota, and Horne's lawyer Michael Kimerer, submitted a motion to strike all of Grehoski's testimony, which he made at a recent hearing into alleged illegal coordination between Winn and Horne during the 2010 general election.
The motion to strike suggests Grehoski had an "agenda" in pursuing Horne. This, the writers allege, explains why Grehoski supposedly "testified falsely" regarding phone interviews the FBI did with Horne's real estate broker Greg Tatham.
See, Grehoski and partner Merv Mason spoke with Tatham a couple of times about his work in 2010 helping to sell a $1.3 million piece of property belonging to Horne.
The agents interviewed Tatham in order to check out one of the excuses that Winn and Horne have floated: that the more than five hours of calls that took place between Horne and Winn's cell phones, from October 15 through 28, 2010, had to do with Winn's giving Horne advice on his then-pending real estate deal.
Horne and Winn maintain that this is what they were chatting about. You know, instead of the attack ad Winn was working on during that time, targeting Horne's general election rival, Felecia Rotellini.
Thing is, Winn's name does not appear in any of the legal paperwork or e-mails dealing with the Horne real estate transaction. She's not even cc'd on them.
The FBI agents asked Tatham, husband of former Horne spokeswoman Amy Rezzonico, if he knew whether Horne was soliciting advice from others over the deal.
An FBI report, summarizing the discussions with Tatham, states:
"Tatham was not aware of HORNE ever consulting with KATHLEEN WINN for real estate advise [sic] on the sale of the property. WINN was not involved in the transaction of sale of 1515 N. 7th Ave., Phoenix, AZ."
Was Tatham asked specifically if Winn was involved?
During his testimony, Grehoski remembered that there were two substantive discussions with Tatham, one during which Tatham was asked about Winn specifically, the other during which Tatham was asked a broader question, about the involvement of anyone else in general.
Tatham recorded a couple of his conversations with the agents. The recordings do not have a specific reference to Winn, but one includes a more general inquiry, excerpted here from filings in the case:
Mason: Okay. Are you aware of [Horne] consulting with anybody else? I guess he had a broker that helped him sell it.
Tatham: It was a retail guy from one of the commercial brokerage houses and I don't know who it was offhand. I mean I have his name somewhere back in a file.
Mason: Okay. Okay, but other than that guy, you're unaware of him consulting with anybody else.
Grehoski: Was anybody giving him advice on the side that was not officially involved in the sale?
Tatham: I have no idea. You would have to ask Tom Horne that. He probably seeks advice from a lot of people . . .
Attorneys from the Yavapai County Attorney's Office, which is prosecuting the case, sum up the crux of the matter in their rebuttal to the defense's motion to strike.
"The entire alleged perjury concerns whether Special Agents Grehoski and Mason asked the more specific question about Winn's involvement," writes deputy county attorney Benjamin Kreutzberg, on behalf of himself and fellow YCA legal beagle Jack Fields.
Their rebuttal continues, thus:
On the stand, Special Agent Grehoski was asked to describe the source of the statement in exhibit YCA-34. He remembered asking the specific question in another, unrecorded, conversation which he stated was on May 31, 2012.
Based upon the cell phone records from both Tatham and Special Agent Mason's cell phones, the following calls appear to have been made during May 30-31, 2012:
1. Special Agent Mason called Tatham at 1:03 p.m. on May 30, 2012. This call lasted approximately two minutes and appears to have gone to voicemail.
2. Tatham called Special Agent Mason at 3:47 p.m. on May 30, 2012. This call lasted approximately two minutes and appears to be the call recorded in exhibit Horne-Winn-25.
3. Tatham called Special Agent Mason at 1:03 p.m. on May 31, 2012. This call lasted approximately 15 minutes and appears to be the call recorded in exhibit Horne-Winn-14.
From that inconsistency, and the opinion that "the actual 15 minute call does not sound at all like a call that followed up a call of substance from earlier that day," Appellants take the position that Special Agent Grehoski has committed perjury.
There are many other alternative possibilities, however.
There could have been another call from an FBI land line to Tatham's land line that would not show up on any cell phone records. Special Agents Grehoski and Mason could have asked the specific question about Kathleen Winn during the initial voicemail, and inferred the answer from Tatham's later responses.
Indeed, Special Agent Grehoski could have simply misremembered the precise sequencing of telephone calls, questions and answers. He was called to reconstruct the sequence of events nearly two years later, with only Special Agent Mason's notes to guide him.
Mistakes are possible under those circumstances. None of those explanations constitute perjury. Fundamentally, Special Agent Grehoski had no reason to commit perjury. By the third day of the hearing, he knew that two of the calls were recorded. He knew that phone records would likely show the sequencing of calls.
As an experienced law enforcement officer, he knew how serious a charge perjury is. It would have made no sense for him to lie about those events. Yet appellants reject that weight of logic and assume that he committed perjury. The evidence does not support them.
Anyone who has ever watched a trial knows that such discrepancies are common during testimony. And certainly, it is the duty of lawyers for both the defense and the prosecution to question these discrepancies.
But to label a mere discrepancy as "perjury" is pure histrionics.
There is a yawning chasm between Winn and Horne's version of events, and the voluminous paper trail they left in their wake, including e-mails and phone records aplenty.
Which leads to the most important question of all: Did the highest law enforcement official in the state of Arizona lie under oath during the hearing into this matter?
Did Tom Horne commit perjury?
As for the tripe about Grehoski's "agenda," it's not as if Grehoski manufactured the allegations. Meg Hinchey, a former investigator with Horne's office, turned over evidence of possible wrongdoing by Horne and Winn to the FBI.
The state of Arizona recently settled a claim by Hinchey against the AG's office for $99,999. Hinchey had alleged she faced retaliation for giving evidence to the feds.
As a result, Grehoski and Mason investigated various civil and criminal allegations against Horne, everything from wire fraud to obstruction of justice. Neither the U.S. Attorney's Office, nor the Maricopa County Attorney's Office pursued criminal charges against Horne.
The MCAO did pursue the civil violation, which has since been turned over to Yavapai County Attorney Sheila Polk.
She, like Maricopa County Attorney Bill Montgomery before her, found ample evidence that Horne and Winn coordinated during the 2010 campaign and ordered them to pay back $400,000 in contributions to Winn's independent expenditure committee.
Horne and Winn are challenging the order. If they lose, they could be on the hook for treble damages. The last filings in the matter are due March 21.
The administrative law judge in the case will issue her finding within 20 days after that and send the case back to Polk, who has the final word on whether to accept, reject or modify the ALJ's suggestion.
The defense could then appeal to the superior court, dragging out this clown show even longer.
However, the more Horne squirms, the more outrageous and hysterical the claims of his attorneys, the guiltier he looks.
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So squirm away, General Horne, squirm away.
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