All Bark and No Bite

Page 2 of 3

Etter told county investigators on February 8 that he placed the subpoena on Polich's desk. He also said he called his boss, Karen Osborne, and told her about the subpoena and about Polich's absence.

Osborne, Etter stated, did not direct him to take any further action.

If this is true, Osborne -- who turned down requests for an interview -- should be immediately dismissed from her post by her boss, County Recorder Purcell.

Osborne's top priority should have been to make sure that the court got all the evidence necessary to make a fair decision about the accuracy of the recount. It was obvious that Hauser wanted Polich to testify about the performance and reliability of the optical scanners.

If Osborne had the best interests of the public as her top priority, she would have instructed Etter to immediately contact Tina Polich to make sure she knew about the subpoena and demand that she appear in court the next day.

But Etter told investigators he did nothing more to notify Polich about the subpoena, claiming he only had an 800 number for her company.

Which is bullshit. Polich later told county investigators her home phone number is listed in the directory.

Etter informed investigators that he contacted Polich the next day, September 23, when the court hearing would take place. Etter stated that Polich's bosses told her not to attend the hearing because the subpoena had not been directly served on her and therefore was invalid. Polich, according to Etter, then left the office for the day and never went to court.

On February 16, eight days after investigators talked with Etter, La Sota interviewed Eric Anderson, Elections Systems and Software's attorney, who advised Polich not to appear in court. Anderson delivered stunning information that broadened the conspiracy to suppress information concerning the District 20 recount.

Anderson said he based his determination that Polich had not been properly served with the subpoena on advice he received from the county elections department's attorney, Jill Kennedy.

"[Anderson] said he spoke with Jill Kennedy . . . and that they mutually agreed that service had not been perfected and that Ms. Polich should 'lay low' for the day," states a February 21 memorandum written by La Sota.

This astounding piece of information should have triggered major alarms inside Thomas' office. Not only had Osborne failed to order Etter to make sure Polich appeared in court, now Thomas' investigators had evidence that the county elections department's attorney illegally provided advice to Elections Systems and Software to ignore the subpoena!

Kennedy denied giving legal advice to the firm concerning the subpoena in her interview with county attorney's investigators. But she admitted providing Elections Systems and Software samples of motions to quash subpoenas.

Thomas formally reprimanded Kennedy, stating that her actions "constituted the providing of legal advice, and possibly resulted in the witness not appearing in court."

On March 1, La Sota and Lotstein interviewed Polich. According to La Sota's notes of the meeting, Polich said Etter had "handed" her the subpoena and that she knew about the hearing the day before it was held. She also told investigators she was aware of its importance and that she knew she was the only employee of her company available to testify in Arizona.

Polich confirmed Etter's account that she did not attend the hearing because Anderson told her she was not required to go because of the improperly served subpoena. (County investigators note in their reports that the subpoena was properly served, by the way.)

Anderson told investigators, amazingly, that Polich would have attended the hearing if elections officials had only asked her to.

Even if that's true, Polich's appearing at the hearing was the last thing elections officials wanted.

Because her testimony would have raised serious questions about the validity of the District 20 recount and would have revealed that the county's optical scanners have serious shortcomings. This would have been a huge embarrassment to the elections department, Osborne and Purcell just six weeks before the November general election.

Polich, according to La Sota's notes of the interview, had found it possible "that there could have been a malfunction with the machine that resulted in the large discrepancy [the 18.3 percent increase in the number of votes tallied during the recount]."

It's impossible to know for certain how Judge Ballinger would have reacted to testimony by Polich. Transcripts of the September 23 hearing, however, show that her failure to appear in court was the basis for Ballinger's decision in favor of McComish.

Ballinger stated that even though he was deeply concerned about the large variation in the votes counted from the primary to the recount, his decision to validate the recount was "based primarily on the fact that [Polich] didn't show up."

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
John Dougherty
Contact: John Dougherty