Maricopa County Craziness

Ed Moriarity, Lisa Aubuchon's Pro-Bono Lawyer in Bar Discipline Case, Makes for Good Theater -- but Not Good Defense

d Moriarity, Lisa Aubuchon's pro-bono lawyer from Montana, has helped represent celebrity clients from Imelda Marcos to the family of Karen Silkwood.

According to his former partner, Gerry Spence, Moriarity was born under a mineshaft.

Since his opening statement in the State Bar disciplinary hearings for former Maricopa County Attorney Andrew Thomas, Aubuchon and Rachel Alexander, Moriarity has distinguished himself from the many other attorneys in this case.

But not in a good way.

The rotund, white-haired, bearded lawyer has played the role of country lawyer, dropping the "g's" in his speech (there are no meetings in his world, only meetins) and appearing confounded by big-city politics. He comes off as slightly daffy -- but is he crazy like a fox? At this point, we'd have to say no.

During his three weeks of his attempted defense of Aubuchon, (and, by extension, Thomas), Moriarity's been scolded numerous times by bar Disciplinary Judge William O'Neil, leader of the tribunal. Earlier this week, he incurred O'Neil's wrath enough for the judge to threaten Moriarity with contempt.

The Montana lawyer responds to such scoldings as if he's being shut down by a corrupt system -- ostensibly the same one that (in Thomas and Aubuchon's view) is railroading his clients. By looking at some of what Moriarity's presented so far, though, it's clear that he's hamstrung by the inherent weaknesses of Aubuchon and Thomas' theories.
Moriarity's also representing Sheriff Joe Arpaio's former chief deputy, Dave Hendershott, plus the duo of former deputy chief Larry Black and Captain Joel Fox in multimillion-dollar claims against the county -- cases that seem to have long odds of success indeed. But Moriarity's won cases in Arizona before. He says:

In 1984, I achieved the largest wrongful-death punitive damage verdict in Arizona, which was a record at that time. The jury awarded over $6,000,000 for the wrongful death of a beautiful young woman who was murdered by a person wearing a hotel uniform whom she let into her motel room. The case was important because it led to standards imposed by the hotel industry on its innkeepers that required guards on the doors so they could not be forced open but only open slightly, new key systems, and keeping a person's room number secret.

So that's where those privacy locks came from!

Moriarity's done well for himself over the years, judging by a sales offer we found on the Internet for his $7 million, 248-acre estate.

For more than 30 years, Moriarity was partner to Gerry Spence, the famous, self-described "country lawyer" from Wyoming who's long list of past clients includes Karen Silkwood (the case was made into a movie and made the term "whistleblower" a household word), (UPDATE: A commenter reminds us that Silkwood was deceased by the time the case came up -- the lawyers represented Silkwood's family), the corrupt former first-lady of the Philippines, Imelda Marcos (and her 2,700 pairs of shoes), Randy Weaver (of Ruby Ridge debacle). Spence now spends some of his time railing against corporate "masters" on his blog.

We e-mailed Spence to ask him if Moriarity typically gets yelled at by judges. Spence wrote back:

Ed is one of the great persons of our times. He is a miner's son born under the main shaft of the Anaconda Copper mine in Butte. He knows how to fight, and to fight honestly. If the judges are scolding him, it is because he is committed to his client and to justice. He is a man of good nature and sweet disposition. If he is having trouble, you can bet something is going on that insults his idea of what's right.

Yet Moriarity's clearly the source of some of his own "trouble." For instance, this week when Moriarity was cross-examining Mark Stribling, an investigative commander with the prosecutor's office, he couldn't stop himself from trying to be the biggest smart-aleck.

The state Supreme Court's Web site makes it convenient to view the archived videos of these proceedings. The Stribling-Moriarity face-off starts just after 32 minutes into the October 5 video. Stribling's explaining how he and Aubuchon were yelling at each other over what he perceived as unethical tactics in the investigation of County Supervisor Don Stapley.

"Did you ever tell anyone you were not yelling and that Lisa was not yelling?" Moriarity asks.

"I don't remember. I'm sure you have something you're going to ask me about," Stribling replies.

"Pardon me?" says Moriarity.

"Excuse me?" Stribling counters.

"Pardon me -- what did you just say?"

"I said I think you're probably going to show me a document."

"If you could limit your answers simply to the questions, it would help us, all right?" interjects Judge O'Neil.

"I apologize to the court," Stribling says.

But Moriarity goes on: "How many times have you testified before?" he asks testily. "You know the rules of testifying, do you not?"

The exchange continues briefly, then O'Neil reminds Moriarity that he's already admonished Stribling, and that if the lawyer wants to admonish him further, he should take it outside.

On September 19, the sparring between Moriarity and O'Neil came to a head. Pull up the archive video for that date and scroll to 2:21:30 to get a decent grasp on how the squabble started. We think you'd have to agree that O'Neil's got this one right, and that Moriarity's theory caves in on itself.

He's trying to make the argument that in 2009, the Board of Supervisors conspired to destroy Thomas' former office by stripping it of funds. After taking $6 million from the County Attorney's Office on the idea that the office could survive on funds generated in forfeiture cases, the Supervisors then used a new state law to dip into those funds, too.

O'Neil notes repeatedly that Moriarity's line of questioning (he's cross-examining Thomas' former chief, Phil MacDonell) is irrelevant because nothing was illegal about using state law to shore up the treasury in bad economic times. The Supervisors took money from other agencies besides the County Attorney's Office, and other counties were affected by the Legislature's raiding of funds, O'Neil wisely points out.

In other words, nothing Moriarity is saying remotely proves the Supervisors did anything improper against Thomas and his office. Things heat up at about 2:25.

"It's not relevant, so move on." O'Neil tells Moriarity firmly. "You've made your record. You've made your record. Move on."

"May I please, your Honor..."

"No! Move on!"

"Just to correct the record ..."

"No! The answer's no! I'm ordering you to stop. I don't want to go down this track with you, Mr. Moriarity, but I'm telling you, I've ruled on it. You've made your record. Stop."

"I've stopped, your Honor."

"If you're going to back away from the podium and say I've stopped you from going with this one, (O'Neil's referring here to previous spats with the lawyer), I'm going to be holding you in contempt," O'Neil spews.

O'Neil then goes on a tirade, his voice going up half an octave. He tells Moriarity to ask MacDonnell more questions or sit down. Moriarity looks like a kid in the principal's office.

"I'm totally intimidated by your Honor," he says.

"I regret that you're intimidated by the words that are coming out of my mouth," O'Neil retorts.

Moriarity goes through some of his papers. Then he looks up.

"Your Honor, I move for a mistrial."

"It's denied. Move on. Ask questions or sit down," the judge says briskly. "It's your choice. Either one's fine with me."

This week, besides the flap with Stribling (whose testimony about Aubuchon's antics was  damning), Moriarity grilled retired Superior Court Judge Barbara Mundell about the hiring of lawyer Tom Irvine in 2006 as a planner for a new court building now under construction.

During his opening statement on September 12, Moriarity made it sound as though Mundell's testimony would destroy the Bar's case against his client and support evidence of the fabled conspiracy of county officials put forward by Thomas and Arpaio. Moriarity's opening statement begins at 2:11:45 in the September 12 video, but you'll want to scroll way past his lengthy "I love being a lawyer" speech.

At 2:42:05, Moriarity sounds like he's uncovering the secrets of John F. Kennedy's assassination as he explains how Mundell, when she was presiding judge of the court, hired Irvine to help with the court tower.

Moriarity's trying to advance one part of Thomas' conspiracy theory -- you know, the theory that Mundell hired Irvine in 2006 and the Board of Supervisors hired Irvine in 2008 and therefore everyone's corrupt. Or something like that.

The court tower conspiracy theory's never made sense to us. Sarah Fenske, former New Times staff writer and now managing editor of our sister newspaper, the Riverfront Times in St. Louis, explained just how nonexistent the evidence is for a conspiracy in her February 8, 2010 article.

Fenske writes how...

Mundell and her staff are technically in charge of approving and developing the design, function and operations of the new building. Consultants had provided the same service for Arpaio during jail construction; Mundell's staff selected Irvine.

Now, the court staff doesn't typically need attorneys who specialize in construction. Jessica Funkhouser, the court's special counsel, says that state law allows court staff to take advantage of other government entities' bidding process in cases like this. Irvine's firm had submitted qualifications for construction work through the city of Phoenix's competitive process. Piggybacking on the city's contract, the courts could hire Polsinelli Shughart at the same rate.

Irvine was hired in 2006 at an hourly rate of $325, according to court administration files.

Mundell swore under oath that she didn't remember how the court had made Irvine's hiring official by piggybacking on the city of Phoenix procurement process -- but then she wrote a letter to Phoenix officials, thanking them for making it possible to hire Irvine, Moriarity stated on September 12.

"Why is that important?" Moriarity asks, holding up a pen and waving his arms animatedly. He answers himself: Because in representing the "court," Irvine, by extension, represented Judge Gary Donahoe.

"And Judge Donahoe, was, eh, uh, was making these decisions about ... trying to stop ... cases going against [County Supervisor Don] Stapley and others," he says excitedly.

Yet those cases he's talking about happened two years later. And as Fenske wrote, no one had batted an eye at the involvement of Irvine -- a construction lawyer -- working on the court tower project. Aubuchon and Irvine discussed the project congenially at meetings in 2006 and 2007. Even Hendershott, later one of the biggest proponents of Thomas and Arpaio's conspiracy theory, had worked on the court tower project and knew of Irvine's involvement.

Only when the Board appointed Irvine in 2008 to review Thomas' conflicts of interest following the indictment of Stapley did Thomas and Arpaio make a big deal about Irvine's involvement in the court tower project.

And when you know all that, the question of what Mundell knew or didn't know about how Irvine was hired in 2006 is moot. You can see how Mundell answers questions about Irvine's hiring in her October 3 testimony, starting at about 3:35. The line of questioning seems like a dud. About 3:40 in the October 3 video, O'Neil questions one of Thomas' lawyers about why the testimony about Irvine is relevant to whether Thomas or Aubuchon committed ethical breaches.

Despite Moriarity's prediction on September 12 that Mundell's testimony would be key to the defense, O'Neil and the other members of the discipline panel could only have been moved the other way as Mundell (at about 3:03) breaks down on the stand and cries as she recounts her fear after learning Arpaio and Thomas had drawn up a search warrant for her home. (The warrant was later quashed and never served.)

If Moriarity's "idea of what's right," as his former partner put it, is to allow lawmen like Arpaio and Thomas to have search warrants issued on a judge's home based on paper-thin evidence, it's no wonder he's running into trouble.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.