"You've got to be kidding."
That's what Don Stapley said as sheriff's deputies arrested him September 21 in the county parking garage. The county supervisor was so stunned, he said nearly the same thing, again, just a moment later: "You have got to be joking."
Someone at the Maricopa County Sheriff's Office thought Stapley's quote was sufficiently amusing to include in the press release announcing his arrest later that day. It's the sort of embarrassing detail these guys delight in providing to reporters: "This guy's so arrogant, we came to arrest him on 100 criminal counts, and he thinks we're kidding! Can you believe it?"
But, two weeks later, the comment that once drew chuckles now seems downright prescient.
They had to be kidding — but they were not.
They actually arrested Don Stapley without an indictment, without a grand jury, without even consulting a prosecutor. In fact, they cuffed a county supervisor and hauled him off to court without bothering to secure charges against him.
Two weeks after the chaos of the arrest, the situation is clear: Maricopa County is captive to the whims of a police force all too eager to use its powers to harass its enemies and distract us from its manifold failures.
Sheriff Joe Arpaio's men arrested Don Stapley not in the interest of justice, but to save face after a previous case against Stapley fell apart. They made up an excuse to parade him in front of television cameras, then insinuated that he was guilty of all sorts of crimes they'd never bothered to get an indictment for.
When the prosecutor ostensibly assigned to the case expressed reservation about those tactics, Arpaio's BFF, Maricopa County Attorney Andrew Thomas, suddenly appointed new prosecutors to go after Stapley. Naturally, they were a pair of D.C.-based pundits more familiar with the Fox News studio than the politics of this county.
Surely, they must be kidding.
Don Stapley's bizarre arrest two weeks ago wasn't the first time that Sheriff Joe Arpaio and County Attorney Andrew Thomas sought to arrest the county supervisor. It was merely the first time they succeeded.
Last December, a joint investigation by Thomas and Arpaio led to a 118-count indictment against Stapley, a Republican representing the East Valley.
As I wrote at the time, the charges against Stapley were overkill: He faced more than a decade in prison for what amounted to an error in paperwork. Meanwhile, Sheriff Arpaio made the same mistakes, with no repercussions.
But if the indictment was fairly silly, well, at least in that case they bothered to get one.
In 2008, procedure was followed: The Sheriff's Office developed a case and brought it to the County Attorney's Office, which took it to the grand jury, which issued an indictment. As everyone knows, a grand jury will indict anything from a ham sandwich to a can of tuna fish — it's not a sign of guilt. But at least it forces the prosecutors to make a case.
Last December, after the indictment, Thomas' office took the indictment to a judge, seeking a warrant for Stapley's arrest.
The judge refused.
Stapley, after all, holds public office in the same county that was prosecuting him. He wasn't a flight risk. Given a summons to court, the judge knew that he'd surely turn himself in.
When, at the judge's insistence, the summons was issued instead of an arrest warrant, go figure: Stapley did turn himself in. The system worked just the way it was supposed to.
For everyone, that is, except Sheriff Arpaio and County Attorney Thomas.
Thanks to the judge's denial, they missed their chance to parade a handcuffed Stapley past a leering mob of TV news crews. In the news business, we call this a "perp walk." There's no better way to humiliate a well-known defendant — or get free airtime for publicity-grubbing pols like Arpaio and Thomas.
But if Stapley didn't have to do the perp walk last December, well, the sheriff would see to it that Stapley was forced to do it eventually.
And on September 21, Arpaio got his chance. This time, there was no judge to speak on behalf of reason. The sheriff had skipped that step.
He did it on a technicality: An exception on the books allows cops to arrest a suspect, even if they haven't had time consult with a prosecutor. It's called a "probable cause arrest," and the cops use it to, say, arrest people caught in the act of robbing a bank — or in the robbery's immediate aftermath, when the suspect may well flee.
So the cop arrests the suspect and makes a "probable cause" statement: I think this man robbed a bank because I caught him standing outside it with $1 million in cash. The prosecutors then have 48 hours to follow up with an indictment, or a direct complaint: We, the State of Arizona, charge this man with bank robbery.
A probable cause arrest is rarely, if ever, made in a white-collar case. In fact, the only one in recent decades that anyone in Arizona may recall was the Sheriff's Office's arresting the owners of this newspaper, Michael Lacey and Jim Larkin, for supposedly violating grand jury secrecy. And we all know how that one turned out.
No matter what the allegations against Stapley, this arrest was outside the pale. It takes months to build a case for fraudulent schemes, or perjury, or mortgage fraud. No legitimate law enforcement agency would want to tip its hand by arresting a suspect before prosecutors were ready to act.
Yet that's exactly what happened here. The sheriff arrested Stapley, saying he had probable cause that the county supervisor had committed 93 felonies. He provided an addendum to the court suggesting Stapley had a secret slush fund, that he'd accepted contributions from political donors and failed to disclose them.
Suffice it to say, an "addendum" has no legal standing. And these were exactly the kinds of complicated transactions that require a prosecutor's levelheaded assessment.
But Sheriff Arpaio's motive isn't building a strong criminal case. The guy is all innuendo.
The Sheriff's Office didn't arrest Stapley to bring him to court — after all, there were no charges, so there was no reason for him to be in court.
They arrested him simply to get their perp walk.
Forty-eight hours later, when no prosecutor proved willing to take the case on such short notice, it was as if the whole thing never happened.
The timing of Stapley's made-for-TV arrest was no coincidence. Just one week earlier, the sheriff's case against Stapley had collapsed.
Remember that 2008 indictment? Remember those allegations that Stapley failed to list all his real estate holdings on county-mandated disclosure forms?
As I first detailed in January, there's compelling evidence that County Attorney Thomas began pursuing the case at the suggestion of his private lawyer, Leo Beus. Beus was locked in decades-long litigation with Stapley's business partner, an ex-con named Conley Wolfswinkel. Beus was exploring the relationship between Wolfswinkel and Stapley at the time Thomas began his investigation.
In true form, however, Thomas and Arpaio barely bothered to examine that relationship before getting an indictment against Stapley. They simply went for the low-hanging fruit of Stapley's inaccurate paperwork — then hinted there was a lot more to come.
But that indictment was built on a foundation of sand, as Stapley's lawyers quickly discovered. As it turned out, the county had never officially voted to require the forms in question, at least not in a way that held up in a court of law.
Once Stapley's lawyers pointed out that simple fact, the judge in the case threw out 51 of the charges.
And that put the whole case in jeopardy. The entire indictment rested on the forms: If they weren't technically required, the additional charges Thomas had slapped on Stapley (like perjury, for filling them out incorrectly) would hardly stand up in court.
By that point, Thomas had been forced to recuse himself. Retired Navajo County Attorney Mel Bowers, working in conjunction with the Yavapai County Attorney, had taken over. Once the bulk of the indictment was thrown out of court, Bowers was savvy enough to realize the case was in trouble.
On Friday, September 18, Bowers asked the judge to dismiss the rest of the charges against Stapley, too. For the case to continue, Bowers suggested in his filing, he'd have to get the appellate court to reverse the judge and say that the disclosure forms were legally mandated.
Barring a legal reversal of fortune, Stapley was home free. Thomas and Arpaio, who'd originally brought the charges to much fanfare, had some serious egg on their faces.
What to do?
They could try to build another case against Stapley. Armed with subpoenas that had allowed them to comb through Stapley's bank records, Arpaio's guys had uncovered a slush fund that (at minimum) raised questions.
But building a case takes skill and patience. Arpaio's guys had neither.
They arrested Stapley on the new charges on the very next working day after prosecutor Bowers' filing. Never mind that they hadn't done their homework. The arrest provided enough smoke and mirrors to distract TV viewers into thinking there was something there — that Stapley must have done something illegal.
It now seems almost certain that campaign finance laws do not apply to Stapley's slush fund, as the sheriff insinuated. We also know now that Stapley consulted a top lawyer before setting up the fund.
How much do you want to bet this whole thing turns out to be legal? But that likely won't matter.
As my colleague Ray Stern reported on our Valley Fever blog, the special prosecutor originally appointed to handle the charges against Stapley, Bowers, had expressed some chagrin with the way the September 21 arrest was handled.
So, surprise! Even though County Attorney Thomas had supposedly recused himself from anything to do with Stapley's criminal case, suddenly he was back on the stick. Thomas appointed a pair of Washington, D.C.-based "special prosecutors" to handle the new allegations — basically ripping the case away from the skeptical Bowers and his cohorts in Yavapai.
And Thomas made a truly inspired choice to handle this one on his behalf. Husband and wife Victoria Toensing and Joseph D. DiGenova are both former Justice Department attorneys. Like Arpaio, they volunteered for Mitt Romney's presidential campaign.
But they're best known for their regular appearances on cable television. Slate.com described DiGenova as "a former prosecutor who goes for the soundbite" — and noted that he and Toensing seemed "to act as a conduit" for leaks from the office of Special Prosecutor Kenneth Starr during his investigation of President Bill Clinton.
Indeed, DiGenova was famously convinced that Clinton was "investigating" the couple after they sided with Starr in l'affair Lewinksy. As for Toensing, she subsequently made a name for herself by defending Robert Novak after he outed spook Valerie Plame.
DiGenova and Toensing are not the kind of lawyer you bring in to handle a case soberly and prudently.
They are the kind you bring in for a mud fight.
And mud fights — not successful criminal prosecutions — are what we've all come to expect from Arpaio and Thomas. In the past six years, this dynamic duo has proved that they're all perp walk, no conviction.
Consider the arrests of New Times' owners. The sheriff had to realize that he'd never get a conviction for two guys who dared to publish the details of a subpoena that sought the identity of the paper's online readers. But Arpaio didn't care: He wanted to get back at the newspaper owners who dared to defy him. He also wanted to scare future critics into silence.
After Lacey and Larkin were arrested, the charges (and the case against them) evaporated the next day.
Then there's Arpaio and Thomas' much-vaunted anti-corruption task force, Operation MACE. The pair announced MACE's formation at a press conference 21/2 years ago, saying they were going to root out fraud at the Maricopa County Community College District and investigate Arizona Attorney General Terry Goddard. They later opened cases against State Senator Russell Jones and Supervisor Stapley.
The investigation into Goddard fizzled. It's now been "open" for almost three years without so much as a misdemeanor. The community college investigation, too, has yielded nothing.
As for Jones, he was indicted on the pettiest of charges, which a judge quickly tossed. Thomas and Arpaio appealed — only to lose again. You'd think they'd get the hint, but no: They're begging to take the case to the Arizona Supreme Court.
They've got to save face somehow.
Indeed, the only corruption MACE has prosecuted successfully to date is a case involving $60,000 in embezzlement at a rural fire district in the Harquahala Valley. They hardly needed a task force for that.
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The Arizona Republic reported that the Sheriff's Office has nine full-time investigators assigned to MACE. Nine! The newspaper concluded that the anti-corruption task force cost $870,000 a year for personnel alone, with Thomas' expenses on top of that.
Yet Arpaio and Thomas never found anything on Terry Goddard. They never got anywhere with the college district. They've lost the Jones case twice already.
They're batting one for five — and that one hit came against the political equivalent of the '62 Mets.
No wonder they had to bring in a pair of D.C.-based pundits to go after Don Stapley. When your record is this disastrous, you've got to do something to change the subject.