Maricopa County Superior Court Judge Larry Grant upbraided the Maricopa County Attorney's Office this morning for allowing the Sheriff's Office to give a sealed deposition to a newspaper reporter.
The deposition, of East Valley developer Conley Wolfswinkel, had been subject to a protective order, agreed to by both sides in the complex, water-related lawsuit pending in Grant's courtroom. The state is not a party to the lawsuit, which has been dragging on since 2005.
But, in January, the Maricopa County Attorney's Office inserted itself into the civil suit -- claiming that there was "a likelihood" that Wolfswinkel's deposition in the case "touches upon" his relationship with County Supervisor Don Stapley.
Maricopa County Attorney Andrew Thomas is prosecuting Stapley for failing to disclose various land deals on public disclosure forms. Prosecutors have pushed the idea that Stapley hid his deals because he didn't want voters to know about his relationship with Wolfswinkel, an ex-con.
It's interesting enough that the county attorney's office has decided to delve into a civil lawsuit. What makes it even more fascinating in this case is that its interactions have been both bumbling and belligerent.
Earlier this year, Judge Grant fielded a request to unseal the deposition in question. That request came from Leo Beus, the attorney suing Wolfswinkel in this case (and, perhaps not so coincidentally, the private attorney representing County Attorney Andrew Thomas in his ongoing battle with the State Bar.)
But while Judge Grant was still weighing Beus' motion, deputy county attorney Lisa Aubuchon jumped into the case. In January, she basically echoed Beus' request that the judge unseal the deposition. She argued that prosecutors needed it to prosecute Stapley.
Before Judge Grant could rule on either motion, though, sheriff's deputies raided Wolfswinkel's office. Court records show they obtained a copy of the deposition -- and that they knew it was sealed.
Aubuchon told Judge Grant that the county attorney's office was aware of the seal in a hearing on February 10. Because of the protective order, Aubuchon said at the time, she hadn't reviewed the deposition, "and will not do so until a ruling has been issued," according to court records.
But then something changed.
On February 28, the East Valley Tribune published a story based on the Wolfswinkel deposition. As reporter Mark Flatten acknowledged in the article, he obtained the deposition from the Maricopa County Sheriff's Office via a public records request.
The irony is pretty amazing: The one time the Sheriff's Office turns over a record quickly, it's not only evidence gathered in an ongoing investigation, but actually evidence that its own attorney has acknowledged is under a protective order! Even more staggering, the county attorney had told Judge Grant just two weeks before releasing the record that she wouldn't even be reading it -- much less letting members of her prosecuting task force hand it off to a reporter -- until he ruled on her motion.
So, this morning. rather than discuss Aubuchon's motion to unseal the records as previously scheduled, Judge Grant attempted to find out what had changed.
Wolfswinkel's attorney explained that the deposition had not only been unsealed, but released to the media. And then Aubuchon jumped in. "There was no order in place," she argued -- claiming that because the deposition's protective order was agreed to by the parties in the litigation and not the county attorney, the state was free to do what it wanted with the copy it obtained through a search warrant.
Judge Grant wasn't buying it. "When there's a protective order in place, what do you think that means?" he said. "Come on." The judge said he didn't care how the state obtained the deposition: "You don't disseminate it when there's a protective order in place!"
Judge Grant then told the county attorney's office to file a motion explaining why it shouldn't receive sanctions, as requested by Wolfswinkel's attorneys.
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"It seems clear to me there are reasons we issue protective orders in cases," the judge sniffed.
The one plausible explanation for the leak -- that the sheriff released the document without consulting the county attorney -- is apparently not on the table. In the hallway after the quick hearing, Aubuchon could be heard loudly explaining herself. When she discovered it was only a protective order between the parties in the case, and the sheriff had obtained the deposition through a valid search warrant ... well, she figured it was okay to go forward with it. And when the sheriff's office received a public records request, well ...
Then Aubuchon complained that a number of high-profile lawyers, including Stapley's criminal defense attorney, former U.S. Attorney Paul Charlton, attended the hearing. (Also present: Ed Novak, current president of the State Bar of Arizona.) "They're fighting because they want to keep it secret," she said. "It's ridiculous."
We'll see what Judge Grant says about that once both sides have made their arguments. Suffice to say, he didn't look particularly pleased this morning. And we'll be checking with some legal experts, but we're pretty skeptical that Aubuchon's argument is going to hold water.