It was the afternoon of Dec. 8, 2009, and Maricopa County Attorney Andrew Thomas and his deputy, Lisa Aubuchon, wanted Judge Gary Donahoe off the bench before he heard a case scheduled for the next morning.
The veteran Maricopa County Superior Court judge had ruled against them in previous cases, so Thomas and Aubuchon took the advice of Sheriff Joe Arpaio and filed criminal charges against the judge, according to a report released Dec. 6 by Colorado investigator John Gleason.
They wrote to the court, under oath, explaining that they had enough evidence to stick the judge with criminal charges of bribery, obstruction of justice and hindering an investigation.
Thomas and Aubuchon apparently didn’t have enough evidence to back up their claims, nor had they conducted an investigation into the allegations against Donahoe. So they relied on an old ethics complaint against the judge that Arpaio’s second-in-command, David Hendershott, had filed with a judicial review board.
Now, as Thomas and Aubuchon defend themselves against disbarment, it appears the independent investigator has opened the door to criminal charges against the pair, both of whom no longer work in the County Attorney’s Office.
“Thomas and Aubuchon brought serious criminal charges against Judge Donahoe that were not supported by probable cause,” Gleason wrote in his investigative report.
While Gleason’s investigation focused on attorney disciplinary matters and covered four years of disputes between Thomas, the Maricopa County Board of Supervisors and Superior Court, it also alleges that Thomas and Aubuchon committed perjury, a mid-range felony, by getting a sheriff’s deputy to sign the false criminal complaint against Donahoe.
Gleason also alleges that when the prosecutors tried to keep the judge off the bench in the scheduled Dec. 9, 2009, hearing, they in effect conspired to squelch Donahoe’s freedom of speech and his right to engage in his profession, a federal crime punishable by up to 10 years in prison.
“This Bar report I think is a precursor to indictments,” said Michael Manning, an attorney who represents Donahoe in a lawsuit against Maricopa County.
Thomas and Arpaio are subjects of a federal grand jury abuse-of-power investigation.
Thomas and Aubuchon declined interview requests, although Aubuchon released a 220-word statement that said Gleason’s report was biased, false and political, and she looked forward to clearing her name. When contacted Dec. 7, Arpaio said he had no comment.
Gleason’s 76-page report summarizes 32 ethical violations alleged against Thomas, Aubuchon and former Deputy County Attorney Rachel Alexander.
They abused their prosecutorial powers by retaliating against and intimidating Thomas’ enemies to further Thomas’ political self-interest, Gleason alleged.
All of the allegations of ethical violations stem from the series of disputes, criminal prosecutions and lawsuits that Thomas brought against his political rivals during a four-year period while he was in charge of the County Attorney’s Office.
The Arizona Supreme Court appointed Gleason in March after Judge John Leonardo of Pima County Superior Court found that Thomas initiated prosecutions against those who had opposed him politically. The finding came during a criminal case against Maricopa County Supervisor Mary Rose Wilcox that Leonardo disqualified Thomas from prosecuting.
Gleason works for the Colorado Supreme Court Attorney Regulation Commission. The State Bar of Arizona would typically conduct such an investigation, but the Supreme Court appointed Gleason to avoid any possible conflicts of interest the State Bar might have.
The Supreme Court also appointed retired Supreme Court Justice Charles Jones to determine whether the attorneys should face disciplinary proceedings.
On Dec. 6, Jones ordered Gleason to initiate the proceedings.
“Evidence thus far adduced portrays a reckless, four-year campaign of corruption and power abuse by Respondent (Thomas) as a public official, undertaken at enormous and mostly wasteful cost to the taxpayers,” Jones wrote in his order.
Gleason said he will file paperwork in mid-January to start the proceedings. He said he expects a hearing before July.
A panel comprised of a layman, an attorney and Judge William O’ Neil, the state’s presiding disciplinary judge, will hear the case.
Sanctions can range from informal reprimands to disbarment.
Gleason wrote that Thomas and Aubuchon’s alleged misconduct warrants disbarment under American Bar Association standards, which deems the ultimate penalty for lawyers to be appropriate for government officials who misuse their authority to obtain personal benefits or to damage others.
Gleason did not recommend any punishment for Alexander, who resigned from the office earlier this year.
Thomas was serving his second term in office when he resigned April 6 to run for the Republican nomination for state attorney general. Tom Horne defeated Thomas in the Aug. 24 primary and Thomas has since opened his own law firm.
Aubuchon was subsequently fired by Acting County Attorney Rick Romley.
Gleason noted that Thomas began butting heads with the Superior Court in 2006 when he objected to a probation program for Spanish-speaking people convicted of drunken driving.
Gleason listed 10 cases and disputes that Thomas lost. As the losses mounted, Gleason wrote, Thomas and Aubuchon became motivated by personal animosity, which created a conflict of interest in representing the Board of Supervisors regarding civil matters and representing the state in the criminal cases against Wilcox and fellow County Supervisor Don Stapley.
Gleason noted that the charges against Stapley, who had repeatedly locked horns with Thomas over the years, were the result of a fishing expedition by Thomas and Aubuchon because there was no evidence that it was initiated by a complaint or a tip.
All charges against Stapley and Wilcox have been dismissed.
Likewise, Thomas initiated an investigation into the construction of a county court tower without receiving a tip or complaint, according to Gleason. The investigation began when members of a squad of detectives and prosecutors who investigated public corruption questioned aloud in a meeting why the Board of Supervisors was going forward with such an expensive project during an economic downturn, Gleason wrote.
The power struggles culminated in a federal racketeering lawsuit against many of the people Thomas had disagreements with over the years.
Gleason said the suit was “meritless and frivolous” and exposed incompetence in the County Attorney’s Office because there was a laundry list of reasons to declare the suit invalid.
“They filed the RICO case in retaliation against the defendants not based upon their criminal activity as alleged but based upon the defendants’ exercise of lawful authority that frustrated and infuriated Thomas, Aubuchon and the sheriff,” Gleason wrote.