Civil-racketeering case may prove Andrew Thomas' undoing
Last fall, Maricopa County Attorney Andrew Thomas announced that he was thinking of running for Arizona attorney general in November's general elections.
He seemed a shoo-in.But since then, he has become the subject of an FBI investigation into possible abuse of power, a state Bar investigation into possible unethical behavior, and two potential lawsuits related to prosecutions of county officials.
His high-profile criminal cases against two county supervisors and a sitting Superior Court judge have collapsed. And he has been indirectly rebuked by a ranking official in the U.S. Department of Justice for wrongly implying at a news conference that the federal government would take over wide-ranging investigations into allegations of county government corruption.
Those asking where it all went wrong may well find the answer in a major strategic blunder by Thomas: filing a federal civil-racketeering suit against a host of county officials and private attorneys that proved to be the undoing of everything else.
The suit named a long list of alleged conspirators, including county management, the county Board of Supervisors, four Superior Court judges and two attorneys in private practice.
In legal circles, it was ridiculed from its inception for its failure to meet basic legal standards like court deadlines and definitions. One opposing attorney derisively quoted "Humpty Dumpty" in a motion to dismiss the case. It had not even passed through the initial stages of court procedure when Thomas and his co-plaintiff, Maricopa County Sheriff Joe Arpaio, withdrew it March 11.
The racketeering case may have been flawed from the start because it runs afoul of a basic legal concept: You can't sue someone in civil court, then press criminal charges against them, without raising eyebrows.
That collision of intentions prompted a Superior Court judge hearing one of the criminal cases to rule that Thomas had a conflict of interest. The state Bar agreed and has since asked the Arizona Supreme Court to investigate Thomas' ethics.
Thomas won't say if he still plans to run for attorney general. But he has a tough decision to make in the face of all that has transpired since September.
The battle begins
Thomas has been battling with the Superior Court since early 2006 and with county management and the Board of Supervisors since late 2008.
Last Dec. 1, he and Arpaio launched their racketeering lawsuit alleging wrongdoing under the federal Racketeer Influenced, Corrupt Organizations Act.
"Racketeering law was originally designed and passed to go after organized crime," said Mike Piccarreta, a Tucson attorney. "Then, it has been used and abused over the years by prosecutors to cover almost every type of criminal behavior."
In their lawsuit, Thomas and Arpaio accused judges and county officials of conspiring against them by denying funding of their county budgets, thereby denying them their offices and their livelihoods. It also accused them of obstructing criminal probes into the construction of a new court tower.
The suit's accompanying narrative detailed various ongoing spats among county officers.
It even recounted a dispute over a county prosecutor's fender-bender in a county garage and how the attorneys for the county had laughed at a deputy county attorney in court. That attorney, Lisa Aubuchon, wrote the initial RICO complaint.
Thomas told The Arizona Republic he chose Aubuchon for the job because she is fearless and smart and "because our civil attorneys were terrified to try anything against the Board of Supervisors."
Thomas also said three supervisory criminal prosecutors refused to take the case for fear of retaliation by county administrators.
A week after the racketeering suit was filed, Aubuchon also became the prosecutor of record in criminal indictments against county Supervisors Don Stapley (alleging misuse of campaign funds) and Mary Rose Wilcox (alleging she did not report a loan from an organization receiving county funding). A day later, Aubuchon filed a criminal complaint against Judge Gary Donahoe alleging bribery, hindering prosecution and obstructing an investigation into a court-construction project from which Donahoe had previously disqualified Thomas because of perceived conflicts of interest.
Experts theorize that Thomas filed the RICO suit to take advantage of the liberal "discovery" rules of federal civil court. Discovery is the exchange of information between plaintiff and defendant attorneys. Criminal courts strictly limit what can and cannot be divulged. Civil-court rules are broader and the level of proof required for a verdict less stringent, which, under some circumstances, might have allowed Thomas to learn more about his political opponents.
But Thomas' RICO suit was technically flawed. Racketeering statutes are precise, said Andy Hessick, an Arizona State University law professor, and "you have to show specified activities."
The suit alleged bribery and extortion, for example, but never delivered evidence that either activity took place.
"Extortion means wrongfully demanding property from someone else. It's like blackmail," Hessick said. "And bribery means to pay an official to get a result. Laughing at someone in the courtroom is neither."
James Ryan, one of the defense attorneys in the case, said the initial complaint did not identify the criminal enterprise in which the defendants supposedly engaged. And Hessick, Ryan and Piccarreta all pointed out that Thomas' claims in the RICO case vacillated between those he made as an individual and those he made as a public official.
The judges named in the case protested on the grounds that they had absolute judicial immunity in the rulings they made. Their message: You can't sue judges because you don't like their decisions.
In January, Thomas passed the RICO case to a civil attorney in his office named Rachel Alexander.
Alexander made herself something of a target for defense attorneys, occasionally running afoul of court rules and creating waves with her pro-Thomas political activities outside the office.
Those activities came into play in the racketeering case when defense attorney Ryan, in a response to one of Alexander's pleadings, attached one of her online writings in which she excoriated "cowardly federal judges" for throwing out a Thomas case for procedural errors.
Everything began unraveling in January.
The criminal case against Judge Donahoe was referred to a judge in Pinal County, who postponed the matter after defense attorneys pointed out Thomas' conflict: He was suing Donahoe in the civil-racketeering case.
In February, Thomas was called to testify before a Pima County judge asking why he should not be disqualified from the Wilcox case because of a potentially similar conflict. Defense attorneys argued he was engaging in political retaliation.
Thomas ultimately was disqualified and the Wilcox indictment thrown out, prompting him to dismiss the cases against Stapley and Donahoe, lest they be dismissed by court rulings as well.
Colin Campbell, Wilcox's attorney, said the RICO suit "cemented the disqualification to the point that it undid his prosecution."
Thomas nonetheless defended the racketeering suit, saying shortly after the Wilcox case was thrown out: "I don't believe, as a matter of law, that a prosecutor is prohibited from prosecuting criminal defendants who are party to a RICO suit.
"Everyone wants to mischaracterize that lawsuit as a so-called conspiracy theory, but I would challenge anyone with a sense of fairness just to read the facts."
Two weeks later, Thomas and Arpaio voluntarily withdrew the lawsuit.
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