Wednesday, September 22, 2010
"Use Creative Writing!"
"A controversial prosecutor faces imminent firing after a five-month inquiry into her role in filing criminal charges and a civil suit against judges and county officials on behalf of then-Maricopa County Attorney Andrew Thomas. The Arizona Republic has learned Deputy County Attorney Lisa Aubuchon was sent a 'pre-termination letter last week, an initial step in the firing process.
Aubuchon has been on paid administrative leave since April, when Thomas resigned as county attorney to make a failed run for Arizona attorney general. Interim County Attorney Rick Romley fired two high-ranking prosecutors from Thomas' tenure when he took office. The other prosecutors served at the pleasure of the county attorney. Aubuchon, however, was protected as a 'merit' employee and could be fired only for cause. Romley ordered an internal investigation into her conduct.
Aubuchon has until today to respond to facts stated in the pre-termination letter. The office would not reveal those details. Aubuchon is entitled to a meeting with top officials within the County Attorney's Office to plead her case. Barring last-minute evidence, she likely will be fired.
Aubuchon has worked in the County Attorney's Office since 1996 and was head of the office's charging division under Thomas. In that capacity, she determined if and when criminal charges would be filed. Aubuchon generally was regarded as the go-to lawyer in the political-corruption cases pursued by Thomas, Maricopa County Sheriff Joe Arpaio and Arpaio's chief deputy, David Hendershott. All of those cases were dropped or dismissed, and in at least one case, a grand jury refused to hand up indictments and ordered Aubuchon to 'end the inquiry.'
Calls to Aubuchon and her attorney went unanswered Thursday.
In past conversations with The Republic, Aubuchon asserted she had done nothing wrong, saying, 'I would never file anything for a political purpose.'
The County Attorney's Office would not comment on its investigative findings leading to the pre-termination letter, but Aubuchon has been involved in numerous recent legal battles:
• She was the prosecutor who obtained indictments against County Supervisors Mary Rose Wilcox and Don Stapley. The Wilcox case, regarding financial transactions, was thrown out by a judge who ruled that it was politically motivated. One Stapley case, also regarding financial issues, was subsequently dropped. Another was thrown out on technicalities, and during an appeal, a special prosecutor discovered that many of the charges had been filed after the statute of limitations had expired.
Aubuchon also tried to obtain indictments against Superior Court judges and other county employees but was rebuffed by a county grand jury. And, at the request of Thomas and Arpaio, she authored a civil-racketeering lawsuit against county officials, Superior Court judges and private attorneys, alleging a conspiracy to keep Thomas from investigating the supervisors and a $340 million court building under construction. The suit was dropped.
• Along with Arpaio, Thomas and Hendershott, she is being investigated by the U.S. Justice Department for alleged abuse of power. The State Bar of Arizona also is looking into possible unethical conduct by Aubuchon.
• Last month, The Republic learned that Aubuchon's attorneys in the Bar investigation had hired private investigators to research and follow an out-of-state investigator who was in Arizona conducting the Bar inquiry.
• Aubuchon has filed a $10 million notice of claim against the county, alleging that county officials smeared her reputation and destroyed her career.
New details about Aubuchon's actions emerged this week in an internal Sheriff's Office memo in which Deputy Chief Frank Munnell asked that Hendershott be placed on leave and investigated for alleged misconduct, mismanagement and criminal activity.
Munnell alleges in the 63-page memo that Aubuchon told sheriff's investigators to use 'creative writing' to write a search warrant allowing them to search the offices of all five members of the county Board of Supervisors. Investigators were incredulous, Munnell wrote, and one lieutenant pointed to each of his subordinates and said if he 'found out that any one of them used creative writing, or wrote a warrant without the facts, he would fire them.'
Munnell alleged that during that meeting, Aubuchon pulled out a previously written search warrant used for a case against County Supervisor Don Stapley. The lieutenant countered that the warrant looked like a 'press release and not a valid search warrant.' Aubuchon's response, alleged Munnell, was, 'Why don't you just do good police work? " Munnell wrote, 'The most shocking moment of that meeting took place when Aubuchon, who is supposed to be an impartial and ethical prosecutor, stated during the meeting, to the effect that if they couldn't get charges on Stapley, that he would be tried in the media. The result of this contentious meeting was . . . the sheriff's personnel present in the meeting refused to author a warrant to search the offices of all the members of the Board of Supervisors,' Munnell wrote.
Munnell's memo also confirmed previous reports that Hendershott in April tried to create a position within the Sheriff's Office for Aubuchon."
There are almost always public prosecutors like Aubuchon. Lawyers who use their license as cudgels to achieve ends regardless of the means. I think of he California prosecutor Benjamin Thomas Field who received a 5 year license suspension for comparable conduct. Young lawyers and young judges can have too much power, it can poison egos and pervert justice.
When a lawyer is blessed to have a position of public trust, the power to convene grand juries, obtain warrants, and have citizens arrested and jailed, it's good to exercise these powers with wisdom; otherwise find another line of work. Creative writing?