I watched former Maricopa County Attorney Andrew Thomas and his hench-person Lisa Aubuchon get disbarred yesterday. Underling Rachel Alexander received a suspension of six months and one day. You can watch Arizona’s Presiding Disciplinary Judge William O’Neil read the panel’s findings here. The ruling is extensive, but these concluding words seemed particularly important to me:
We, like the public, began uninformed. We are now fully informed. We are fully decided in our opinion. The evidence is overwhelming against Respondents. We hope the openness in which these proceedings were held will help restore the public’s faith in our legal institutions and deter attorneys from similar misbehavior. The purpose of attorney discipline is to maintain the integrity of the profession in the eyes of the public, protect the public from unethical or incompetent lawyers, and deter other lawyers from engaging in illegal or unprofessional conduct.
Sadly, their own individual basic mistrust of others, when combined together, became multiplied by dishonesty, an abuse of power and a remarkable willingness to spend the public’s money for their
cause célèbre. The aggravating factors devastate the mitigating factors. We find they knew they had no evidence and prosecuted people anyway. There was no “noble cause.” There was only self–interest. The harm done to the public, individuals, and the profession was stunning on every front.
As thrilled as I should be seeing a tyrant brought to justice, I find myself feeling a bit uneasy about what happened. Instead of seeing this as a move in the right direction, I worry it’s too unique a set of circumstances to make any real difference. I’m concerned that Arizona’s attorney discipline system may ensure justice is done, in this case at least, but that it’ll just be business as usual in the criminal courts.
I remember when Judge O’Neil used to be a Pinal County Superior Court judge. He’s an incredibly charismatic person, and when he was on the bench, watching him do settlement conferences in particular was truly a sight to behold. I used to joke that sometimes I’d be begging for him to let me plead guilty at the end too. He can be that persuasive.
Most settlement conferences would start out with him telling the defendant that he knows what every defendant wants: a dismissal. He’d look at the prosecutor and say sincerely, “will you please dismiss the case?” After a clear “no,” he’d tell the defendant, “sorry, I tried.”
He’d talk about how he was a true Pinal County native. He’d talk about growing up in the middle of nowhere, building a small town law practice and never losing a criminal case before deciding that type of law just wasn’t for him. He’d talk about his impressive credentials as a lawyer as well as a judge.
Then he’d talk about his dad, a small-town doctor who lived with his family out in the country. He’d talk about his brother and how they worked on the ranch instead of playing games like other kids. He’d tell a story about one day when he and his brother decided to do something that would give them a story that would impress their friends. They’d catch a rabbit with their bare hands. If they couldn’t play baseball all summer like most children, maybe that would show everyone else that they were athletic too.
He’d explain how his brother saw a rabbit and started chasing it. His brother ran and ran, and the rabbit suddenly jumped into a hole. His brother leaped onto the hole and quickly reached his hand down, but he didn’t pull out a pair of soft bunny ears. He looked down and saw the tail of a western diamondback rattlesnake. The snake bit his brother, he’d say with delivery worthy of an Oscar, and if his dad wasn’t a doctor, he’d wouldn’t have had a brother anymore.
After that engrossing story, he’d tell the defendant that everyone hopes to pull a rabbit out of the hole at trial. He’d tell the client about “some other fellas” who thought the same thing. There’d be guys who had offers to probation but got life in prison. There’d be guys who could’ve done five but got fifty. He’s no slouch when it comes to experience, so there was never a shortage of other defendants’ bad experiences in similar cases that he could relay to each defendant. The end result was almost always a plea.
In Andrew Thomas’s case, there obviously wasn’t a plea offer. It wasn’t a criminal case, and he wasn’t looking at prison for what he did. He only stood to lose his law license. There was no threat of rattlesnakes to make him give in, no coercive statutory scheme pressuring him to confess to the things he claims he didn’t do for fear of far worse sanctions. After the recommendation came down for disbarment, he had nothing to lose fighting the case. He had everything to gain.
Unlike the thousands and thousands of people prosecuted pursuant to his heavy-handed, unfair, and often ridiculous policies, Andrew Thomas had the largely risk-free ability to do everything within his power to defend himself. Not only wouldn’t he be taxed with extra punishment for asserting his rights, but he also wasn’t being prosecuted by disorganized foot soldiers with very little knowledge of their cases in a system that rushed him through with minimal personal attention. He had all the time in the world.
In stark contrast to Andrew Thomas’s day in court, I recently tried a complicated but admittedly minor criminal case in a misdemeanor jurisdiction. The court only gave me a small slot in the morning to do it. I filed motion after motion telling everyone the case was going to be time-consuming, but no one read them. I tried to make a record about how it needed special attention, but no one cared. When I showed up for trial wanting to argue motions, address issues, and devote the massive amount of time needed to do it right, everyone treated me like I was evil incarnate. How dare I thrust that upon them? It was a grueling uphill battle just to get a meaningful day in court.
The order moving back the Andrew Thomas decision until today really exemplifies the difference between people like my client and people like Andrew Thomas. My client could’ve gone to jail, but she was just one little person in a big, unfair system. Andrew Thomas only stood to lose his license, but he’s a big fish. He’s important, so his hearing took 26 days. There were 46 witnesses, and it cost a fortune. After two months of proceedings and 6,132 pages of admitted exhibits, he lost his license based on a beautifully-written, well-reasoned, 247-page ruling that carefully dismissed the counts for which there was not clear and convincing evidence while holding the respondents responsible for those for which there was. It was the kind of treatment every person in the legal system should receive. It’s the kind of treatment few do. For half a decade, it seemed to be Andrew Thomas’s mission that would be the case.
Andrew Thomas was free to fight, and fight he did. He’ll probably continue fighting with an appeal to the Supreme Court of Arizona. Andrew Thomas’s experience as an unwilling participant in the system was in an area where he stood to lose far less than the vast majority of the people his office prosecuted during his tenure, yet he was given time and attention that far above that which all but the luckiest of his victims received. Of course, as no one would have doubted, Andrew Thomas still didn’t agree with the ruling. According to one article, these were his words:
“Today corruption has won and justice has lost,” he said. “I brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license. Arizona has some of the worst corruption in America, according to a recent national survey. The political witch hunt that’s just ended makes things worse by sending a chilling message to prosecutors: Those who take on the powerful will lose their livelihood.”
I’m no Andrew Thomas sympathizer. However, I think he stumbles across an interesting point. I have no doubt that he abused his power, but there’s no question he chose a number of very powerful people to be among his victims. In a few cases, he targeted the political and legal establishment, probably assuming he was powerful enough to do it and win. He was wrong, luckily, and his misdeeds eventually caught up to him. His predicted message may be close to reality, though. He should have just qualified it by specifying that those who unlawfully take on the powerful will lose their livelihood. Those who lawfully take on the powerful may succeed. Those who unlawfully take on the weak or downtrodden will probably thrive and get away with it indefinitely. It’s a shame, but it’s true.
People keep telling me I should be happy that Andrew Thomas was brought to justice, but I am not. I read the opinion and think about the situation, and all I take away is a sense of something akin to envy on behalf of the ordinary people caught up in the legal system. This may have all taken place in the context of bar disciplinary proceedings, but Andrew Thomas committed his violations as a top prosecutor in Maricopa County’s criminal courts. It would be exceedingly naive for anyone to think his most egregious violations of the ethics rules happened to be the ones committed against a presiding judges and some powerful politicians. Andrew Thomas wasn’t disbarred because he pledged to continue to try to send people to death row in record numbers in order to get himself reelected. He wasn’t disbarred because he ran his office according to policies that cause innocent people to plead guilty or because he fostered a culture of intolerance and incompetence. It was because he finally messed with someone capable of fighting back.
The last thing I want to do is to diminish what Andrew Thomas did to Judge Donahoe or any of the others named in the ruling. It was awful, and justice was done when their cases were thrown out. Justice was done when Andrew Thomas lost his license. However, most people in the system stand to lose their liberty, and the system doesn’t give them anything close to what Andrew Thomas received. They don’t have the power Andrew Thomas’s best-known victims have.
Andrew Thomas was accused of something, and he fought the accusations. He was given every opportunity to fight his case, and he was not punished for taking advantage of that. The people he prosecuted had no such luck, and I don’t just mean the ones who were vindicated in bar proceedings and fought back until they won. There are plenty of ones who are still sitting in prison cells right now because they aren’t important and they were either afraid of snakes or didn’t pull out the rabbit they wanted.
As much as I appreciate Judge O’Neil’s hope that that the openness in which the proceedings were held will help restore the public’s faith in Arizona’s legal institutions, that isn’t the best thing that could happen. In fact, it may be the worst. Andrew Thomas did not run the county attorney’s office in a vacuum. The people of Maricopa County elected him. He wouldn’t have been capable of doing what he did if the system was better.
This should be a catalyst for change. It should make us reconsider our priorities and change the system in which he was allowed to operate. If we can give him a fair shake like the one he got, don’t we owe the same to everyone? Justice was done, but there’s a lot more justice left to do. There’s injustice to undo as well.
I hope that’s the message people take away from this.