Stapley case sent to Yavapai prosecutor - East Valley Tribune: News

Stapley case sent to Yavapai prosecutor

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Posted: Monday, April 6, 2009 9:25 am | Updated: 1:32 am, Sat Oct 8, 2011.

Maricopa County Attorney Andrew Thomas was adamant that he would never again give up a case unless he believed he had a genuine conflict of interest.

Board action bleeds into Stapley criminal case

During a Tribune editorial board meeting last month, Thomas invoked his past experience of a case that went bad after he appointed a special prosecutor to oversee the investigation of the Phoenix New Times. He ended up firing the outside lawyer and dropping the case.

So during the March meeting at the Tribune, Thomas said he'd learned his lesson.

"I will never again declare a conflict when there isn't one," Thomas said.

The context of that discussion was whether Thomas would be better off sending the indictment of Maricopa County Supervisor Don Stapley to someone outside his office for prosecution.

His answer at the time was "no."

But this week it changed to "yes."

Thomas abruptly announced Monday that he would send the case against Stapley to Yavapai County Attorney Sheila Polk.

Thomas maintains he does not have a conflict of interest in prosecuting Stapley, and is not backing down from his obligation to prosecute crimes in Maricopa County.

Instead, he characterized his decision as an attempt to settle differences and costly lawsuits that have erupted from the power struggle between the county attorney's office and Stapley's fellow supervisors.

The board stripped Thomas' office of its power to handle civil litigation for the county shortly after Stapley's indictment was announced in December.

"It's become clear that the infighting was affecting county government and somebody needed to step forward to try and break this impasse," Thomas said. "So that's what I have done. Sometimes if you want peace you have to make gestures of reconciliation, even when you firmly believe you are in the right."

Stapley is charged with failing to list business and real estate interests dating back to 1994 on financial disclosure forms he is required to file as an elected official.

The Mesa Republican's defense lawyers have filed motions seeking to force Thomas off the criminal case, arguing he has a conflict of interest because his office has given legal advice to board members, including advice on filling out the disclosure forms that are at the heart of the indictment.

Thomas said Monday he still believes his office has the legal power to continue prosecuting Stapley. But he fears continuing the legal fights with the board could decimate the civil division of his office.

Paul Charlton, Stapley's defense lawyer and a former U.S. Attorney for Arizona, said Tuesday that Thomas' decision to step aside is appropriate, but far too late. Charlton said he expects Polk to vigorously fulfill her role as a prosecutor. But unlike Thomas, Polk will pursue the case on its merits and free of politics that have tainted the process thus far, Charlton said.

"We didn't want to pick our prosecutor," Charlton said. "We just didn't want a biased prosecutor."

Aside from the indictment against Stapley, Polk will take over legal work associated with ongoing investigations by the Maricopa County Sheriff's Office into the construction of a $340 million court building in downtown Phoenix, as well as Stapley's relationship with East Valley developer Conley Wolfswinkel, Thomas said.

Polk said she will appoint an outside lawyer to handle the Stapley case. County attorneys frequently send cases to each other when conflicts of interest issues arise, Polk said, adding her office has handled many cases from Maricopa County. While those cases are normally handled by prosecutors within her office, the complexity and cost of the Stapley case means it would best be handled by hiring someone outside the agency, she said.

Polk said she has been in discussions with a lawyer in Maricopa County about taking over the case, and an appointment could come by the end of the week. The outside counsel will report to her. The cost of handling the case will be paid by Maricopa County, most likely using money seized through forfeitures, Thomas said.

Polk, a former deputy Yavapai County attorney, was elected in 2000. She is a Republican, as are Stapley, Thomas and Maricopa County Sheriff Joe Arpaio, whose agency is investigating the case.

Thomas has fought efforts to force him off the Stapley prosecution almost since the indictment was announced, arguing the law makes clear he has the responsibility to prosecute crimes in the county and separate duties in state law to act as the county's legal adviser.

In a separate civil action, Thomas has been battling in court to overturn multiple resolutions from the board to create its own civil litigation department to take over duties historically handled by the county attorney.

Thomas has fared poorly in recent weeks.

Last month, Judge Gary Donahoe unsealed a ruling he issued in February that the county attorney's office cannot pursue an investigation into the court tower because its lawyers have provided legal advice to county officials on that issue. Also last month, Judge Donald Daughton refused an attempt by Thomas to block the county from creating its own civil litigation division.

The decision to send a case to an outside agency for prosecution is a tough call, said Attorney General Terry Goddard, who faced similar issues in recent years when his office brought criminal charges against elected state officials.

Thomas made the right choice in the Stapley case, particularly in light of the judge's decision to keep the county attorney off the investigation into the court tower, Goddard said.

Goddard prosecuted former state Treasurer David Petersen and former Mine Inspector Douglas Martin. His office acted as the legal adviser to both agencies. But unlike the situation Thomas faced with Stapley, Goddard said his office did not provide legal advice to the two state officials dealing with the issues related to the charges. Goddard obtained plea agreements from both Petersen and Martin, so the issue of whether he should be forced off either case was never decided by a judge.

Once a criminal case is turned over to another agency because of a conflict of interest, the original prosecutor ceases all involvement, said Goddard, adding his agency frequently prosecutes cases from county attorneys throughout the state.

There is no sign that Thomas' announcement will calm his rancorous fight with the Board of Supervisors.

David Smith, Maricopa County manager, said Thomas' decision does not resolve his years-long conflict with the board.

"None of us believes that this is about global settlement," Smith said. "What it's about is he is losing the legal cases. To me, he's waving the white flag of surrender because his egregious conflicts of interest have been discovered by two different judges."

Smith said the board could take up Thomas' offer to resolve their differences as early as this week.

Max Wilson, the board's chairman, said Thomas' action is long overdue, but added he is willing to meet with the county attorney to resolve the costly lawsuits.

"There is a lot of dirty water under the bridge, but in the interest of good government, I'll talk," Wilson said in a prepared statement. "But I am not optimistic."

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