Stapley Case Update: Still No Charges on New Allegations; Thomas' Office Claims Case has "Merit"

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Here's the latest on the Stapley case:

*The Maricopa County Sheriff's Office submitted the theft and fraud case against County Supervisor Don Stapley to the Maricopa County Attorney's Office today.

*The Maricopa County Attorney Andrew Thomas' office says the case has "merit."

*However, Thomas has yet to make a decision on whether to file charges. That means a 48-hour court deadline will pass without any charges filed, since the Yavapai County Attorney's office has decided it won't file charges today. Charges can be filed later, but Stapley must be served personally with new charging documents -- or arrested again.

*In referring to his arrest on Monday by deputies, Stapley told Channel 12 (KPNX-TV) news last night that "the real crime is the crime committed by Joe Arpaio and his inquisition of me."

*The Yavapai County Attorney's office, which had been handling the prosecution of Stapley's other criminal case, had reviewed at least part of the case prior to Stapley's arrest.

*Stapley directed his security staff to stop deputies from making the arrest, says the sheriff's office. The security staff backed down, and now the sheriff's office wants to see the security tape from the parking garage where Stapley was arrested.

This last part comes from Chief Deputy Dave Hendershott of the local sheriff's office, the guy who claims to have ordered the 2007 arrests of New Times executives Michael Lacey and Jim Larkin.

Hendershott, reached by phone today, defended his office's handling of the arrest.

"When is this story not going to be about how Stapley was arrested, but what he did?" Hendershott wonders. "There was nothing unusual about (the arrest) at all."

Most observers would beg to differ. In fact, except for the New Times arrests, we can't think of another instance in which somebody accused of white-collar crimes was arrested and immediately taken to jail before a county attorney's office signed off on the case. Can you? Didn't think so. Hendershott claims his office has done that before: We challenge him to prove it.

Then there's the coincidence factor. The charges on Stapley's other criminal case were dropped on Friday. The arrest came Monday morning.

Hendershott denies his office felt any "urgency" to arrest Stapley.

Dave Hendershott

"The guys finished the case report," Hendershott says. "The case was ready and we decided to make the arrest. This is the way it always happens."

Maybe. We sure don't recall anyone of Stapley's stature getting busted on the show Cops.

But it sounds like Stapley's arrest had the potential to be more Cops-like. After the sheriff's office decided not to arrest Stapley at home as a "courtesy," the County Supervisor tried to use his security detail against deputies, Hendershott alleges.

"Mr. Stapley ordered his protective service group to stop the deputies from making the arrest," Hendershott says. Though the men backed down, the sheriff's office still wants to examine the security tape from the parking garage, he says. We ask if that means another possible criminal charge for Stapley. Hendershott was noncommittal.

But there's another possible reason the sheriff's office wants the tape. We learned that the sheriff's office had been inquiring about the security tape from a county source concerned that it would just be used to embarrass Stapley further. The source claims that when deputies visited county offices yesterday to ask about the tape, one was overheard saying they wanted to give it to a TV news station. Hendershott says that's ridiculous, but we're not so sure.

Still uncertain in all of this is whether the accusations against Stapley do, in fact, have merit. We've put in a request with the sheriff's office for its full investigative report, but haven't seen it yet. We have our suspicions that some of these allegations won't stick. As New Times Sarah Fenske reported on this blog today, a lawyer for Stapley told the Supervisor his campaign fund for a non-profit company position wasn't subject to campaign finance law, yet the sheriff's charging documents seem to suggest it was.

Barnett Lotstein, one of Thomas' top aides, tells us that once the current case is "scratched" after the 48-hour deadline passes today, the next likely step would be a direct complaint from the county attorney's office or grand jury indictment. Deputy county attorneys from the office gave a "very quick look" to the case once they received it today and, as mentioned, found that it "looks like there's something deserving" of a prosecution, Lotstein says.

"There will be a prosecutor" in the case, Lotstein warns. Whether it will be the Maricopa County Attorney's office or not remains to be seen, he says.

Just because Thomas referred the other case to Yavapai County doesn't mean he'll do the same to this case, Lotstein says. In the first criminal case, which dealt mainly with alleged campaign finance disclosure form irregularities, Stapley's defense team said the county attorney's office had vetted some of Stapley's disclosure forms. Although Thomas never agreed with that analysis, he transferred the case to Yavapai, in part, to avoid even the appearance of a conflict of interest, Lotstein maintains.

The same concern apparently doesn't exist in the new criminal case, meaning Thomas could decide there's no problem with his office's handling of it, Lotstein says.

That being said, Thomas plans on meeting soon with the Yavapai County Attorney, Sheila Polk, to help him figure out which agency should take the new case.

Must be a tough decision -- Yavapai has suffered setbacks on the old case. The judge in the case, Kenneth Fields, decided last month to toss out half the charges because of a technicality. (It turned out that the law Stapley was being accused of breaking may not actually exist). The special prosecutor assigned in the case, Mel Bowers, filed a special action with the Arizona Court of Appeals.

When the higher court turned down a motion to immediately reverse Fields' decision, Bowers threw in the towel on the other half of the charges. That was on Friday. Yesterday, the Court of Appeals officially rejected the request for any special action on that front. Yavapai County plans to file a regular appeal in the case -- a long-term plan with an uncertain outcome.

In any case, if an indictment or complaint charges Stapley officially, the County Supervisor will have to be notified of those charges.

He could be arrested again or simply served with a summons. Hendershott tells New Times he will recommend a summons this time, not another arrest.

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Image: Maricopa County Sheriff's Office
Don Stapley's latest jail mug shot

This situation seems to be fodder for the argument that Stapley didn't need to be arrested in the first place. In any case, if a prosecutor decides to charge on the sheriff's recommendations of 93 felonies and seven misdemeanors, doesn't that mean a duplication of effort in "notifying" Stapley that he's being criminally charged?

Not necessarily, Lotstein argues.

"They may be totally different charges," he says.

Fair enough. But that's fodder for the argument that the sheriff's office should have consulted with a prosecutor's office on this compex, white-collar case before the arrest.

We spent time busting Lotstein's chops over the idea that maybe Thomas should consider the ethics of the way Stapley's being targeted. Clearly, this is not your average fraud case. Stapley has become a political enemy of Arpaio and Thomas, and it doesn't seem right to simply ignore the political theater that goes along with this criminal case. Lotstein retorts that "there are no ethical issues" and that the case will "rise and fall" on its own merit.

Yet even Bowers, the special prosecutor, seemed to raise an eyebrow at the way Stapley was arrested. (At least, we imagined he raised an eyebrow -- we caught him at his Prescott home by phone). When asked if he was fully aware of the bizarre, publicly funded disputes between county officials in Maricopa, he quips, "Is it something in the water down there?"

Bowers openly wondered why Stapley was arrested, but says he doesn't feel comfortable saying more because "I want to maintain a working relationship" with Arpaio's office.

Bowers did tell us, though, that he's not very interested in taking on the new Stapley case -- he has his own reasons. The former Navajo county attorney says the Stapley case "is kind of messing up my retirement." When he agreed to handle the campaign finance case, he hadn't appreciated the "magnitude" of the allegations against Stapley.

Bowers says he had a meeting with Polk, the Yavapai County Attorney, who told him Maricopa had other cases it wanted to see Yavapai handle, such as the one dealing with the construction of a new Superior Court building and the criminal investigation of Mary Rose Wilcox. (Side note -- we asked Hendershott how the Wilcox case was coming; he says it's "quite active" but he can't comment on it now).

Polk also mentioned the new Stapley allegations to Bowers, including those pertaining to his run for president of NACo, the National Association of Counties. Polk asked him if he'd mind looking at the Stapley/NACo case; she also told him a deputy county attorney with the Yavapai office had already been looking at it.

"I wasn't willing to take on the whole case file," Bowers says. "I didn't want to be in a situation where I was working 60 hours a week."

Bowers says he can't recall when that conversation came up, but the subject came up again when it became clear the office would need to pursue the older case on appeal. He never saw any documents related to the new case, he says.

Polk didn't return a call from New Times, instead referring calls to her chief deputy, Dennis McGrane. He would only say that he's familiar with the new Stapley case, though he did tell us that no charges would be filed within the 48-hour timeframe, (as we reported earlier today).

Though McGrane wasn't willing to confirm what Bowers told us about the case being reviewed -- at least partially -- by Yavapai prior to Stapley's arrest, Stapley's attorney, Paul Charlton, was more than happy to try to fill in the blanks.

Charlton says he speculates that Yavapai County may not have been that thrilled with the new allegations. If so, that could have been what spurred the sheriff's office to attempt to force the prosecution's hand with an arrest of Stapley. The facts that A), Yavapai was acting as the prosecutorial agency against Stapley and B), that Yavapai wasn't notified of Stapley's arrest, probably means that Arpaio "didn't like the professional advice" he was getting from the Yavapai prosecutors, Charlton says.

In any case, Charlton, the former U.S. Attorney in Arizona, says that if he were in charge of a prosecution agency and a law enforcement agency pulled a stunt similar to what happened Monday with Stapley, "it would be the last time that law enforcement agency ever acted in concert with me."

The sole purpose of the arrest, Charlton says, was to humiliate Stapley.

With the 48-hour charging deadline expected to pass with no action, it's hard to imagine what other purpose the arrest served.


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