D.C. Lawyers Get the Boot as Special Prosecutors -- For Now: Supervisors Won't Put Issue on Agenda









toensing and eisenberg.jpg
Image: Jim King
David Eisenberg and Victoria Toensing

The Maricopa County Board of Supervisors won't let County Attorney Andrew Thomas use hand-picked special prosecutors to target Don Stapley or other members of the board.


Thomas' office had asked the five-member board to approve his hiring of Joseph diGenova, Victoria Toensing -- the pair of high-priced lawyers from D.C. -- and retired county prosecutor James Rizer, (who replaced David Eisenberg on this Dream Team, as we reported yesterday). But the board refuses to put the question on the agenda for tomorrow's meeting.


Today, County Manager David Smith told Thomas in a letter that the Supervisors won't consider the matter because an analysis by county lawyers concluded it would be illegal to approve it.

Smith explained that Thomas' appointment of the team runs into several legal problems -- the first of which is that Thomas can't simply throw the public's money around willy-nilly.


Thomas wanted the lawyers' pay to come out of RICO funds, or, if those aren't sufficient, from the county's "diversion" program, which allows first- and second-time offenders to have their cases dismissed. This is according to a letter from Thomas' top aide, Phil MacDonnell, which was forwarded to New Times this morning from the county, along with the letter from Smith to Thomas.

Click here to see both documents.

The other problems with the special prosecutors, according to Smith, are:

*DiGenova, the team's assigned leader, and his wife, Toensing, don't live in the county, as the law requires.

*Since the prosecution of Stapley had been assigned previously to Yavapai County, Thomas can't change his mind now and send the cases somewhere else.

*Thomas won't provide a cost-estimate for the prosecutors' work.

The Board's move to leave the item off the agenda for now means the potential prosecution of Stapley on new criminal charges has stalled once again.

The Supes didn't have to actually vote on the issue, says Wade Swanson, director of the county's new litigation department. Smith made his recommendation to pull the question off the agenda to board Chairman Max Wilson's office, which went ahead and pulled it.

Swanson says the prosecutors should not have started work yet, because they won't be paid for it.

The solution is that the case remains with Yavapai, Swanson says. Thomas' office claims Yavapai doesn't want to handle the potential new charges because of a lack of resources -- so Thomas' office could simply provide those resources, he says. That would be cheaper than hiring the D.C. folks, he adds.

Asked whether the board's move could be seen as gaming the system, Swanson replies that the investigations by Thomas are "witch-hunts." Even if another prosecutor handles the Stapley case, he says, the fact that Sheriff Joe Arpaio's office is doing the investigating "raises the stink of taint."

On the other side of the fence, though, Thomas' office is using its own hyperbole to describe the board's decision.

"Brazen, shocking, unprecedented," says Barnett Lotstein, one of Thomas' top aides.

Lotstein says, "No law requires special prosecutors or deputy county attorneys to live in the county."

Thomas can change his mind about which prosecutors should be appointed, Lotstein says.

A cost-estimate for a criminal case is tough to nail down because of all the possibilities, Lotstein says. For example, he says, a plea deal costs much less than a long trial.

On the county's main beef, the procurement issue, Lotstein points out that the Board of Supervisors has previously approved special prosecutors that were not selected through a standard county procurement process.

For example, he says, the county attorney's office used Dennis Wilenchik in the 2007 New Times case and Mel McDonald in the 2004 prison standoff case, and in both cases the Supervisors did not question how the special prosecutors had been picked. (The New Times case ended very poorly for Thomas, but that's another story).

To support his side, Lotstein points to an internal county code that appears to exempt "contracts of special investigative services for law enforcement purposes" from normal spending procedures.

Lotsteins adds that when New Times sued the county in the wake of the above-mentioned debacle, the county argued that it wasn't responsible for the hiring of Wilenchik -- that it was strictly a county-attorney thing. Now, apparently, the county is taking the opposite approach.

Lotstein compared the Supervisors' actions regarding special prosecutors to that of the Nixon during the Watergate scandal.

"Defendants can't choose their own prosecutors," Lotstein says. "It's ridiculous."

Lotstein says his boss will soon issue a letter to the Board, demanding that they put the special prosecutors item back on the agenda. Despite what Smith said in his letter, the Board of Supervisors cannot reject Thomas' choice of prosecutors -- if it's placed on the agenda, the Board must vote to approve barring "extraordinary" circumstances, Lotstein says.

The appointment of these special prosecutors may not be extraordinary, but it's definitely not ordinary.

Our prediction: If the Board doesn't back down and approve Thomas' choice of prosecutors, this mess will result in yet another lawsuit against the county by Thomas.

Side Bar --

Here's our take on a couple of the laws being quoted by these officials in their arguments:

*Swanson says two laws must be interpreted together to reach the conclusion about residency, ARS 11-402 and 38-462. Lotstein says that's just not true.

Our analysis: Point goes to Lostein. The residency requirement seems to apply only to county officers like Thomas, not to his employees.

*Lotstein says the Board of Supervisors must approve whomever Thomas picks as special prosecutor. Swanson says ARS 11-403 contradicts that idea.

Our analysis: Point goes to Swanson. The law seems to be pretty clear on the issue: "With consent of the Board of Supervisors, a special deputy county attorney may be appointed upon a fee basis..."



UPDATE: Swanson won't concede the point we gave his opponent, countering with a 51-year-old legal opinion by former state Attorney General Robert Morrison. You be the judge -- might as well, since you'll be paying the salary of the judge who'll have to slog through this muck.

UPDATE 2 -- Battle of the Attorney General Opinions. On Wednesday, Lotstein parries with a 1988 opinion by former AG Bob Corbin. That opinion seems to show Corbin reversing a former opinion, neither of which is the 1958 opinion. Lotstein says Swanson's "incompetent" for failing to discover the Corbin document. He expects to deliver a counterpoint-by-counterpoint report to the county, and the media, by Thursday. Stay tuned.


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