Disciplinary judge should have recused himself due to his prior involvement ruling against Thomas saying he could not prosecute a judge
Robert Robb, a moderate Republican who writes for the Arizona Republic, had a good column today regarding the disbarment of Andrew Thomas, analyzing the significance of the US Attorneys Office announcing it would not be prosecuting Thomas and Arpaio for abuse of power. Here are some some of the most poignant excerpts:
There is no general federal crime of abuse of power.
Instead, the federal investigation was of possible violations of specific federal and state criminal statutes.
Arpaio and Thomas alleged a grand criminal conspiracy involving every member of the Board of Supervisors, senior county staff and several judges. The specific accusation was that the judges agreed to shield the supervisors and staff from criminal investigations in exchange for the county funding a new office building for the judges.
This grand conspiracy was alleged in a civil racketeering lawsuit filed against the lot of them and in criminal charges brought against Judge Gary Donahoe.
But that does not mean that it violated specific federal and state criminal laws. In concluding that it did not, federal prosecutors acted as the only responsible adults in this whole sorry saga. And in so doing, they seriously shook the credibility of the decision by the disciplinary panel to disbar Thomas and his lead prosecutor on these matters, Lisa Aubuchon.
The disciplinary panel concluded that Thomas and Aubuchon committed the state crime of perjury in the course of charging Donahoe with bribery, among other offenses. And the panel concluded that Thomas, Aubuchon, Arpaio and Arpaio’s chief deputy, David Hendershott, committed the federal crime of conspiring to violate Donahoe’s federally protected civil rights.
I railed against it when these charges were included by the state bar’s independent counsel. I vigorously protested when the disciplinary panel made its findings of criminal guilt. A professional disciplinary proceeding is not the place to be adjudicating guilt or innocence of criminal offenses. Moreover, I wrote that the evidence didn’t support the conclusion, which rested on twisting the law in much the same manner as Thomas and Aubuchon were accused of doing.
The fulminations of a scribbler who is not a lawyer can be easily dismissed. The sober conclusions of federal prosecutors after what they describe as a “comprehensive” investigation shouldn’t be.
The state Supreme Court needs to understand that the credibility of its lawyer disciplinary process has been severely shaken in its highest profile case ever. It should amend its rules to make clear that determining guilt or innocence of criminal offenses isn’t within the purview of the disciplinary process. That’s reserved for criminal courts.
Thomas didn’t appeal his disbarment. Aubuchon has and she raises two good points on appeal. The presiding judge for the disciplinary panel, William O’Neil, had previously stayed the criminal charges against Donahoe. And the disciplinary panel imputed Thomas’ motives and actions to her.
The court should return Aubuchon’s case for a rehearing under a different judge, with instructions to ignore allegations of criminal offenses not proved in criminal court and to consider only Aubuchon’s own actions and motivations.
It didn’t need to come to this.
The overcharging of Thomas and Aubuchon in the disciplinary process was unnecessary and unwise. The call by Arpaio critics that he be investigated for criminal offenses has backfired.
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