County Attorney Debate

Oct. 21, 2008

Transcript:

Ted Simons:
Tonight on "Horizon," two challengers are trying to unseat the Maricopa county attorney. Tonight, the three candidates debate the issues on this special edition of "Horizon."

Announcer:
"Horizon" is made possible by contributions from the "Friends of Eight," members of your Arizona PBS station. Thank you.

Ted Simons:
Good evening and thanks for joining us on "Horizon," I'm Ted Simons. Tonight we are joined by the three candidates for Maricopa county attorney. Michael Kielsky is the Libertarian candidate. He's a computer consultant and earned his law degree from Thomas Jefferson School of Law. He's married and has three children. Democrat Tim Nelson served as general council for Governor Napolitano. He earned his law degree from George Washington University. He and his wife have two children. And incumbent Andrew Thomas is a Republican. He earned his law degree from Harvard Law School. He and his wife have four children. We drew lots just minutes ago to determine the order of our 30-second opening statements, and we begin with Tim Nelson.

Tim Nelson:
Good evening, I'm Tim Nelson and we need a new county attorney. I'm a 20-year lawyer who has fought for the people of Arizona. As county attorney, I will be tough on crime and put public safety first. The incumbent has abused his powers, wasted millions of our tax dollars and promoted himself over public safety. His supporters have tried to smear me with a nasty, negative campaign which we now know was financed illegally by people in county government. Today I submitted a formal public records request to get to the bottom of this scandal. I call on Mr. Thomas to reveal and denounce the people behind this illegal campaign.

Ted Simons:
Thank you, Tim Nelson and next is Andrew Thomas.

Andrew Thomas:
It's been an honor to serve as your county attorney for the last four years. One issue in this campaign that I think has not received sufficient attention is the death penalty. I support it. My opponent has said that I seek the death penalty against too many first-degree murderers. I have here a list of all the murderers sent to death row since I took office, and a list of all the first-degree murderers accused against whom we are seeking the death penalty. I would like for my opponent to tell us which of these cases we should not be seeking the death penalty in, and if so, why. I think that the public's entitled to know this and I think this is a very important distinction between the candidates.

Ted Simons:
Thank you. And next, Michael Kielsky.

Michael Kielsky:
Hi, I'm Michael Kielsky, I'm a Libertarian. I'm in this race to talk about the issues that Libertarians care about. The Maricopa county attorney is charged with the duty of enforcing the criminal laws in Arizona. The purpose of those laws, according to the Arizona constitution, article II, section II, is the protection of individual rights. I seek the office to make sure that the individual rights of Arizonans of Maricopa County residents are protected through the prosecution of those who would infringe on those rights.

Ted Simons:
Alright gentlemen, thank you very much. Let's start with the questions. Andrew, I want to start with you first. Your critics say that you put too much priority on nonviolent illegal residents here in Arizona, illegal aliens in the state. Comment, please.

Andrew Thomas:
Well, I fully enforce the immigration laws and I worked with the Sheriff in prosecuting not only the smugglers but the illegal immigrants who conspire to be smuggled illegally. We have sent violent smugglers on very lengthy prison sentences and will continue to do that. But my opponent has basically said he is going to grant amnesty to illegal immigrants who violate the human smuggling law. I think that's wrong. I think that it sends the wrong message in trying to address our illegal immigration problem. These cases only constitute about 1% of our total felony caseload, but they're important. And to simply say we're not going to prosecute illegal immigrants because it's politically incorrect to do so, or whatever specious reasons are given, I think is wrong and that's a very clear difference between us.

Ted Simons:
Is there a concept of priority that needs to be addressed?

Andrew Thomas:
We handle 40,000 felony cases a year. I've prosecuted approximately 150,000 felonies since I took office, overseeing those prosecutions. So adding a few hundred smuggling cases frankly isn't much of a burden. The question is, do we have the political will to prosecute illegal immigrants: I do and my opponent doesn't.

Ted Simons:
Talk about the fact that people want something done about illegal immigration. Why not do it?

Tim Nelson:
We will do something about it. What we need to do is focus on the coyotes and the human smuggling rings that are facilitating large scale illegal immigration. And we're going to do that aggressively when I'm county attorney. But if we don't break up those organized crime rings who are really posing the true public safety threat to Maricopa County, then we are only sending back people, and not disrupting the means by which they can come right back into our county.

Ted Simons:
Why is it better to prosecute and then turn over to I.C.E., as opposed to just turn over to I.C.E.?

Andrew Thomas:
Because I've instituted what I call the "Thomas No Amnesty Plan" which is, we are going to get a felony conviction for these illegal immigrants, so that it'll be hard for them to become U.S. citizens, for them to immigrate legally into the United States. And we will send a general deterrent message to the illegal immigrant community trying come here to Maricopa County, and to say that we're not going prosecute them just because it's politically hard or we'll get sued by the ACLU, who my opponent used to represent, I think is just the wrong approach.

Ted Simons:
Do you think that it is a deterrent to go hard after folks who are breaking this particular law?

Tim Nelson:
Not as much of a deterrent as it is breaking up the human smugglers who are bringing them here systematically. That's what we need to focus our attention on. We need to be smarter about how we approach this situation so that we are going after the people who pose the real threat to Maricopa County.

Ted Simons:
Michael, your thoughts on illegal immigration.

Michael Kielsky:
Let me succinctly put it this way. The problem is way too much focus on enforcement of the laws against victimless crimes. That takes away from attention to enforcement of the laws for real serious criminals. Everything from people who break into homes and steal your contents of the homes, your TV, your VCR, your computers, to people that steal automobiles, to people that commit violent assaults on people to murderers. When we focus so much of the attention, so much of the resources of the office on prosecution of nonviolent victimless crimes, everything from illegal immigration to prosecution of possession, to prosecution of prostitution matters, we devote those resources to that, we take away those resources from prosecuting people that are hurting actual citizens.

Ted Simons:
All right. ACLU was mentioned. What is your relationship with the ACLU?

Ted Simons:
You know, I have represented hundreds of clients and hundreds of cases throughout my career. There have been exactly three that have involved the ACLU, and two of them I was opposed to the ACLU. So Mr. Thomas' efforts to paint me as somehow connected to the ACLU is just flat-out wrong and it's the type of labeling that has no place in this type of political debate. And it's a distraction from the real issues which are his abuses of power and his waste of financial money for our county while he's been county attorney. We've gone from spending $5 million a year on outside counsel, to spending $16 million a year in just the four years that he's been county attorney. And of that $11 million increase, 80% has gone to lawyers who contributed to his last campaign. These are the issues that we should be talking about.

Ted Simons:
I want to get to the outside council issue in a second here. Can you, in any way, be associated, in any way, shape or form in your past, with the ACLU and not have that be a negative?

Andrew Thomas:
Well, I've been sued by the ACLU, and by lawyers who are supporting my opponent's campaign, and so his links with the ACLU continue. But I'm still waiting for an answer to my initial question. And that does get to the ACLU issue, and the fact that, in my perception, my opponent is a soft on crime ACLU liberal. He's said that I seek the death penalty in too many cases. I've handed him a list of over 100 active cases in which we have either sent people to death row on my watch or in which we are trying to. These are all heinous first-degree murderers. He has leveled a very serious charge, and he needs to substantiate it. Which cases should we not be seeing the death penalty in? I'd like to know, and I think the voters would like to know.

Tim Nelson:
If you were to try every single one of those cases, if you were to start today and you were to devote every single criminal calendar to a full trial of all of those cases, and you went back to back and used every single court date, it would take you four years just to do those death penalty cases --

Andrew Thomas:
-- You haven't answered my question! [Laughter]

Tim Nelson:
-- and that assumes -- and that assumes that you don't get any new cases in the middle, and that you're not prosecuting any of the other cases: the property crimes, the assaults, the other serious crimes that are going on here. We need to make decisions in the context of the total crime situation here in Maricopa County and make sure that we understand what our resources are.

Andrew Thomas:
He has completely dodged my question. My question again, for the third time, is which capital cases should we not be seeking the death penalty in. He won't answer that because either he can't or because he doesn't believe what he said earlier. The bottom line is, we are seeking the death penalty in appropriate cases, we have the resources to do it, we are a state that can fund our criminal justice system adequately. And it certainly shouldn't fall upon the county attorney to start making budgetary decisions, you should be seeking justice for the victims of crime, particularly murder. I will do that, my opponent will not.

Michael Kielsky:
Let me jump in here, because this is just part of the pattern of this campaign. My two opponents are attacking each other over, really, differences that amount to not a heck of a lot. The bottom line is this: there is a serious choice to be made about where the resources are focused from the county attorney's office. And I think Mr. Nelson is correct that by focusing a lot of the resources on prosecuting death penalty cases, that does detract from being able to prosecute other cases. On the other hand, yes, the death penalty is appropriate in some cases. But I think it needs to be balanced out. Every case that is a capital murder doesn't necessarily need to be prosecuted to the death penalty, because the resources, because of the nature of the case, even if that's what the victims need or want, it may not be appropriate because it doesn't serve overall justice.

Andrew Thomas:
We've got a disagreement there, and we have to agree to disagree I guess.

Ted Simons:
Kind of dovetailing into that, the concept of resources and plea bargains, is it wise to crack down on plea bargains? Overall, a wise move?

Andrew Thomas:
Absolutely. Because not everything should be open to negotiation. I have ended plea bargaining as we know it for serious violent crimes. And I want people, when they see the mug shot of a serious violent criminal and they see that we have gotten an indictment against that person, they need to be able to look at that mug shot on their TV set and think, "He's going to get it. He's going to get what's coming to him." We're going to seek maximum penalties for these people. We have the ability to do it. There were all kinds of "Chicken Little" predictions that the courts would fall apart if we instituted this policy. That has not happened. We have a 93% conviction rate, we have a 29% increase in the incarceration rate. We are effectively guaranteeing public safety by taking these people off the streets - career criminals, violent criminals - and putting them into prison where they belong.

Ted Simons:
Why not fully prosecute the laws and avoid police?

Tim Nelson:
Well, of course you're going to fully prosecute the laws. Those things are not inconsistent. What you need to do is make sure that if someone is willing to plead guilty to the most serious charge you can prove, then you should take that plea. If you don't, you're going go to trial on a case where the best outcome is one you could have gotten a plea for. And the worst outcome is a complete acquittal and the person walks. We need to be cognizant though of what all of these cases do to our trial system. They clutter up the trial system. The plea to the lead has been an absolute disaster as a prosecution policy. We need to instead be ensuring that we are being smart about giving appropriate police for appropriate charges. And we don't have a situation like we have under Mr. Thomas where people are going to trial on cases they can't prove.

Andrew Thomas:
That's absolutely not true. First of all, he started out by essentially endorsing the plea to the lead policy saying that people should plead to the highest charge. Well they do under my policy. My opponent would let every prosecutor cut his own deal, he'd let the county attorney personally cut deals with well-connected criminal defense lawyers who bankrolled his campaign -

Tim Nelson:
[Interrupting] That's -- that's just not --

Andrew Thomas:
No, that's exactly what you said. But the reality is --

Tim Nelson:
No, that is not what I said.

Andrew Thomas:
No, no, you are saying that prosecutors should be able to enter into whatever plea agreement they want instead of abiding by my plea to the lead policy.

Tim Nelson:
No, no, that is not what I'm saying.

Andrew Thomas:
Then what policy would we have? Under your --

Tim Nelson:
What I'm saying is you need to be able to plead to the highest charge that you can prove. That's different than what your policy is -- that's very different than what your policy is, which is the highest charge that you throw at the person, regardless of whether you can prove it. That is exactly your policy and that's why it's been such a disaster.

Andrew Thomas:
We have a 93% conviction rate. And for those cases -- for those cases in which the evidence breaks down, let's say a witness is not available or there is some problem with the case, we have a deviation policy. In which people can go and they can get an exemption to the policy so that they can plead the charge down. But that is the exception rather than the rule. It would be the rule rather than the exception with my opponent. He would repeal the policy and just let prosecutors cut their own deals.

Tim Nelson:
His 93% is based on pleas, too. Because they do plea --

Andrew Thomas:
Sure.

Tim Nelson:
-- they deviate and they do plea. And that includes pleas. If you actually look at trials, his acquittal rate is growing and it's to an alarming level, where even the public defender's office is winning cases at a rate that they've never won before.

Ted Simons:
Can we get accurate information on acquittal rates? Every time I try to research this thing, I'm getting different numbers. First of all, why is that? And what are we seeing out there?

Andrew Thomas:
Here are the facts about the acquittals. This is from the Arizona Supreme Court, this shows the acquittal rate since I took office. It's essentially the same as it was under my predecessor. And the reality is, that acquittal rate has remained the same. But we are getting tougher sentences; we're at a 29% increase in the incarceration rate. That's from the Arizona Supreme Court, which doesn't have a dog in this fight, a neutral source. And so, I think it's fair to say I've proved the critics wrong, including my opponent. We have held the line and we've gotten some very tough sentence without sacrificing quality.

Tim Nelson:
The data are very slippery. In fact, if you check other sources, look at the public defender's office. We did a public records request from the Superior Court and we got very different data. It's not uniform. They measure different types of cases at different times. But even the Supreme Court's data shows that there has been an increase in the last four years in acquittals.

Andrew Thomas:
That's not what this shows.

Tim Nelson:
It is.

Andrew Thomas:
That's not what that shows.

Michael Kielsky:
The reality is, are we actually making any progress? These statistics are all very fine. And even though there are stark differences between the statistics that are being put forth by the other two candidates here, the reality is, are people safer? Do increased prison sentences really mean that people are safer? If we're putting people in prison for possession, for prostitution, for being present in the United States without permission, does that actually translate into us, the citizens of Maricopa County, being safer? Does that prevent a car-jacking? Does that prevent a murder? I don't think that there is a direct relationship. Because when you devote resources to these other things, you take away resources by definition. I'm sorry, but there's no way that the county attorney's office can claim to have unlimited resources and can do whatever the heck they want. The county attorney's office has the resources with which it must work. So it has to make certain decisions. Under my guidance, under my leadership, the prosecution of victimless crimes would take an absolute backburner to prosecution of crimes against people where people's individual rights have been violated.

Ted Simons:
All right. You mentioned outside counsel. Why is it not wise to get the best attorneys out there to get the best results?

Tim Nelson:
Let me give you an example. Pima County is about a third of the size of Maricopa County. Pima County spends about $800,000 a year on outside counsel. When Mr. Thomas took over, we were spending $5 million a year; today we spend $16 million a year. Now, if we were doing that for sophisticated cases where you didn't have the in-house capability of a 357-lawyer law office, which is what the county attorney's office is, then it might make some sense. But the reality is, Mr. Thomas has been farming out even basic public records cases, to his friend. And even cases that absolutely a lawyer within a public law firm ought to be able to handle. This has not been an effective use of our money. It has wasted an enormous amount of our tax dollars, and it has supported the people who contributed to his last campaign. It's political patronage.

Ted Simons:
Are lawyers at the county attorney's office unable to do these jobs?

Andrew Thomas:
No, they do an excellent job. But we have overflow work that we have to retain outside counsel for and also there are sometimes attorneys on the outside who have special expertise. The bottom line in this business is the bottom line. We are winning in court. The sheriff's office has had 11 judgments in a row. That's a tremendous record. Nine of them were jury verdicts. And that's because we're choosing top-flight counsel, we're going to court, we're winning, we're detouring frivolous lawsuits. We're denying plaintiffs' lawyers [laughter], a number of whom understandably are supporting my opponent -- we are denying them fees, handing out to settlements like we used to do. But I do need to add one thing. It does trouble me to hear allegations like this, when it has not been reported. And it really should be that while my opponent was a counsel for the governor, the governor's office and state agencies referred over $300,000 - at least over $300,000 to his wife's law firm. She's a shareholder in that firm. She gets a cut of those proceeds. I have not enriched myself, my opponent did. And if he becomes county attorney, there is nothing that will prevent him from similarly enriching his own household by sending work to his wife's law firm.

Tim Nelson:
Mr. Thomas, you have absolutely no shame. And you know that that's a bogus claim. I have never once referred a dime of public business to my wife's law firm. My wife's law firm is its own independent law firm that has won business on its own accord. They've done it on their own merits. They've been chosen by every major hospital organization in this county, including Maricopa County, to represent it when they have legal issues. They win business on their own merit, not through anything that I've done. But let me address another thing, because he's attacking the people who support my campaign.

Ted Simons:
Very quickly please.

Tim Nelson:
The people who support my campaign include Republicans, they include prosecutors, they include Grant Woods, Rick Romley, Paul Charlton, people who have served this county well and know that we need a new county attorney.

Andrew Thomas:
Well, just to conclude, regarding his wife's law firm, the reality is that work was referred. And to say that you're general counsel to the governor, but you're going to excuse yourself from that decision does not pass the smell test. And the reality is, Janet Napolitano herself when she was attorney general wrote an opinion that said that being in a position like that and referring work to a spouse's law firm or business through a no-good process creates, at a minimum, the appearance of impropriety. And this has not been addressed at all, this is very serious.

Tim Nelson:
This is absolutely false allegations. First of all, the organization that referred business to my wife's firm was the attorney general's office, not the governor's office. And it was done through a competitive process. It was done through the attorney general's office. They were the contractors that awarded that.

Andrew Thomas:
Didn't they represent the governor?

Tim Nelson:
No, they didn't represent the governor.

Ted Simons:
Ok, we need to move on here. I want to get your thoughts on the relationship between the county attorney's office and the judiciary. How should that relationship be?

Andrew Thomas:
Well we have, under our constitution, a wonderful system that has served us well for over 200 years, and it's called separation of powers. We have three branches of government. The county attorney's in the executive branch of the government and of course the judiciary is in the judicial branch. There are times when we're not going to agree on things. But what the county attorney needs to do, in my judgment, is to lead. And not worry so much about currying favor with people or other well-connected individuals. We have, as I mentioned, there are very successful prosecutions, 93% conviction rate, that's a reality. Crime rates are going down, and to the extent that there have been disagreements that I've had with the judiciary, it's because I've been upholding the will of the people. My opponent has suggested that he's too squeamish to be willing to nudge the judiciary towards enforcing a Prop 100, similar measures, I call that leadership and I think that's what we need in an elected official.

Ted Simons:
Should judiciary be nudged every now and then?

Tim Nelson:
Well, through the proper meets, you go to court and you make your best case to the judiciary. That's exactly what you're supposed to do. But for law enforcement to be effective, law enforcement has got to cooperate with each other. We have to be able to work with our local law enforcement agencies, with our other county attorney's offices, with the attorney general's office. Time and time again Mr. Thomas' office has been a lone wolf. They will refuse to work with other agencies, with other law enforcement organizations. And a perfect example of that is how they've treated the other counties in this state -- we used to have a brief bank that would be available to every other county in the state. If a little county like La Paz County needed access to it so they could prosecute a case, they could come to Maricopa to get that. He has cut all those counties off from the brief bank, it makes no sense.

Ted Simons:
Relationship between county attorney's office and judges?

Michael Kielsky:
Well let me just briefly address what we've already been talking about a little while. The bottom line is, and this has been my focus the whole discussion. The county attorney's office has limited resources. To spend a bunch of money on outside counsel is a waste of some of those resources, when the work could be brought in-house if you simply re-targeted the prosecutors on what really needs to be done. And the same goes with the fight that's been picked by the county attorney's office with the judiciary. Again it's a complete waste of resources. Yes there may be some legal points here and there but there are legal ways to go about that without necessarily throwing a nuclear bomb and attacking the judiciary wholesale. So, again, I think in terms of using the resources of the office wisely, I think Mr. Thomas has lot to answer for. And again, I think Mr. Nelson equally has not made any statements about whether or not he would re-target resources on focusing on prosecuting violent criminals, criminals that prey on us, criminals that violate our individual rights. And leave off the prosecution of the victimless crimes. You still have to -- again, another waste of resources that destroys lives. It is just -- again, in and of itself it becomes a violation of individual rights.

Ted Simons:
Alright, we've got to stop it right there. We've got closing statements. You've got 30 seconds for closing statements. And we will start with Tim Nelson.

Tim Nelson:
This election gives the voters of Maricopa County an important choice: one between the status quo with a county attorney who has abused his powers, sought subpoenas, trying to get records into our personal reading habits on the Internet, had newspaper editors arrested, has pursued policies that divide us on racial and other lines. Our county attorney should be dedicated to putting public safety first, making sure that we aggressively prosecute our most serious crimes, that we are giving good legal advice to our county agencies and officers and that we're doing the business of the people. I ask for your vote.

Ted Simons:
Andrew Thomas.

Andrew Thomas:
Again, it has been an honor and a privilege to serve as county attorney for the last four years. I am tough on crime and I don't offer any apologies for that. And I'm tough on illegal immigration. I ran on a platform of fighting illegal immigration four years ago. There were an awful lot of skeptics and elites in the media and elsewhere who question whether that was possible. But I've shown that it was, through leadership, through hard work. And sometimes that means having to work with the sheriff's office and work with Sheriff Arpaio and other people who draw lot of flak in the media. But that's called leadership. I'm going to continue to fight to defend your homes, to protect you from criminals, to protect this state from illegal immigration. And I will do the job that I have - and uphold the oath that I have taken and do the job that I've been elected to, should I be honored with your vote and be reelected.

Ted Simons:
Thank you. Michael?

Michael Kielsky:
I think the contrast between my opponents and myself is clear. They spend a lot of time fighting about various little issues. The bottom line is this: the Maricopa county attorney's office is one of the key offices focused on prosecuting serious criminals, so that the public at large is protected. So that serious criminals, criminals that would attack us in our homes, that would attack us on the street, that would do us harm directly, can be taken off the street. The office spends way too much of its resources prosecuting nonviolent victimless crimes. That needs to stop. Under my guidance the office would stop prosecuting those.

Ted Simons:
And we have to stop right there. Gentlemen, thank you very much for a lively discussion. Thank you very much. Tomorrow on "Horizon," another debate as the two candidates hoping to unseat Democratic Congressman Harry Mitchell in Arizona's fifth congressional district square off with the congressman. That's Wednesday at 7:00 on "Horizon". And Thursday, another debate as we hear from candidates hoping to represent Arizona's first congressional district. That is it for now, thank you so much for joining us. I'm Ted Simons, you have a great evening.