Barnett Lotstein, Special Assistant County Attorney, talks about response to criticism of the Maricopa County Attorney’s office and its handling of recent criminal investigations against County officials and judges.
José Cárdenas: Last week on our show, we had Paul Charlton, a former U.S. attorney and one of the defense attorneys for Don Stapley. Also here was attorney Tom Ryan, who helped organized a rally in the legal community challenging county attorney Andrew Thomas and sheriff Arpaio's recent actions. Here is what they had to say about the growing discontent with Maricopa County attorney Andrew Thomas' and Sheriff Joe Arpaio's legal battle with county officials and judges.
If you're old enough to remember Watergate, I think you'll see Nixonian reflections in what's happening here. These individuals, Andy Thomas and Joe Arpaio's who have acted in I think extraordinary arrogant ways, who see conspiracies where conspiracies don't exist and who are willing to take a step beyond what's authorized under the law and by our constitution. And in that way, I think the charging of judge Donahoe will be at the end of the day, Andy Thomas and Joe Arpaio's Watergate.
What happened here is there's an unprecedented assault upon the judiciary here in Maricopa County. Mr. Thomas, every time he doesn't like a ruling it appears now within the criminal court, instead of doing what he should be doing which is to make appeals. Instead now is turning around and filing criminal charges against judges or civil racketeering charges against them. That's shameful.
José Cárdenas: Pretty strong words from two respected members of the bar. Arrogant, shame.
Barnett Lotstien: Very strong words and if it wasn't such a serious matter, it would almost be laughable, because to be very direct about it, Mr. Charlton and Mr. Ryan they don't know what they're talking about. With regard to the allegations against judge Donahoe, neither of these gentlemen have ever read a police report, they've never looked at it and never talked to a witness. They've never discussed the matter with the sheriff. Notwithstanding the fact they know nothing about the case, nothing about the evidence, because they haven't examined or attempted to examine what evidence there is, they make statements that there is no evidence. And obviously, to me, their objective is to merely smear the sheriff and smear the county attorney. I've never heard a defense lawyer and Mr. Charlton is now a defense lawyer, I've never hear a defense lawyer stand up and say his clients guilty. This is part of the game. They make their speeches and try to sway people and the media, but bottom line, whatever facts are to be presented will be presented in a courtroom, to a judge and potentially to a jury and they'll make the final decision and we're confident that that decision will serve justice.
José Cárdenas: Neither Paul nor Tom, were talking about clients. They were talking about judges. And it's a different thing. It does seem rather extraordinary to have a county attorney filing racketeering charges in a civil complaint against I think four members of the judiciary. And than finding criminal charges against judge Donahoe.
Barnett Lotstien: It's not usual, these are unusual times but I want to point out something about this allegation that Andrew Thomas in making allegations against two sitting judges, actually, and in the civil case, two retired judges, so not really sitting on the bench presently. There are 153 judicial officers in Maricopa County. There are 97 superior court judges and I believe 50 some commissioners and of those 153, the county attorney alleged impropriety against two. Two out of 153, that's hardly attempting to undermine the independency of the judiciary and as I said before the county attorney is more than willing to present whatever evidence he has both in federal court or in state court where it should be presented. I smile because in "The Arizona Republic" last week -- I can't remember the date, columnist Robert Robb took us to task and part of his commentary, he said the sheriff and the county attorney have not shown us the evidence. well, I hate to tell Mr. Robb and the media and "The Arizona Republic," but we don't show evidence to reporters. We show it to judges and juries. And that's what we're willing to do. Present our case in court. Mr. Charlton and Mr. Ryan like to present their case on television.
José Cárdenas: As you pointed out Bob Rob had a call criticizing the county attorney's office, nobody would accuse Bob Robb of being a bleeding heart liberal. Doug --- another conservative columnist came out with a column before that attacking the sheriff for the conduct in these matters and while it's true that you present your evidence in court, don't you also have some obligation to present the factual basis when you make allegation of bribery. What's the basis for the bribery charge against judge Donahoe?
Barnett Lotstien: As an attorney I'm sure you would know, it would be absolutely improper, it's against -- ethics, once charges are brought, once allegations made, for the prosecutor to discuss the facts outside of the courtroom. There's a specific ethical prohibition against discussing the facts so you don't influence a potential jury pool or the public at large. And with regards to the Arizona Republic and Mr. Robb and Mr. ---, the editorial board of the Arizona Republic has embarked on editorial a jihad against the Sherriff and the county attorney. We get pretty fair treatment in the news pagers but when you turn to the editorial pagers there's editorials almost on a daily basis, there's Op-ed pieces continually being printed and one of the columnists wrote a blog last week that was call -- called the board of supervisors to task for refusing to appoint special prosecutors and I'd like to talk about that for a moment "The Arizona Republic" didn't print that in the newspaper they let that on the internet. But when it comes to criticism, the columnists have kind of gagged up. I guess they're somewhat frustrated, I assume, because a prominent pollster in this community told me that of the dwindling subscribers to the "The Arizona Republic," only 5% of their subscribers ever read the editorial page. So they have their opinions and they're entitled to their opinion, we're willing to let a court and jury decide the issues in this case and Mr. Thomas said that many, many times. Not only that, but we're willing to let an independent special prosecutor, someone other than our office review every one of these cases and make an independent decision as to whether or not the cases should go forward. While we don't believe we have any conflict of interest and legally we do not, in order to remove that issue from the table, we're willing to have special prosecutors, people who have no connection to the county attorney, no connection to the judiciary, no connection to the board of supervisors, no connection to any of these individuals, actually review these cases and we've attempted to have special prosecutors appointed. We've been thwarted by the board of supervisors and we've ask former chief justice of the Supreme Court to order special prosecutors and, we've heard today she's listed that for our argument and we'll present our argument before her. And this isn't a personal thing with the county attorney; this is a matter of enforcing the law. We have an obligation to bring these cases if we believe the evidence supports it. We have an obligation to present them to court. But we're more than willing to turn the cases over to an independent special prosecutor. We call upon the board of supervisors to appoint the special prosecutors as they've done many times before without objection. During the Romley years and during the Thomas years, on 14 separate occasions there was never a peep. When we ask for independent prosecutors, they raise all kinds of specious objection. We're still waiting.
José Cárdenas: You say it's not personal with the county attorneys office and yet the racketeering complaint you filed in federal court seems replete with those kinds of assertions. It talks about intimidation against the county attorney, threats against him and his wife apparently based upon a statement that someone made about seeking attorney's fees. There's a reference in here, for example, to -- during oral argument in court, alongside Stapley defense counsel and laughed at the prosecutor. As she was verbally assailed. It's full with those kinds of things, it does sound personal and I think to an unbiased observer, petty in many respects.
Barnett Lotstien: It's not personal. With regard to Mr. Thomas and his wife, the threat was to sue Mr. Thomas and Mr. Thomas' wife personally, not in his capacity as the county attorney, but personally, an attempt to I guess get damages, the threat was to get personal damages from Mr. Thomas' wife. He's not claiming to be a victim. That was only being pointed out to make the point that this was an intimidation act to force the county attorney to back off these cases. With regard to someone laughing at one of the prosecutors in our office, look, I'm not going to kid you, that's a kind of a throw-away. I mean, I guess it was put in there because the person was frustrated that -- that the other side would be so arrogant to stand in the courtroom and laugh when a legal matter is presented to the court. But that has no bearing.
José Cárdenas: It does sound like bad behavior but why shouldn't it be treated that way? Instead of filing racketeering complaints in federal court instead of filing criminal charges against a well respected jurist. I'm not talking about the charges of criminal conduct by supervisors, but with respect to the judges. The allegations in the racketeering complaint talk about rulings that were adverse to your office and cite them as bases for hindering obstruction of justice, justice hindering prosecution. There are remedies for that. You can appeal to the court of appeals if you think a judge has acted improperly. You can go to the judicial authorities that are responsible for regulating ethical conduct. Why does it become a federal racketeering complaint and a criminal charge.
Barnett Lotstien: The federal racketeering complaint contains, I believe, 75 separate instances of conduct by various individuals were named in that complaint which could lead you to the conclusion that they have acted in an improper manner. Look, we have a system of law in our country. If we believe that crimes have been committed, if we believe there are violations of federal law, federal statute, then the way you work those cases out is in our court system. That's the system in America. Work it out in the court system. We don't hit people over the head with a hammer. We go to the court and we -- both sides in an adversarial proceeding, present their case and ultimately, a judge and jury is going to decide who is right. And if it's determined our cases don't meet muster, a judge or a jury will tell us that and if it's determined that they do, this isn't a -- this isn't like an automobile accident where you sit in the room with lawyers and haggle and he offers $10,000 and you say you'll take 12, and work out a settlement. These are allegations are allegations of criminal conduct.
José Cárdenas: The specificity that does exist in the racketeering focuses on rulings by judges that the county attorney's office didn't like. And the complaint they appointed judges to hear matters brought by your office and those judges were biased. How does that become racketeering?
Barnett Lotstien: You're asking me to litigate the case on "Horizonte." I can't do that.
José Cárdenas: I understand that --
Barnett Lotstien: The facts --
José Cárdenas: You've been a prosecutor for a long time.
Barnett Lotstien: 35 years.
José Cárdenas: And a good one with a distinguished record. Have you ever filed criminal charges against a judge who has ruled against you on a particular matter?
Barnett Lotstien: I don't believe so, but there's been many cases against judges who have ruled in -- in the United States, who have ruled on matters and it was shown later that the motive for their ruling was improper. Either they received a bribe or had a personal interest or they were gaining something for themselves. So it's not unusual to charge a judge in the United States with allegations of improper conduct based upon the rulings that they've made. It's not the ruling, itself, it's the motive for the ruling that's at issue.
José Cárdenas: And almost invariably if not all the time, the motive is disclosed in some way. Operation Gray Lord in Chicago, she showed that the judges were getting bribed. A congressman in Louisiana, the fact he had all this cash in his freezer. But there's nothing like that with respect to the allegations of bribery that against these judges in the racketeering cases and judge Donahoe in the other case.
Barnett Lotstien: I beg to differ with you. There are allegations that allege certain motivations on the part of the court and board of supervisors and some attorneys that have been named in the racketeering suit. And those motivations will be proven in court and if they're not all proven in court, then we'll know that. I mean, these cases are in our court system. Let's -- you know, let's let the system work. Its one thing for a lawyer to stand up and say there's no evidence against my client, like Paul Charlton seems to be saying. There's no evidence-- they're all defense lawyers and Paul Charlton is a former prosecutor. When he was the United States attorney and prosecuting people when defense lawyers would stand up and say, "Paul Charlton doesn't have any evidence against my client, my clients innocent". Paul Charlton sat back and said, we'll see. That's what we say, we'll see.
José Cárdenas: We'll have to see because we're out of time. Good to have you here.
Barnett Lotstien: You're welcome.
Barnett Lotstein:Special Assistant Maricopa County Attorney;