Former U.S. Attorney for Arizona Paul Charlton, talks about the decision by the Arizona Supreme Court Disciplinary Panel to disbar former Maricopa County Attorney Andrew Thomas.
José Cárdenas: Good evening, I'm José Cárdenas. Former Maricopa County attorney Andrew Thomas has lost his license to practice law for abusing his power as the county's lead prosecutor. We'll talk to a performer U.S. attorney about the decision. And former U.S. surgeon general Richard Carmona is here to tell us why he's decided to run for the U.S. senate. All this coming up next on "Horizonte."
José Cárdenas: A disciplinary panel of the state bar of Arizona Hanked down its punishment to former Maricopa County attorney Andrew Thomas. Thomas and his former division chief Lisa Aubuchon have bone been disbarred. Former deputy county attorney Rachel Alexander will be suspended for six months and one day. Those penalties will take effect next month. Thomas was facing ethical violation charges that included conflicts of interest and filing a federal racketeering lawsuit to burden or embarrass political enemies. Eclipse Educational version only -- not for commercial use decision is Paul Charlton, former U.S. attorney for Arizona. He has also represented Don Stapley, one of the supervisors indicted by Thomas. Paul, welcome back to "Horizonte." We've had you on the show before to talk about this as it was unfolding, at least the civil litigation. And now this. After several years of proceedings, we have a 247-page decision. Anything that surprised you about the decision that we received earlier this week?
Paul Charlton: What surprised me the most was not just the volume of information or the number of charges that they found, but that there were two specific findings that Mr. Thomas and Ms. Aubuchon had violated the criminal laws. In one part of that finding Jose as you know, they found proof beyond a reasonable doubt the highest standard we have in the law, that Ms. Aubuchon and Mr. Thomas had violated a federal criminal statute.
José Cárdenas: Why do you think they made that specific finding, because they went on to say, but we're not going to consider that in terms of the sanction, for example, and yet they seem to even themselves recognize how unusual it was to make that finding proof beyond a reasonable doubt.
Paul Charlton: It's hard to know. We can't look into the minds of the authors of this opinion, but it seems to me it's a message to the department of justice and to the US Attorney's office that they must now go forward with this charge or at least offer an explanation as to why it is they would not go forward with this charge. These are respected jurist who's made this decision, certainly judge O'Neil is a respected judge, Mr. Thomas, Ms. Aubuchon had an opportunity to confront the witnesses and test the evidence. After that hearing, this judge and this panel found proof beyond a reasonable doubt they had commit a federal offense.
José Cárdenas: The basis had to do with Judge Donohoe. Why don't you explain that.
Paul Charlton: Judge Donohoe was charged with a felony offense by Andrew Thomas and Lisa Aubuchon. It arose out of their concern that he was going to rule against them and hold a hearing which they did not want to have take place as it related to a number of these other investigations that they were bringing against individuals in violation of the rules of ethics. So as to stop this hearing, as to stop this judge, they brought charges against him. Baseless charges. Charges that had underlined them perjury, which was one of the findings the panel found, and that is a state crime. And because they were attempting to violate his constitutional right to hold this job and to speak his mind through his job, they found that he violated the federal statute, section 241.
José Cárdenas: And the specific charge that they made with respect to judge Donohoe was bribery, and yet they've -- to this day not provided any evidence for any such conduct.
Paul Charlton: Unable to show any evidence of that conduct. The affidavit that was submitted in support of that charge was found to be perjurious, filled with lies. When Andrew Thomas held his press conference he looked to the media to assist him and --
José Cárdenas: You're talking about the press conference he gave at the time they were charging Judge Donohoe.
Paul Charlton: Precisely. He didn't seem to have -- Andrew Thomas didn't seem to have a good grasp of the facts. All of that supported the finding of the pan they'll Andrew Thomas brought these charges in violation of federal law.
José Cárdenas: That's consistent with the statement by the panel that the most serious violations of the ethical rules by Mr. Thomas and Ms. Aubuchon had to do with the allegations involving judge Donohoe. Do you think that's a fair assessment, in were 33 charges, a few of them they were -- the panel found there was not clear and convincing evidence of a violation. But most of them were upheld. Do you agree that that was the most serious violation?
Paul Charlton: It was. As you watched these events unfold in chronological order, I think you witnessed the public slowly coming to realize that Andrew Thomas was abusing his power and his authority. And the moment at which everything seemed to change, the tipping point, if you will, was when Andrew Thomas charged a sitting judge with a felony offense. Then the public at large began to realize that there was something terribly wrong with the county attorney's office.
José Cárdenas: One of the things the opinion makes clear is it -- the public at large may not realize there was something going on, high level subordinates in Thomas's office were themselves troubled by this proposed plan of action. And raised concerns.
Paul Charlton: One of the disappointing things for me as an individual who was a career prosecutor for more than 16 years, is that the individuals who were in leadership positions within that office demonstrate no profiles in courage. These are individuals who knew what was happening, it was wrong, understood that whatever was happening was unethical and in some instances may have known what was happening was criminal. Yet while they may have voiced an opinion that indicated charging judge Donohoe was wrong, no one stood up and attempted to stop that charge. No one stood up afterwards and said, I will resign, no one stood up afterwards and said, we need to make sure the public understands the wrong that is incurring here. Prosecutors and leaders within prosecution offices have an obligation that goes beyond loyalty to their boss. Their loyalty first is to the constitution and the institution they work for. We entrust prosecutors with a great deal, and one of them is to do what's right and here those leaders within that office failed us all.
José Cárdenas: Now, the panel used very strong language in describing the conduct of Ms. Aubuchon, Mr. Thomas, and to a lesser degree Rachel Alexander, but with respect to the people you're referring to, they actually seem to applaud them for having raised issues and concerns and certainly that was the basis for finding intentional misconduct by the respondents. You seem to obviously have a different opinion as to those lawyers' conduct.
Paul Charlton: As someone who has worked within prosecution offices, someone who has seen individuals stand up when prosecutors and lead prosecutors are making bad decisions, I think it was incumbent upon those individuals to do more than offer an opinion. It was incumbent upon them to stand up and attempt to stop that behavior from going forward or leave the office and voice their objections. The former deputy attorney general of the United States who was working under Jan Ashcroft when Alberto Gonzalez attempted to convince Ashcroft he needed to sign off on an unconstitutional program, threatened to resign. And almost did resign as did the director of the FBI almost resigned until the president discovered that was were to happen and they changed the program and made it constitutional. That's the kind of courage that we need from individuals within the leadership position an and prosecution offices. It is the kind of courage that was absent here.
José Cárdenas: Now, you obviously had some involvement in the underlying proceedings, but apart from that, you are quoted at the end of what is essentially an concurring opinion of the public member of the panel and you wrote a column this week based upon statements made back in the '40s by former U.S. chief justice Robert Jackson. Can you elaborate on that?
Paul Charlton: Robert Jackson was Franklin Delanor Roosevelt's attorney general. He went on to become a U.S. Supreme Court justice and was the lead prosecutor in the Nuremberg trials in 1940 he gathered all of the attorneys from around the country together and he reminded them of their obligations of -- as prosecutors, reminded them that because three there were so crimes on the books, that it would be a mistake to select an individual, try to find a crime and pursue that individual. Instead what prosecutors are obligated to do is learn of a crime and then find out who committed the crime. He wanted to make sure the prosecutors were fair and impartial, and that their first concern was always justice. And it's a quote that most prosecutors know and I appreciate you raising that issue here, because what I would like people to take away from this event is not only that it was right for the government to pay for this trial, it was right for the state bar to pursue Mr. Thomas, it was right for conclusions they came to, but this is an aberration. By and large most prosecutors who are in those offices are day in and day out working to do what's right. And we should all be grateful for those men and women who are seeking justice and remember, that when it is -- these events occur they are rare, and appropriately punished.
José Cárdenas: Paul, what about the tone of the order? Most of it penned by judge O'Neil, they literally threw the books at these 247 pages long, a good portion at least at the beginning reads like a novel. They cite and quote from maybe a dozen different famous historical figures ranging from speaks peer to Ghandi to Abraham Lincoln, even at the end the editor of "Vogue." And the language is pretty florid. Is it appropriate tone, it's not the kind of thing you would see in a typical judicial opinion.
Paul Charlton: You and I as lawyers would be in awe-struck by that difference that we might not see in a legal opinion that we wouldn't see in a typical judge's opinion. My own feeling is this opinion was drafted for a wider audience. This is an opinion that should and ought to be read by society at large. That the public needs to know and understand exactly what happened here. And were we to put before them the kind of legal writing you and I are used to that put to it one side, this is more interesting. Eclipse Educational version only -- not for commercial use the reader. It has the facts that are necessary to support their findings. But it has the kind of information and a style that I think interests people and will capture their attention and allow them to educate themselves as to the power of a prosecutor, how that power can be abused, and what it is we as a society do when we find out about that abuse and how it is we punish those individuals.
José Cárdenas: One of the historical figures they quote is Ghandi. In his press conference following the release of the report, Andrew Thomas also invoked Ghandi.
Paul Charlton: He said he was like Martin Luther King, I think that shows a great disattachment from reality. I think that it's a great concern, because it's not the kind response that we should expect from a rational individual. Andrew Thomas had the opportunity to be present when the decision was rendered, Andrew Thomas had the presence to -- during much of the trial, he chose to be absent during both of those events. For him to now hold a press conference and say he is like Ghandi or like Martin Luther King I think is reason for us to be concerned.
José Cárdenas: He just doesn't get it.
Paul Charlton: I think it shows someone who doesn't understand the facts.
José Cárdenas: Paul Charlton, thanks for joining us on "Horizonte." And giving us your insights into this historic opinion.
Paul Charlton: Thanks for having me, Jose.
Paul Charlton:Former U.S. Attorney;
