Maricopa County Attorney Andrew Thomas will ask that the retired judge appointed to handle the criminal case against Supervisor Don Stapley be removed because he has shown bias against the county's top prosecutor.
Thomas is preparing to file a motion seeking to have Judge Kenneth Fields removed from the Stapley case, according to spokesman Michael Scerbo.
Fields was picked to handle the Stapley case by presiding Judge Barbara Mundell under rules that allow retired judges to hear cases for the overloaded county courts.
Neither Fields nor Mundell can comment because of rules governing the ethics of judges, said court spokeswoman Karen Arra.
Stapley is charged with perjury, forgery and filing false statements in a 118-count indictment announced by Thomas' office last week. The longtime county supervisor was booked and released after being fingerprinted and photographed Tuesday morning.
Stapley is scheduled to be arraigned Thursday in front of Fields.
Thomas said Tuesday that Fields has shown a pattern of bias against him and the Maricopa County Attorney's Office. He also said it was improper for Mundell to assign the case to Fields rather than allow it to go through the normal rotation by which cases are randomly assigned to a judge.
Thomas first raised the allegation that Fields is biased during a news conference Friday. He is preparing a formal motion asking that Fields voluntarily step down. If Fields refuses, then Thomas can file a motion to have Fields removed from the case for cause. That motion would be handled by another judge.
If all else fails, the prosecution and defense can each have the case transferred to another judge without cause. Thomas said he should not have to use that challenge when there is clear evidence of bias involving Fields.
"Judge Fields is basically an anti-Thomas political activist," Thomas said.
Much of the evidence of bias cited by Thomas is entangled in his protracted battles with the State Bar of Arizona and his earlier criticism of other Maricopa County judges.
Last year Thomas accused Judge Timothy Ryan of bias and filed a motion asking him to recuse himself from cases involving the county attorney's office, largely over a dispute over the handling of cases of illegal immigrants accused of serious felonies.
Fields weighed in on that dispute when he was quoted in an October 2007 article in the Arizona Republic. Fields called statements by a Thomas deputy "reckless," adding Thomas "has to be very careful about statements and representations in court."
About that same time, Fields filed a complaint with the state bar against Dennis Wilenchik, a private attorney hired by Thomas to handle the office's investigation of the Phoenix New Times over disclosure of records involving Maricopa County Sheriff Joe Arpaio. The New Times reported that Wilenchik attempted to have improper contact with the judge in that case. Two top executives of the publication were arrested on allegations of divulging grand jury information. They were later released and the charges were dropped.
In the months that followed, Thomas and his deputies faced as many as 13 investigations by the state bar. Most have been dropped, but Thomas said the investigation of the New Times matter - the one raised by Fields - remains open.
Thomas blames the litany of bar investigations in part on pressure that came from a group of retired judges to intimidate him and silence his criticism of the judiciary. That contention is based on an affidavit filed by Sally Wells, a deputy Maricopa County attorney, who stated she learned that a group of retired judges had pressured the bar to "do something" about Thomas. Wells said that's what she was told by Joe Kanefield, a top bar official.
"He appears to be one of the retired judges who sicced the state bar against our office," Thomas said of Fields.
Kanefield told the Tribune this week that is incorrect, as far as he knows.
Kanefield, a lawyer in the Secretary of State's Office, said he had been told that a group of retired judges had contacted Dan McAuliffe, then president of the bar's board of governors, asking that the organization "do something" to defend the judges, who cannot speak for themselves because of judicial rules.
Kanefield said the bar has traditionally defended judges when they come under attack, and that he expressed to others in the organization that any statement should not mention Thomas by name. McAuliffe said Tuesday that he was never approached by Fields to initiate a bar investigation of Thomas.
"That's just flat-out not true," McAuliffe said. "They know it's not true. It just did not happen. They have to know it's pure fiction."
Thomas also noted that Fields contributed $390 to the campaign of his Democratic opponent in the November election, the maximum allowed by law.
Regardless of whether Fields is behind the bar's investigations, Thomas said the judge's decision to file a bar complaint against Wilenchik and his public statements regarding the county attorney's office are enough to disqualify him from the Stapley case.
"It is in fact an open campaign against me," Thomas said. "It has to be viewed in the context of him denouncing me publicly."