Defendants question AG's motives in prosecutions - East Valley Tribune: News

Defendants question AG's motives in prosecutions

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Posted: Sunday, July 8, 2007 4:43 pm | Updated: 5:55 pm, Fri Oct 7, 2011.

The specter of widespread political corruption has grown with each new indictment of an elected official.

Fraud. Theft. Betrayal of the public’s trust. These were among the allegations leveled against politicians across Arizona as their indictments were announced by Attorney General Terry Goddard.

In the last four years, Goddard and his prosecutors have filed charges against eight elected officeholders.

But in the cases that have played out in court, the assertions that corrupt politicians were cashing in on their offices have largely evaporated, replaced in many instances by charges involving paperwork or budgetary authority. The convictions that still stand have come through plea agreements to low-level felonies or misdemeanors, with requirements that the elected official resign.

Now Goddard’s critics, especially the politicians he has prosecuted, are accusing him of misusing his office to fuel his own political ambitions.

Goddard said the charges he has brought in every case were appropriate, and that politics plays no role in deciding whether an elected official will be charged with a crime.

Those accusing him of partisan prosecutions are people who broke the law and are pointing fingers to salvage their own reputations, Goddard said.

“The investigations showed that there were serious crimes involved in each of these cases and that there was a pervasive tendency to treat the public office as a personal fiefdom,” Goddard said of his prosecution of elected officials. “I would defend any of them as being appropriate and the actions that needed to be taken under the circumstances. In fact, I would have violated my oath of office to uphold the laws of Arizona had I not pursued these cases.”

None of the cases against elected officials brought by Goddard has resulted in convictions on major corruption charges such as bribery or fraud. Three of the elected officials have reached agreements and pleaded guilty to a single count of conflict of interest. That is a Class 6 felony, the least serious in state law. One of those felonies was later changed to a misdemeanor by a Superior Court judge.

Former state Treasurer David Petersen pleaded guilty to a single misdemeanor unrelated to the operation of his office after an eightmonth investigation.

Kevin Ross, former Maricopa County assessor and the only politician indicted by Goddard to take his case to trial, beat the three felony charges filed against him in 2004. Earlier this year, a state appeals court overturned the lone conviction obtained by prosecutors.

Three other cases are still working their way through the court system.

Aside from the elected officials, Goddard has brought 16 criminal cases against nonelected government officials, including police officers, school administrators, a court official, a prison guard, a maintenance worker and a secretary in a county parks department.

Those who contend Goddard is misusing his office, including many of those he has targeted, say he is using his power as a prosecutor to make headlines as a clean-government crusader to boost his own political career.

In the process, they say, Goddard has ruined reputations, skewed elections, and bullied those he has gone after by offering the choice of cutting a plea deal or waging a financially ruinous court fight.

Five of the indicted politicians are Republicans, including all four who live in Maricopa County. Two are Democrats and one is a school board member, a nonpartisan office.

Goddard is a Democrat.

“It’s one thing to be a hard-nosed prosecutor,” said Ross, a Republican who said it cost him two years and about $250,000 in legal fees to beat the charges Goddard brought against him in 2004. “It’s a whole other situation to manufacture cases, to indict people and then search around for a crime. That’s what (Goddard) has been doing.”

CRIMES AND TECHNICALITIES

Melvin McDonald, a former county prosecutor, Superior Court judge and U.S. Attorney in Arizona, said he doesn’t buy the argument that Goddard is maliciously prosecuting politicians, particularly Republicans, to boost his own political standing. Rather, Goddard seems to be aggressively going after elected officials who make technical mistakes that do not benefit themselves personally or harm the public, McDonald said.

McDonald, now in private practice, represented former Yuma County School Superintendent Judeth Badgley, who was indicted by Goddard’s office in 2003. Badgley, a Republican, was among those who pleaded guilty to a single conflict-of-interest charge as part of a plea agreement. However, the Yuma County judge who presided over the case designated the offense a misdemeanor after concluding Badgley did not intend to break the law or defraud the public.

“I think the big temptation sometimes with prosecutors is they’ve got to come across as tough, no-nonsense; ‘we’re going to out-muscle people and really show the public we’re tough,’” McDonald said. “Well, the objective ought to be fairness, not toughness.”

Former Maricopa County Attorney Richard Romley, who has no connection to any of the cases brought by Goddard, agrees that prosecutors must be cautious with their power to bring charges on minor violations involving the complex maze of technical laws that govern public officials.

Romley headed the biggest political corruption investigation in state history, the 1991 AzScam case that netted seven state legislators in a widespread bribery sting. More recently, Romley was the special prosecutor who got a 3 1/2-year prison sentence against former Pinal County Manager Stan Griffis, who used his position to loot county coffers for his personal use.

“We must be a watchdog and must carefully scrutinize information that comes forward that possibly infers corruption,” said Romley, stressing he was talking generally and not about any specific case. “But with that said, the best thing that a seasoned prosecutor can bring to the table is judgment. The rules and regulations are so complex and at times so unknowing of individuals that you’ve got to take into account exactly what occurred and why it occurred.

“You’ve got to look beyond just technical.”

COSTLY DECISION

None of the indicted politicians interviewed by the Tribune faulted Goddard’s office for launching an investigation after allegations of impropriety surfaced. But once the investigations showed there was no fraud or corruption, the cases should have been dropped, they say.

In Petersen’s case, prosecutors admitted last year that after an eight-month investigation they found no evidence that he had abused his office, or that he had a conflict of interest through his relationship with a nonprofit organization that preaches character building in schools. But they did find that over a two-year period, Petersen had received about $4,200 in commissions from the company, earnings he did not report on his personal financial disclosure statement that elected officials must file annually. Goddard’s office pitched a deal in late October 2006.

Petersen could be charged with six felony counts of perjury, forgery and false swearing, plus two misdemeanors, all related to his disclosure statement. Or he could plead guilty to a single misdemeanor and resign.

Petersen, a Mesa Republican, said he could not afford to fight. By the time prosecutors offered the deal, Petersen had already spent about $20,000 on lawyer’s fees, money he had to borrow. Petersen said his lawyer told him if he went to trial he would almost certainly beat the felony charges, but might not win on the technicalities of the misdemeanor counts of failing to disclose the commissions. In any case, it would cost him at least another $75,000 to go to trial. So he took the deal.

“Financially it was just more than I could afford,” Petersen said.

Petersen dropped his bid for reelection after the investigation was made public in February 2006. He resigned in November, as required in the plea deal.

Goddard said Petersen broke the law and got a fair deal.

“There’s no such thing as a technical violation of the law,” Goddard said. “There’s nothing trivial about systematically covering up sources of income if you are a public official.”

The Petersen case has taken an unusual twist. In April, Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas announced they would investigate whether Goddard’s office improperly cut a deal with Petersen.

That investigation involves payment of $1.9 million in legal fees from the treasurer’s office to the attorney general’s office from an unrelated civil case in June 2006, as Goddard’s office was scrutinizing Petersen.

Arpaio and Thomas are both Republicans.

Last month, Goddard sent all of his cases that had been investigated by the sheriff’s office to other agencies for prosecution to avoid a conflict of interest as a result of the Petersen investigation.

LOADED OPTIONS

Doug Martin says he wanted to fight when he was charged in December on nine felony counts alleging he violated state procurement laws by entering into lease-purchase agreements for four vehicles used by his office. But the former state mine inspector said he could not afford the $75,000 or more his lawyer said it would cost to go to trial.

Martin’s sister, Judy, was badly burned in a gas explosion at her home in July 2005. The Queen Creek Republican was her sole caregiver.

“If I were to drain my entire funds, I wouldn’t be able to continue caring for my sister, and she would have gone to a nursing home,” said Martin, who pleaded guilty to a single count of conflict of interest as part of a deal he cut with prosecutors.

Goddard’s office indicted Martin on charges of fraud, theft and procurement-code violations related to the truck leases.

There was no allegation that Martin personally profited from the deal.

Rather, the indictment charged procurement laws required him to go through the state Department of Administration to acquire vehicles. Prosecutors also alleged Martin loaded his work truck with luxurious options such as a moon roof, which would not be allowed if he got the vehicle through the state.

Martin’s defense was that he used federal grant money to obtain the vehicles, which is specifically allowed by federal agencies. Martin says he believes a 1993 agreement he had with the state Department of Administration gave him the authority to use the federal funds to finance lease-purchase agreements for vehicles.

As to the luxury options, Martin said the vehicle he’d been driving, and which was obtained through the state, also had a moon roof. Martin, who did not seek re-election in 2006, said the charges against him amounted to paperwork violations, adding “there wasn’t a cent that came to me personally.”

Goddard said the state’s conflictof-interest statute does not require a public official to personally profit in order to be charged. The 1993 agreement did not grant Martin the power to enter into lease-purchase deals and load his state trucks with luxury options, Goddard said. Martin had been warned repeatedly not to obtain vehicles outside of normal procurement channels, but did anyway, Goddard said.

“He was systematically involved in trying to circumvent the state procurement law in order to get a vehicle that was his chariot,” Goddard said of Martin.

“I don’t see how you can call that a technicality. If that’s the case, then all of the aspects of required procurement for state offices are mere technicalities and can be avoided at will. That’s simply not the law and would be terrible public policy.”

FIGHTING BACK

Unlike Martin and Petersen, Ross did have the money to fight back when he was indicted by Goddard’s office in May 2004.

In January 2003, Ross used an assessor’s list of certain homeowners who qualified for a special property-tax break in a private, parttime business venture. The Gilbert Republican stood to profit from the mortgage-marketing plan, but the list did not generate a single sale.

The central issue in the case was whether the list was confidential information or a public record that anyone could obtain.

Ross was charged with two counts of conflict of interest for disclosing confidential information held by his office, and attempting to profit from that information. He also was indicted on a single count of obstructing a criminal investigation.

The state’s case started to fall apart when Judge Thomas O’Toole of Maricopa County Superior Court dismissed one conflict-of-interest charge against Ross, ruling the state had failed to prove the list was a confidential record. Ross was acquitted of obstruction, but convicted by a jury on the second conflict-of-interest charge.

Earlier this year, the Arizona Court of Appeals threw out that conviction. Ross’ use of assessor’s documents to make money in a private business venture might raise ethical concerns, but did not violate the law, the court found.

The attorney general’s office is appealing that unanimous ruling.

Ross tried to run for re-election while under indictment, but was defeated in the 2004 Republican primary.

UNRESOLVED BATTLES

Sandra Dowling is still fighting the charges Goddard’s office filed against her in November. The Maricopa County School Superintendent, a Republican, was indicted on 25 counts of theft, misuse of public money, procurement fraud and conflict of interest.

Dowling is accused of authorizing payments from a district account without first getting approval of the Maricopa County Board of Supervisors. She also is charged with using a lobbyist she hired with county funds to try to get her a federal job, and of helping her son get landscaping contracts at districtrun schools.

The case stems from a power struggle over spending authority between Dowling and the board of supervisors, said Craig Mehrens, Dowling’s lawyer. There is no evidence Dowling personally profited from her actions, Mehrens said.

In May, Judge Edward Burke of Maricopa County Superior Court threw out 12 of the charges against Dowling, ruling key evidence that could have suggested Dowling’s innocence was withheld from the grand jury.

Goddard sent the case to the U.S. Attorney’s Office because it was investigated by the sheriff.

PREDICTABLE DEFENSE

Goddard also has brought criminal charges against two Democrats. Robert Canchola, former Santa Cruz County School Superintendent, was indicted on 40 felony counts of theft, misuse of public monies, fraud and conflict of interest in November 2005.

That case resulted from a state Auditor General’s investigation that found he may have embezzled $16,549 in county funds for his own personal use. Canchola pleaded guilty to a single count of conflict of interest.

Apache County Sheriff Brian Hounshell was indicted in May 2005 on four counts of misuse of public money, fraud and theft in connection with use of county vehicles and personnel for his own benefit. That case is still pending.

Romley said accusations of partisanship will always come up when a prosecutor indicts an elected official.

Prosecutors do have a responsibility to be sure of their cases before indicting elected officials, Romley said.

Regardless of the outcome, an indictment alone will likely ruin their careers and could disenfranchise the voters who elected them, he said.

“The impact is much broader than just an individual person,” Romley said. “They are the elected representatives of the people.”

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