Stapley case creates conflict dilemma argument

The fate of Maricopa County Supervisor Don Stapley hinges, for now, on a 21-year-old case involving former Gov. Evan Mecham and the question of whether a government lawyer can serve two masters.

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Since the 118-count indictment of Stapley was announced earlier this month, County Attorney Andrew Thomas has come under fire both from Stapley's colleagues on the Board of Supervisors and from the lawyers Stapley has hired to defend him in court.

Both say Thomas cannot simultaneously act as the board's lawyer while he is trying to put one of their own in jail.

The defense lawyers want Thomas taken off the criminal case, arguing in a motion filed Tuesday that the county attorney has a conflict of interest since he provides legal advice to the board.

The board itself voted Tuesday to strip Thomas of his power to handle civil cases involving the county.

The issue is more than a mundane legal point. It is at the heart of who can hold elected officials who break the law accountable, said Barnett Lotstein, special assistant county attorney.

"He's attempting to choose his prosecutor," Lotstein said of Stapley.

Thomas has made it clear that he has no intention of backing down by sending the Stapley case to another agency for prosecution.

The question of who can prosecute Stapley is even more complicated because of a long-standing political and legal battle between Thomas and Arizona Attorney General Terry Goddard.

Traditionally, a county attorney would send a complex criminal case like the one against Stapley to the attorney general's office for prosecution if there was a conflict of interest. But that option is not available to Thomas because he and Sheriff Joe Arpaio have been investigating Goddard for more than a year to determine whether he cut an improper plea deal with a former state treasurer.

As a result, Goddard stopped handling cases investigated by the sheriff last year. Arpaio's office conducted the investigation that led to the Stapley indictment.

The dispute over the power of a prosecutor arises because of their dual roles, both at the county and state levels. County attorneys are responsible for criminal prosecutions under state law. They also serve as legal advisers to the Board of Supervisors and county agencies.

The attorney general is in a similar predicament, serving as the legal adviser to state agencies while having responsibility to prosecute certain crimes.

In the motion filed Tuesday, Stapley's lawyers argue that since he received confidential legal advice from the county attorney's office in his role as a supervisor, Thomas has a conflict of interest in bringing the charges.

Stapley, R-District 2 of Mesa, Gilbert and Scottsdale, is charged with failing to list real estate and businesses on financial disclosure statements he is required to file as an elected official.

"Whether or not Mr. Stapley received legal advice about the Financial Disclosure Statements, the subject of the prosecution against him, an ethical violation has nevertheless occurred because the County Attorney has violated its duty of loyalty to Mr. Stapley and the Board," states the motion of Stapley's lawyers.

Tom Henze, Stapley's lawyer, refused to discuss the case beyond what is said in the motion.

A similar argument was raised in a 1987 Arizona Supreme Court case brought by Mecham, a case that Thomas cites as the guiding law in his power to prosecute Stapley.

The controversial late governor was investigated by then-Attorney General Bob Corbin throughout much of his yearlong stint in office. Mecham asked the court to block Corbin's investigation because the attorney general's office also acted as the governor's lawyer.

But the high court rejected Mecham's arguments, concluding the representation was to the office of governor and, ultimately, the people; not to the governor personally.

"There is no per se conflict of interest between the Attorney General and the subject of the investigation," the court held. "There is neither an appearance of impropriety nor an actual impropriety when the Attorney General investigates possible misconduct of a state officer even though he has previously represented that officer in the performance of the officer's general official business. Any other rule would render the Attorney General's Office impotent to investigate alleged misconduct of state officers and seriously undermine the public interest in ensuring accountability of all who hold public office."

There is one caveat in the court's ruling. The prosecutor cannot bring charges based on specific, confidential information divulged by a state official in the performance of official duties.

Corbin ultimately did indict Mecham for failing to list a loan to his campaign on disclosure reports. Mecham beat the charges, but by then he had been stripped of office through impeachment.

Goddard cited the Mecham case when questioned about charges he filed against former state treasurer David Petersen and former state mine inspector Doug Martin in separate cases brought in 2006.

Both Petersen and Martin reached plea agreements, so the question of whether Goddard had a conflict of interest was not an issue. However, the Petersen deal plays into Thomas' quandary on whether he should be booted from the Stapley case. Last year, Thomas and Arpaio launched an investigation to determine whether Goddard allowed Petersen to plead guilty to a single misdemeanor in return for his authorization as treasurer of a $1.9 million payment to the attorney general's office.

Goddard maintained that he was able to create a "wall" in his office that separated decisions in the criminal case from lawyers on the civil side who were pressing the treasurer for payment. Goddard was not available for comment Friday.

Other options available to Thomas are appointing a special prosecutor or referring the case to another county attorney, said David Berkman, chief criminal deputy for the Pima County Attorney's Office in Tucson.

Berkman said accusing prosecutors of a conflict of interest is a common tactic when public officials are charged criminally. Prosecuting a county official does not create an automatic conflict, he said. But an analysis must be done to ensure evidence in the criminal case is not tainted by confidential information gleaned from the county attorney's representation as the county's legal adviser, he said.

Even if there is no actual conflict, prosecutors must ensure that there is not public perception of one, said Berkman, who was speaking generically and not about the Stapley case.

"The most important thing in my mind, as a prosecutor, is to be above it all, that there isn't even a hint that you're being vindictive or that you are doing something to get even with a particular individual," he said.

Getting another county attorney to take the Stapley case also could be tough. Most counties lack the resources to pursue complex financial cases, which would normally go to the attorney general if the local prosecutor had a conflict of interest, Berkman said.

If Pima County is asked to take such a case, he said, prosecutors there would weigh the time and expense that would be involved in addition to the strength of the charges.

"Big financial cases are much more difficult to give to somebody else because the expertise and the expense and the time and the resources are usually tremendous," he said. "We would take a look at what was going to be sent to us, and the county attorney would weigh the amount of resources and the amount of time it would take and then make a decision as to whether we could take it."