Prosecutor: Stapley using office to duck charges

Maricopa County Supervisor Don Stapley is trying to use his position as an elected official to escape charges, prosecutors said in court paperwork filed Friday.

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The indicted supervisor's attempts to have the Maricopa County Attorney's Office kicked off the case amount to "seeking to choose his prosecutor," and if he is successful Stapley would effectively make himself immune from being charged with a crime, according to the court filing from prosecutors.

"He is trying to pick his prosecutor," deputy county attorney Lisa Aubuchon states in the response to a defense motion that sought to have the office disqualified from the case. "More to the point, he seeks to obtain an effective dismissal of charges by having this Court disqualify the one prosecutor agency in the state that is willing and able to prosecute such a powerful politician in a complex financial-fraud case."

Stapley was indicted last month on 118 criminal counts of failing to list properties and business interests he is involved with on financial disclosure statements he is required to file. Since then, County Attorney Andrew Thomas has battled the Board of Supervisors and Stapley's attorneys amid allegations he has a conflict of interest.

Both the board and Stapley's lawyers in the criminal case argue that Thomas cannot prosecute the Mesa Republican criminally at the same time he is acting as the legal adviser to the board and county agencies.

The Board of Supervisors voted Dec. 23 to strip Thomas of his power to represent the county in civil cases, citing a conflict of interest on Thomas' part.

On the same day, Stapley's defense lawyer, Tom Henze, cited similar allegations of a conflict by prosecutors in a motion filed in Maricopa County Superior Court seeking to have the county attorney forced off the criminal case.

Henze argued that Stapley has a confidential attorney-client relationship with the county attorney's office, and that the agency is barred from acting in a way that is detrimental to its client.

But the response filed in the criminal case Friday says there is no conflict.

There is a legal difference between Don Stapley the supervisor and Don Stapley the defendant, Aubuchon says in the court papers filed Friday.

Stapley the supervisor gets legal advice from the county attorney relating to his official duties, she said. But that legal advice does not extend to personal matters, and certainly does not give him protection if he is caught breaking the law, she said.

Stapley "may not lawfully try to convert his status as an elected official for Maricopa County into immunity from prosecution," Aubuchon states.

"The defendant's position appears to be that so long as he commits a criminal act that can be portrayed as part of his governmental duties, he is not subject to prosecution. Under that theory, any public official could steal from the government or falsify documents and not be prosecuted because the acts were part of their allegedly 'official duties.' Crimes, by their very nature, are not part of any elected person's 'official acts.'"

Michael Scerbo, spokesman for the county attorney's office, said no one from the agency would comment on the court filing.

Stapley attorneys Henze and Paul Charlton could not be reached Friday for comment.

The deputy county attorneys who provide legal advice to the Board of Supervisors were not involved in the investigation or indictment of Stapley, Aubuchon said in court papers. Criminal prosecutors did not use any information from confidential attorney-client discussions with Stapley in preparing the indictment, she said.

The evidence against Stapley is gleaned from public records, she said.

Deputy county attorneys who give legal advice to the board also were not involved in Stapley's preparation of his financial disclosure statement, according to Aubuchon.

Attorneys on the civil side of the office learned of the indictment at the same time it was disclosed publicly, she wrote.