Critics question Andrew Thomas' motives


Michael Kiefer
The Arizona Republic
Nov. 4, 2007 12:00 AM

http://www.azcentral.com

Since taking office in January 2005, Maricopa County Attorney Andrew Thomas has kept himself at the center of public attention.

At times he rivals Sheriff Joe Arpaio for sheer volume of press conferences and press releases.

But his use of his former boss and special prosecutor Dennis Wilenchik has raised a new level of scrutiny that Thomas has never seen before. advertisement


While working for Thomas, Wilenchik went after a judge that Thomas' office believed was not vigorously enforcing state laws regarding undocumented immigrants. Wilenchik also spearheaded an investigation that led to two Phoenix New Times owners being arrested.

Wilenchik was fired, but now Thomas is the subject of an investigation by the State Bar of Arizona and is facing criticism from the legal community and other politicians who question if he is an effective public servant who has media savvy or a man who abuses the power of his office in his quest to seek a higher public office.


A call to service


Thomas, 42, did not come up through the ranks as a prosecutor. A graduate of Harvard Law School (in the same class as Barack Obama), Thomas published three ideological books, starting while he was still a student. He worked as deputy counsel and adviser in Gov. J. Fife Symington III's administration and as special assistant to the director of the Arizona Department of Corrections. He also worked as a civil attorney in the Arizona Attorney General's Office and as a prosecutor in the Maricopa County Attorney's Office.

He first ran for office in 2002, losing a race against Terry Goddard for attorney general.

Two years later he ran for county attorney and won, taking over in January 2005 for Rick Romley, who held the office for 16 years.

He supervises more than 300 attorneys and oversees a budget above $80 million. Under his watch, legal costs have soared. The number of criminal cases filed jumped to more than 40,000 in 2006, up from 30,000 three years earlier, and the amount spent on contract attorneys tripled from $5.3 million to nearly $16 million.

When he was running for county attorney, Thomas said that politics had no place in the office.

"It's a law-enforcement office and, ideally, partisanship should have no place there," he told The Arizona Republic in 2004. Some inside Thomas' office say that he makes many decisions based on politics, though they won't say so on the record.

Inside and out of the office, many speculate that Thomas has his eyes set on governor - or maybe even a higher office.

After all, he is in the vanguard, almost the inventor of a burgeoning national trend: local response to illegal immigration, given the federal government's inability to enforce federal immigration law.

He helped write laws to prosecute human smugglers and deny bail to immigrants accused of committing serious crimes. He will take the lead in enforcing the state's new sanctions against hiring illegal immigrants.

"Arizona started the trend," said Muzaffar Chishti, director of the Migration Policy Institute's office at the New York University School of Law.

Chishti said that in 2007, all 50 states have entertained laws regulating illegal immigrants.

Immigration has become a national issue.

Despite his successes in that arena, Thomas disputes the claim that he is seeking a higher office.

"I'm up for re-election next year, but I'm not making any announcements at this time," he said. "As I've said before, I do like the job I have, and I've tried to do the best job I can with the position I was elected to serve in."


Thomas' tenure


Thomas readily acknowledges that he has picked his share of public fights since he took office.

He fought with Arpaio when Thomas dropped charges against a vigilante who made a citizen's arrest of illegal immigrants. He's fought with judges over enforcement of immigration laws, and he's chosen to prosecute cases that in the past never drew news headlines or criminal charges. For example, he prosecuted owners of dirty restaurants and green pools. He lobbied to deny drug treatment to a teenage illegal immigrant in prison. He charged a 14-year-old with terrorism after the teen held a kid at knifepoint and was later found with a backpack full of explosives.

Some solid accomplishments have been overshadowed by these fights. Thomas has lobbied for and crafted laws involving controlling meth, crimes against unborn children, and victims rights.

But the immediate attention is usually on his high-profile fights, which he says fly in the face of speculation that he is running for higher office.

"If I were in this office simply to get my ticket punched to run for something else, I would not have engaged in the high-profile disputes that I have been part of," Thomas said. "It would not have been in my interests to do so."

"The classic route to higher office is don't rock the boat," he said. "And I ran for office on a platform of reform, particularly related to crime control and immigration, and I have run into opposition from other members of the establishment in trying to implement those reforms."

But San Francisco State University Professor Joseph Tuman, an expert in political and legal communications, said the opposite is true.

"We're always drawn to a story if there's an element of conflict to it," he said.

And so politicians stage events, he said.

"If you're clever about it, you're going to force people to come cover."

Thomas argues that his press statements and conferences are a way to keep his constituents informed.

"Part of the reason I try to communicate to the public through press conferences on a regular basis is that I want them to know programs that we're initiating, the progress we're making, and fulfilling my commitments to the people of this county," he said. "And once in a while, if I make a mistake, I'm an old-school guy, and I want to make it clear that the buck stops with me. I have press conferences for all of those reasons."

For each of the following issues, Thomas held press conferences.

He sued Superior Court Judge Barbara Mundell in federal court over a DUI probation program conducted in Spanish, claiming it was reverse racism. The case was thrown out of court.

When public defenders revealed there were not enough qualified attorneys to handle a rising number of death-penalty cases filed by Thomas' office, he accused death-penalty defense attorneys of having leisurely workloads.

He accused Judge Warren Granville of a bad legal ruling and then refused to apologize when the "ruling" turned out to be a typographical error in the record.

He and his strategists understand the center of attention.

He vowed to investigate an NBA referee who pleaded guilty to federal charges of fraud surrounding pro basketball games he officiated; one of them may have included a Phoenix Suns playoff game.

He has especially used his public pulpit to rail against judges and attorneys and law-enforcement officers who didn't share his zeal for prosecuting illegal immigrants.

As he said, after all, he ran on that platform.


The Wilenchik effect


But Thomas' critics wonder if he is overstepping his role as the top prosecutor, pointing to Wilenchik as an example.

Wilenchik, acting on behalf of Thomas, filed an arguably outrageous and impossible motion asking the court's associate presiding criminal judge to effectively resign from the bench. Wilenchik argued the judge was not enforcing laws involving illegal immigrants and was biased against Thomas' office.

The motion was denied, and the judge was later found clear of bias.

Wilenchik's harangues against the judge were immortalized on YouTube, and instead of bringing the public to Thomas' side, the hearing came across as a political stunt, which raised possible ethical questions for Thomas and Wilenchik.

"There's no question that railing against judges is probably going to score a few points, particularly among the most conservative parts of the community. And it's difficult for the judges to fight back," said former Arizona Attorney General Grant Woods, who like Thomas, is a Republican.

"I don't like the idea of district attorneys, county attorneys, attorney generals, U.S. attorneys publicly attacking judges," he said. "That's more in the political realm than in the legal realm. I did think in that case those motions were unfounded and some of it was just flat-out inaccurate."

Romley, Thomas' predecessor as county attorney and who endorsed Thomas, was equally critical of the judge attacks.

"If that office is being used, as it's perceived today, for political purposes, that's absolutely wrong," Romley told Channel 12. "Because who's next?"

And the week after the attack on the court, Wilenchik embarrassed Thomas even more.

New Times writers published the secret details of an overreaching subpoena filed by Wilenchik on behalf of a grand jury investigation. The subpoena demanded the paper turn over information about visitors to its Internet site. And they told the public of a potentially unethical meeting that Wilenchik tried to arrange with the judge hearing the case.

Wilenchik had the editors arrested on misdemeanor charges, sparking a massive public outcry.

"In the 25 years I've been around here, I don't think I've ever heard any greater level of outrage over this, which has been characterized as abuse of power and invasion of privacy," said pollster Earl de Berge of the Phoenix-based Behavior Research Center. "It's just remarkable how people have responded."

Thomas dropped the case and fired Wilenchik from handling criminal cases. Thomas admitted final responsibility.

"I think it's important that public officials make it clear that the buck stops on their desk," Thomas said.

But one well-known rule of legal ethics is not to try a case in the media; the concept usually pertains to trial attorneys. But could the concept be applied to top prosecutors as well?

Lynda Shely, a former staff attorney at the State Bar of Arizona, said "going to the media to state your office's position is not contemplated by our ethics rule." She stopped short of saying that the attack on judges was a political act.

"When you file something with the court, you have to have a good-faith basis in law and in fact. And if you're doing something for political reasons, that would not be something in a good-faith basis," Shely said. "If they were doing it to make a political statement, that would not be acceptable."



No one talks for the record about Thomas around the courthouse; as lawyers, they all know better. Off the record, judges and defense attorneys view him as an antagonist. And his prosecutors sometimes fume that his public stances put them on the line in front of those same judges and defense attorneys.


Actions called 'reckless'


Retired Superior Court Judge Kenneth Fields has called Thomas and Wilenchik's recent actions "reckless."

The state Bar is investigating complaints against Thomas. Anyone is entitled to send a complaint, but the nature of those complaints has not been revealed and the bar will not comment until its investigation is complete.

While Thomas touts his active role in lobbying and legislation, it also draws criticism from some.

"A prosecutor is elected to enforce the laws, not to write new laws. That's what the Legislature is for," said political consultant Chuck Coughlin, also a Republican. "It's an overtly political move, which causes me concern about what a prosecutor's doing with the rest of his office."

Thomas points out that the County Attorney's Office has always lobbied at the Legislature. And he says he's proud that his office has a major law-enforcement presence at the Capitol and is the only one willing to take stands on controversial issues.

"I provide something that's in short supply among public officials, which is leadership and courage," Thomas said, "and those are things that I believe the public wants."