1 8400 South Kyrene Suite 123 2 Tempe, AZ 85284 3 4

5

LISA M. AUBUCHON

013141

Telephone: (623) 229-3843 aubuchonlaw@cox.net

THE SUPREME COURT OF ARIZONA

6 7
8 IN THE MATTER OF A MEMBER THE STATE BAR OF ARIZONA, Lisa M. Aubuchon, State Bar #013141 OF) No. PDJ 2011-9002
)

9 10 11 12 13 14

) APPELLANT'S
)

OPENING BRIEF

) )
) ) )

Appellant.

---------------------------------)
INTRODUCTION Respondent Disbarment an attorney Lisa Aubuchon asks that this Court reverse the Panel. Appellant is

15
16 17 18 19

Order entered by the Disciplinary who has been in governmental history,

employment

for over 20 and

years with no disciplinary exceptional attorneys evaluations.

numerous

promotions

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21 22 23
24

The decision

by this Court will impact that Appellant

across the country and it is requested

will receive a truly impartial that ultimately was required evidence,

review of all of the evidence to that found. The Panel

shows a finding contrary

25
26

to make findings based on clear and convincing and conjecture. Instead, the

not on speculation that occurred

27 28

pontification foundation

was based on two themes that are the that Appellant acted

for the entire 247 page Order-

-1-

1 2 3 4

for political

reasons and that she knew the filings she made is built on an unstable and is

were false. This foundation fabricated

base that falls as soon as any fair assessment Inust be proved

made. The acts of Appellant

and judged on its acts

5
6

own. She cannot be judged as a part of a group. The alleged of Mr. Thomas cannot be imputed

7\ and omissions

to Lisa Aubuchon. evidence

8
9

The Order must be supported

with clear and convincing

that proves each and every element of each and every ethical violation Andrew charged against Appellant. In an effort to destroy to take down Appellant

10
11

12 13
14

Thomas, the powers that be decided allegedly

too by lumping everything Appellant's conduct.

done by Thomas as proof of This Court must The Order was in her Brief, an of the

This attack is not right. to Appellant.

15 16 17 18 19 20

right the wrong that has occurred 247 pages yet Appellant impossible

has 30 pages to respond has requested

task and Appellant

an extension

page limit to 60 pages in an attempt to still address main issues. The details Appellant's document, Closing R. 417. of her argument are contained

just the in to that

21
22

argument Appellant

and this Court is referred

asks that this Court thoroughly

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24

review the record as to the issues presented.

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26

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1
2

TABtE OF CONTENTS

3 4 5
6

I. II.

INTRODUCTION TABLE OF CONTENTS

1.

3. 4. 7.
10. 59. 59.

III. TABLE OF CITATIONS IV. V. VI. STATEMENT STATEMENT SANCTIONS OF THE CASE AND FACTS OF THE ISSUES AND ARGUMENT

7 8 9 10

VII. CONCLUSION

11 12
13

14

15
16 17 18 19 20 21 22 23
24

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26

27
28

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1 2 3
4

TABLE OF CITATIONS Citation A.R.S. 13-2314 Babst v. Morgan Keegan 1988) Berger & Co., 687 F.Supp. 255, 258

Page
36

(E.D. La.
36

5 6 7 8 9

v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 22
434 U.S. 357, 364, 98 S.Ct. 663, 668, 54

1314 (1935) Bordenkircher v. Hayes, L.Ed.2d 604 (1978)

25

Brady v. State of Maryland, L.Ed.2d 215 (1963) Buckley L.Ed.2d

373 U.S. 83, 83 S.Ct. 1194, 10

22

10
11

v. Fitzsimmons,
209 (1993)

509 U.S. 259, 113 S.Ct. 2606, 125 14 Seeds, Inc., 519 F.3d 969 (9th Cir.,
33

12 13

Canyon County v. Syngenta 2008) Francis 2009)

14
15 16

v. Sanders, 215 P.3d 397, 222 Ariz.

423

(Ariz. App., 31

http://www.nytimes.com/2011/05/23/nyregion/ny-attorney-generalgranted-power-in-corruption-cases.htrnl?pagewanted=all 14 In re Neville, In re Pappas, 147 Ariz. 159 Ariz. 106, 111, 708 P.2d 1297 516, 518, 768 P.2d 1161, 1163 43 (1988) 43

17
18

19

20
21
22

In the Matter of John Ruffalo, Jr., Petitioner, S.Ct. 1222, 20 L.Ed.2d 117 (1968) Millsap Morrison (1988) v. Super. Ct., 70 Ca1.App.4th 196,

390 U.S. 544, 88 10,14,17,22
36

(App. 1999)

23
24

v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569
26
41 36
36

25
26

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657(1996) People ex. ReI. N.R., 139 P.3d 671 (Colorado 2006) v. Pearson, 754 F.Supp. 1374(N.D. Ind. 1991)

27
28

Resnover

~4-

1
2

Romley 2010)

v. Daughton,225

Ariz. 521, 241 P.3d 518

(Ariz. App., 33, 35 Industries, Inc., 36 Group of 36 226 u.s. 35

3 4 5 6 7 8 9

Securities and Exchange Commission v. Dresser 628 F.2d 1368, 1378 (C.A.D.C. 1980)

Securities and Exchange Commission v. First Financial Texas, Inc., 659 F.2d 660, 666 (5th Cir. 1981) Standard Sanitary Manufacturing 20, 52, 33 S.Ct. 9, 16 (1912) State ex rel. Brannan (Ariz. App., 2007) Co. v. United States,

v. Williams,

171 P.3d 1248, 217 Ariz. 207 26 (Neb. 1975) 36

10
11

State v. Boyce, 233 N.W.2d State v. Brooks, 1980) 126 Ariz.

912, 913-14

12 13
14 15

395, 616 P. 2d 70 (Ct. App. Div. 1, 32, 46 36 18

State v. Cope, 50 P.3d 513, 516 (Kan. App. 2002)
State v . Henry, 189

Ariz.

542, 944

l?2d

~)7

(Ar i z ., 1997)

State v. Jackson, State v. Prentiss, State v. Robinson,

208 Ariz. 56, 90 P.3d 793

(App., 2004) 30 26 36

16 17 18
19
20

163 Ariz. 81, 786 P.2d 932 (1989) 179 P.3d 1254, 1259 (N.M 2008)

State v. Schackart,

190 Ariz. 238, 947 P.2d 315 Ariz.

(1997) 18 30 687

Taylor v , Cru.ikshank, 148 P.3d 84,214 U.S. V. Armstrong, (1996)

40 (App. 2006)

21
22

517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 26 502 F.2d 1351 (7th Cir. 1974)36

23
24

United states v. Cappetta,

25 26
27 28

United States v. Enterprises, 112 L.Ed.2d 795 (1991)

Inc., 498 U.S. 292, 111 S.Ct. 722, 32

United States v. Goodwin, 457 u.S. 368, 380, n. 11, 102 S.ct. 2485, 2492, n. 11, 73 L.Ed.2d 74 (1982) 24 United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 363-364, 94 L.Ed. 401 (1950) 32

-5-

1 2 3 4 5
6

United

states

v.

Hubbard,

493 F.Supp. 206, 207

Columbia
United

1979), v. Kordel,

(Dist. of 36

states states States

397 U.S. 1, 11, 90 S.Ct. 763, 769
38 30

(1970)
Uni ted Uni ted Wayte

v. LeMaux, 994 F.2d 684, 689 (9th Cir.1993)

v. Wencke, 604 F.2d 607, 611 (9th Cir. 1979) 36
Sta tes,

7 8
9

v. United

547

(1985)

470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 24

10
11

12 13

14

15
16
17 18

19
20

21
22

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24

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27

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1 2 3 4 5 6 7 8 9 10 11
This Appeal Disciplinary

STATEMENT

OF THE CASE AND FACTS Order of the This Court Rules of

is from the Disbarment on April

Panel entered pursuant

10, 2012. R.428.

has jurisdiction

to Rule 59 of the Arizona In this matter

Supreme Court. The proceedings unheard

began from an

of referral to Justice Rebecca State Bar.

Berch from John Phelps

with the Arizona investigated Counsel"

The case arose from Bar Complaints "Independent Bar

by attorneys

who have been labeled

(hereinafter making

referred

to as bar counsel).

The names of

12 13 14
15

the individuals complaints

the bar complaints,

and the specific It was not

themselves,

have never been disclosed. known to Appellant

based on any bar complaint complaint by David Smith,

other than a filed a conflict

one of the people Appellant to alleged

16 17 18 19 20 21
22

cause of action against issues. R. 470. Despite attorneys appointed

in court, related John Gleason

and staff not being Justice Berch

licensed by the Arizona him to act as

Supreme Court,

the bar prosecutor,P,9, on an investigation, by bar counsel,

John Gleason and staff embarked interviewing over 100 people one recorded

yet, as admitted interview,

23
24 25

never providing interview

one note from a witness No exculpatory continued to

nor a list of those interviewed. was provided to Appellant. Bar Counsel"

26 27 28

information

John Gleason despite

use the name "Independent the Arizona

him working

with

State Bar, the Arizona

Attorney

General's

Office,

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1
2

the United State's Attorney's entities to obtain information

Office,

and Maricopa

County During a

and access

to people.

3 4 5 6 7
8

six month screening Appellant requests

investigation,

bar counsel

provided numerous

with allegations

to respond to and despite

as well as attempts

to ask this Court for relief, no to Appellant to

facts or bar complaints respond to.R.222.

were ever provided

Despite

knowing Appellant's

counsel was fired Appellant's

9

by Maricopa partial request

County Attorney's

Office after receiving bar counsel

10
11

responses

to the allegations, panelist

filed a cause After to

12 13 14 15 16 17 18 19 20 21 22 23 24
25

with the hearing

and obtained

a probable

determination obtaining

under the old bar disciplinary bar counsel waited

process.R.l. several months

this finding,

file formal charges and avoided resulted in Appellant

the old process.R.I.

This action

never being able to present

her case to

the panel of 8-10 people which she would have been able to do under the old or new process. William O'Neil was the trial court judge who entered a stay criminal prosecution after this Court canons, he

order in the Gary Donahoe denied the stay.R.26.

In violation

of the judicial

remained

as the Presiding

Disciplinary

Judge in this

matter.R.26. and bringing Arizona

Even after a request to have him recuse himself to light his holding motions General's to disqualify the

26 27

Attorney

Office on an investigation of unethical

that

28

ultimately

led to a finding

conduct by the Panel,

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1 2 3 4 5 6 7 8 9

he remained.R.26. disciplinary evidence

Subsequent

to the decision citizen

of the

panel, a concerned

carne forth with direct that is

of bias, something

unknown

to Appellant

corroborated Action

by the failure to recuse himself.

See Special SA.

and related pleadings

filed in this Court, CV-l2-0l59 in waiting to

The 275 page Order on its face and the actions

deny a stay until the last hour also show the actions and opinions of Judge O'Neil. R.452. from bringing in evidence

10
11

Appellant's

counsel was precluded

12
13 15 16
17 18 19

of the guilt of Donald Stapley the allegations

Jr. and Mary Rose Wilcox despite

that she did things solely for political and as will be discussed due process below, the allegations and the

14 purposes.R.470

were vague, violated conclusions

and the findings

of the panel are not supported filed this Appeal

by law or fact. for stay of the

Appellant

and request

order but was denied a stay of the Order on the last possible hour by the panel despite filed a month prior.R.430. "danger to the community" her request pursuant to Rule 58 being of

20 21 22
23

Despite no prior allegation and no interim suspension occurring or

supervision

sought as to the allegations

now three

24 25
26

years ago, panel denied the stay.R.452.

27 28

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1

STATEMENT

OF THE ISSUES FOR REVIEW

2
3 4 5 6
7

I.
II.

Appellant's Constitutional Rights were violated throughout the Disciplinary Process; The Panel's Order was based on erroneous conclusions; The Panel's faotual findings were clearly legal

III.

erroneous.

ARGUMENT I. Appellant's the Disciplinary Appellant proceeding. U.S. Constitutional Process. is entitled Rights were violated throughout

8 9

10
11

to due process of John Ruffalor

in this disciplinary Jr.r Petitioner, 390

12 13 14 15 16 17
18

In the Matter

544, 88 S.Ct. 1222, 20 L.Ed.2d

117 (1968). John Gleason was assigned to

A.

Soreening

Investigation.

investigate

not a bar complaint Order 2010-41, notice

but attorneys. entered March

See

Administrative

23, 2010. This have always based on

Court can take judicial been required conduct,

that bar complaints

in the past to being an "investigation" in general.

19 20

not as to attorneys

This Order was done not authorized free

solely by Justice Berch and she allowed attorneys to practice law to become the bar prosecutors, on attorneys

21
22 23
24

apparently

from the constraints Court.

placed

admitted

before this to get this initiation

While Appellant

and her attorneys

attempted

Court to review what they believed of the process, violation address process that attempt

to be an illegal

25
26

became a basis of an ethical despite her simply attempting to due

against Appellant

27 28

what she believes

was a violation

of her procedural

rights. Exh. 230 and Exh. 513.

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1
2

In addition, John Phelps. 53. Exh. 224. In addition

the investigation

was illegally

initiated

any

He did not have the authority

to do so under Rule

3

4
5 6

to bar counsel practicing

without

a license, process.

he

and his staff acted as investigators However, despite demands

in the screening

for disclosure

of that investigation,

7 bar counsel refused to provide any claiming it was "work 8 product. 10 12 13 14 15 16
17 18
If

Ironically,

all of Appellant's

work product

was

9 released to anyone who requested it, other than to Appellant, by
those including the Maricopa County Attorney's Office. In fact,

11 Appellant's

hard drive was copied and given to the FBI yet she with her information did a month's that was exculpatory. prior to

was never provided For example,

Appellant

worth of research

filing the RICO action yet she was denied work by the County Attorney the exculpatory Attorney. information

access to all of her failed to disclose

and bar counsel

received by them from the County and emails would have that is

All of the hours of research the investigation

showed clearly required

done by Appellant

19 20 21
22

under the ethical

rules before

filing cases and

pleadings. In this matter, bar counsel was allowed evidence that they obtained through to hide the under the

the investigation

23
24

guise of work product. names of witnesses screening trial. When Appellant in the screening

This failure to produce

interviews,

and documents violated

that they learned of in the appellant's rights to a fair

25
26

investigation

27 28

attempted

to cooperate bar counsel

with the bar counsel refused to provide

investigation,

-11-

1 any facts to Appellant
2

to respond

to.

For example, they demanded

as set forth she respond

in Exh. 222, letter from John Gleason, to "It is alleged that ... given simply an allegation trial,
n

3
4

No facts alleged,

not evidence

to respond to. that Appellant

As shown in the was ever aware of looking Despite

5
6
7

there was no evidence investigation

any prior

other than simply Mark Goldman from another investigation.

at some records he obtained bar counsel manipulating

8

this "notebook"

given to MCSO by Sally

9 Wells and a notebook that on its face was not the one seen by 10
11 12 13 Appellant testimony as it had documents from after the alleged dates, no knew of any prior meetings such as existed to show Appellant

or investigations.

How can she respond to an allegation

this when she has no idea what facts are relied upon? B. probable Manipulation cause petition of the Process. Bar counsel filed the

14
15 16
17

under the old process

and waited until

the new process probable evidence. violates

came into play so that he could avoid having the who would hear the as well as

cause panel or the Commission

18
19

This action is an ex post facto violation Appellant's right to equal protection

and procedural should be

20 21 22
23

due process. The highest concerned

court in the State of Arizona

about justice not a manipulation process

of the system.

The disciplinary changed, ironically,

was in place for years and was to complaints about the process This

in response Thomas

24
25

used to try and get Andrew Court brought

the first go around.

in John Gleason,

the very same John Gleason that in this matter to help "fix"

26
27

is the "independent

bar counsel"

the system. The old system had safeguards presentation of the evidence

in place to allow eight or ten

28

to a large panel,

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1
2

individuals.

The new system also had the same safeguard as the probable

in

place but that panel was placed

cause panel to to avoid

3 5

try and address cases at the beginning

presumably

4 simply one person deciding probable cause.
It is a clear violation of the ex post facto clause in this that is adopted

6 quasi criminal proceeding
8
be changed

to allow a process

7 after conduct occurred and after a complaint has been filed to
and altered significantly in the middle. Bar counsel

9 knew that their actions in waiting to file the formal complaint 10 meant they could get before Judge O'Neil and his hand selected
11 panel,
knowing he had already ruled in Donahoe's favor and avoid

12 13 14 15 16
17

the 8-10 person panel. livelihood land.

This gamesmanship

with a person's court in the

should not be allowed by the highest

An addition

to it being an ex post facto violation, and due process differently discipline rights were than other prior to her

appellant's violated attorneys

equal protection

as she is being treated who were went through

process

18 matter as well as attorneys who were went through the process 19 20
21 after her matter.

c.
Presiding evidenced several

Judge O'Neil.

Appellant's

Right to a Fair Trial was of interest. The as

denied based on Judge O'Neil's

conflicts

22 23
24

Judge tried to control in part by sidebars,

the defenses

presented

cautioned

Appellant's

counsel.

times during the proceedings

that: "We (the Panel) get out." R. 470, as

25

it and it is not necessary to one example, counsel. statements

to spell everything argument

26
27

see R. 417 closing

as stated by

The panel's

order is peppered morally

with conclusory actions despite no

28

about Appellant's

bankrupt

1 2 3 4

facts to support the conclusions. itself repeatedly, for example

The Order even contradicts started an relating

claiming Appellant

investigation to Stapley.

then proceeded

without

an investigation

As R. 470 illustrates

in the October belief

11 sidebar,

5

Judge O'Neil had some predisposed

that if the MCSO these

6 officers in this matter felt the process in investigating
8
unethically. This conclusion and contrary or even inference

7 matters was out of the ordinary, Appellant must have been acting
is completely

9 unsupported 10 12 13 14 15
16 17 prosecutors

to well established

law where law enforcement

can and do act regularly even directing

to assist

11 in investigations,
some mistaken

them. It appears there was acting as part of a joint There is a long line of and qualified immunity See

belief that attorneys

task force such as MACE was unethical. cases distinguishing showing Buckley L.Ed.2d review common. a prosecutor between absolute

can and is involved

in investigations.

v. Fitzsimmons, 209 (1993).

509 U.S. 259, 113 S.Ct. 2606, 125 investigations where prosecutors the issues are

Corruption

18 19 20
21 22

evidence

with police

and work to address

Seehttp=//www.nytimes.com/2011/05/23/nyregion!ny-

attorney-general-granted-power-in-corruptioncases.html?pagewanted=all. i. Recusal as to Donahoe decisions

23
24

As explained recuse himself( R.

in the Informal

Motion to have Judge O'Neil by the judicial canons

he was not permitted

25
26

to hear the matter.

He had already made decisions

on the merits

of the very charges he was considering there was a conflict of interest

in this case- whether Gary Donahoe. his

27 28

in prosecuting

As is clear in the 247 page Order, he failed to acknowledge

-14-

1 2

role in the stay, an issue that is extremely shows his bias and prejudice. the panel that Appellant charging For example,

important

and that with in

he concluded

3
4

used an out of the ordinary

process

Gary Donahoe to avoid a probable

cause finding by a no evidence

5 magistrate.
6 7 presented notice County,

Despite there being absolutely of that, something

this Court could take judicial in place in Maricopa

is false given the procedures he knew from his assignment probable cause.

8

over the case that he would

9 be determining
10 11 12 13
14 finding because preventing

He never had to make that

he entered

a stay on the Gary Donahoe matter,

the Grand Jury from voting on the draft indictment He also knew that despite the panel's false

they requested.

"legal conclusion" could proceed,

that an "end inquiry" meant no other entity he referred to in the Donahoe conclusion the as

the instructions

15
16 17 18 19
20

grand jury proceeding to their intent. instructions

did not support the panel's

Judge O'Neil

failed to acknowledge

from the grand jury that they were not to request a unless they felt there was evidence and that

draft indictment

they should not end inquiry if they have requested indictment. These instructions

a draft request

as well as Appellant's to another

21
22 23 24

that they return the case for assignment directly contradict the unsupported

prosecutor

conclusions

that there was

no evidence

to proceed

in the bug sweep and court tower cover up the victim of the count

grand jury. In fact, Daisy Flores, against Appellant

25
26

agreed with Appellant

that it was not clear

what the grand jury intended. The fact that Judge O'Neil stopping had been directly from moving involved with forward after

27
28

the Gary Donahoe prosecution

-15-

1 2

hearing

argument

in the lower court from Appellant of the judicial

herself in

is in

direct violation Appellant

canons and resulted judicial officer

3
4

not having an unbiased

as evidenced including

by his failure to disclose the information ii. in the Motion Ruth McGregor below.

his actions

to the panel,

5 6
7

Recusal as to grand jury matters. for recusal,

Also as stated by Justice

Judge O'Neil was assigned

8

to the grand jury investigation

by the Arizona relating to

9 Attorney General's Office into Appellant's
10 11 12 13 the statute O'Neil of limitations refused to rule on emergency motions

conduct

on the Stapley misdemeanors.

Judge

in the trial court while applying for

filed by Appellant, the job he has now. directly process. violates officer.

sitting on those motions These motions

he was sitting on are

14 15 16 17 18
19

related to findings he made in this disciplinary Not only does this violate Appellant's the judicial canons, judicial it

right to a fair and unbiased

iii. Affidavit When Judge O'Neil Recusal, Appellant judicial

and personal

bias the Motion for informal

finally unsealed his actions

20
21

he tried to justify

in part by claiming

did not file for a Change canons required recusal,

of Judge for Cause. The should not have had

22
~

Appellant

to file a Change of Judge for Cause but it was not until after the proceedings direct evidence that Appellant was approached personal by someone with towards Reply to

24 25 26 27 28

of Judge O'Neil's

hostility

Appellant. the Special evidence

That affidavit Action

was attached

to Appellant's

seeking a stay. Appellant

not aware of Dixon she could not

until after the proceedings

therefore

-16-

1
2

have produced O'Neil

it. The affidavit

is corroboration and these reasons

of why Judge alone warrant against a

failed to recuse himself

3

a remand of the case.

A judge that is prejudiced

4 party should not sit on a matter- goes to the very heart of our 5
7 8
system of justiceeveryone, including Appellant, is entitled to

6 a fair day in court. In the Matter of John Ruffalo, Jr.,
Petitioner, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d had this additional 117 (1968). she Had Appellant piece of evidence,

9
10
11

would have tried to move for a change of judge for cause pursuant to Rule 51 despite Court rules. that Rule not being referenced in to

the Supreme

Upon advice of counsel,

the Motion

12
13 14 15 16
17 18

Recuse was sought as the judicial recusal O'Neil's

canons clearly required at the time of Judge

and there was no other evidence personal bias.

Judge O'Neil did not have the integrity with any fairnessname.

to treat Appellant her

he did not even learn how to pronounce he gave of Appellant as a morally

The description

bankrupt

person was contradicted and he refused

by all of the witnesses

that

19 20 21 22 23

knew Appellant

to allow countless of unknown

other that origin. This

would haVe contradicted monster

this finding

he and his panel portrayed

does not exist nor did she

exist in the 20 years of service In fact, the affidavit

to the State of Arizona. how the panel Gary Donahoe

of Mark Dixon explains everything

M
25 26 27 28

went out of its way to try and justify did, ignoring the actual hard evidence testimony

such as docket printouts, from him. order that shows

time stamps and unbelievable Very telling complete

is the finding despite

in the panel's

ignorance,

Judge O'Neil having been a superior

1 2 3 4

court judge, or intentional

misrepresentation

as to the reasons The panel was baseless and

behind a grand jury investigation

and subpoena.

spends pages trying to claim the investigation that the target were questionable this was simply the beginning yet ignores

the very fact that as the United

5
6 7

of an investigationsummarized

States Supreme Court has stated, discussed below.

in Exh. 111 and

8
9

In addition,

very basic facts were falsely
393

stated such as lied

in the Order paragraph

that again finds Appellant

10 because she "knew" Thomas Irvine did not represent the Superior
11 Court but instead contradiction represented Barbara Mundell. In direct

12
13 14

to this finding is Exh. 17 where Judge Mundell Attorney General's Office has now a contract ..

wrote in a letter "The Arizona assigned

Mr. Irvine to represent

the Court through

15
16 17

"

Exh. 16 email from Jessica this morning

Funkhouser

"I spoke with your Court's plan to award

assistant a contract

about the Superior
If

to a law firm ...

18
19 20

The bias and personal is apparent the honesty facts.

dislike

of Judge O'Neil

and the panel directly on

through the venomous of Appellant

findings

reflecting

that are completely

contradicted

by the are

21
22 23 24

Statements

like the "Fake Court Tower

Investigation"

demonstrative

proof of what is meant by courts

such as "Opinions or events or of prior unless State v.

formed by the judge on the basis of facts introduced occurring in the course of the current proceedingsr do not constitute a deep-seated
542, 944

25 26
27
28

proceedings, they display
Henry,

... bias or partiality or antagonism."
1997)

favoritism
P.2d 57

189

Ariz. States,

(Ariz"

(citing Liteky

v. United

510 U.S. 540, 555-56,

114 S.Ct. 1147, 1157,

-18-

1 2

127 L.Ed.2d P.2d 315 essence

474

(1994). State v. Schackart,

190 Ariz. 238, 947 is the very

(Ariz., 1997).

The 247 page decision

3
4

of bias and partiality contained throughout

given the clear deep seeded the order as well as the denial one fact actually cited that talked

favoritism

5

of the stay request.

In the Order,

6 shows some "lie"- the 10.1 timing.

No dispute Appellant

7
9

to assistant,

no dispute there was a pending motion

to remove

8 him aside from 10.1- two years later, mistake as to timingreasons all articulated when fresh in Response to Special Action because

10 petition.
11

So ironic is that panel met to discuss

found a "conspiracy"

law enforcement

whether

to charge a crime and the

12
13 14

panel felt not sufficient parties D. believed Failure

evidence

despite NO evidence is a liar.

it was false yet appellant to infor.m of charges. the charges

To this day, Appellant

15
16

does not understand motive. What is it?

that she had a "political" into "political"

This charge morphed

11 meaning a motive to embarrass or harass a person and was allowed

18
19 20 21
22

to proceed

without

allowing Appellant

the opportunity

to present

all of the information was to pursue crimes.

that she had that showed her true motive those she believed to anticipate corr~itted that she would she was

charges against

How was Appellant

supposed unethical

be found to have committed attributed motives

conduct because

23
24

of others?

As stated above, the screening her facts upon which to respond. were speculative, Appellant conclusory and

investigation Likewise,

failed to provide

25
26

the charges themselves

and not based on facts. "convicted"

Ironically,

was charged

27
28

of claims that she did not have sufficient

evidence

-19-

1 2 3 4 5 6
7

to go forward on, the very sins bar counsel committed. E. Failure to allow evidence

and the panel have

of guilt.

As found in of the criminal He also making"

Order, Judge O'Neil refused to allow evidence actions

of Donald Stapley Jr. and Mary Rose Wilcox. Appellant from getting into "judicial

prevented

decision

yet allowed

the witnesses

to testify

as to what they wanted to

8
9

say, precluding

cross examination

on the very issues Appellant

alleged occurred. F. Hearing panel deciding matters outside evidence. As

10
11

was clear from the panel's

"evidence"

as to Appellant's process

motive

12 13

that she used an out of the ordinary Donahoe in order to avoid a probable absolutely no evidence

to charge Gary there was

cause decision,

14
15 16 17

nor is there any basis in fact to make this portion of

this finding. the decision of Maricopa

Judge O'Neil was clearly writing based on his experience

in Pinal county, not that other findings such as

County.

There were also numerous

18
19

that were not based on the presentation the criticism of using an officer

of any evidence

to file a criminal

complaint in

20
21

that did not do the investigation, Maricopa County where agencies

a common, daily occurrence and that Thomas Superior Court,

use liaisons, County

22
23

Irvine did not represent contradicted G. directly

the Maricopa

by Exh. 17. witnesses. Appellant named

24
25

Failure

to allow Character witnesses

over 60 character honesty

that would have testified six.R.154.

to her

26 27

yet Judge O'Neil only allowed testified in the proceedings

All character was

witnesses honest,

that Appellant

28

not political

and not vindictive.

Despite no evidence

-20-

1 2

to the contrary, Appellant, making

the panel made a vicious,

unsupported

attack on

findings about her character

despite over 20 where these

3
4

years of exceptional

service to the state of Arizona

issues had never been claimed before. H. Failure to provide exoulpatory evidence. Appellant

5
7

6 was never provided her work product despite bar counsel meeting
with and obtaining documents from the Maricopa County Attorney. that

S
10 11 12

In fact, in the middle

of the hearing,

it was discovered

9 the Maricopa County Attorney's
they finally provided. research memorandums never permitted Bar counsel disclose Petition

Office had numerous

emails that

However, Appellant Westlaw

had done many research that she was

and countless

to access. introduced only parts of the story, failing to for example, introduced the

13
14
15

exculpatory

information

for Stay in the Special Action

filed by Gary Donahoe in filed by charges. R.

16 17 18

this matter but failed to introduce Appellant

the Response

that laid out her basis for the criminal because the panel's

286, 287. This is significant erroneously rests its decision

Order again

19 20 21 22 23 24
25

on a Form IV as if that is the Not only is rules,

only basis for the probable

cause determination.

that simply a release questionnaire Appellant presented evidence

per the criminal

and testified

she did not rely on she

that but did her ethical duty of relying knew. That information was articulated

on the information clearly before this

Court in the Response

to the Petition

for Special Action

that

26
27

had been filed by Gary Donahoe. Additionally, Appellant's despite

Exh. 286, 287. as to was

the vile conclusions

28

ethical make-up,

only one factual contradiction

-21-

1 2

cited- the timing of the 10.1 Motion failed to acknowledge

against

Donahoe.

The panel

that there was a prior Motion Court that clearly

to remove

3

Gary Donahoe and the Superior

was mixed up in to was

4 terms of timing.
5

Exh. 148 clearly

shows there was a Motion the criminal complaint

remove Gary Donahoe

filed well before

6 filed and it is much more likely a mistake as to timing was made
7 given the earlier filing on the same issue. The panel's failure

8 to include all of this other evidence before making such 9 outrageous and harmful findings shows the bias and hatred. 10
11 Not only did the panel ignore this information, O'Neil again failed to disclose Judge his role in the Donahoe matters. not Ms. bar counsel

12
13

Daisy Flores was a "victim" with bar counsel, Flores claiming Appellant was dishonest. However,

14 15 16
17

failed to disclose exculpatory

the deposition

to the panel that was clearly

and obliterated

the charge. just as all 373 U.S. 83, 83

Bar counsel has the duty to do justice prosecutors S.Ct. 1194,

do. See Brady v. State of Maryland, 10 L.Ed.2d 215 (1963) to do justice, proceedings

18

19 20

Prosecutors criminal

are supposed

whether such as

in the

arena or quasi criminal matters.

21
22

disciplinary

Berger v. United States, 295 U.S. 78, 55 (1935); In the Matter of John Ruffalo, 117

S.Ct. 629, 79 L.Ed. 1314 Jr., Petitioner, (1968), Brady 10 L.Ed.2d II. 215

23
24

390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d

v. State of Maryland, (1963).

373 U.S. 83, 83 S.Ct. 1194,

25 26

The Panel's

Order was based on erroneous

legal conclusions. factual

27 28

As will be further addressed findings, the following

in the erroneous

were legal findings by the panel that

-22-

1 2

are clearly

erroneous.

It is difficult

in this matter

to show

what are actually disciplinary standard

legal decisions

given that 99% of the legal standards. is de novo. The

3

order does not address

4
5

for review on these matters

What will be

seen in a review of the disciplinary fact very few legal findings.

order is that there are in

6
7

There are so many commentaries that it is difficult to

based on clear hatred of the Appellant even address factual the findings.

8 9
10 11 12 13

In order to point out the false to see the mountain of legal

findings,

it is important

errors made by the panel. Other than basic ethical any legal authority decision rule references, the first cite to the

is on page 22 when the Panel misstates Exh. 162 does in fact contain that "end inquiry" is contrary

of the Grand Jury. however,

14
15

instructions situation

the conclusion

in this

meant

there was no evidence

to the other

16
17

instructions

contained

in the same Exhibit-

the grand jury did

request a draft indictment there is evidence.

which they only do if they believe to not end inquiry

18 19 20
21

They also were instructed a draft indictment.

if they had requested

As also stated by

Daisy Flores in her deposition, what the grand jury intended This finding legal findings

pages 202-·203, it is not clear

to do. erroneous

22 23

also is related to a very important

in Counts 31 and 32, paragraphs

490 through 495
any 2. That the

24

which finds 1. The grand jury's decision consideration

precluded

25
26
27

by any other grand jury on the matter

grand jury presentation and 3. Appellant

lacked any factual or legal substance because she failed to tell Daisy and that was a unethical

was dishonest

28

Flores the grand jury had ended inquiry

-23-

1 2

omission erroneous

done knowingly

and intentionally.

These are all

ruling that go to the heart of the two counts. no law that states a grand jury ending The grand jury itself also did to only

3
4

There is absolutely

inquiry has any legal meaning. not make this finding.

5
6

The grand jury was instructed if they believed They did request

request a draft indictment

there was evidence a draft indictment

7 for the crimes. Exh. 162.

8 so they clearly did believe there were facts to support the 9 charges but their deliberations
10 11
himself when he entered state is that Appellant were stopped by Judge O'Neil the stay. What the panel also fails to was precluded by law, A.R.S. 13-2812 as

12
13

Ms. Flores was not the assigned was a request Factually, review it. These findings

law enforcement

agency and this

to see if she would take over the investigation. is she decided to

14

she was given all the information

15
16 17 18 19
20
21

ignore the law on prosecutorial of powers.

discretion the

and fly in the face of separation judicial

Basically,

branch here is disagreeing

with a charging

decision.

While prosecutors

must follow ethical

rules, that does not open with a discretionary that shows the

the door to a court simply disagreeing decision absent some evidence

of other misconduct

22

charges were invalid. The executive branch has the authority to determine what

23
24

crimes to be charged.

In Wayte v. United States, 470 U.S. 598, 547 (1985) the court stated: retains "broad

25
26

105 S.Ct. 1524, 84 L.Ed.2d "In our criminal discretion"

justice system, the Government

27
28

as to whom to prosecute.

United States v. Goodwin,

457 U.S. 368, 380, n , 11, 102 S.Ct. 2485, 2492, n. 11, 73

-24-

1 2

L.Ed.2d

74 (1982); accord, Marshall

v. Jerrico,

Inc., 446 U.S.

238, 248, 100 S.Ct. 1610, 1616, 64 L.Ed.2d "[3Jo long as the prosecutor

182 (1980). cause to believe

3

has probable

4 that the accused committed an offense defined by statute, the
5 6 7 decision whether or not to prosecute, and what charge to file or rests entirely in his bring before a grand jury, generally discretion." Bordenkircher v. Hayes,

434 U.S. 357, 364, 98 S.Ct. rests is

8 10
11 12

663, 668, 54 L.Ed.2d

604 (1978). This broad discretion that the decision review.

9 largely on the recognition
particularly strength ill-suited

to prosecute

to judicial

Such factors as the

of the case, the prosecution's enforcement

general deterrence and the case's plan are

value, the Government's relationship

priorities,

13 14 15
16

to the Government's

overall

enforcement

not readily susceptible competent moreover, Examining to undertake. entails

to the kind of analysis Judicial supervision

the courts are

in this area, concern.

systemic

costs of particular

17 18

the basis of a prosecution threatens

delays the criminal by subjecting the

proceeding,

to chill law enforcement

19 Iprosecutor's motives and decision making to outside inquiry, and
~ 21 22 may undermine Government's concerns decision prosecutorial enforcement effectiveness by revealing the policy. All these are substantial hesitant to examine the

that make the courts properly whether to prosecute."

23
24

nJn our system, cause to believe by statute,

so long as the prosecutor committed

has probable

25

that the accused

an offense defined and what rests

26
27

the decision

whether or not to prosecute,

charge to file or bring before a grand jury, generally entirely in his discretion" Bordenkircher v. Hayes,

28

434 U.S.

-25-

1

357, 98 S.Ct. 663, 54 L.Ed.2d

604 (1978). See also Morrison 569 (1988)

v.

2 3
4

Olsonr

487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d

State v. Prentiss,

163 Ariz. 81, 786 P.2d 932 (Ariz., 1989); 171 P.3d 1248, 217 Ariz. 207 217 (Ariz., 1984) based on claim that

State ex re1. Brannan v. Williams,
(Ariz. App.,

5

2007, 686 P.2d 740, 141 Ariz. to this discretion

6 7
8

"Challenges constitutional

are only brought

claims such as selective-prosecution on the merits to the criminal assertion

is not a defense

charge itself, has brought the

9 but an independent 10
11
charge for reasons

that the prosecutor

forbidden by the Constitution."

U.S. v.
687 (1996)

Armstrong,

517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d

12
13 14

Other legal errors include pages some lawyers, others,

31-2 that somehow because or expertise t.han

ones with no more experience

feel a case is not a good one, that somehow binds other from disagreeing. That is in essence the "legal

15 16 18
19

attorneys argument"

by the panel that Mr. Thomas was bound to listen to

17 people other than Appellant and follow their advice and that
unsupported opinions about Appellant's competence must equate to a legal finding of incompetence case. Additionally, such as in Count 17, the RICO "incompetence" was

20 21 22
23

the finding of ethical

not based on any actual showing that the case was filed without adequate research of preparationit was based on the panel's to

interpretation

of the merits of the RICO filing, contrary and Appellant, Mr. Thomas, Rachel

24 25 26 27 28

that of Bob Barr, R. Alexander and Sheriff's

office representatives. the above are erroneous legal

Counts 4, 22 and 23. Although conclusions,

the first real legal finding

related to Appellant

is on page 64.

As to counts 4, 22 and 23, the panel relied on

-26-

1

dicta in a decision

that stated that a lawyer's

subjective that was

2 opinion could be considered but failed to acknowledge
3
4 part of the inquiry_ violated the ethical In this matter, rules by filing matters

the panel found Appellant SOLELY to embarrass evidence of the

5

or burden.

The failure to allow or acknowledge decision

6 evidence that went into Appellant's
7 charges is clearly erroneous.

for filing the

In addition,

the panel made an alleged sUbjective

8 unconstitutional 10
11 legal basis?

jump from Andrew Thomas'

9 reasons to finding Appellant violated the ethical rules. The
The number of charges, without regard to the merit regard to the that the and that of the charges, the age of the charges, without

12
13 14 15

fact they were just discovered, misdemeanors were outside

the bootstrapping

the statute

of limitations without

the charges included

perjury

and forgery,

any regard to

the guilt as to these charges.

These reasons

cannot legally solely to

16
17

support a finding that the charges were brought embarrass or harass.

Nor do the other facts relied on that the to a discretionary peer review type himself was to seek

18 19
20

case was not subjected proceeding, involved especially

since the County Attorney why would Appellant

in the matter-

be required

21
22

a review by others equal to or below her? These are not legal factors to support bringing was done solely to embarrass failure an ethical violation or harass especially that something given the

23 24 25
26

of Judge O'Neil to permit the evidence of time.

of guilt found

over a six month period Count 5. Appellant

As to Count 5, the legal finding was attributed a personal

is equally because

troubling. she worked

27
28

interest

for Thomas. This legal conclusion

may work for a conflict

-27-

1 2

determination

but it is not legally sufficient for an ethical violation

to show the state If

of mind requirement

by Appellant.

3
4

that were to occur, all prosecutor actions of their supervisors Count 7. Count 7 concludes the ethical requirement

would be subject to the conduct. that Appellant violated

unethical

5
6

erroneously

of candor to a tribunal.

This finding

7 is based on a heading in a pleading.
8
the information provide

It fails to include all of that in a

to the court that explained

9 heading. 10
11 12 13 vacuum-

A finding of dishonesty the entire pleading

cannot be considered

presented

to the court must be

considered. information discussed

Here, the panel made a finding based not on the to the Court but on a heading only. As will be had not

below,

the panel falsely found that Appellant

14
15

given a copy of a letter to the court as they failed to acknowledge demonstrated Count 8. the amended Motion that contained no dishonesty occurred. conduct prejudicial The very essence to the the Exhibit and

16

17
18
19

Count 8 addresses of justice.

administration

of the findings by to learn of the the

the panel are premised judicial decision

on Appellant process.

attempting

making

The panel characterized or attempts to intimidate.

21 22 23

letters and motions

as "threats"

What they failed to acknowledge related to case assignments,

is that the requests were traditionally done by

something

24 25
26

court administration, initially

the arm of the court that Appellant for information. An attorney has the

tried to contact

right to know why the assigned judge that is not a member assigning

judge has been replaced

with a entry

27 28

of the court.

Had the minute

the case to Judge Fields simply stated the Court had a

-28-

1 2 3 4 5 6 7

conflict,

there would have been no need to pursue finding that Appellant assignment

it.

However,

it did not. The panel's

had no right to

know why an out of the ordinary

to a judge not supported. relied on the hearing-

employed by the court was made is not legally Also of importance explanation here is that the panel

given by Judge Mundell

at the disciplinary

that explanation contradicted

was not given before.

It was also directly to hear and rule on the from

8

by Judge Baca continuing

9 motions filed by the defendant Staplay to remove Appellant 10 11 12 13 14
the prosecution. due to a conflict, If the court assigned

Judge Fields to the case

it should have stated that and Judge Baca in the subsequent hearings. of limitations findings

should never have been involved Counts 9-10. allegations. Counts Aside

9 and 10 deal with statute

from the clearly erroneous

factual

15
16

as stated below, basis.

this Count cannot be substantiated

on any legal

The count is based on Appellant

filing misdemeanors serious matters, had run. There to

17
18 19 20 21 22

(there is no dispute were valid) knowing

the felonies, much more

the statute of limitations

was no legal determination it that the statute fact, the findings making the finding

prior to the filing or subsequent had actually expired. addressed In

of limitations

that it did were not legally in this matter that they did.

before

23
24

For a prosecutor

to be charged with knowingly

filing a case

past the statute of limitations factual one requiring a judicial

when the issue itself is a analysis and required to be

25

26 27 28

raised by the defendant, element of the offense.

should not be allowed.

It is not an

-29-

1
2

The body of law on statute of limitations statute of limitations is an affirmative

is clear. The that is waived this argument. Cir.1993)./I a

defense

3
4

if it is not raised at trial, so Hickey forfeited
See United States v. LeMaux,

994 F.2d

684,

689

(9th

5
6 7

"In short, although criminal

Arizona

cases have characterized it is

statute of limitation different

as "jurisdictional,"

distinctly addressed

from the type of territorial In our view, therefore,

jurisdiction Willoughby does

8
10

in Willoughby.

9 not mandate that the state prove beyond a reasonable doubt that
the prosecution v. Jackson, a defendant has expired, preponderance Cruikshank, was timely commenced 56, 90 P.3d 793 reasonable under § 13-107(B)./I (Ariz. App., 2004). that a statutory of establishing
State

11 12
13 14

208 Ariz. presents

Once period

evidence

the state bears the burden of the evidence

by a

that it has not. Taylor v. 40 (Ariz. App., 2006).

15
16 17 18

148 P.3d 84, 214 Ariz.

The fact that Mark Goldman may have started "an investigation/l does not end the discussion findings of the panel. In State v. Jackson, 2004), the inquiry contrary to the

208 Ariz. 56, 90

19

P.3d 793 (Ariz. App.,

is when the authorities diligence that

20
21

know or should know in the exercise there is probable committed. probable evidence cause to believe

of reasonable a criminal

[offense] has been

22 23
24

There was no finding made by the panel as to when in the Stapley case nor was there any an item on a disclosure

cause existed

to show that simply missing probable cause.

25 26 27
28

form constituted Whether

or not the statute of limitations

had run, the

panel also made an erroneous

legal finding by finding appellant ran and

knew or should have known the statute of limitations

-30-

1 2

therefore dishonest

she engaged

in conduct prejudicial

to justice and was

to a grand jury. should have

3

There is no legal basis to say that an attorney known something be dishonest impossible therefore she was dishonest.

4 5 6

A person can only

if they know something

is not true. This is legally Paragraph 136

and violates

her right to due process. of actual

7
8
10
11

shows the panel had no evidence Additionally,

knowledge. that Appellant defense to the that

the panel erred in concluding the affirmative

9 was dishonest in not presenting
grand jury. she had an obligation investigation started.

There was no legal basis for the conclusion to tell the grand jury how the In fact, attorneys

12 13 14 15 16

almost never present

that information

to a grand jury unless they ask. v. Sanders, 215 P.3d 397, 222 Ariz.

The court in Francis 423

(Ariz. App., 2009) held that while the State has no to anticipate every defense, or to present facts and

obligation

17
18 19
20

law pertaining obligation questions

to defenses

in every case, it does have an fashion to grand jurors'

to respond concerning

in an accurate defenses.

The grand jurors were aware of the dates of crime in the Stapley matter. entitled dishonest Had they asked questions, they would have been was

21 22
23
24

to answers but for the panel to find Appellant because she did not tell them of a possible with no evidence

statute of

limitations it existed, Counts

issue, particularly is legal error. Counts

that she knew

25 26 27

13-14.

13-14 dealt with the Court Tower legal conclusion in part because was that the subpoena there was no

investigation. The panel's had no legitimate purpose

28

-31-

1 identified 2 3

perpetrator

or crime. Implicit

in this finding is the

clear misunderstanding subpoenas. The United

of what the law is on grand jury States Supreme Court has made it clear in Inc., 498 U.S. 292, 111 S.Ct. 722,

4
5 6

United states v. Enterprises, 112 L.Ed.2d 795 (1991) that:

7 8 9 10 11

12
13 14 15 16 17

The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. "United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 363-364, 94 L.Ed. 401 (1950). The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. "A grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.' " Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972), quoting United States v. Stone, 429 F.2d 138, 140 (CA2 1970). The facts available than an adequate determine to Respondents show that there was more to

18
19 20 21 22
23

basis to begin a grand jury investigation activity had occurred.

IF any criminal

The findings

were based on incorrect As to the conflict the holdings in

legal precedent. of interest finding, the Court ignored 395, 616 P. 2d 70 of the subpoena

State v. Brooks,

126 Ariz.

24 25
26
~

(Ct. App. Div. 1, 1980) and found the "target" was the Board based on the testimony targets attorney of the subpoena.

of some of the potential that any

No evidence was presented was breached

client information

or that an ethical wall can be

28

was violated

as part of the subpoena.

The subpoena

1

limited based on privileges The panel's because

and can be limited of interest

if overbroad. existed simply

2
3
4 5

finding that a conflict

the County Attorney's is not legally

Office had given advice on some of sufficient for a determination of a

the contracts conflict

of interest. Counts 15-20 address the RICO lawsuit. The panel that because some

6 Counts 15-20.
7 appeared attorneys an ethical Attorneys

to make some legal determination

8

felt the RICO case should not be filed, that there was violation for doing so. opinions That is not the law. on the validity of cases.

9
10

have differing troubling

11
12 13

Particularly MacDonnel,

is the seeming reliance contrary to Appellant's

on Phil evaluations on

who testified

signed by him that she wasn't Ogletree

competent,

and reliance

14

Deakins and Peter Spaw, neither

of which were shown to own expert

15
16

be experts

by any means as to RICO law. Bar counsel's

stated that RICO cases are complex and often need to be amended numerous times. 228 that there was no Canyon County it

17 18
19 20

The next legal error is In paragraph standing or authority Seedsr

to bring the RICO lawsuit.

v. Syngenta

Inc., 519 F.3d 969 (9th Cir., 2008)makes can bring a RICO suit if the participant or consumer.

21
22 23
24

clear that a local government entity is acting as a market

The RICO

case clearly

set out the injury being to the civil divisionthe division to

that was the remedy sought, money to restore provide legal services to the Sheriff.

25
26

Additionally, bring the lawsuit reference

the finding that there was no authority is contradicted

to

27
28

by one of the very lawsuits {nka Romley

in this matter-

Ex ReI. Thomas v. Daughton

-33-

1 2

v. Daughton). 225 Ariz. This matter went before

521, 241 P.3d 518 the Arizona

(Ariz. App., 2010) and the

Court of Appeals

3
4

very issue was a lawsuit against civil division. had no authority

the Board

for taking of the

There was no finding that the County Attorney to bring the lawsuit. 15-16 finding that the RICO case was or harass or was frivolous and standing cannot be to bring

5
6
7

As such, the Counts filed solely to embarrass sustained. the lawsuit. civil division funding Appellant

8

had the authority

9 10
11

She showed an injury as to the funding of the and requested non-personal remedies in terms of to a

for the legal services. purpose

This legally equated

12
13

legitimate paragraph Appellantconcluded

for filing the lawsuit.

The finding in

263 shows the oozing contempt "No reasonably competent

Judge O'Neil had for could have the RICO of bar to was

14
15 16
17 18

attorney

there was any good faith basis for pursing He clearly manipulated the testimony

Act lawsuit." counsel's

expert who never said there was no valid purpose It was simply his opinion sufficient of the area. that the conduct

the lawsuit. not legally complexity

that there complaint as to the

19

despite his own admissions

20
21

The legal conclusion evidence prosecute complete

of the Respondents to plead and

22

ignorance

of what was required

23
24

a RICO case is also unsupported. de novo.

This court can

review the RICO lawsuit the basic requirements itself. were make A mountain

When it does, it will see that and pled in the Complaint

25
26

were present

of facts were listed and the legal elements the panel does not agree does not

27

included.

Simply because

28

it frivolous.

-34-

1 Count 18. Count 18 was a finding of a conflict 2 3
There have been numerous find a conflict as evidenced 518 cases filed and courts when a prosecutor

of interest. have failed to

of interest

sues its "clientU 521, 241 P.3d

4 5

by the Romley

v. Daughton, 225 Ariz.

(Ariz. App., 2010) decision. by the law- the that was a

6 Count 19. Count 19 is completely unsupported

7
8
9

defendants

were not sued for filing a bar complaint-

fact listed, not the basis of the lawsuit.

There is no support lawsuit was In addition,

to a legal finding that a fact that a frivolous filed cannot be listed in a lawsuit under RICO.

10
11

the rule is not meant to give immunity to other conduct. Count 20. Count 20 is based on a false legal premise are immune from suit. The panel also concluded case was based on the decision making that judges

12 13

that the RICO

14
15 16

of the judges. The RICO not if

case was based on the manipulation the substantive the person Counts decisions. Judicial

of cases and assignments, immunity is only absolute capacity. CITE

17
18 19
20

is acting in his or her judicial

21, 29, and 31. Counts

21, 29 and 31 required

the panel

to find a conflict presentation,

for RICO case, Donahoe and grand jury

21
22

the very same finding already made by Judge O'Neil case- that a stay should be entered due to the Appellant cited to numerous cases in her

in the underlying likelihood Response

23 24 25 26 27 28

of success.

to the Special Action,

Exh. 286. See also supplemental that no conflict

cases submitted existed:

to this Court in that matter

Standard Sanitary Manufacturing Co. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 16 (1912), United States v. Kordel, 397 U.S.

1 2 3 4 5 6 7 8
9

1, 11, 90 S.Ct. 763, 769 (1970) ,Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660, 666 (5th Cir. 1981),Securities and Exchange Commission v. Dresser Industries, Inc., 628 F.2d 1368, 1378 (C.A.D.C. 1980), United States v. Cappetta, 502 F.2d 1351, 1356-57 (7th Cir. 1974),Babst v. Morgan Keegan & Co., 687 F.Supp. 255, 258 (E.D. La. 1988), A.R.S. 13-2314,People ex. Rel. N.R., 139 P.3d 671, 673, 676-77 (Colorado 2006),United States v. Wencke, 604 F.2d 607, 611 (9th Cir. 1979), State v. Robinson, 179 P.3d 1254, 1259 (New Mexico 2008), United States v. Hubbard, 493 F.Supp. 206, 207 (Dist. of Columbia 1979), State v. Cope, 50 P.3d 513, 516 (Kan. App. 2002), Millsap v. Super. Ct., 70 Cal.App.4th196, (Ct. App. 1999), Resnover v. Pearson, 754 F.Supp. 1374, 1388-89 (N.D. Ind. 1991), State v. Boyce, 233 N.W.2d 912,913-14 (Neb. 1975) . Counts counts 22-8. Despite the evil conclusions that Appellant committed crimes, contained in these

10
11

the few legal bases used

12 13 14 15 16

are flawed. As stated earlier, conclusion County that Thomas

there is no basis for some legal the Maricopa

Irvine did not represent

Superior

Court. The citations

as to the se up of the that Thomas

superior

court in no way preclude

an interpretation

Irvine represented

the court- especially

given that they said in making

17
18 19
20

so! This finding that Appellant arguments about Gary Donahoe's

was disingenuous conflict

is a legal error in that that Thomas Irvine

it is premised

on a false legal conclusion

could not have legally represented The only legal analysis justify remains Superior project

the courts.

21
22

done in this section was to try and It fails. The fact County

the conduct of Gary Donahoe. that Thomas

23 24
25

Irvine was representing

the Maricopa

Court on the building was funded by Maricopa over a subpoena invoices

of the criminal County.

court tower. That

Gary Donahoe was sitting from the County

26
27

in judgment

that sought records

as to contracts, relationships.

etc. that would have exposed the

28

There is no legal basis to say Gary Donahoe did

-36-

1 2

not have a conflict decision. represented

of interest

when presiding

over that Irvine

The panel's

legal conclusion

that Thomas flawed.

3
4

Barbara Mundell

only is fatally

The panel next tries to defend Gary Donahoe legal waiver by not appealing. This finding

by claiming

a the

5
7

is incredulousare

6 attacks on Appellant in this disciplinary
supposed to be her unethical

proceeding

conduct in pursuing

actions

she did

8 not believe in.
9 10 11 appeal evidence

There is no legal basis to claim failure to belief in this action as ONE PIECE of 286. 287.

impacts Appellant's in Gary Donahoe's

conduct.R.

The panel next concludes questionnaire Appellant's because pursuant perjury.

that somehow a release evidence of really

12
13

to Form IV is binding On what legal basis?

It is unknown

14

the panel based its findings troubling

on false legal premises. was the judge

15
16
17

Particularly assigned declined Action,

is that Judge O'Neill prosecution.

to the Gary Donahoe

When this Court Petition for Special in which

to enter a stay on Judge Donahoe's Judge O'Neill held a hearing appeared and argued against

18 19
20 21

in his courtroom the stay.

Appellant heard

Judge O'Neill as to Gary

specific

facts related to the conflict Office

arguments

whether Donahoe succeed

or not the County Attorney's and made findings in his conflict

could prosecute

22

that Gary Donahoe was likely to

23
24
25

argument. that is apparently court record, not a

In that hearing,

the transcript

part of the record but is an official issue of a preliminary O'Neil hearing

shows the Judge some

26 27

was discussed

therefore

knew that one was to be held. associated

This illustrates in the bar

28

problems

with his involvement,

-37-

1 2 3 4

disciplinary

order, include

that the panel

found that Appellant and done to

filed a complaint

that was "out of the ordinary" cause.

avoid a finding of probable

This Court knows that every complaint probable

filed has to have a under law and

5

cause finding after an Initial Appearance knew that finding was unsupported. to hear the preliminary hearing

6
7

Judge O'Neill judge assigned

He was the as to Gary a stay.

8 10
11

Donahoe which would have proceeded

had he not entered

9 The panel did not hear any evidence about the normal practices
and procedures of the process that resulted in Maricopa County and instead, made assumptions in incorrect legal conclusions. of the

12
13 14

This Court can take judicial Maricopa County Attorney's

notice of the practices

office that regularly a probable

files through

complaints

then either obtains

cause decision

15
16

a preliminary Order

hearing or through changed

an indictment.

Administrative

2002-0029,

the process by taking the complaints Rule 2.3 of the Arizona authorizes a Complaint Rules of to be

17
18 19
20

out of the magistrate Criminal Procedure

courts.

specifically

filed on the signature by a magistrate hearing

of a prosecutor

without

any involvement

or other judicial

officer

until a preliminary somehow

n
22

or grand jury.

This finding that Appellant is contrary

tried to manipulate practice in Maricopa

the system County.

to the law and

23 24 25
26
27

Further, the finding that the use with the facts unethical the entire

of a law enforcement to physically was completely court

officer who was not familiar

sign and file the Complaint unsupported by an evidence

was somehow and ignores

liaison practice.

28

-38-

1

The panel's followed

legal findings

that Judge Donahoe properly were also legal error.

2
3
4 5

legal procedures

for assignment

The case filed by Grand Woods on behalf of Conley Wolfswinkel, referenced Controvert in paragraph 425 of the Order, was not a Motion issued by the Superior Court. to As

a Search Warrant

6
7

such, there was no legal basis to claim Gary Donahoe assigned judge. As Exh. 286 makes clear, to Gary Donahoe provided

was the

it was a civil filing There was

8
9

and not assigned

but to Larry Grant.

never any information picked

to explain how Gary Donahoe

10
11 12 13

up this case and the day after it was filed, set it for a Likewise, despite the "legal" conclusion there was no basis made in

hearing. paragraph appeal

426 of the Order,

for a lower court

to be assigned

to Judge Donahoe.

In fact, he was not the followed by Maricopa in R. 286 despite

14
15

assigned county

judge per the legal procedure Court. This argument

Superior

was made

16
17

the false statements argument. Another

in paragraph

426 that this was some "new"

18
19

legal error that runs through

these counts is that

there was no "investigation."

As this court knows clearly, when of law enforcement or law

20
21

a crime is cOITmitted in the presence enforcement

goes to a scene and determines arrested

a crime occurs, a

22
23

case is charged or a person together. conspiracy Those

then a report is put to some type of occurred.

The Order is replete with references or false charges because are error.

24
25 26

no "investigation"

findings

An investigation

can include all and

types of information. Meso representatives Appellant,

Here, it was clear that Appellant knew of Gary Donahoe's conduct

27 28

in court.

Andrew Thomas,

Joseph Arpaio and David Hendershott

-39-

1 all testified

they met for over two hours to discuss Andrew

all of the he

2 evidence in the Gary Donahoe matter.
3
4 then decided then asked to put the formal charging

Thomas testified were

to go forward with charges.

MCSO detectives

information

and report charges In fact, case

5 together. This false legal conclusion
6
7 8 cannot occur this way is not supported this Court can take judicial

that criminal by the law.

notice of every "in custody" are prepared

that goes to jail court-reports Finally, probable Court. charged

after the arrest. for

9
10 11 12 13 14

the Panel fails to cite to the requirements by the United States Supreme

cause as articulated

They fail to even address against Gary Donahoe.

the elements

of the crimes

Instead,

they simply conclude occasions" citing

that Appellant her testimony

'testified falsely

on multiple

that she knew there was no need for a signature a document for a signature. The

15
16 17 18 19

line for police yet drafted panel

failed to explain how this was false testimony. and see Appellant's

This court

can again take judicial notice that this was a form created County Attorney's

testimony

and used daily by the Maricopa there being a signature that a police officer sign can be line

office and despite

20
21

line, there is no legal requirement it. Appellant

is at a loss as to how a legal conclusion by testifying

22

made that she committed perjury was not needed would sign.

the signature

23
24

or that she did not know for sure if the officer irrelevant as stated above because alone. Gary

It was legally

25 26 27
28

the complaint

was valid on signature

of the prosecutor

The legal requirements Donahoe are contained Exh. 163.

of the counts charged against

in the statutes The basis

cited in the Criminal is set forth in

Complaint,

for the charges

-40-

1

Exh. 286. conclusion

As the panel failed to articulate that there was no probable cause.

the legal

2
3 4 5 6 7
8 9

10
11

12 13

14
15 16 17

18
19
20

"Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are COITlInonsense, nontechnical conceptions that deal with "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Illinois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 O. S. 160, 176 (1949)); see United States v. Sokolow, 490 O. S. 1, 7-8 (1989). As such, the standards are "not readily, or even usefully, reduced to a neat set of legal rules." Gates, supra, at 232. We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U. S. 411, 417-418 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238., a matter generally held to be " The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause ... In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists ."
I "

21 22 23

Ornelas v. U.S., 517 O.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d
(1996) Appellant years combined supervised Appellant probable and the people who made the decision of law enforcement experience.

911

had over 100 had

24
25

Appellant

Charging

and Grand Jury for five years. Also, from Robert Barr as to the illustrating that

26 27 28

had an expert opinion cause existing

as to Gary Donohoe,

-41-

1
2

the Supreme experience

Court's opinion

that it is based on the person's

in law enforcement. of probable cause though is the

3
4

Beyond the actual existence correct probable Appellant conclusion legal analysis cause.

that Appellant

KNEW there was not

5
6

The Order is void of any facts to show cause. The legal she filed charges

7
8 9

knew there was no probable that she committed file charges

perjury because

or had an officer legally sustained.

she knew were false cannot be the legal

10
11

The panel failed to acknowledge

12 13 14 15 16 17 18 19 20

requirement any evidence

of the mens rea required of knowing.

by failing to articulate

The finding of perjury There was a completely charges. Appellant

and conspiracy

are unbelievable. for these

unsupported

legal basis

cannot be "convicted"

(even in a a jury trial and the The legal process in

disciplinary

setting) of a crime without

right to call witnesses for making

as to this "crime."

the findings of criminal The ethical

acts were not followed

this matter.

rules are designed

to deal with people

21
22

who have been convicted people.

of crimes,

not a forum to convict

23
24

In any event, the panel important legal requirementfor purposes

failed to establish

the most That was

the mens rea of knowing.

25
26 27

just presumed element

of this hanging especially it.

and this legal

cannot be presumed,

as will be stated below,

there was no evidence

to support

28

-42-

1 2

III. The Panel's

factual findings

were clearly findings,

erroneous. this Court must by clear and

In Order to support the factual fine that the panel's convincing definition evidence.

3 4 5

findings were supported They were not. Arizona

has adopted a the Panel to

of "clear and convincing"

that requires

6
8 9

"be persuaded

that the truth of the contention 147 Ariz.

is 'highly

7 probable,'"

In re Neville,

106, 111, 708 P.2d 1297

(quoting In re Weiner, (1978) and McCormick standard requires

120 Ariz.

349, 353, 586 P.2d 194, 198
§

on Evidence

340(b)

(2d ed. 1972). This

10 11
12 13

that the evidence

in the case be clear, such

that every piece of the picture

comes into focus for the Panel. and professional reputation, misconduct and her

Here, a finding of unethical would certainly livelihood persuaded Aubuchon it allows tarnish

tarnish Lisa Aubuchon's

14 15 16

could be taken away.

Accordingly, evidence

the Court must be existed that Lisa before

that clear and convincing committed unethical

and professional

misconduct

17
18
19

the sanctions

imposed,

as the result will surely to earn

her reputation

and may take away her opportunity

a livelihood. 1163 (198 8) .

In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161,

20 21 22 23
24

The bootstrapping at in a vacuum-

of the conclusions

should not be looked

the basis for their finding must be considered. panel in the Stay decision is so flawed

The Order issued by the disciplinary denial and in the underlying disciplinary

25 26 27 28

with legal, be accepted. following "extensive

factual and ethical

errors that it cannot possibly the Stay, the panel stated the

In the Order denying

showed Appellant pattern

was a danger to the community: conduct," "breaches of ethics

of unethical

-43-

1

that apply in public and private at risk," "fundamental in the manner

practice

putting

the public and

2 profession
3
4 5 6 7

disregard

of the rules and sacrificed

law," deceitfulness a law enforcement the co-author,"

in which Respondent

officer in her effort to cover her tracks as way, multiple the

"failed in the most fundamental The more the arguments her rationalization

moral challenges. more sophisticated surface

lacked evidence, and" the

became,"

8
9 10 11

reasons were not difficult

to identify

and included

intent to harass." This Court must look closely decisions by the panel. at the clearly poisonous

If they were true, how could Appellant for over 20 years, as a lawyer,

12
13 14

have possibly

served the state of Arizona

with 20 years being In a government without ever having any discipline

employment

or even formal complaints being promoted by three on appeal?

15 16
17

filed, having exceptional elected officials

evaluations,

and never having

a case overturned testify

How did all of her character truthfulness, competency

witnesses

about her by she

18
19 20

and work ethic, uncontradicted

anyone who knew her work. The only witness was not competent directly Wells, was Phil MacDonnell

that testified is

whose testimony

21
22

contradicted

not only by Andrew

Thomas but by Sally

her twenty years of employment under three elected an opinion

history and her three No none testified she who

23
24 ~ 26

promotions

officials.

was ever dishonest,

given only by two detectives

never worked with Appellant them to do.
COUNT 4.

about what they thought

she wanted

27

28

-44-

1 2 she or

The Order had no

finds

Lisa

Aubuchon other

violated than to

ER 4.4 (a) embarrass r

because delay, of that

substantial any other

purpose person.

3 4 5

burden

Judge

0' Neil of

precluded these

evidence is

Stapley they

and Wilcox' s guilt. were done to further

The basis Thomas' against charges

counts and

personal

olitical

6 interests,
7 8
9 These Respondent charged not are

and to retaliate findings Aubuchon really show but simply charge that or

and harm Stapley being in against evidence support is not the held detail

and Wilcox. out the against elements There is

when

examined

allegations credible would There

Thomas. that

10
11

any specific Aubuchon or the

was presente a

against retaliation to support

allegations evidenc

12

harm by her. charges, dealing

any credible against purpose Stapley both,

13
14
15

and elements with:

thereof,

Aubuchon, other and if tha

on the to

Claim

" ... o substantial n Jury indicted against

embarrass ... " each

The Grand twice. grand

Wilcox, allowed, charges.

16 17

unanimously, as found

The evidence juries, supports

by the

several support that had

felony the no

18
19
20

I

There against purpose

were no witnesses Appellant other than was that

or exhibits she used

that means

allegations substantial

to embarrass. evidence or presented to the of Panel that in eve th an
t

21
22

There suggested prosecution she did not

no

a political of Stapley.

personal

interest

Appellant in In politics

23

She was not before she the did

involved charges.

know Stapley of limitations that

reference

25

the to

statute May

not

have

any evidence of the

prio

26
27

2008

Stapley The not

had

violations and to

financial i by

disclosure Counts

requirements.

factual

legal

allegations a conviction

28

4 and 21-23 are

sufficient

support

-45-

1 clear 2 3 4 5
6 number

and of

convincing counts of bias proof

evidence. age of

In addition, the court counts is

to not

say the shee in any wa fro mont

and

evidence introducing

when of

the

precluded

Appellant a six

what

was

discovered

over

investigation. As to the issues on the RICO matters found finding are addressed to be a filing being "personal," above. so those

7 8 9

in the legal error section there
1S

Even if an i was in

conflict,

no

evidence

support

that Appellant and in

knew there the

was a conflict shows the

of interest RICO case

10
11

proceeding given

fact,

evidence

to Rachel

Alexander

specifically

to avoid

any conflict

12 13 14 15 16 17 18 19
20

the discovery

phases.

COUNT 5, 14 and 21-23 Claim 5 finds a violation because of ER 1. 7 (a) (1) and ER 1. 7 (a ) (2) of Mr. Stapley for committing

she sought all. indictment disclosure

financial

crimes at the same time they represented and because Andrew Thomas had a Stapley. Even

the Board of Supervisors, political and personal

conflict

with Supervisor

Judge Kenneth of interest. theory, office

Fields made the finding that there was no conflict Exh. 104. Counts 14 and 21-3 have the same of interest due to other

21 22 23
24

that there were conflicts representation Maricopa for the or filings.

The attorney law 1 mean

County Board

Attorney's

statutory did not,

designation as Mr. a matter Stapley,

as
0

25
26

of Supervisors Attorney

that

the

County

represented State

or

27
28

any individual 395,

member

of the Board. Div.

v. Brooks, Claim

126 Ariz. fails

616 P. 2d 70

(Ct. App.

I, 1980) .

5 also

-46-

1 2

to allege had would a

any

facts, or

even

assuming

arguendo

that Mr.

Andrew Stapley,

Thomas that

political

personal conflict

conflict would

with

3
4

show how that

be, could be, or was proven

impute the

to Lisa Aubuchon, Disciplinary

and no such

facts have been

during

5
6 7 8

Hearings. the Counts of 14 and 21-23 are premised is no
0

Additionally, findings Appellant of office was

conflicts

interest. cases that

There

showing is some in clear

involved

in these

and even should

if there

9 conflict 10
11 and despite COUNT 7: The motion filed in

imputed

to the office, evidence that

not result knowingly

convincing

Appellant

proceede

a conflict

of interest.

12
13

Order

found

appellant

violated that

ER

3.3 (a) by Kenneth knowing Wilenchik

filing ha

a

14 15 16
17

Superior

Court

stating

Judge Thomas, Dennis

Fields that and

a bar was

complaint filed

against

Andrew

the not

complaint Andrew

against

attorney

Thomas

as a matter

of law and as a matter

of fact.

Count

18 7
19 20

is false, in fact. In her two Motions to disqualify Mo t Lon to Judge Fields, and Exh. 27 an

the that

second

being bar

the

Reconsider to

Amended Lisa Aubucho

21
22 23

somehow proved Bar

counsel

refused

present,

further the

that Judge Fields of Arizona asking

did, in fact, write a letter to the Bar to investigate County the Dennis

State

24
25 26

Wilenchik's office the New

actions

on behalf

of the Maricopa by the bar,

Attorney's letter plus file th

as a basis Times

for discipline were both

Article

attached

to the pleading

27
28

from which letter from

Count Judge

7 arose, Fields

the State and

Bar of Arizona a bar

reviewed

initiated

complaint

against

-47-

1 both Andrew 2 3
Thomas that

Thomas they

and Dennis opening

Wilenchik, a bar

the State

Bar advise him, an

were

complaint to which

against

Judge Fields' in the motion In the

letter is the complaint described Motion the

she was referrin

4
5 6 7 8 9

in the complaint. panel found to be dishonest, explained Exh. 27,

this Court what fails spelled Order

can see on its face that the Motion The Order that basically the exact goes

exactl an

transpired. to

off the of

heading events

acknowledge

course obnoxious was

out for the Court. the failure and made again

The petty,

comment

in th is

10
11

that

to attach indicative The

the letter of the

"suspicious" and

outrageous findings Appellant acknowledge conflict
COUNT

false

prej udicial what to

12
13 14 15 16

by the panel. it the did-

letter 310 and to

on its face proves the panel failed Judge

said that

Exh.

second

Motion,

reconsider

Baca's

ridden denial of the Motion,

contained

the letter.

8 The Order finds to two Appellant judges facts violated of the ER

17
18 19 wrote

8.4 (d) because
Courtr to for recuse

she the a

letters of

Superior to

purpose

gathering

relative

a motion

20
21

third judge in a matter was presiding. The

in which

neither ask

of the first two judges of the

letter

did not

for the o~eration

22 mind of the Judges and simply asked for an interview 23
24
25 26 facts. The Order time, namely a reason, and Judge Superior Andrew that the Motion docket assigning to Judge Fields another

to gather at that

ignores the facts as known to Appellant

did not give assigned Count
0

the

continued

show

judge

Fields Court.

was not a regular Appellant

judge in the Maricopa

27 28

was also aware of public arenas.

criticism

Thomas

by this judge in several

-48-

1 2 3

The

factual

findings

that

Appellant

had

no

right

to

question an administrative assignment are clearly erroneous. Appellant has a right under the First Amendment to questio out of the

4 a court about an administrative assignment made
6 7 8 9 ruling impacting the merits of otherwise also violates Equal a criminal case.

5 ordinary when she is not asking for the substance of a judicial
To say s lawyers Protection as numerous

contact judges daily to find out information about scheduling, rulings being brought forth and clearly Judge Donahoe's office had some communication with Grand Woods when the Conle

10

11 Woflswinkel filed his case given the one day turn around for a

12 brand new civil filing.
13
COUNTS 9 and 10

14
15 16
17 18 19
20 21 22 23

These

counts

find

unethical

conduct

based

on

Appellant

violating ER 8.4(d) by filing misdemeanor charges against Donal Stapley knowing that the statute of limitations for charging th crimes had run before the complaint was filed. there is no evidence that filing misdemeanor allegedly past the statute of In this case, counts that are substantial

limitations had no

purpose other than to embarrass, delay or burden Stapley whet the grand jury indicted on 50 felony
counts

and the trial

refused to remand the matter. There also is no basis to clai that filing a case past the statute of limitations is obtaining evidence that violates the rights of a party. What was lost on the panel was that most of the disclosure forms were not even obtained until 2008 therefore it contradicts the argument that the statute of limitations had definitely ra in mid 2008 as there was no way to know what was or was not

24

25
26 27 28

-49-

1 disclosed
2 disclosure limi tations evidence financial These no evidence presented would she she had

on

them.

Whether should is

the

existence triggered

of the There

some

of

the o no into

forms in 2007

have

statute was also

3
4

purely of

speculative. any prior

Appellant disclosure counts to to

knew issues. illustrate

investigation

5
6 7

the is In

huge evil. fact, she

leaps

the There

panel

made wit

show Appellant knew.

was no evidence wh when
0

8 9

show she with

using

common sense, at issue decision knew or

bother 50

misdemeanors The in

knew were based its she

10
11

felonies? even stating 136. that

panel the

speculation,

decision relies

SHOUL an

12 14
15 16

HAVEKNOWN, aragraph p admission in 2007. those

The panel she

on a notebook had run

13 Appellant's
documents were clear-

knew Mark Goldman Appellant's off for

However, documents

Goldman and were printed testified or a

testimon an entirel her her he to

different didn't look

investigation. know if there were

Appellant errors

Thomas told and asked

17
18
19

crime

into There

it. was no evidence a meeting In at fact, from any 2007 was no witness that that Appellant was

20
21
22 23

aware these

of

MACE in there about told partially to hide on

allegedly that of

discusse when MCS limitations

counts. asked that

evidence statute a prior

employees problems The

Appellant they ever is them Exh. hours,

potential her about based the its

investigation. notion that yet

24
25
26 27

panells

leap directed report, 1300

on

some

Appellant the 2008, police at

"prior face with

investigation" states the

304, a

"On May 14, Count

meeting

Maricopa

28

-50-

1 2

Attorney's Maricopa It

Office

was

attended Office. the plain by

by

investigators

with

the " that

County is

Sheriff's from

It was learned that .... reading the County of the report

3
4 5

clear was

information

given

to Meso then

Attorney's brought that

Office. to the was all

If information by the County no intent to

was given At torney's somehow

it must This the

have been is proof

6
7

Office. how

there

hide

investigation to them.

started-

8
9

anyone had to do was ask what was brought Also drafting However, nothing of the panel an somehow makes was

some conclusion indicative

that Appellant of wrongdoing.

10
11

indictment

somehow

this was clearly was taken before ensued

a draft the grand and

as evidenced jury until

by the fact that five more was months much

12
13 14 15

investigation Compare

the

final

product

different. Appellant

Exh. 36 with Exh. 30, page 56. be found to have been dishonest with of

cannot possibly

16
17

the grand jury because limitations
COUNT 13

she "should have known" the statute

may have expired.

18
19

This Count Grand Jury

finds Appellant and

violated records of

ER 4.4(a) by requesting from Haricopa in County

20 21 22 23

subpoenas to

public misuse

employees with

investigate of

public

funds dollar

connectio Tower

construction

the

$380

million

Court

project. This count completely of and the case as cited above. The what subpoena on its face was not broad items and overreaching r in most ignores the facts that Appellant for a grand kne

24
25
26 27

law on the basis

jury investigatio

28

the subpoena

requested

were

common

requested

-51-

1 2 3 4 5

subpoenas public

and

sought

records

relating

to

this

$350

million

expenditure. concerning during any of these hearing. it is so above This vague of claims charge and so were allege

No facts or presented

the because not

should lacking test and thereb i

summarily facts failed that

dismissed it does

6
7

pass

the

burden

proof

to give

reasonable

notice

of the charge

alleged,

8

denying Appellant

due process of law. that this any investigation law. jury The into POSSIBL failed t an
0-

9
10
11

There was no evidence misuse of public the funds purpose than

violated of

panel

understand Appellant

grand

investigations given the amount

12
13

had more

sufficient tough from

evidence times,

the expenditure Irvine, the

during

economic the was

the role and the Thomas

of Thomas

14 15

complaints Judge

Treasurer told

informatio Irvine

from MeSO

that

Mundell

to hire

16

Don Stapley. In fact, subsequent revealed numerous investigation done internally officials.R. has 418.

17
18

improprieties

by County

19 20 21
22

23 24 25
26

27 28

-52-

1 COUNTS 15-20 2 3 4
These counts are all based on a later determination Count that

the RICO case was not valid, Appellant violated ER

factually filing

or legally. and

15 that the RIC

4.4 (a) by

continuing

5 matter against the Board of Supervisors
6 7 8
9 judges, county officials, and substantial named purpose

and its elected individuals

members, for no th onl

private

other than to embarrass, No was spent such that evidence Appellant was was

delay or burden presented. asked and by The

defendants. presented it and RICO

evidence look review that crimes into

Thomas

10 11

a month on

researching its face

drafting. this Court th pIe

of the the

Complaint facts

will

show

12 13 14 15 16 17 18 19 20 21
22

numerous

alleged that

supported the RICO

the

basis

of

alleged

and importantly despite a

elements

were

in the Complaint, In Count

the findings was

to the contrary. that the pleading The RICO was

16,

finding

made this

frivolous. No evidence complaint back

exists

to support

finding.

on its face shows a valid argument services to the Sheriff's in the

to get funding office. and This the

for the legal was

purpose panel's

completely that

ignored

analysis is untrue

finding

that was precluded

as cited

23
24

above in the legal analysis. Count directly 17 finds Appellant contradicted by incompetent. That finding is

25 26

Appellant's over

character the years admitted

witnesses,

27
28

her evaluations complaint

and promotions The bar's

and the RICO this as a

itself.

expert

-53-

1
2

complex

area

of

the

law. legal

Appellant memorandum

spent that

a

month

researching County and

and

preparing counsel

Maricopa her

3 4

the bar

refused

to provide

to show

competence.

5
6 7 8
9 Count 18 is proven erroneous v. Daughton, supra. by the decision in Romley file

A County Attorney

can clearly

charges in court to address injustices

in the office.

10
11
Count 19 also is clearly erroneous in that the finding on the filing was

12 13
14

that the RICO complaint complaint. A simple

was not premised

of a bar

review of the RCO case shows only that this the complaint was not base

was a FACT stated

in the complaint-

15
16 17 18 19 20 21
22

on the filing of the bar complaint

itself. conclusion that judges

Count 20 is based on the false legal were immune. Appellant's occur in a vacuum. of events complaint complaint participation Rather, in the

RICO

complaint

did

not

her work was preceded context

by three year of the

that provide in November was

critical 2009. Lisa

for the drafting

Specifically, Aubuchon

by the time the RIC had learned of man

drafted, matters

23
24

interconnected that public

that gave rise to a very strong was running wide and deep in

inference Maricopa

corruption

25

County government. Once lawyer gathered the case to was a assigned, complaint Lisa Aubuchon did what do. any She

26 27
28

as ked the

draft

would

typically at her

facts-many

of which

were

already

disposal

-54-

1 because
2 described

she

knew

of She

or did

had

been

involved

in

the and

matters reading

above.

legal

research-finding

3 4 5 6 7 8 9 10 11 12 13 14

cases that specify the elements pleading colleagues drafting complaint. requirements who had of also RICO been

of RICO causes of action and the claims. asked to She consulted in filed with the the

participate and

process.

She wrote,

edited,

finalized,

The record in this case contains support a conclusion that

not a shred of evidence had a political

to

Lisa Aubuchon

motive

for participating The record

in the filing or prosecution not a shred of

of the RICO case. to support toward a any

contains

evidence

conclusion

that Lisa Aubuchon

had personal

animosity

of the defendants shred of evidence attempting
by

in the RICO case.

The record

contains

not a was

to support a conclusion or burden save

that Lisa Aubuchon

15
16

to embarrass the RICO

or delay any of the defendants burden is part and

filing

case,

for whatever

17 18
19

parcel of every lawsuit

that is filed. not a shred of evidence had a political Donald a shred Stapley of to

The record in this case contains support a conclusion that

Lisa Aubuchon of not

motive or Mary to

20
21

for participating Rose Wilcox. The

in the prosecution record that contains

evidence

22
23

support toward

a conclusion Stapley to

Lisa Aubuchon The record

had personal contains

animosity of was

or Wilcox. support a

not a shred Aubuchon

24
25

evidence attempting

conclusion

that

Lisa

to embarrass

or burden or delay Stapley or Wilcox.

26 27 28

COUNTS 24-30. These counts all begin with the same question-whether was probable cause to believe that Gary Donahoe had engaged there in

-55-

1 2 3 4 5 6

an obstruction Thomas

of justice when he agreed to hear a request by and prosecution

Irvine that he enjoin all investigation County Attorney's shows: Office. Maricopa had funds

by the Maricopa The Office from

evidence been

(1) the and

County

Attorney's informatio misused one of of mone i

had

investigating, that

substantial were being was

reliable Court

sources,

public (2)

7 the
8

Tower who

project, had

Thomas

Irvine

individuals

received

very

substantial with with Court

amounts

9
10
11

from Maricopa
(3)

County Irvine

in connection had worked on the

the Court Tower project, Superior Tower the Court Judges, (4) the

Thomas

including Maricopa Sheriff's concerning

Gary County office

Donahoe,

project, Maricopa

12 13 14 16
17

Attorney's made numerous

Office

and

Count records

attempts

to obtain public

moneys

paid to Thomas

Irvine and others

from Maricopa records
r

15 ' County

administrators

known to have possession records laws, requests (6) the were

of such

(5) all such public of public records

refused, County obtain and

in violatio Attorney's the public
I

Maricopa to

18
19

Office

obtained in

grand

jury to

subpoenas the

recoJ;:'ds,(7) public Irvine

response Maricopa

subpoenas

requests hired

for

20 21
22

records, to take

County

administrators

Thomas

legal

action

to prevent

the collection

of publi of the

records, Clerk method without or of of

(8) without the Superior

commencing Court, matter

an action which before is the the

in the office only

23

legally-proper Court, an

24
25 26

bringing notice

a

Superior

giving

to the County Attorney Irvine delivered a

or any other perso to Judge Gar be

agency,

Thomas

motion

27

Donahoe barred

requesting

that the Maricopa from conducting

County any

Attorney's further

Office

28

and prohibited

investigation

-56-

1 2 3

into any of the matters law the to investigate, Maricopa County by

that the County Attorney contacting Judge Gary

was required notice signed Grand the

b t

(9) without Attorney, Thomas

or giving Donahoe the by

4 order 5
6 7 S

presented and

Irvine,

quashing

Jur Count

subpoenas Attorney r number had

enjoining

further

investigation

(10) the order was entered been expert above assigned, witness, was well and

in a case in which no cas the opinion of a wellas

(11) In Gary the

qualified described course the

Judge outside

Donahoe's ordinary

conduct and

9 10 11 12
13

accepte cause that committed. cause to know

of judicial of

business

and gave rise to probable of justice had been

crime

obstruction

Moreover, believe

even if, in retrospect, that a crime had been existed.

there was no probable

committed,

she did not then none

14

that no probable violations

cause

Therefore,

of the allege

15
16

has merit. presented that Appellant KNEW that cause; believed

There was no evidence

17
18

there were no facts to support the finding she testified

of probable

very clearly that she did know facts-and

19 Ithem to be true-that there were facts to support a finding of
20 21 22 probable cause. boss-County Attorney Andrew Thomas, Further, Ms. Aubuchon's the Maricopa County

Sheriff of 30 years,

Joe Arpaio,

and his cause

23

Chief Deputy David Hendershott existed to charge Gary Donahoe.

all believed

that probable

24
25

COUNT 32.

26
27
28
taken

The Order Aubuchon

finds Appellant Daisy did Flores

violated that her

E.R.

8.4(c) because jury proceeding what the grand

Lisa ha
j ur

informed but

a grand about

place,

not

inform

-57-

1 had voted. 2 3
4 While investigation, grand her that jury
f

Appellant

asked clear her the

Daisy that it

Flores

to

review to

aI

she made it even giving the As Arizona A.R.S.

had been presented jury she to number and to

a

grand

tellin review the

5 6

IF she

accepted

investigation, she had failed

would need agree to from

information.

accept

7 8
9

investigation, the results. As panel decision no law on this

law prohibited

Appellant

disclosing

§13-2812. evidence the of the found flawed that reasoning the Not "end for grand only is of the

further issue,

10
11

panel

jury's there an

precluded to support effect

any a

further

investigation that the an

12 13
14

conclusion

inquiry" the the the end

has

preclusive are not

whatsoever, stated.

reasons

inquir that

conclusively was allegedly what not the think she

Daisy to, did

Flores, reviewed and in her

person

15
16 17

Appellant along said to with

dishonest grand it jury

instructions she

deposition jury

she did do and no stated

was clear not agree to

what the with stop

grand

intende that the She claim.

18
19

that

does or

allegations the

found even

evidence she

intended the bar

investigation. was a "weak"

20
21 22

told

counsel

this

Deposition

of Daisy

Flores. to cooperate the by asking best she because bar for facts t She sought afte

23 24

COUNT 33. Appellant respond should out to not and

attempted actually with

responding unethical of an out

could. she

25
26 27 28

be charged of the

conduct of state

review

actions

counsel

-58~

1 2

consulting with counsel. many of the allegations.
SANCTIONS

She did In fact respond factually t

3
4
5

The sanction of disbarment should not stand. foregoing erroneous violations legal and of her constitutional findings,

Based on the and should th be

6 7
8

rights

factual

this matter

overturned.

If any findings are allowed to stand, Appellant

9

should be judged by her actions and her history in determinin sanctions. Appellant was prohibited from presenting the 60 plus

10
11
12

character witnesses she named, this is the first Complaint that went past the screening stage and there new really is no bar

13
14

complaint that even

exists.R.154. A

hearing on sanctions

15 16
17
18

should be held if this Court affirms any findings.
CONCLUSION

This

matter of

should be probable

reversed and cause under

remanded the new

for

a

ne

19
20 21
22

determination

disciplinar The blatant

system or a full procedure under the old system.

constitutional violations that have occurred in the process that led to Appellant s disbarment should not be sanctioned by this
f

23

24
25

Court.

Appellant

is

entitled

to

a

fair

trial

based

0

procedures all attorneys are process.

subjected to, not a manipulate

26 27 28

She should be judged on her actions, not those

others and she should not be subjected to huge leaps to get t decisions that are the death penalty for a 22 year attorney wit

-59-

1
2

an

excellent

history

serving

Arizona

and

no prior

disciplinar

history.

3 4
5 Respectfully submitted this 18th day of June, 2012.
..,s::::::"ti sa M.' Aubuchon

,,,,,.Ei:,:;~:~:;~::=,::,:';~~~:~~;:'2,,,.,,,,,, ..

6 7 8 9

Original filed this 18th day Of June, 2012. Copies electronically mailed this 18th day of June to:

10
11

John Gleason 1560 Broadway Suite 1800 Denver, CO 80202 Rachel Alexander 5110 N. 44th street Phoenix, AZ 85018

12
13

Suite 200L

14 15 16
17

CERTIFICATE Pursuant to Arizona brief is monospaced

OF COMPLIANCE Procedure that this

Rules of Appellate and is exceed

typefaced

60 pages exclusive

of Table of Contents,

Citations

and signatures.

18 19 20 21 22 23 24
25

.?-1S:t:~fa"M.

~:::'=~~~:;~'::~~~:'"~''''~::'''::'':~:::=:~~:::::::::~~'''''''"'"" ...''' .. ,
Aubuchon

26 27 28

-60-

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