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September 21, 2011

Host: Ted Simons

Andrew Thomas Ethics Hearing

  |   Video
  • An update on the ethics hearing for former Maricopa County Attorney Andrew Thomas and two of his former deputies with attorney Karen Clark who specializes in legal ethics and attorney discipline cases.
  • Karen Clark - Legal Ethics Attorney
Category: Law   |   Keywords: ethics, Andrew Thomas, Maricopa,

View Transcript

Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. The legal careers of former Maricopa County county attorney Andrew Thomas and two of his former deputies are on the line. The three are defendants in an ethics hearing involving alleged violations related to investigations of county officials that prosecutors characterize as an abuse of power. Here to share her observations about the hearing is Karen Clark, a former ethics counsel for the state bar of Arizona. She teaches legal ethics and in her private practice she specializes in represents lawyers and judges in disciplinary matters. Good to have you back on the show. Thanks for joining us.

Karen Clark: Thank you very much.

Ted Simons: Where does the hearing stand now? Where are we?

Karen Clark: Well, basically you see the bar counsel teeing the whole thing up. Laying the factual landscape about what happened here. And it is a very complicated and years long factual landscape. You've had testimony from some of the higher ups within the county attorney's office, and now this week moving on to the supervisors.

Ted Simons: Let's talk about Don Stapley testimony. He said his family and his wife was ruined by what he called an outrageous probe, the most terrifying experience of his life, he said he got emotional, how does that play in an administrative hearing like this?

Karen Clark: Well, the reason that the bar counsel are trying to get that testimony out is because under these American bar association standards for disciplining attorneys, there are four factors in deciding the sanction, and one of those factors is the injury to the victim. Now, the lawyers under the ABA standards have duties to lots of different constituency, the profession, the courts, but in this particular set of circumstances I think the bar counsel are trying to prove the injury by proving the impact upon the players that were involved.

Ted Simons: I notice that the supervisor Stapley also mentioned he thought it all started when he questioned Andrew Thomas as county attorney hiring of former friends, people on his campaign, he called it political patronage. That gets on the record, doesn't it?

Karen Clark: Absolutely. Gets on the record in the hearing, you mean?

Ted Simons: Yes.

Karen Clark: Yes, it does. You know, this is partly political war. This was a political war that was going on, and so you have political theater in the courtroom reflecting what happened.

Ted Simons: When you have a former chief deputy of Andrew Thomas's testifying as he did that he warned Thomas against the racketeering suit, said it was unfounded, a misuse of the law and should be for clearly criminal conduct only, that's pretty tough stuff.

Karen Clark: That's pretty devastating testimony. The lawyers, the respondent lawyers, Mr. Thomas and the rest, haven't had attempts to start their case yet. The state bar goes first, they have a burden by proving by clear and convince can evidence their charges. From what you heard from the opening and we all pretty much know is Mr. Thomas's defense is that he believed he had the evidence to do what he did, he believed that the fact warranted the actions that he took, the problem is going to be for him that now you have folks within his own office that were disagreeing with him at the time. And so from the bar counsel's perspective I think they're looking for evidence that any violations they might be able to prove were done knowingly or intentionally because he was getting this advice from the inside.

Ted Simons: Is he at the hearing? Has he attended anything so far, this hearing, Andrew Thomas?

Karen Clark: I haven't been there for all of it, but -- so it's a limited view. But I know at the beginning of the hearing there was discussion on the record with the presiding disciplinary judge that he might not be there, and didn't have to be there. That's very, very unusual.

Ted Simons: I was going to say, you would think they would be there front and center the whole time.

Karen Clark: I was very surprised. I fully expected him to be there. That's very unusual in a lawyer discipline system. As you know, I was a bar counsel for many years and a hearing would not be held unless the lawyer was right there. Because part of the process is not only to address any misconduct they might have done, but also the lawyer needs to know if they did something wrong. So they usually are forced to sit and listen to what the evidence is so they can understand not only why the decision might happen, but also where they went wrong.

Ted Simons: We had some fireworks I should say regarding the lead attorney for Lisa Aubuchon and apparently he and the judge, they got into quite a scrap. What was that about?

Karen Clark: It had to do with some sweeping of some funds that had happened, the board of supervisors apparently had swept a certain amount of funds, $6 million, and then a law was passed by the legislature authorizing apparently further sweeps, and then additional monies were swept. Mr. Moriarity was trying to make a point through Mr. Mcdonald, I believe, one of Thomas's chief deputy attorneys, that that sweeping of funds was an attempt to gut the office. In retaliation for some of the actions that Mr. Thomas had taken, actions they are saying were right and justified. But the judge wasn't having anything of it. He basically told him because the law had been passed, it's presumed that the board was acting within their lawful authority and therefore he disagreed with Mr. Moriarity, told him to move on, and when he tried to make a further record, they tussled a little bit.

Ted Simons: To the point that Mr. Moriarity said I'm totally intimidated by you, judge. That very likely could have been intimidated, but that sounds like an appeal starting.

Karen Clark: Mr. Moriarity has a client to represent, and he's got to do the job he's got to do. So whether he really was intimidated or whether he was trying to make a record for appeal for his client, was as you know he moved for a mistrial right after he said that. Whether he was trying to lay the record for an appeal, that might have been his job, or he might really have been intimidated. Judge O'Neil can be an imposing figure, that's for sure.

Ted Simons: If there is an appeal, they can go directly to the adds Supreme Court?

Karen Clark: They can only go directly to the Supreme Court. That's the only Avenue of appeal. There are very, very rare exceptional cases where an attorney loses at their own Supreme Court. Each Supreme Court of each state has the authority to control and regulate the lawyers within that state. You can go to the United States Supreme Court, and a very rare number of attorney discipline cases have.

Ted Simons: If it's very rare I'm guessing this could be headed in that direction.

Karen Clark: It could be.

Ted Simons: Speaking of which, it sounds, again, I don't have clear knowledge of this, but it sounds as if both here in Arizona and even around the country, the legal community is watching this because of the unusual nature of the allegations and the proceedings.

Karen Clark: Absolutely. It's unprecedented. I belong to something called the association of professional responsibility lawyers, and I've been watching and asking questions on that listserve they have about whether anyone has seen any disciplinary hearing ever like this, and no one has. In Arizona we do have a precedent with some criminal prosecutors, and I was actually involved in one of those cases getting into serious trouble including the case that I was on being disbarred. But never the elected county attorney. That's one thing that makes this so dramatically different. And then also having three lawyers going to hearing together on such serious charges. It's really unprecedented.

Ted Simons: The elected county attorney being looked at and targeted, if you will, for doing things that he saw as his duty, as an elected official. It wasn't like he was doing something on the sidelines, this was because he was doing county attorney, he was doing X, Y, and Z.

Karen Clark: Legally, I was impressed by the opening statement by his attorney Don Wilson. He made some good points, including the fact that it's a tricky situation when you're an elected county attorney. Or an elected attorney general. You have constituencies, state agency, or a board, supervisors, they're your clients in some circumstances, and yet your job as a chief law enforcement officer sometimes is to investigate those very same people. So when are you their attorney, when are you not? When are you authorized to investigate and/or prosecute? They're tough legal issues. There is some teeth to his defense in that sense. The question is, did he overstep. That's what the issue is.

Ted Simons: And I don't want to you go too far as far as your opinion, but I'm going to ask anyway -- how is it going, do you think?

Karen Clark: We are during the state bar's portion of the case. Sometimes you watch a trial and when the state rests its case you think it's a slam desk, and then the defense gets to go and things look differently. But there's been some pretty tough testimony so far.

Ted Simons: We got another, what, how many more weeks to go?

Karen Clark: No one knows. Part of it seems to have gone a little slower than you think, I know that I've been told they set 25 to 45 days. I know judge O'Neil is going to try really hard to make it happen within that amount of time.

Ted Simons: Great information. Good to have you back on the show. Thanks for joining us.

Karen Clark: Thank you.

Ninth Circuit Court Ruling on Ordinance Similar to SB 1070

  |   Video
  • The Ninth Circuit Court of Appeals recently struck down a Redondo Beach, California anti-solicitation ordinance that’s very similar to provisions of Arizona’s Senate Bill 1070 that are currently in effect. ASU Law Professor Carissa Hessick shares her views on whether or not the ruling opens the door for a legal challenge on parts of SB 1070.
  • Carissa Hessick - ASU Law Professor
Category: Law   |   Keywords: SB 1070, anti-solicitation ordinance, immigration,

View Transcript
Ted Simons: Just last week the ninth circuit court of appeals struck done a Redondo Beach, California, ordinance that similar to a provision of Arizona's SB 1070. The ordinance prohibits people from standing on a street or highway to seek employment from occupants of any motor vehicle. The court said the language is too broad and violates the first amendment right to free speech. But does that decision invite a challenge to similar parts of SB 1070 that are still in effect? Here to tell us what she thinks is Carissa Hessick, she's a law professor at ASU's Sandra day O'Connor college of law. Thanks for joining us.

Carissa Hessick: My pleasure. Happy to be here.

Ted Simons: OK, basically the ninth circuit, this is the full ninth circuit, looks at this Redondo Beach ordinance and says, what?

Carisaa Hessick: They said that this ordinance violated the first amendment freedom of speech. It's interesting, you said it was the full ninth circuit that's because the three-judge panel said no, this case was controlled by a 1986 case that actually came out of Arizona here, saying that there are no first amendment problems. But the ninth circuit went on to say all the active judges -- a big group of all the active judges decided to overturn the old case and overturn the panel decision here.

Ted Simons: Because of first amendment rights of people, what, standing in the street or on the sidewalk trying to solicit work?

Carissa Hessick: Exactly. So with the Supreme Court cared about was the fact the ordinance talked about solicitation. And there's some older cases saying when people are soliciting it's a way to get their message across. If I'm raising money for my church, and I'm asking you for money, it's also a way for me to spread the message about that church or group I'm involved with. So the idea of solicitation, the ninth circuit said has special first amendment aspects to it.

Ted Simons: OK. So we've got that, the Redondo Beach ordinance, based on the Phoenix I believe ordinance here from 1986, ninth circuit says no go. What does that mean for SB 1070? Aspects that weren't blocked in the first place?

Carissa Hessick: It's a great question because you're right, some portions of section 5 of SB 1070 dealt with blocking traffic to gain employment. There's one crime that says it's a crime for you to cause someone to block or impede traffic if you are seeking employment, and the other crime is for the person who is in the car blocking the traffic who is trying to hire the person. So the question now becomes, does this Redondo Beach case change the analysis for SB 1070?

Ted Simons: What do you think? Is there a case in? Is it -- is it still so separate in the sense of your -- it seems like 1070 is limiting -- limited to those who are actually getting into vehicles or that sort of thing. Was the Redondo Beach and the Phoenix ordinance too brad broad, do you think? Was 1070 limited enough?

Carissa Hessick: I think they're there are going to be two arguments the state of Arizona can make as to why the Redondo Beach ordinance is different and SB 1070 should be fine. The first, you're right, is that the Redondo Beach ordinance was broader. SB 1070 specifically about blob, the normal flow of traffic. The Redondo Beach decision -- the Redondo Beach ordinance didn't have that language in it, and the ninth circuit was concerned that made the law too broad. So that's the first big difference. The second big difference is that while the Redondo Beach ordinance talked about solicitation, SB 1070 is talked about in terms of employment, which then raises the question, is this commercial speech, which although that's entitled to some protection under the first amend, it doesn't get the same protection. These are two big differences.

Ted Simons: Interesting. Another aspect that's confusing here, you've got this district court judge who blocked certain parts of 1070, allowed these things to go ahead through, basically based on what the ninth circuit ruled. The three panel ninth circuit. Now that the full panel has gone the opposite direction, will the district court judge got opposite direction and block more of SB 1070?

Carissa Hessick: Well, if I were an attorney on this case I would certainly ask the judge to reconsider that decision in light of this new case. But if I were an attorney for the state, I would say maybe that old case doesn't control anymore, but there's still lots of reasons why the city of Redondo Beach don't mean you should change your mind. It's different enough, the judge could basically write on a blank slate, do her own analysis instead of saying the ninth circuit told me what to do.

Ted Simons: Originally wasn't she basing her decision on what the ninth circuit had said? Had ruled?

Carissa Hessick: She was. So now she'd have to do the analysis herself.

Ted Simons: Right. Is the court basically saying there are other ways to control this? You can find loiterring law and you dock other kinds of jaywalking statutes and things, that would take care of this problem as opposed to specifically saying you can't seek employment on the street?

Carissa Hessick: That's one of the lines of analysis that the ninth circuit court talked about. They said, look, there are less restrictive means for accomplishing this, you can enforce your other laws that have to do with impeding traffic. And Arizona certainly has those laws saying it's a tickettable offense time pediatric traffic. What the state's really concerned about is the flow of traffic, they can simply use those laws. But as you and I know, section 1 of SB 1070 makes clear this isn't just about traffic, this is about illegal immigration.

Ted Simons: And that point you made is fascinating, the idea that first amendment rights are here, but this could be commercial and that could be a I have big difference.

Carissa Hessick: It could be. Still get first amendment protection for commercial speech but tests are different and they're not as protective of speech as they are for noncommercial speech.

Ted Simons: Very interesting stuff. Good to have you back on the show. Thanks for joining us.

Carissa Hessick: My pleasure.

Valley of the Sunflowers

  |   Video
  • Kenny Barrett, artist and Project Manager for Roosevelt Row Community Development Corporation and Braden Kay of ASU’s Global Institute of Sustainability, talk about the benefits of a collaborative effort between the Roosevelt Row CDC and Phoenix Union Bioscience High School to grow sunflowers on a vacant lot in downtown Phoenix.
  • Kenny Barrett - Artist and Project Manager for Roosevelt Row Community Development Corporation, Braden Kay - ASU’s Global Institute of Sustainability
Category: Culture   |   Keywords: urban farming, beautification, sunflowers,

View Transcript
Ted Simons: A vacant city block in downtown Phoenix is being transformed into a two-acre field of sunflowers. It's an effort to beautify the area while producing a useful product. I'll talk with project leaders in a moment, but first, David Majure takes us to sixth Street and Garfield where the growing has begun.

David Majure: This is valley of the sunflowers. It don't look like much now, but give it time. With hard work, water, sun, and patience, the dull dusty brown of this vacant lot will be replaced by a canvas of yellow and green.

Kenny Barrett: So everybody over here, let's go to the white truck. We can get all the rakes out of the back of the truck.

David Majure: The Roosevelt Row Community Development Corporation is leading the effort.

Kenny Barrett: Before you go, grab some gloves on your left.

David Majure: It's turning two acres of dirt into a productive field of sunflowers.

Kenny Barrett: You know, this is our first season. This is really our experimental season. Basically the project is to plant two acres of sunflowers on a vacant lot, and then grow the flowers until they bloom, let them start to dry, we'll harvest them, and then we will take the seeds and we'll press them for oil and then we're going to take the soil and give it back to the bioscience high school, and the kids who are already producing and making biofuel are going to create biofuel from the oil.

David Majure: The project launched with a groundbreaking September 9th, since then, volunteers have been busy preparing the soil. Installing a sprinkler system. And just this week, students from Phoenix union's bioscience high school planted the very first seeds.

Kenny Barrett: We're going to be planting at least 60,000 seeds, probably. That's the plan. Two seeds for each hole.

David Majure: If all goes as planned, by January 2012, the first crop of sunflowers will be ready for harvest.

Ted Simons: Joining me to talk about the Valley of the Sunflowers project is Kenny Barrett, artist and project manager for Roosevelt Row Community Development Corporation, and Braden Kay of ASU's global institute of sustainability. Good to have you both on the show. Thanks for joining us. How did all this get started? I remember you were growing sunflowers on a corner, and now we've got a two-acre lot.

Kenny Barrett: Well, right across the street from the sunflowers project is the community garden called the grow house. And we really start there'd about three weeks ago. Myself and another artist. And we started small W. three beds and it grew and grew, and along the property line we would grow sunflowers as more after functional thing in the beginning to keep people out of the garden beds. Certain times of the year as you're walking doubt sidewalks you look at the sunflowers and you look farther and you see all these vacant lots everywhere. And it was really putting two and two together. The growing the sunflowers for functionality, and then being inspired by the empty space across the street.

Ted Simons: And then taking the sunflower seeds and pressing them into biofuel?

Braden Kay: Yeah. So we're going to press the seeds and then they've already at bioscience they have a very creative curriculum that is project based, and one of the things the sophomore biochemistry class had already been doing is taking oil and creating biodiesel. We realized we could make oil out of the sunflower seeds, turn that into biodiesel and that will fuel a biodiesel solar powered hybrid car that the engineering students and the E-tech club students been working on for several years.

Ted Simons: This is Phoenix union bioscience high school students.

Braden Kay: Exactly. So this lot is situated between grow house, which is a project of Roosevelt Row Community Development Corporation, and bioscience high school on the Phoenix biomedical campus. So all of this land is slated to be the future of Phoenix's biomedical businesses and projects. And so the idea is that they created a high school, the Phoenix union was really forward thinking, and they create add high school to fuel the students that we're going -- that were going to become the workers of the bioscience economy.

Ted Simons: The high school association, is that why this land was chosen? A lot of vacant lots down there. Why this one?

Kenny Barrett: Absolutely. The proximity to the high school was a huge factor. Being right between the grow house community garden and the bioscience, it was perfect.

Ted Simons: So who technically owns that land?

Kenny Barrett: It's city of Phoenix property. And it's going to be like Brian mentioned, part of the biomedical campus in the future. So this project is temporary based, it's two seasons, and after the spring, it will maybe be used for construction staging and eventually will become part of the biomedical campus.

Ted Simons: And how is all this being funded?

Kenny Barrett: Well, that's a great question. This was a big idea not too long ago, and one of our Buddies from the community who lives in the neighborhood, Sean sweat, he came out to our first art program volunteer day, and art is the adaptive reuse of temporary space, he came out to the first day and he said, you know, I think we have grant for this at Intel where I work. So let me hear more, we said. And he came back with this sustainability in action program they have at Intel to get their employees out into the community as really being leaders in the science and technology with the students in education.

Ted Simons: When we're talking about biofuel and we're talking about pressing this into a new form of energy, at what point, what kind of cost dynamics, are we looking at here?

Braden Kay: At the end of the day what we're trying to do is create an experience education for bioscience students to see the seed to engine project. But this is not financially viable for growing -- Phoenix isn't going to have sunflowers across the city of Phoenix. This is supposed to be a catalyst for conversations about, what should the future look like for energy, for transportation, for education in Phoenix, and here have you some really creative partners between Intel and the bioscience high school and Roosevelt row, and ASU coming together to be like, we're going to take this lot and use it as an opportunity to have conversations about tomorrow.

Ted Simons: And it also beautifies the area. It's nice to look at a bunch of sunflowers.

Kenny Barrett: Yeah, absolutely. That was a huge factor. That was one thing I didn't mention, when people would walk by the garden, the community garden, they would always comment on the flowers. And here we are slaving, growing these vegetables, and the flowers would always be the topic of conversation. And so it became this point of inspiration, and we identified that, and that's another reason we wanted to activate the field with flowers.

Ted Simons: Talk about if you would this adaptive use of temporary spaces, art program. What are we dealing with here?

Braden Kay: Basically it's about taking vacant lots that exist in Phoenix and creating opportunities. So we've come up with a variety of ways to use these lots as an asset opposed to something that gets in the way of us creating a more economically vibrant city.

Ted Simons: If the owner or whoever owns a lot comes backs and says, I think I want to build here, sunflowers have got to go.

Kenny Barrett: That is the end goal. This program is just a temporary project program. We're basically activating the lots in the interim that temporary period before they get developed. And development is the end goal. And that's what we want to see, a dense urban, you know, walkable community.

Braden Kay: As we're talking about in terms of sustainability, and what we want to do with downtown Phoenix, this is an opportunity for us to have important conversations and make steps right now with the property we have as it stands. Obviously we want the businesses of the future on this property, we want long-term permanent building, but for now we're going to be inspired by sunflowers.

Ted Simons: Instead after pop-up gallery, a pop-up farm field. Gentlemen, congratulations. Good luck to you. Happy harvest. Have a good one.

Braden Kay: Thank you very much.