Ted Simons: Good evening, and welcome to "Arizona Horizon." I'm Ted Simons. An administrative law judge ruled yesterday that prosecutors failed to prove alleged campaign finance violations by attorney general Tom Horne and an aide, Kathleen Winn. Local attorney Lee Miller is here to talk about the case and the judge's ruling. Good to see you again.
Lee Miller: Thank you for having me.
Ted Simons: They were accused of illegal coordination between a candidate and an independent campaign committee. Correct?
Lee Miller: Correct.
Ted Simons: And what did the judge say yesterday?
Lee Miller: That there was a lot of communication between Mr. Horne and the chairwoman of the independent expenditure committee, but the government didn't prove that it was more likely than not that that communication involved politics and the attorney general's race, and therefore she decided that no laws had been violated.
Ted Simons: And she wrote that the prosecutors failed to establish preponderance of evidence. What constitutes a preponderance of evidence?
Lee Miller: Preponderance of the evidence is the lowest standard of proof that the law uses. It's most commonly described as more likely than not or 51% -- Whatever side gets 51% of the equation has achieved a preponderance.
Ted Simons: So compare it to, like a grand jury indictment?
Lee Miller: Indictments, you have to have a reasonable belief that an individual committed a crime. To convict somebody of a crime you have to use the highest standard of proof, beyond a shadow of a doubt, which means there can be no alternative explanation other than guilt.
Ted Simons: This one really is the lowest possible bar.
Lee Miller: It is. It's an administrative action, there's no criminal punishment involved, and it's really the lowest hurdle the government has to try and get over.
Ted Simons: With all of these records of phone calls and emails, the timing of the phone calls, the timing of the emails, the judge said not enough?
Lee Miller: Not enough, because Mr. Horne and Ms. Winn and folks working with them and for them provided what the judge felt were reasonable alternative explanations for all the communication back and forth.
Ted Simons: And reasonable means that, I'm going to give you four instances. Horne calls Winn, two minutes later she calls add director with script change. Winn calls Horne, two minutes later she e-mailed ad director. Horne attempts to send email chain to Winn regarding the campaign. Those are just four of the things that were mentioned in this particular case. Judge says it's plausible in each case the campaign was not part of the conversation.
Lee Miller: Yes. Because the lawyers for Mr. Horne and Ms. Winn also established that at the same time all of this communication was going on, Mr. Horne was trying to close a complicated real estate transaction, Ms. Winn was a very experienced real estate professional who was helping him with that transaction, and as anybody who's tried to close a real estate deal knows, it's not surprising that there's lots of small issues that require quick phone call.
Ted Simons: And it sounds like the administrative law judge said the prosecutor's case is plausible, but it sounds like more slightly more plausible are the sayings.
Lee Miller: Right. In the way our justice system is supposed to work, the government has to win. The government doesn't get the benefit of a tie. It has to get over the hurdle, not just on top of the hurdle, and here the judge said close but not enough.
Ted Simons: So she vacates the order to repay the donors $400,000. And what about the idea of a $1.2 million fine?
Lee Miller: Well, if they don't find inappropriate illegal coordination between the candidate committee and the independent expenditure committee, then you can't get to the punitive part of the statute. So that just fades away on its own.
Ted Simons: Does the county attorney, does she still have options? I understand she can accept, reject, or modify. How do you modify something like this?
Lee Miller: In this particular case it's unlikely she's going to modify the judge's holding. Modify is sort of a standard boilerplate part of the conversation in an administrative hearing. She may simply agree with the administrative law judge, or she may just completely disagree. She's -- County attorney Polk is perfectly entitled to say, the ALJ got it wrong, my folks got it right, and I'm ordering the fines to be reinstated.
Ted Simons: We have a few minutes left here. Would you be surprised if this case were pursued?
Lee Miller: You have to balance -- I think county attorney Polk's balancing -- Trying to do justice here, and efficiency and politics, Mr. Horne and Ms. Winn have been fighting this case for coming on up three years and amazingly enough that puts us very close to an election, and maybe it might not be easier for the voters to settle the matter.
Ted Simons: Last question -- Were you surprised by this decision?
Lee Miller: Yes. The government generally can get to a place where folks are better offsetling, better off freeing that, maybe we didn't do it as well as we could. Mr. Horne and Ms. Winn to their credit fought it to the end, and were successful. But that was a big challenge for them, and --
Ted Simons: A little surprising.
Lee Miller: A little surprising.
Ted Simons: It's good to have you here.
Lee Miller: Thank you very much. Glad to be here.