http://www.azcentral.com/news/articles/0301thomas0301.html

County attorney stands his ground Critics, supporters find much to debate

Michael Kiefer The Arizona Republic Mar. 1, 2006 12:00 AM

Andrew Thomas is a tough-on-crime prosecutor, unafraid to take politically incorrect positions in the name of justice.

Or he's a race-baiting political opportunist who cares less about his duties as prosecutor than about staying in the public eye.

After 14 months as Maricopa County attorney, Thomas has been nothing if not controversial.

Victims rights advocates adore him, as do grass-roots community organizations, because he lobbies for tougher laws, doesn't like to offer plea agreements and doesn't shy away from the death penalty.

Defense attorneys dislike him for the same reasons.

During his campaign, Thomas focused on identity theft and crimes against children. His campaign signs came right out and said, "Stop illegal immigration."

But his unwavering attack on illegal immigration, an issue traditionally left to federal authorities, has so alienated the Hispanic community that reporters from the Spanish-language media ask him if he is a racist.

Still, even if Thomas is more of a theoretician than an experienced prosecutor, his theories got him elected.

"I'm fulfilling my campaign promises, and I'm going to be true to my principles," Thomas said. "And people can make of that what they would."

He plays to bipolar reviews:

"I've been very encouraged by the vigorous support of crime victims' rights in this state," victims rights advocate Steven Twist said.

Donna Neill, state director of the grass-roots organization called Neighborhood Activists Interlinked Empowerment Movement, or NAILEM, said, "For his first year, I think he's done excellent. One of the things I admire about him is he's actually done what he said he was going to do in his campaign. And that doesn't happen very often."

Neill, who has worked on neighborhood issues for 14 years and is one of the most prominent activists in the state, said she likes his stands on illegal immigration and on punishment for criminals.

"I think some of the penalties he's wanted to bring up to another level, and that's huge," she said. "I think too many times hands are slapped, and I think he's willing to say, 'That's enough!'"

Maricopa County Sheriff Joe Arpaio prefers Thomas to his predecessor in the County Attorney's Office, Rick Romley.

"Anybody would be easier to get along with than Romley," Arpaio said. "It's good to have a county attorney after 13 years that we can get along with and agree to disagree with on certain occasions."

Romley, for his part, bites his tongue.

"I can't give you an analysis of his first year in office because I haven't seen enough," he said. "He talked about immigration, but I haven't seen any results. I haven't seen any major investigations, so I can't tell you what he's going to be like as a county attorney."

Hispanic leaders, however, don't mince words.

"If a measure (of his first year in office) is how much ink, how much television coverage, he's done quite well," said Alfredo Gutierrez, a former legislator, candidate for governor and a prominent spokesman for the Hispanic community. "If you measure it as a public relations effort as opposed to a prosecutorial effort, he's done quite well.

"(But) he is the chief prosecutor. Are we hearing about white-collar crime? Are you hearing about violent crime on the street?"

Warming to the job

In his first public appearances as county attorney, Thomas seemed stiff in his tailored suits and strident in his prepared remarks. But as he has warmed to the job, he has begun to stray from the script and is more willing to take phone calls from reporters on the fly. One on one, Andy - the name he goes by - Thomas is soft-spoken and genial, quick to laugh, quick to blush.

Ann, his wife of 18 years, thinks people don't know how funny he can be and describes her husband as a doting father to their four children.

It's not lost on the Spanish-language media that Ann is a first-generation Mexican-American whose mother speaks only Spanish. Thomas claims that one article speculated that his four kids might someday rise up against him because they are half-Mexican.

Thomas and his wife met at the University of Missouri, and Ann, a certified public accountant, traveled with him to Boston while Thomas attended Harvard Law School.

Thomas worked in the NAACP office, and he wrote the first of his four books, a treatise on crime in America. Since then, he has written a biography of U.S. Supreme Court Justice Clarence Thomas. His most recent book, a squinty-eyed look at Harvard Law School, came out in 2005.

Political ambitions Thomas gives the impression of a man running for higher office.

He rubs shoulders with ultraconservatives on the national scene, inviting several to his immigration conference in the fall, hiring to do legal analysis a Washington, D.C., attorney who represented George W. Bush before the Florida Supreme Court during the 2000 election.

But when asked about his political ambitions, he coyly responds, "I kind of like the job I have," even as his cheeks turn red.

He works the media. Office insiders say the orders are to bring good press for Andy. Reporters face the frequent news conferences with "now what?" shrugs.

Sometimes those news conferences focus on legislation Thomas would like to see passed.

During the 2005 legislative session, his office lobbied for and helped pass bills targeting identity theft, human smuggling, meth control, crimes against unborn children, and victims rights. Thomas helped abolish a law diminishing the seriousness of rape by a spouse, and he succeeded in getting a bill passed adding new aggravating factors to the state's death penalty statute.

In the current session, his office has weighed in on more identity theft and illegal-immigration bills, including one that would deny bond for undocumented immigrants at risk of fleeing or being deported before they stood trial.

Thomas has made public statements critical of other public officials just minutes after those officials received a hand-delivered letter detailing his complaint.

"Everything is press-conference-politically timed," attorney Daniel Ortega said.

Jason Rose, Thomas' public relations consultant during his election campaign, countered, "I don't think a public official can communicate too much with his constituents."

Going to battle A year in review:

Thomas pumped up the battle against identity theft with public service announcements. He established a protocol among law enforcement agencies to keep them from shipping the victims from one jurisdiction to another, and he asked the county to give him funding to hire more prosecutors in that area.

He talked the county into much-needed raises for prosecutors and public defenders alike to keep them from fleeing to better-paying jurisdictions. In the past seven months, the department's attrition rate dropped to 12 percent from 21 percent.

But he also demoted two long-time, well-respected bureau chiefs with national reputations as prosecutors. And while Thomas' special assistant deputy attorney, Barnett Lotstein, says that has helped boost morale, office old-timers rumble that it is evidence of heavy-handedness.

Thomas fought unsuccessfully with Irish lawmakers to extradite a fugitive priest charged with sex crimes against children. And although he extradited a triple homicide suspect from Mexico, he had to back down from his desire to seek the death penalty or life in prison with no chance of parole to get Mexican authorities to turn him over.

He also has waxed vehement on lesser crimes that play to a seasonal center of attention, launching an assault on people who let their backyard swimming pools turn green when media attention turned to West Nile virus.

"That was literally a life-or-death issue," he said. "We had 18 people who died the previous year. And it's annoying to have a slovenly neighbor who won't keep up his pool, and your whole neighborhood is full of mosquitoes."

And although about 20 green-pool cases were resolved, the concern washed out of the public eye with the last of the monsoon storms.

And those campaign promises:

"Plead to the lead. I still consider that one of the hallmarks," Thomas said.

Fewer plea bargains

In August, Thomas said he would no longer offer plea bargains to defendants charged with 12 violent felonies, including homicide, kidnapping and sexual assault.

Instead of charging a higher felony in an attempt to make a defendant bargain to a lesser charge, Thomas determined that defendants could only "plead to the lead," or most serious charge and perhaps deal on any other counts in their indictment. Thomas intends to introduce similar plans for crimes against children.

Defense attorneys say that at times that policy is too rigid because the best that the prosecutors will offer defendants is the same sentence they would get if found guilty. In such instances, there is no incentive not to go to trial and take a chance they'll be acquitted.

"A lot of that stuff doesn't make a lot of sense, and it's draining the resources of the court," said Phoenix attorney Ulises Ferragut, who counts among his clients Loren Wade, a former ASU football player accused of murder. "It's draining defendants that have to pay for their representation. It's draining their families. It doesn't make sense to me. It might fulfill some statistical goal for the County Attorney's Office, but it doesn't necessarily equate to justice."

Still, deals get made: At the last minute before trial, Thomas allowed a woman charged with negligent homicide for leaving a child in a hot car to plead to a lesser offense.

And it sometimes results in a better deal for defendants.

For example, in 1999, Shannon Elizabeth Whittle was convicted on 13 counts of child abuse and sentenced to 172 years in prison for abusing her infant quadruplets. But in August, when the state realized she had a strong chance of overturning the conviction on appeal, Whittle was allowed to plead to the lead, one count of child abuse, and was sentenced to 17 years with credit for six years served.

More criminal filings

But with Thomas' tough stance, criminal case filings have increased. In 2004, Romley's last year as county attorney, the office filed 35,411 criminal cases; in Thomas' first year, 2005, 38,531 criminal cases were filed, an increase of 3,120.

And the number of cases for which the County Attorney's Office seeks the death penalty nearly doubled, rising from 28 of 107 eligible cases in 2004 to 46 of 101 in 2005.

Thomas even filed intent to seek the death penalty in the case of a drunken driver who fled police and killed a motorist in April. Only one other state has ever attempted to obtain the death penalty in a vehicular homicide, and it was struck down on appeal.

Thomas felt justified in the decision.

"In that case it wasn't just somebody who committed a homicide, it was the totality of the facts, including a prior aggravated assault that sort of added up to a crime spree in my mind that culminated in a death. And when you put all that together, I thought warranted the death penalty."

But the previous assault charge Thomas mentioned resulted in an acquittal when it went to trial, and the police department admitted it violated its own pursuit policies, making the case less tenable.

Thomas says his office will re-evaluate the case.

Defense attorney Larry Hammond points out that such a punishment would never be considered in 36 of the 38 states that have a death penalty.

"Whether you're a fan of the death penalty or an opponent, you'd like to think that the death penalty is being rationally applied," Hammond said.

Illegal immigration

Thomas' most controversial campaign promise was to stop illegal immigration even though his opponents argued that as county attorney, he had no jurisdiction.

"The law is the law, and illegal immigration by definition is illegal," he said. "We are suffering the consequences of illegal immigration in Arizona in our crime rate, among other things."

Thomas makes a valiant effort to address the Spanish-language media in Spanish, which perhaps is a good thing because most of the fights Thomas has picked in the past year roll downhill toward the Mexican border.

The border needs to be closed to keep drug smugglers and undocumented immigrants from flooding into the state. Just as some Arizonans are addicted to methamphetamine smuggled across the border, so too are they addicted to illegal labor. Both raise crime rates, he says.

In April, Thomas refused to file charges against an Army reservist who held seven undocumented immigrants at gunpoint and then claimed he was making a citizen's arrest. Arpaio was incensed, as were a coalition of Hispanic attorneys, who objected to no avail.

In July, Thomas protested when he had not been invited to a conference for law enforcement officers about illegal immigration hosted by Gov. Janet Napolitano. Calling the governor's conference "an amen corner," he decided to throw his own in November.

Despite his nay-sayers, Thomas did invite speakers with a range of opinions on the subject. In August, after the Legislature passed a law allowing the state to prosecute human smugglers, or coyotes, bringing undocumented immigrants into the state, Thomas announced a new unit in his office to prosecute such crimes.

But when other law enforcement officials seemed cool to the idea, Thomas went on the offensive. His first cases were filed last month.

Also in August, he indicted a handful of people who registered to vote even though they were not U.S. citizens. Perhaps just coincidentally, he announced the indictments in the week before state leaders completed rules to implement Proposition 200, the referendum passed to keep non-naturalized immigrants from voting. Or perhaps to prove that the rules were needed despite the protests of Hispanic community leaders.

In January, he threatened to sue the Maricopa County Superior Court over its "DUI Courts," which monitor the probation of men and women convicted of felony DUIs.

At issue were a program conducted in Spanish and another that caters to Native Americans. Thomas produced a legal analysis claiming that the courts were discriminatory and "race-based."

Thomas made good on a threat Tuesday when he filed a federal lawsuit to abolish the DUI Courts for Spanish speakers and Native Americans.

The unwavering attacks on immigrants draw kudos in letters to the editors of English newspapers but anger the more vocal segments of the Hispanic population.

"Civil rights in reverse is what I call it. What about our civil rights?" attorney Daniel Ortega said.

Ortega thinks that Thomas plays to an anti-Hispanic constituency. It's "race-baiting," he said. "He knows exactly who he's talking to."

Thomas sloughs off the criticism.

"There is a certain political factor bound and determined to portray anybody who speaks up in favor of cracking down on illegal immigration as being motivated by prejudice or improper feelings toward people," he said.

"That troubles me. It's completely false in my case."

In the year ahead, Thomas plans to continue to reorganize the office "to make it more efficient."

'Active first year'

He wants to resolve the issue of the DUI Courts, and he wants to extend his policy on plea deals to crimes against children. "We had an active first year, and I'm going to try to continue," he said.

It remains to be seen whether he'll close the political rifts he has created or force them open a little more.

But Thomas is smart and ambitious and unafraid to do what he believes is right, whether everyone agrees with him.

"This is an office that lets you have a fairly broad impact on public policy," he said, "and I want to try to get taxpayers their money's worth."