On Tuesday the Arizona Supreme Court agreed to consider an appeal filed by former Attorney General Tom Horne and Kathleen Winn of the controversial Court of Appeals ruling that essentially found that a prosecutor can act as judge in a case they are prosecuting.
Horne and Winn’s attorneys, Dennis Wilenchik and Tim LaSota specifically asked the Court: “can a County Attorney, who was personally “involved with the prosecution of the case, by assisting with the preparation and strategy,” personally overrule a decision of an Administrative Law Judge against her, so that by her own decision she wins the case that she had lost before the Administrative Law Judge?”
The Independent Administrative Law Judge found in favor of Horne and Winn when they were accused of coordinating an election campaign for Attorney General by Yavapai County Attorney Sheila Polk. Polk admitted in documents that she “was involved with the prosecution of the case, by assisting with the preparation and strategy.”
In a bizarre turn of events, Polk, who appeared to be driving a political agenda, overruled the Administrative Law Judge. Horne and Winn’s attorneys wrote that Polk made the unusual move “so that she would win the case that she had lost, as someone participating in advocacy, before the Administrative Law Judge.”
“I am hopeful that the Arizona Supreme Court will not allow this anomaly to stand. This is the only case where the prosecutor, who actively was engaged in the prosecution then, after not getting the outcome she wanted, judged us guilty. Polk did not disclose this material fact until the case got to the Appellate level. There was no neutrality there was no independent objective person. There was a prosecutor who abandoned the rules of law to get her desired outcome. Arizona should be concerned that a blatant disregard for the law, procedures, and sworn testimony can be trumped by a prosecutor who can restate evidence to justify an outcome,” Winn stated upon learning of the Court’s decision.
Wilenchik and LaSota argued in the appeal that “Until this decision, the cases have been unanimous throughout the country that an Agency may advocate for conviction and make the final ruling, but that an individual within the agency cannot play all of those roles. There must be a division between the individual person acting as an advocate, and the person acting as a judge. Ours is the first decision in the country that holds the same individual can properly perform these conflicting roles.”
“The position we are advocating is a step back from that implied in the above quotation. We concede that an individual can initiate the charges, and then act as a judge, but the same individual cannot participate in the advocacy of the adversary hearing, and act as a judge,” wrote the attorneys.
The attorneys note that there are “20 cases from other jurisdictions that consider this question squarely, and that hold that the same individual cannot participate in advocacy and then act as judge. Neither side has been able to find any cases that considered this specific question, to the contrary.”
The appeal read in part:
If the facts set forth in the Court of Appeals decision were a fair representation of the facts in the record, the Independent Administrative Law Judge would not have found in favor of the Defendants. Because our focus is on the procedural due process issue, we do not refute those facts here. However, in case the Court has any interest in guilt or innocence, we attach as Appendix 2 relevant pages from the Appellate Briefs, showing that the facts in the record are very different from those represented in the Court of Appeal’s decision.
We do mention one point. There was no evidence of any kind as to what was stated in telephone conversations between Horne and Winn. Polk reached her decision solely on the basis of the time of those calls, without any evidence of what was actually said. All the testimony in the record was that Horne was seeking
Winn’s help in financing a real estate transaction, inasmuch as she had been in that business for 29 years. At page six of the Court of Appeals Decision, the Court states: Appellants provided no emails or real estate documents at trial which would corroborate that Winn was working on Horne’s real estate transaction in October 2015.
This is misleading. There was documentary evidence that Horne first learned he needed additional financing to close his real estate transaction the day before the phone conversations in question in this case. That was County Attorney exhibit 33 at 620, cited by the ALJ in her finding number 95. (The document is dated October 19, a day Horne could not call Winn because her Mother was having surgery. The next day, October 20, was the first day he could call her about this financing, and is the same day as the phone calls at issue in this case.)
It certainly strains credibility to argue, as the County Attorney implies, that Horne and Winn fabricated their discussions about financing on October 20, a date chosen by the County Attorney as the day when conversations about the ad allegedly took place, and it is just a coincidence that the documents show that Horne first learned about his need for financing on October 19, prompting these calls.
For purposes of the principal issue presented in this Petition for Review, the crucial facts are these: County Attorney Sheila Polk, by the admission at page 35 of the Answering Brief, “was involved with the prosecution of the case, by assisting with preparation and strategy.” The Administrative Law Judge ruled in favor of Defendants, and against the County Attorney. County Attorney Polk then, personally, overruled the Administrative Law Judge, and ruled in her own favor, so that, in a case in which she participated in the advocacy, she would win the case rather than lose it.
Important issues of law were incorrectly decided by the Court of Appeals, contrary to unanimous decisions going the other way on the specific point presented, and involving an important question of law for the state of Arizona.
This is not an ordinary case. It goes to the very heart of the assumptions of our legal system. Imagine if we read in the paper about the following happening in a foreign country: a defendant is accused by a prosecutor of a violation of law. The case goes to trial before a neutral judge. The judge takes testimony, judges the demeanor based credibility of the witnesses, and makes factual findings, and a final ruling in favor of the defendant. The prosecutor is angered about losing, wants to win the case, and overrules the judge. The legal system is constructed in such a way that it is the prosecutor’s factual and final determinations, not the judge’s, that must prevail. Defendant is hit personally with a huge monetary judgment, even though the only neutral party to take testimony and observe the demeanor of the witnesses was the judge that was overruled by the prosecutor.
We would want to say to the decision makers of that country that a fundamental human right we have codified in our Constitution is that no person should be deprived of life, (or as in this case) liberty, or property, without due process of law. We would say that a crucial component of due process of law is an independent judiciary, and that determinations of factual disputes, including demeanor based credibility judgments, must be made by a neutral judge, not by the prosecutor.
We would say that a civilized legal system must be based on the principle enunciated by John Locke, who heavily influenced the American Founders, that no man can be a judge in his own case. We would say that this especially applies to prosecutors, whose natural desire to win cases makes it impossible to trust them as objective final determiners of facts. We would say that until now, making prosecutors’ decisions final has been true only in authoritarian countries, not in countries that respect the rule of law.
These considerations, fundamental to the very concept of the rule of law, call for this Court to consider review of the Court of Appeals decision in this case.
It is therefore requested that the decision of the Court of Appeals be vacated and that the decision of the Administrative Law Judge be reinstated. Attorneys’ fees are requested pursuant to Rule 21, ARCAP.