Horne, Winn Cleared, Investigation “Not A Search For Truth”

A federal appeals court said an inmate in Arizona’s Eyman prison could press his claim that prison officials violated his First Amendment rights by forcing him to work in the prison’s kitchen on a religious holiday. (Photo from Wikipedia/Commons)

On Wednesday, Cochise County Attorney Brian McIntyre issued finding in favor of former Arizona Attorney General Tom Horne and Kathleen Winn in a campaign finance case brought by Yavapai County Attorney Sheila Polk.

McIntyre found that the “record, unfortunately, supports a conclusion that the investigation being conducted was not a search for the truth, but rather, only intended to shore up conclusions already drawn.” McIntyre is referring to the bizarre investigation conducted by FBI agents in their pursuit of Horne at the behest of Polk.

McIntyre found:

At 2:59 on October 20, 2010 Winn emailed Murray referencing “two very strong personalities debating this moment”. (FOP 27) The evidence does not reveal any actual communication between Winn and Horne between the subsequent 3:00 p.m. e-mails about BLA’s payment to LSG and the 3:11 p.m. e-mail from Winn to Murray containing a revised script and the statement “I think I prevailed no mention of Tom thanks for what you said. I believe this times out let me know.” (FOP 28-30)

Therefore, the record supports the conclusion that those “strong personalities” did not include Horne.

In April 2014, Administrative Law Judge Tammy Eigenheer found in favor of Horne and Winn, but Polk disregarded the judge’s finding and continued to push prosecution of the two.

Eigenheer found that Attorney General Horne and Kathleen Winn, who was heading up an independent expenditure, did not violate state election laws. Political enemies had alleged that Horne and Winn had illegal communications about a purportedly independent campaign backing Horne’s 2010 election campaign.

Polk pursued the allegations with a vengeance.

The case revolved around the allegation by Polk that Winn and her organization, Business Leaders for Arizona (BLA), coordinated political expenditures with Horne, then a candidate for attorney general.

Horne and Winn claimed they were talking real estate and not illegally coordinating the efforts of his campaign with her committee.

According to Horne, he was having difficulty with commercial real estate property he was selling. Winn, a licensed mortgage broker, attempted to secure financing for a previous buyer of the property and subsequently Horne turned to her when he came up short for closing costs in a 1031 exchange, according to the Court’s record.

Her phone logs, which were provided to the FBI at the onset of the investigation, showed that she had been helping Horne on the deal, in a difficult commercial lending market, since March 2010.

The agents and Polk ignored that evidence.
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All in all, the FBI’s handling of the case was seen as either sinister or comical.

What has not been the subject of much dispute is the claim by lawyers for Horne and Winn that FBI Special Agent Brian Grehoski lied in Eigenheer’s courtroom.

The ADI reported in 2014:

According to the court record, Grehoski lied when he claimed that he had asked real estate agent Greg Tatham, if Horne consulted Winn on a personal real estate deal.

He did not ask Tatham, and what had been considered an insignificant recording of a conversation between Grehoski, became evidence of the government’s abuse of process and power.

The recording had been taken by Tatham. It had not been mentioned early in the case, and wouldn’t have ever been entered into evidence had Grehoski told the truth.

The truth was that Grehoski had never asked Tatham if Winn, a real estate professional who had offered advice to her friend Tom Horne over the years, might have talked to Horne about a real estate sale that was pending at the time.

Polk’s attack on Horne cost him a win in the 2014 Republic Primary race for attorney general. Horne lost to Mark Brnovich, who had been supported by Polk and crew.

In June 2017, the Arizona Supreme Court found that Polk had overreached and remanded the case to the Arizona Attorney General’s Office for final disposition. Brnovich rightly recognized a conflict of interest and handed it over to McIntyre.

McIntyre found:

At 2:59 on October 20, 2010 Winn emailed Murray referencing “two very strong personalities debating this moment”. (FOP 27) The evidence does not reveal any actual communication between Winn and Horne between the subsequent 3:00 p.m. e-mails about BLA’s payment to LSG and the 3:11 p.m. e-mail from Winn to Murray containing a revised script and the statement “I think I prevailed no mention of Tom thanks for what you said. I believe this times out let me know.” (FOP 28-30)

Therefore, the record supports the conclusion that those “strong personalities” did not include Horne.

The PBI’s inaccurate and misleading summary of the conversations with Mr. Tatham and subsequent inaccurate testimony regarding the same, calls into question the reliability of other hearsay statements offered. (FOP 50-55) The record, unfortunately, supports a conclusion that the investigation being conducted was not a search for the truth, but rather, only intended to shore up conclusions already drawn.

On October 27, 2010, Horne forwarded an email from Ryan Ducharme, an individual not connected to the Horne campaign, to Kathleen Winn after a failed attempt due to using an incorrect email address. It is apparent from the e-mail that Horne did not know that at that point, an additional $100,000 in funding had already been secured by BLA. (FOF 38-44) This fact supports the conclusion that the Horne campaign and BLA were not in engaged in coordination. Further, it is clear from the record that the email did not result in any change in activity by BLA.

CONCLUSION

The final agency decision maker “should give deference to the ALJ’s credibility findings, [he] may overrule these findings only if [he] finds evidence in the record for so doing.” Ritland v. Arizona State Board of Medical Examiners, 213 Ariz. 187, ifl4 (App.2006). “The agency must, however, afford an ALJ’s credibility, findings greater weight than other findings of fact more objectively discernible from the record. An agency may only depart from those findings if substantial evidence supports such departure.” In the present matter, the AU found Winn and Horne to be credible in their testimony.

This reviewer can find no substantial evidence to overturn those findings. Indeed, if anything, the record reveals further support for those determinations.

Horne and Winn certainly engaged in communication during a time frame which would cause any outside observer to cry foul. The record, however, does not establish by a preponderance of the evidence that this communication was illegal. Both sides to this dispute present equally plausible explanations as to what did or did not occur during that communication. The party bearing the burden, therefore, has failed to meet it.

“I am grateful for the ethics of the Arizona Supreme Court and this final determination by Cochise County Attorney McIntyre,” said Winn on Wednesday. “It was shocking to me that after Andrew Thomas had been disbarred for similar antics, County Attorney Polk would copy his behavior.”

3 Comments on "Horne, Winn Cleared, Investigation “Not A Search For Truth”"

  1. Dale Brethower | July 6, 2017 at 7:04 am |

    the FBI in action–and the slow, slow, working of the legal system. Sad, except that the obvious finally won the day.

  2. Tom Horney couldn’t get a Nooner done,, without crashing a gold Jaguar ..
    He shud refund his salary as AG. FOR DOING NOTHING… GOD IS RETURNING TOM, explain to HIM why you did nothing to help my daughters.

  3. The Evil One | July 6, 2017 at 9:36 am |

    So…
    When will the FBI Agent in Charge be losing his job?
    When will Sheila Polk be Disbarred and forced to step down from the bench?

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