Brian Hounshell’s prosecutor, former Arizona Attorney General Grant Woods, said that Hounshell, once convicted of felony corruption, would lose all his political influence: no one will listen to him anymore.
This prediction I believe justified his lenient treatment of Hounshell in the face of dozens of charged and uncharged acts of his corruption and lying involving a great deal of money and public property. Fortunately for some and unfortunately for others, Mr. Woods’ prediction has been proven wrong.
Once Hounshell’s court case was finished, Michael Whiting hooked up with the convicted felon and used his influence, particularly on the Navajo Nation, to be elected Apache County Attorney. Whiting correctly believed that he would not win the election without Hounshell’s help. When he won, Whiting owed Hounshell a great debt for his victory. Whiting also knew that Hounshell was virtually unemployable because of his corruption convictions (the felony convictions were later reduced to misdemeanors). Therefore, Whiting hired Hounshell as “investigator” for the Apache County Attorney’s Office.
He received criticism for hiring Hounshell. But, he must repay Hounshell or risk losing his “golden goose.” Hounshell and his influence on the reservation was the one sure way he could increase his re-election chances for many terms to come. He knew though he must somehow silence those criticizing his decision to hire the disgraced sheriff and convince them of Hounshell’s worth and the wisdom of the decision.
When the murder investigations that have been the recent subject of so much press, occurred, Whiting saw the opportunity to make Hounshell a hero for “breaking” the cases, capturing and convicting the murderers.
However, Whiting knew that if the cases went to trial Hounshell’s past acts of fraud, lying and corruption when revealed by the defense attorneys during trial preparation would destroy Hounshell’s credibility as a witness and reduce the chances of conviction. Arizona Rules of Evidence allow attorneys, while they are preparing for a criminal case and with the Court’s permission at trial, to inquire into a witness’s previous conduct in order to enable the jury to decide whether to believe that witness.
These revelations would be an embarrassment to Whiting and more ammunition for those critical of him for hiring Hounshell. It would mean another public rehashing of the dozens of criminal acts of corruption Grant Woods uncovered during the Hounshell investigation. Therefore, Whiting knew he must at all costs avoid trial for Roberts and the others.
Whiting knew the best way to avoid a trial and continue his hero-making was to convince Roberts to plead guilty. Mr. Whiting knew that of the three suspects, only Roberts was a real threat to go to trial. Although he was an accomplice, his case was more winnable because he was not the “trigger man.” Mr. Whiting also knew that David Martin, Roberts’ criminal defense attorney, was no pushover. He knew that Mr. Martin would prepare the case thoroughly and that included in-depth interviews with Brian Hounshell that would reopen all of the old facts and evidence proving his massive corruption as Apache County Sheriff. Therefore, he decided to bypass David Martin and try to force Roberts to plead guilty.
Every attorney knows that it is a major abuse of a lawyer’s ethics to contact a criminal defendant who an attorney represents without first obtaining the attorney’s consent. That is not an ethical rule about which Whiting can claim ignorance. Before he became an attorney he was required to take and pass an ethics course that taught this fundamental principle.
To purposefully bypass the attorney-client relationship violates the U.S. Constitution’s Bill of Rights entitling every accused American the right to counsel. However great this sin might be, Whiting needed a plea agreement, not a trial. He could not risk putting Hounshell on the witness stand. He chose instead to ignore his ethical obligations and sent Hounshell to threaten Roberts and denigrate Mr. Martin’s legal performance on Roberts’ behalf to force him to plead guilty. He knew a trial would kill the golden goose. That is why Whiting and he alone was motivated to send Hounshell on that jail house visit to Roberts.
Recall that in his mind repaying the vast debt Mr. Whiting owed Hounshell translated into making him “untouchable on the reservation” at election time. Therefore, when he needed a scapegoat, he must find someone else to “throw under the bus.”
He sacrificed his chief deputy attorney, Martin Brannen. He pointed at him the finger of blame complaining that he had relied on Brannen’s bad advice. Unlikely, Whiting had been both a criminal defense attorney and prosecutor in the half dozen years or so before his election as county attorney. During his campaign, he emphasized his criminal law experience. He said that he was designated the lead prosecutor against an accused murderer whose crime occurred while he was employed as a deputy prosecutor during the previous administration.
This was after all a criminal case. Mr. Whiting did not need another attorney to tell him that he could not talk to a person who had an attorney, especially if the person was in jail.
When Hounshell’s jail visit became public, complaints to the state bar were filed against him, his license to practice law was at risk and the ability of his office to continue to salvage their case against Mr. Roberts became unlikely.
Everyone was expendable except Hounshell. Martin Brannen was not an attorney familiar with Apache County politics. He was not here during the elections. Brannen could not reasonably know the strength of Whiting’s desire to keep Hounshell off the witness stand. Once chosen as “scapegoat,” Whiting fired Brannen but misled others when he said that he had resigned voluntarily because the high altitude affected a family member’s health. The real purpose was both to divert blame and attention from himself and to keep Hounshell employed, contented and available for future election campaigning.
Since Judge Grimsley dismissed the case, Whiting has decided that a good defense is a good offense. I believe he knows the extent of his ethical blunder. He chose once again to divert attention from himself by falsely accusing Judge Grimsley of grave legal misconduct for dismissing the case against Roberts.
Whiting then began to criticize Judge Grimsley. In a press release, he accused her of giving no legal support for her decision. Of course, the rules of ethics again provide that attorneys cannot make public criticisms of a judges’ integrity or her decisions knowing that the criticisms are false or are in reckless disregard of the truth. This is Arizona lawyer ethics rule ER 8.2
While others might pause, Whiting, undeterred in my opinion, ignored his ethical responsibilities and made those legally and factually unsupportable criticisms. He did this not only in the press release, mentioned above, but also while apparently using phony names in the White Mountain Independent computer blogs. In them, Whiting lacks the grit to put his own name to his criticisms of the judge. Unfortunately, hiding behind phony names does not shield him from attorney discipline for falsely criticizing Judge Grimsley’s decision. Nevertheless, Whiting is willing to take the risk. He must take the risk. He has to save the “golden goose.” He must divert attention from his order to violate Roberts’ Constitutional Rights.
Michael Whiting alone left Judge Grimsley with dismissal as her only option. He suggests that the Court could have suppressed evidence. However, no evidence was collected when Hounshell went to the jail. Roberts’ attorney, David Martin explained that well in a previous edition of the Independent. However, the point is that Hounshell went there not to gather evidence but to coerce a plea bargain: to keep him and his past off the witness stand.
But there was no evidence Judge Grimsley could suppress. She could have dismissed the case without prejudice. That means the prosecutor could re-file the same charges the next day if he chose to do so. However, how is that punishment to the State for blatantly violating Robert’s right to counsel? Thus, Whiting gave Judge Grimsley her only real choice: to dismiss the case without the option of refiling the charges. Noting Whiting’s willingness to so easily disregard Robert’s constitutional right to counsel, she had no other option than that which Whiting gave her.
As a colleague recently stated, Hounshell (at Whiting’s direction) truly “broke the case.”
Editor’s note: Criss Candelaria is an attorney. He previously served as Apache County Attorney. He lost to current County Attorney Michael Whiting in the 2008 election.
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