The high-profile bribery and corruption trial of former Arizona Corporation Commissioner (ACC) Gary Pierce and three others ended in a mistrial last week with jurors hopelessly deadlocked, “talking in circles,” as the foreperson summed it up. One can scarcely blame jurors. The prosecution was a case study in ham-handed overreach, flimsy evidence, and non-credible witnesses.
Recapping the case briefly, Gary Pierce, George Johnson, the owner of Johnson Utilities in Pinal County, Sherry Pierce, (Gary Pierce’s wife), and Jim Norton, a lobbyist, were charged with bribery, fraud and conspiracy. Prosecutors alleged Johnson wanted the ACC to approve a rate increase and a tax break and hired Jim Norton to make it happen. According to the charges, Norton got his then-wife Kelly Norton to establish a consulting firm, which was used to launder Johnson’s payments to Pierce. Prosecutors said Kelly Norton’s firm received $6,000 a month from Johnson over a nine-month period starting in August 2011. In turn, Kelly Norton supposedly paid $3,500 a month to Sherry Pierce for a fabricated work. Prosecutors contended it was obvious that the payments were a bribe.
Almost from the start, the trial became a hole-ridden farce featuring non-credible witnesses. Let’s start with Kelly Norton. As the prosecution’s star witness, she emanated little light. She acknowledged she agreed to cooperate with the FBI’s investigation in order to stay out of prison. That alone could taint her take on things but she also seems to have been nursing bitterness at her ex-husband, Jim Norton. The couple divorced before the Christmas holidays in 2015. On the stand as an unindicted conspirator, Kelly Norton reminisced about being a “power couple” and regularly hobnobbing with other players at fancy parties. To some jurors, she probably came off as eager to say what was needed to save her own neck and exact revenge on her ex.
In a bizarre exchange parsing the meaning of a social media post in which Norton expressed confidence that “karma” would eventually deliver justice to her ex-husband, U. S. District Court Judge John Tuchi sustained an objection from defense counsel. For the most part, it appeared Tuchi tried to give the government latitude to press its allegations but there was only so much he could do with witnesses and facts that strained credulity.
More important than any subjective, albeit legitimate, consideration of Norton’s strength as a witness was the documentary evidence she offered up – emails, cancelled checks, and other documents she said she retained to protect herself. The problem was the documents contained no smoking gun – or any gun at all. What’s more, the timeline on the payments and communications did not square with any vote by Gary Pierce favorable to Johnson Utilities. In addition, prosecutors’ contention that Sherry Pierce had a no-show job was belied by email exchanges between her and Kelly Norton, in which Norton requests Pierce to help on specific tasks. Norton, somehow, had failed to find these emails and share them with the government prosecutors with whom she was cooperating.
Another key prosecution witness, Thomas Broderick, was even more compromised than Kelly Norton. Broderick, a former director of the utility division of the ACC, has a $60,000 contract to consult with the government on the case. In his testimony, Broderick failed to mention that he had spoken to another important prosecution witness, former ACC Chairwoman Kris Mayes, while having coffee at her house. If nothing else, Broderick’s omission made the irony of having prosecutors pay for the testimony of a witness in a pay-to-play case all the more jaw-dropping.
Prosecutors also fumbled in not interviewing John LeSeuer, who for six years served as policy advisor to Pierce. LeSeuer acknowledged he probably knew more about the role Pierce played on the ACC than anyone and expressed being somewhat baffled that the FBI had not reach out to him. It seems reasonable to conclude that government prosecutors were interested only in evidence that would support a weak case and determined to avoid unearthing any exculpatory information.
The jury foreperson in this mistrial said she felt the prosecutors knew they didn’t have a strong case but decided to go for it anyway “and see if it stuck.” As such, this appears to be just the latest episode of a national phenomenon of politicized prosecutions that has taken hold of the justice system in recent decades. Open-ended and never-ending investigations of Presidents Bill Clinton and now, Donald Trump, complete with pre-dawn raids at lawyers’ offices, have eroded public trust in law enforcement. Aggressive tactics in state prosecutions have squandered taxpayer dollars, destroyed reputations and even led to suicides in some cases.
The government has until August 13 to decide whether to make another go at Pierce and the others. Even with their aggressive and clumsy tactics leading up to the trial, prosecutors offered jurors a paucity of evidence and compromised witnesses. Jurors didn’t buy what they were selling and the spectacle was offensive to the citizens of Arizona. They had their shot and they missed. Case closed.