TUCSON (CN) – State prosecutors sued the Tucson City Court and a city magistrate, claiming they wrongly determined that a man who had been cited hundreds of times for animal neglect had a valid claim for vindictive prosecution, and refused to budge even when faced with obvious evidence to the contrary.
The state sued Tucson City Court and Special Magistrate Michael Lex in Pima County Court, seeking to vacate an order allowing real party in interest/co-defendant Richard Brubaker to interview prosecutors and depose animal control officers.
Lex ruled in January that Brubaker had a claim for vindictive prosecution, in 204 criminal and 51 civil violations that Pima County Animal Care Center (PACC) filed against him for animal neglect, animal cruelty and other charges.
The citations stemmed from an incident in 2009 in which Tucson Police attempted to serve a warrant at Brubaker’s home and found several dogs and dozens of cats living in filthy conditions. The county seized the animals and the City Court refused to return them.
Brubaker was not cited for the conditions until nearly a year later, around the same time that he filed a civil suit against the city and Pima County, according to the state’s complaint.
In a motion in City Court to dismiss the citations, Brubaker claimed they were the fruit of vindictiveness because prosecutors filed them only after he filed his civil action. In an attempt to prove it, he showed Lex a copy of the civil claim, summons and service of process; but he had neglected to give these documents to prosecutors and had not included them with his motion, according to the state’s complaint.
Lex ruled for Brubaker, finding that the “sequence of events, coupled with the near one-year delay in bringing criminal charges, gave rise to a colorable claim of vindictive prosecution,” according to the complaint.
Lex also ordered the depositions of three animal control officers, and allowed Brubaker to interview two state prosecutors.
Lex then denied the state’s motion for reconsideration, even after prosecutors offered to show him proof that Brubaker had in fact filed his suit after the state had filed the citations.
“In this case, the trial court determined that the defendant had presented a colorable claim of vindictive prosecution, based largely on the defendant’s repeated claim that the state filed criminal charges against the defendant only after the defendant filed a lawsuit against the city and PACC,” the complaint states.
“The respondent reached this conclusion after being presented with exhibits, at the same time as the state was presented with them, demonstrating that the defendant’s representation as to the sequence of events was patently false. Even after being informed of that misrepresentation, and being directed to documents already in the court record demonstrating as much, the respondent refused to reconsider the decision it had reached, even though it had been based on demonstrably false information.
“The respondent’s consequent decision to allow the defendant to depose city prosecutors was based on the defendant’s now-unsubstantiated claim of vindictive prosecution. The respondent’s erroneous decision and unfounded refusal to reconsider that decision and the consequences flowing therefrom constitute an abuse of discretion.”
The state wants the magistrate’s order vacated.