The son of Arizona Senator Jeff Flake is seeking a new civil trial against the man hoping to replace his father in the U.S. Senate.
Attorneys for Austin Flake and his ex-wife have filed a motion for a new trial against former Maricopa County Sheriff Joe Arpaio in a lawsuit claiming that Arpaio’s office cooked up criminal animal cruelty charges against them and that a deputy withheld key evidence in the case.
The criminal charges against Flake and his ex-wife, Logan Brown stemmed from the 2014 deaths of 21 dogs in the sweltering Arizona heat at a kennel owned by Flake’s in-laws called Green Acre.
Flake and Brown were minding the kennel when the dogs died, but maintained the deaths were accidental and said the air conditioning failed overnight while they slept.
Following the incident, Arpaio’s office recommended animal cruelty charges and the couple was indicted by a grand jury in October 2014.
Two months later, however, Maricopa County Attorney Bill Montgomery withdrew the charges, saying that the case presented to the grand jury “did not take into account the possibility that there were issues with an air conditioning unit.”
That decision set the stage for the now years-long civil suit against Arpaio, Maricopa County and several other defendants, in which Flake’s attorney Stephen Montoya claims the sheriff’s office provided false testimony to the grand jury and targeted his client because he’s the son of Sen. Flake - arguing that Arpaio and his investigators did so for “political gain and publicity.”
Revelation of New Evidence
The younger Flake’s civil suit was originally filed in 2015 and a jury ruled in favor of Arpaio and Maricopa County last December.
But Montoya said testimony during the civil trial revealed the existence of previously undisclosed electricity graphs that he said help corroborate Flake’s story that an air conditioner failed.
The electricity graphs chart the hour-to-hour energy consumption at Green Acre and were based on data from the local power utility.
"Whenever the police or prosecution have exculpatory evidence they have to disclose it," Montoya told ABC News. "This graph was not disclosed to the accused in the criminal case and they also didn't disclose it in the civil case.”
Montoya said the graphs show a drop in energy consumption at the property in the early morning hours on June 20, 2014 and that the sharp reduction is explained by the air conditioner’s failure.
“Things are pretty standard and pretty uniform on all of the days except for the first part of the day on June 20, 2014. That’s the day the dogs died,” Montoya said.
Montoya argues in the new motion that graphs produced by the sheriff’s and county attorney’s offices underscore their claim that Maricopa County Sheriff’s Detective Marie Trombi lied or recklessly disregarded the truth when presenting facts to the grand jury in order to get an indictment against Flake and Brown.
During the grand jury hearing in 2014, Trombi was asked multiple times by jurors whether power records from the public utility, Salt River Project (SRP), show that the air conditioning was on and working, to which Trombi answered: “It was on, all night.”
“There’s no way that a reasonable law enforcement officer could believe that the SRP records show the A/C was on and working all night, after having looked at these graphs that they created,” Montoya said.
Even Judge Neil Wake seemed compelled by the possible significance of the graphs during the civil trial.
“If the graph shows that what Detective Trombi testified to was incorrect, then we’ve got a whole ‘nother ball of wax,” Wake said in December, according to civil trial transcripts. “It may show that. We don’t know but it could show that. If the graph was the same as [the plaintiff attorney's] graph, wow.”
In documents seeking a new trial, Montoya claims that in depositions taken in April, Trombi, as well as Detective Robert Kalinowski, who worked on animal crimes investigations, and MCSO criminal intelligence analyst Jim Young all denied knowing anything about the graphs.
Montoya also contended that their testimony stands in contrast to the testimony from county prosecutor Shawn Steinberg, who said she received the bar graph from MCSO, as well as emails between Kalinowski and Young discussing how to graph the power records months before the case was presented to the grand jury.
“Malicious and Selective” Prosecution
Montoya claims MCSO’s attempt to prosecute Flake and Brown was “malicious and selective” and argues that it stems from Austin Flake's relation to his father.
Montoya argues Arpaio sought to prosecute Flake because he wanted to "garner publicity for himself" and he claims there were political reasons for pursuing charges.
"Sheriff Arpaio was on national T.V. saying these people were guilty of 21 counts of animal cruelty and their reputations were trashed," Montoya said.
The complaint against Arpaio cites a press conference in September 2014 in which the then-county sheriff publicly called for charges against Flake and Brown. It argues that the public recommendation put pressure on prosecutors to bring the case to a grand jury.
Montoya also claims Sen. Flake's political differences with Arpaio and his past criticism of the so-called "birther" movement, of which Arpaio was a prominent figure, gave him reason to want to embarrass or harm Sen. Flake.
"Not only is (Austin's) father the Senator, but Jeff Flake [is] one of the few local politicians who had the guts to criticize Joe Arpaio,” Montoya told ABC News. “There weren't that many."
Last fall, Sen. Flake announced he would not be seeking re-election. In January, Arpaio announced his intention to run for the seat.
Jeffrey Leonard, who represents Maricopa County and Arpaio, declined to comment. The county attorney’s office also declined to comment.
In court filings, Leonard disputes that the air conditioning failed or was the cause of any drop in electrical usage. He also disputes that Arpaio was actively involved, or even had "direct knowledge" of the investigation of Flake and Brown.
He writes that "plaintiffs have never identified any evidence that former Sheriff Arpaio influenced the investigation into Plaintiffs, nor that he directed or pressured his employees to reach a particular outcome."
Leonard also downplayed the significance of newly revealed graphs, writing that it does not establish that the air conditioning failed. He argued that investigators and prosecutors had access to the information and considered it when deciding to seek charges against Flake and Brown. He said the chart presents "no evidence of anything withheld from MCAO by Deputy Trombi, or by anyone else at MCSO."
Montoya said he expects Judge Wake to decide on his effort for a new trial within the next two months.