Motion filed to drop charges in 1 of 3 indictments against McDonald

Clair William Lane, attorney for former Maricopa Community Services Director Marty McDonald, has filed a motion in Pinal County Superior Court to dismiss criminal charges against his client in one of the three indictments against McDonald.

The indictment alleges McDonald and city employee David Aviles, who was placed on administrative leave then allowed to return to work in March, modified city of Maricopa records between Sept. 1 and Sept. 22, 2010 to make it appear that McDonald was innocent of charges that he defrauded the city.

Aviles was indicted on nine criminal counts, including one count of forgery, one count of hindering prosecution in the first degree and one count of tampering with a public record. Lane said he did not know whether the charges against Aviles have been dropped and Aviles’ attorney, Dennis Gorman, said he could not comment on the case.

Lane’s motion states the third indictment against McDonald, who was fired in 2009, should be dismissed because there is no dispute to the facts that Aviles committed no crime when he updated the city’s inventories to reflect the city did receive two Bison basketball mini goals in 2008.

"If Aviles committed no crime, Defendant committed no crime," Lane states in the motion.

“The city did receive two mini goals in 2008,” Lane said today. “This is just a big oversight and not a crime.”

Mini goals are used for youth basketball. They are hoops hung over existing baskets to make the goals lower for children.

Lane’s motion also states Pinal County prosecuting attorney Kristy Hunt knew as early as December 2010 the city had purchased the mini goals in 2008 and had received the purchase order and payment method, but had failed to provide the court and defense with copies of that evidence as mandated by Arizona criminal procedures.

Lane said Hunt was off the case even before he had filed his motion. “I have no idea why she was reassigned. I filed the motion downstairs (at the courthouse), and when I went upstairs she was off the case.”

There will be a hearing on the motion Dec. 16. At that time, pending motions on the other two indictments also will be heard, he said.

The first indictment stems from an incident that allegedly occurred in late August or early September 2008 when McDonald ordered $4,835 in miscellaneous promotional items for the Founders Day event. McDonald then presented a copy of one of his own checks, showing payment for the items, to the Friends of the Maricopa Public Library.

However, Chandler Police Det. Robert Lenz said he contacted Wells Fargo Bank and found the check shown as a copy to Friends of the Maricopa Public Library as proof of purchase never cleared McDonald’s account. According to the report, McDonald then authorized the city to make the payment to the promotional company and pocketed the reimbursement he received from the library committee.