Reflections of the Impeachment Trial of Evan Mecham

By Frederick R. Petti and Danny Adelman

On March 29, 1988, Arizona Attorney Robert L’Ecuyer was being cross-examined by Paul Eckstein, an attorney for the Board of Managers, the five members of the Arizona House of Representatives responsible for prosecuting the articles of impeachment filed against then Governor Evan Mecham in the Arizona Senate.  On direct examination, L’Ecuyer had offered his opinion that it was proper for Mecham to “loan” $80,000 from the Governor’s protocol fund to Mecham’s struggling Pontiac dealership because, among other reasons, Mecham got a higher rate of interest than the protocol fund was otherwise realizing.  In his cross-examination, Eckstein was asking L’Ecuyer about a bar disciplinary proceeding that led to L’Ecuyer’s voluntary retirement from the State Bar of Arizona.  L’Ecuyer had “borrowed” some $5,500 from his trust fund, and his defense was that he was paying a higher rate of interest than the trust fund could otherwise obtain.  Not wanting to answer Eckstein’s questions, L’Ecuyer attempted to read a prepared statement into the record.

Before L’Ecuyer had a chance to read his statement, Arizona Supreme Court Chief Justice Frank Gordon, sitting as the Presiding Officer of the Court of Impeachment, turned to L’Ecuyer, and pointing his gavel, said in a stern tone, “Mr. L’Ecuyer, you’re an attorney.  You know that you’re here to answer questions.  Now, Mr. Leonard [Jerris Leonard, Mecham’s lawyer] will straighten up, I’m sure, anything that your answers might bring misconceptions on, but you have no right to make a statement from the witness stand.  You’re just to answer the questions.”  A properly contrite L’Ecuyer responded by saying, “You’re correct in admonishing me, Your Honor.  I’m sorry.”

As luck would have it, a photographer for the Arizona Republic was in position to capture a photograph of Chief Justice Gordon at the moment when he was pointing his gavel at and admonishing L’Ecuyer, and that photo graced the front page of the Arizona Republic the following morning.  For many Arizonans, that photograph provided a visual record of the man who handled the Mecham impeachment trial with dignity and grace, and made sure that the trial did not become an event that brought shame on Arizona.  What Arizonans do not know is that seconds before the photograph was taken, Justice Gordon popped a hard candy into his mouth and he hated the photograph because he could see the lump the candy made in his cheek.  We know about Justice Gordon’s reaction to the photograph because we had the great fortune to serve as his law clerks during the Mecham impeachment trial.

The Arizona Attorney has asked us to write this article to share our memories of the impeachment trial.  It is hard to believe that twenty years have passed since April 4, 1988, when the Arizona Senate voted to sustain two of the three Articles of Impeachment, thereby removing Mecham from the position of Governor of Arizona.  But they have, and we have decided that this article should be a tribute to the man who, according to all of the thirty state senators who sat as the Court of Impeachment, conducted the proceedings with “dignity, patience, dispatch and most importantly, absolute fairness” – our old boss and friend, Frank X. Gordon, Jr.

A Brief History of Justice Gordon

Justice Gordon was born in Chicago, Illinois, and moved to Kingman, Arizona with his parents, Frank X. Gordon and Lucile G. Gordon, when he was only six months old.  The year was 1929, and Justice Gordon’s father moved his family to Arizona so he could start a new and, at the time, unique business, the sale of title insurance on real property.  Justice Gordon’s father was an attorney, and he took and passed the Arizona bar in 1932.

Justice Gordon often told us about his childhood in Kingman.  According to Justice Gordon, Kingman was a safe town in those days and he and his friends wandered the streets of Kingman freely and knew everyone in town.  In fact, on March 29, 1939 (exactly forty-nine years earlier to the day when he admonished L’Ecuyer), Justice Gordon and a friend were standing on the street in Kingman when a big car pulled up and the man inside asked the boys where there was a church in town.  After providing directions, Justice Gordon and his friend decided to follow the car to the church.  They went inside and watched as Clark Gable married Carole Lumbard, in an otherwise private ceremony.

He also told us fondly about his horse Jim and his dog Bobby.  When he was only 10 years old, Justice Gordon would ride Jim into the hills and he and Bobby would camp out overnight.  He took his .22 rifle and he would kill a rabbit, cook it over a fire and eat it with the watercress he harvested from Beal Springs.  Justice Gordon often said that nothing teaches a boy responsibility like having to fend for himself, while at the same time care for a large animal.

After graduating from Kingman High School, Justice Gordon attended Stanford University, where he once dated another Arizonan in his class, Sandra Day.  Of course, Sandra Day married John O’Connor and was later appointed to the United States Supreme Court by President Ronald Regan.  Many years later at a lawyers meeting in Santa Fe, John O’Connor introduced Justice Gordon to his wife, and Justice Gordon said, “Glad to meet you.”  According to Justice Gordon, Justice O’Connor said, “What do you mean?  Glad to meet me Frank Gordon?  You dated me once at Stanford!”

After graduating from Stanford, he then attended the University of Arizona College of Law, graduating in 1954.  He then served as Kingman City Attorney from 1954-1956, and then entered private practice in Kingman until 1962, when Governor Paul Fannin appointed him to the Mohave County Superior Court.  Governor Raul Castro appointed Justice Gordon to the Arizona Supreme Court in 1975, and he was elected by members of the Court to be Chief Justice in 1987.  He served in the position until he retired from the Court in 1992.

Our Early Research on Impeachment

Mecham was elected Governor on November 4, 1986, having won the election with a 40% plurality, while Democrat Carolyn Warner and Independent Bill Schultz received 34% and 26% respectively.  Mecham was sworn in as Governor on January 6, 1987, and almost immediately thereafter rumors of impeachment began to circulate.  Those rumors took on added significance with the allegation that Mecham had violated Arizona’s campaign finance disclosure laws by failing to disclose a loan he received from an attorney, Barry Wolfson.  Impeachment ceased being just a rumor when in October 1987 the Speaker of the Arizona House of Representatives, Joe Lane, hired William P. French, a former Arizona Superior Court Judge to investigate whether there were sufficient grounds to impeach Mecham.

On January 15, 1988, French delivered a report recommending that Mecham be impeached.  For the next two weeks a Special Committee from the House held hearings to determine whether French’s allegations were sufficient to support a vote of impeachment.  On February 5, 1988, the House voted 46 to 14 to impeach Mecham, finding in Article I of the Articles of Impeachment that Mecham obstructed justice by impeding an investigation of a death threat by a member of Mecham’s staff, in Article II, that Mecham failed to disclose a $350,000 loan to his campaign from Wolfson, and in Article III, that Mecham improperly lent $80,000 from the Governor’s protocol fund to his own automobile dealership.

We first raised the possibility of an impeachment trial with Justice Gordon in early September.  We were walking back from lunch at the Department of Transportation cafeteria (the Judge liked the tuna fish salad served there) and Danny told Justice Gordon that we believed that we were going to get to clerk for him during an impeachment trial.  The Judge laughed and told us that there was no way that the Republican legislature would vote to impeach a Republican Governor, not even one as controversial as Mecham.

The Judge changed his tune after French was hired, and he poked his head in our office one day and asked us to research how an impeachment trial would be held in Arizona.  The Judge told us to spend only a small part of our time on the assignment so we could continue to perform our court duties.  We soon discovered, however, that even though there had been two such trials in Arizona, including a 1964 trial of two Corporation Commissioners at which the Special Prosecutor was William Rehnquist, that Arizona’s Constitution and statutes provided very little guidance, and that the task of establishing a court of impeachment was enormous.

In spite of what we had discovered, Justice Gordon was reluctant to have us start researching impeachment in earnest.  One day, the Judge would ask us to hold off researching until it was more certain that impeachment was imminent.  The next day, he would walk into our office and ask us about the very topic he had just told us to set aside.  After becoming tired of returning books to the library – only to retrieve them the following day – we eventually ignored the Judge and devoted ourselves full time to learning about impeachment.

It turned out that it was a good thing that we had ignored Justice Gordon.  On January 15, 1988, the day French delivered his report to the House of Representatives, the Judge met with the Senate leadership and their legal staff.  At that meeting, much to the Judge’s surprises and amazement, he discovered that the Senators had been even more reluctant than he to research what impeachment was all about, and how the process worked.

Drafting the Rules of Impeachment

Justice Gordon showed his true genius during the Mecham impeachment trial when he realized that the Senate leadership was reluctant to prepare for the impending impeachment trial, for both practical (the Senate needed to finish its legislative work) and political (Mecham posed many problems for the Republican leadership) reasons, and Justice Gordon offered his assistance in helping the Senate to prepare for the impeachment trial.  He met with both Carl Kunasek, the Republican President of the Senate, and Alan Stephens, the Democratic Minority Leader, to discuss how best to draft the rules and procedures for the impeachment trial.  As a result of their discussions, Fred was assigned to work with the Republican caucus and staff lawyers and Danny was assigned to work with the Democratic caucus and staff lawyers.  By meeting with the Senate leadership and developing a working rapport with both parties, Justice Gordon was able to “imbed” his clerks into the drafting process in both caucuses, and guaranteeing that he had a voice in making sure that whatever rules and procedures were established that they were fair and impartial.

For us, the experience was both exhilarating and enlightening.  We were not prepared for the Senators’ lack of understanding of fundamental due process rights or the anger that they felt toward Mecham, not for his actions per se, but for putting them in the uncomfortable position of having to serve as judges in an impeachment trial.  We were also unprepared for the strange and peculiar personalities exhibited by some of the Senators.  Fred soon discovered that one of the Republican Senators believed that he was a “preamble citizen,” meaning that he was a citizen covered by the phrase “we the people” in the Declaration of Independence and, therefore, he could elect to ignore certain laws that “non-preamble citizens” (anybody who wasn’t White, Anglo-Saxon and Protestant) must obey.  For example, registering his automobile or getting a driver’s license.  Danny, learned that one of the Senators in the Democratic caucus regularly carried a hand gun and wanted permission from the Department of Public Safety to carry a concealed weapon onto the Senate floor during the impeachment trial.  Fortunately for all involved, Senator Stephens convinced his colleague that it was not a good idea to carry a weapon during the impeachment proceedings.

In spite of the many unusual thoughts or requests that emerge from the caucuses, Senators Kunasek and Stephens managed to keep their respective parties focused on the task at hand.  Moreover, both Senators Kunasek and Stephens deferred to Justice Gordon on issues of fairness and impartiality.  As a result, what we believe to be a model set of rules of impeachment, were drafted by the Senate legal staff with our assistance.

On February 11, 1998, the Senate convened as a Court of Impeachment for the first time.  During that meeting, the Rules of Impeachment were adopted.  It was also the first time that Justice Gordon presided over the Court of Impeachment, and although he set the tone that night that the impeachment proceedings would be conducted in a dignified and fair manner, it was an extremely stressful evening.  After the Court of Impeachment recessed for the day, we joined Justice Gordon along with Senator Kunasek and Bob Usdane, the Republican Majority Leader, in Senator Kunasek’s conference room, the room Senator Kunasek had turned over to Justice Gordon to serve as our chambers during the impeachment trial.  Justice Gordon remarked that he sure could use a drink, and Senator Kunasek soon produced a bottle of Scotch.  Although Scotch was Justice Gordon’s drink of choice, neither of us had ever tried Scotch.  After two glasses, neither of us was in any position to drive home.  We returned to our office at the Supreme Court and waited a couple hours before getting behind a wheel of a car.  Justice Gordon had been supplied a Department of Public Safety driver because of death threats he had received in connection with the Mecham matter, so he got to go home after the impromptu party broke up in Senator Kunasek’s office.

The Court of Impeachment

On February 29, 1988, the Senate began hearing the first of twenty-three days of testimony, testimony carried live on both television and radio.  In his wonderful law review article on the Mecham impeachment, University of Arizona law professor Robert Glennon wrote the following concerning Justice Gordon:

Gordon set the tone of the proceedings.  Civility, decorum, and impartiality characterized his performance as presiding officer.  A danger in any impeachment trial, and this one in particular, is that the impeachment jury might appear bias or politically motivated.  Gordon’s display of judicial temperament created the unmistakable appearance of neutrality.  Behind the scenes, Gordon told both lawyers and legislators that they were on display, as representatives of their professions, and they should conduct themselves accordingly.[2]

We could not have said it better.

During those twenty-three days of testimony, there were many interesting moments and many interesting stories to tell.  For brevity’s sake, we elected to tell two.  The first involves Paul Eckstein’s cross-examination of Governor Mecham.  The Governor first took the stand on March 17, 1988.  At the start of the lunch break, Tim Delaney, then an associate at Brown and Bain, handed Fred a motion in limine regarding 404(b) evidence that Eckstein wished to use during his cross-examination of Mecham.  The evidence consisted of a civil conviction of Mecham for fraud.  During the lunch break, Justice Gordon asked Danny (still the smartest of the two of us) to read the Arizona 404(b) case on point.  We then discussed the case, and Justice Gordon concluded that he would only permit Eckstein to use the evidence if Mecham testified that he had never been found guilty of lying, cheating or defrauding anyone.

After lunch, Eckstein continued his cross-examination of Governor Mecham.  In response to a question regarding a 1981 lawsuit filed against the Governor, Mecham testified that “nobody has ever found me guilty of lying or cheating or defrauding anyone.”  The Governor had said the exact words that Justice Gordon said Mecham needed to utter before Justice Gordon would permit Eckstein to use his evidence.  As soon as those words left his mouth, Justice Gordon turned his chair away from the Court of Impeachment so that only we could see him.  He then looked at us with a startled expression and mouthed the words, “can you believe it?”  Justice Gordon then allowed Eckstein to impeachment Mecham with a judgment for fraud in which the jury awarded punitive damages against the Governor.

The final story involves a request that Justice Gordon made of Fred right before the Senators voted on the first impeachment charge.  In order to help facilitate the trial, the Senate had printed up the copies of the Rules of Impeachment in a pocket size booklet.  In the days leading up to the vote on the Articles of Impeachment, some of the Senators began asking all involved in the impeachment trial to sign their copy of the rules.  By April 4, everyone, including Justice Gordon, was participating in the signing ritual.

As he was preparing to take the bench and call for the vote on the first Article of Impeachment, Justice Gordon handed Fred his copy of the rules booklet and asked him to get Governor Mecham to sign it.  An incredulous Fred asked the Judge if he was kidding.  Justice Gordon assured Fred that he was not and that Fred needed to go get that booklet signed.  Fred then sheepishly approached Governor Mecham and asked if he would sign Justice Gordon’s rule booklet.  The Governor gave Fred a blank stare, but he took the booklet and signed it.  At that moment, Fred reached into his pocket, pulled out his rule booklet, and said to the Governor, “and would you sign one for Justice Gordon’s grandson?”  The Governor obliged Fred’s request.

After he received his rule book back from Fred, Justice Gordon took the bench and the Senators voted to sustain Article 1 of the Articles of Impeachment by a vote of 21 to 9 and to sustain Article 3 by a vote of 26 to 4.  As a result of Fred’s white lie, he has the last signature of Governor Mecham while he was still the Governor of Arizona.

Conclusion

Over the years, many people have asked us how Justice Gordon would have voted on the question of Mecham’s impeachment.  We don’t know because he never told us.  We, however, would have voted to acquit Mecham on the First Article of Impeachment, the allegation that he had helped cover up a death threat.  To borrow a phrase from Shakespeare, we thought that Article was “full of sound and fury, signifying nothing.”  However, we believe that Governor Mecham did inappropriately take state money from his protocol fund and loaned it to his car dealership.  Accordingly, we would have voted to sustain the Third Article of Impeachment.

It was our singular honor and good fortune to clerk for Justice Gordon during the Mecham impeachment.  We learned much during the impeachment trial and much during our year as clerks for Justice Gordon.  The most important lesson he taught us was that good lawyers always turn square corners and, by doing so, bring honor to our noble profession.  Like the rest of Arizona, we were blessed that Frank X. Gordon, Jr. was the Chief Justice of the Arizona Supreme Court when the Arizona Senate sat as the Court of Impeachment in the matter of the impeachment of Evan Mecham, Governor of the State of Arizona.