Orgy of Excess

The Pima County Office of Court Appointed Counsel—in other
words, you, the taxpayer—paid more than $800,000 to
unsuccessfully defend Maryanne Chisholm against fraud charges.

As far as anybody knows, that’s a local record.

Veteran defense attorney Brick Storts—Chisholm’s current
attorney, hired by her family after scrounging up the funds to secure
his services—does not understand why the bill for Chisholm’s
public defense was so high.

Storts is something of an expert in such matters. He defended Brad
Schwartz during his trial for the murder of Dr. David Stidham. He also
defended John Montenegro Cruz, who currently sits on death row for
killing Tucson Police Officer Patrick Hardesty in 2003.

Caryn Caramella, the administrative services manager for the
county’s Office of Court Appointed Counsel, confirmed that the only
cases she can remotely compare to Chisholm’s, cost-wise, involve those
defendants facing murder charges and the death penalty.

Chisholm was convicted in 2005 after a seven-week trial in Pima
County Superior Court on more than 50 counts related to fraud and
selling illegal stocks in her company. She was sentenced to more than
27 years in prison.

The 2005 trial marked the end of a five-year investigation by the
Arizona Attorney General’s Office that garnered statewide attention,
after Chisholm was accused of stealing millions of dollars to fuel a
lifestyle of expensive art, cars and jewelry.

The AG accused Chisholm of conning $24 million from investors in
Safari Media, the company she owned and started with her husband in the
mid-1990s. Back then, everyone wanted to get in on the dot-com boom by
playing venture capitalist. Safari Media seemed poised for success; it
was an Internet-based company that focused on Web and software design,
with a music division that worked on the dance-club techno and trance
music trend.

Trouble for Maryanne and Mark Chisholm began in 1997, when the
Washington state Department of Financial Institutions issued a
cease-and-desist order to the company regarding the sale of
unregistered securities by unregistered salespersons. Shortly
thereafter, the Arizona Attorney General’s Office filed a lawsuit
against the company, claiming that more than $14 million was illegally
raised by more than 500 investors in Arizona from 1997 to 1999.

The AG criminal investigation painted a picture of the Chisholms as
a couple surrounded by excess—spending millions on cars, homes,
furniture, art, jewelry and clothing. In business, they rewarded
inexperienced staff members with high salaries and cars, and paid for
lavish work trips to do music-division promotional parties—that
some say were drug-fueled—in Phoenix, New York and Spain. When
Chisholm was convicted, Judge Christopher Browning wagged a verbal
finger at them by describing what took place as “an obscene orgy of
excess.”

Chisholm doesn’t deny that she and her husband spent millions of
dollars to live well and run their company. However, she contends she’s
innocent of the charges brought forward by the AG’s office.

The result would have been different, she says, if the $800,000-plus
in taxpayer funds had paid for an effective legal defense attorney to
begin with.

The Tucson Weekly is still waiting for a visitation request
to be approved by the Arizona Department of Corrections, but talked to
the inmate by telephone. Her mother, Jane Allen, has a cell phone with
an approved phone number that Chisholm can call, collect, in 15-minute
increments.

“In earnest, Andrew Diodati is a kind man, but an absolutely
horrible attorney,” Chisholm says, describing her attorney.

Chisholm says the problem boils down to one fact: Her court-appointed
attorney’s bulk of experience came in defending DUI cases.

“He was over his head,” Chisholm quips.

Diodati did not return calls asking for comment regarding Chisholm’s
appeal and accusations regarding his work as her defense attorney.

Chisholm says Diodati constantly missed deadlines for important
motions—except for motions that he had to file in order to get
paid. He was sanctioned or fined by the court during Chisholm’s last
trial because of his lack of organization, and Chisholm recalls Diodati
admitting to her as they headed into court that he had gone through
only 10 percent of the 100,000 pages of discovery after five years as
her attorney.

During those five years, Diodati handled two trials. Chisholm says,
chronologically, the first trial to go to court should have been the
securities-fraud case, but a federal case was allowed to go first. That
federal case involved two paintings the Chisholms were accused of
hiding after they filed bankruptcy.

The couple was convicted—and that was the only time her
husband, Mark, was ever implicated in the legal morass. He was jailed
for six months; because of this first conviction, Chisholm says, she
was unable to speak on her own behalf during the second trial without
the possibility of the AG charging her with perjury.

“Andy said (Assistant Attorney General) John Evans told him he hoped
I would take the stand so he could get me for perjury, but then Andy
never objected,” Chisholm recalls.

Storts has examined the case as he prepares for an appeal, and what
troubles him most isn’t necessarily Diodati’s lack of preparation and
organization, he says. He’s most bothered by the cost of a
court-appointed paralegal—who billed Pima County $196,000 for her
services.

“For a paralegal?” Storts asks. “That’s a cost I’ve never heard
of.”

Also troubling is the use of a computer program called CaseMap. The
program was first brought to Chisholm’s attention when Diodati told her
it could help organize the discovery in her case and help him with the
defense.

Storts says CaseMap, however, was never used—but Diodati
nonetheless billed the court $60,000 for CaseMap data entry. Chisholm
says that Diodati told her that the court didn’t approve the purchase
of the program.

In an affidavit provided to the AG’s office for their response to
Storts’ appeal petition, Diodati says that he found the computer
software “not useful enough in appropriately distilling the information
necessary for the defense of the charges.”

“In my discretion, I chose not to use the CaseMap system at either
trial,” Diodati wrote.

While Storts’ appeal suggests that Diodati didn’t do a good job,
according to the Arizona State Bar, Diodati has only faced one
disciplinary action, but many previous complaints.

Last year, Diodati was suspended for 60 days for writing two
non-sufficient checks against his legal trust account; he admitted to
the bar that he didn’t keep adequate records. In a third count, Diodati
was reprimanded for failing to provide timely disclosures to opposing
lawyers, in violation of a court order.

The disciplinary action summary lists physical and mental
disabilities as mitigating factors, and notes that Diodati showed
remorse and gave full disclosure in an effort to remedy the
complaint.

Caramella says that Diodati has not had a contract with her office
to do indigent public defense for several years, because he has not
applied for a new contract

Like a typical proud mother, Jane Allen lines up photographs of her
daughter’s paintings and points out details, like the title of each
work scribbled in the back of each picture in her daughter’s
handwriting.

Her face lights up as she points to a picture of pine trees and
several bears out in the middle of a forest. At her eastside home, she
displays a series of portraits of women surrounded in a cascade of
colorful leaves or butterflies.

“Some of these have sold,” Allen mentions, pointing to the
portraits.

Those sales are to prison visitors who see Chisholm’s work displayed
in the visitation area of Perryville, the prison in Goodyear, Ariz.,
where Allen’s daughter spends her days painting and teaching other
inmates how to paint and draw. The money from the paintings goes toward
the $21 million in restitution she owes after her conviction.

Allen says she is counting on Storts to win an appeal, which would
allow Chisholm a new trial.

“While we watched what took place, we couldn’t imagine that this is
what the legal system was really like. This was justice?” Allen
says.

After writing more than 60 friends for help, Chisholm’s mother was
able to raise $39,900—enough to pay Storts.

On a buffet in the family’s living room, photos sit between vases
and other knickknacks, but there’s one photo in particular that stands
out: a picture of a self-portrait of Chisholm dressed in prison orange,
with her blonde hair pulled back and her face bright and smiling. The
work, Allen says, was done on cloth by Chisholm in prison.

Besides Storts, Allen is her daughter’s biggest advocate right now.
She keeps in touch with Storts regarding the appeal and makes trips to
Goodyear a couple of times each month—along with Chisholm’s
oldest son, one of Chisholm’s three children—to visit.

“I’m almost 80,” Allen says in a British accent, even though she’s
lived in Arizona for more than 38 years. “You feel so helpless in a
case like this.”

Allen says her son-in-law is on probation and works two jobs while
raising the three children. The family is trying to keep its head above
water—but it has been difficult. Allen says she and her husband
have had their own costs to deal with regarding Chisholm’s case,
including the money it takes to visit and accept collect calls.

Allen says she tries to help out by having everyone over for Sunday
dinners and driving her granddaughter to summer camp.

“Those visits are important. Still getting together as a family is
important. They keep us all sane,” Allen says.

When asked if she thinks her daughter is innocent, Allen looks down
at her daughter’s self-portrait and says, “She’s a very big-hearted
person.”

One issue is that the court never allowed testimony about Chisholm’s
bipolar disorder, which Allen says, in hindsight, may have played a big
part in how her daughter lived and ran her company.

“She didn’t have the experience she needed to run this kind of
business. She didn’t know what she was doing, and people took advantage
of that,” Allen says.

On the phone from Perryville, Chisholm says she’s let go of the anger
she felt during her trial.

“Ultimately, this was my company, and I was responsible for what
happened. While I didn’t do anything illegal, I didn’t do a good job,
and I counted on other people to do the right thing,” Chisholm
says.

When the AG’s office brought charges against Chisholm, they also
charged Thuc Nguyen, a deaf Vietnamese immigrant hired by Chisholm to
work for Safari Media.

Nguyen agreed to testify against Chisholm and spent less than three
years in prison. Nguyen hoodwinked hundreds of deaf investors into
buying fake shares of Safari Media by holding deaf-investor workshops
in Washington and Utah. Nguyen posed as an authorized share broker and
sold $12 million in Safari shares. Chisholm says nobody in the company
knew about them.

“When he pled in Utah, he stated he acted alone, but that changed
when he arrived in Arizona,” Chisholm says.

Over the phone, as Chisholm thinks about Nguyen and her business,
she admits that she would have gone about her defense efforts
differently.

“I think if there’s one thing prison has taught me, is that perhaps
I was too defensive during the case. I should have spoken out less.
I’ve learned that sometimes, being quiet says more.”

She’s says she’s spent her time in prison getting better at her art
and thinking about how she can make up the time she’s lost to her
children.

“There’s no way I can make up for what happened, what was taken away
from them, but I want to try. My family has stood by me through all of
this. When I get out, I want a chance to repay them.”

Assistant Attorney General John Evans says he does not know how much
the prosecution of Chisholm’s case cost the state, but the high cost of
defending the case doesn’t surprise him.

“You’re dealing with a $24 million case,” he says, referring to the
millions of dollars Chisholm was convicted of stealing. “There was a
lot involved to prosecute and to defend. We had to fly out-of-state
witnesses in during the trial, and it was a long investigation.”

Evans claims Chisholm is continuing to use the same old arguments in
hopes of getting a new trial. Judge Christopher Browning, the last
judge to hear Storts’ argument before the case moved to the Court of
Appeals, ruled against Chisholm.

“In the last ruling from Judge Browning, he agreed that the attorney
had all these problems and spent all this money, but determined that
(Chisholm) still wasn’t prejudiced. … That’s really the bottom line
in all of this.”

If Storts were to win Chisholm a new trial, Evans says he does not
expect much to change regarding what the AG brings before the
court.

“Did you read the articles in the New Times?” Evans asks,
referring to two articles written in the Phoenix alternative newsweekly
about the Chisholms and the AG investigation. “Those are some great
pictures.”

The articles, written in 2000 and 2001, refer to accounts by former
Safari Media employees regarding out-of-control spending. In one
article, when Evans was asked why Chisholm’s husband was not going to
be tried regarding the $24 million in securities fraud, he told the
reporter that it was difficult to figure out what role Mark had,
“because he comes across so flighty.” (See www.phoenixnewtimes.com/2000-09-07/news/ecstatic-fall/
and www.phoenixnewtimes.com/2001-10-18/news/from-ecstasy-to-agony/.)

Allen claims a grand jury early in the case determined there was not
enough evidence to pursue her son-in-law, and that his personality had
nothing to do with it.

Chisholm says she looks back at those stories with much regret.

“We invited that reporter into our home, hoping he would get a
better idea of who we were. In the end, I think they just wanted a
story about raves and drugs, and that’s what they wrote,” Chisholm
says.

She says she understands that when her case is discussed, many
people will continue to focus on the parties, which she frames as
promotional events for the company’s music division. She denies that
the parties were raves and says that employees were not provided with
Ecstasy left and right.

Allen says she was told Evans offered Chisholm a plea deal at one
point: 10 years if her daughter pled guilty. Later, Allen was told that
Chisholm could have received a deal of three to five years, but that
never happened.

Evans says there was a deal discussed during a settlement conference
for a three-to-five-year sentence, but the two sides never came to an
actual agreement. When the federal case came up regarding the paintings
and the bankruptcy, Evans says his office withdrew the plea.

Allen says she’s not sure if her daughter would have accepted a deal
in any case, because she never felt she was guilty.

“The primary charge was that she started a business with the intent
to defraud people,” Allen says. “She did not have that intent. She
started a business to provide an income for her family.”

This article appears in Jul 2-8, 2009.