Breathtaking Abuse of the Constitution

Joe Arpaio, Andy Thomas and Dennis Wilenchik hit New Times with grand jury subpoenas

G) the date and time of a visit by a user to the Phoenix New Times website;

H) the type of browser used by each visitor (Internet Explorer, Mozilla, Netscape Navigator, Firefox, etc.) to the Phoenix New Times website; and

I) the type of operating system used by each visitor to the Phoenix New Times website."

Sheriff Joe Arpaio hid information about his commercial property, but his home address was listed on myriad Internet sites before New Times ever published it.
Jackie Mercandetti
Sheriff Joe Arpaio hid information about his commercial property, but his home address was listed on myriad Internet sites before New Times ever published it.
County attorney Andy Thomas has been criticized repeatedly by New Times columnists: now he's got his friend and former employer prosecuting the paper.
County attorney Andy Thomas has been criticized repeatedly by New Times columnists: now he's got his friend and former employer prosecuting the paper.


Special prosecutor Wilenchik wants this information on each and every New Times reader online since 2004.

New Times attorneys Tom and Janey Henze responded to the grand jury subpoenas with a motion to quash the overwhelmingly intrusive effort by authorities to seize the newspaper's confidential records, and a motion to make the subpoena public.

While this motion is under consideration by the court, the paper's attorneys asked that the subpoenas be stayed — that is, held in check — until a decision is rendered.

The Henzes further asked the court to remove Wilenchik from the case for conflicts of interest, including disparaging e-mails he wrote about New Timesand writer John Dougherty. This would not end the grand jury probe, but merely compel County Attorney Thomas to find a prosecutor without a recent history of gross bias, conflict of interest, and inappropriate behavior.

Attorney Michael Meehan, also representing New Times, filed briefs in federal court challenging the constitutionality of the state statute prohibiting publication of home addresses of law enforcement officials on the World Wide Web.

Wilenchik resisted these efforts and filed a countermotion to strike presiding Maricopa County Criminal Court Judge Anna Baca from the case. He also filed paperwork asking for a hearing to show cause why New Times should not be held in contempt for our refusal to turn over any records.

While these motions were pending, Wilenchik, in a wildly inflammatory move, had an intermediary phone Judge Baca on October 10 to suggest a meeting.


"I have no idea why Mr. Wilenchik wanted to speak to me," Judge Anna Baca told a rapt audience of attorneys and grand jury targets from New Times at a hearing inside a locked-down courtroom on Thursday, October 11.

The judge called the hastily convened hearing within hours of receiving the call at her home.

Clearly agitated, the judge characterized the contact as "inappropriate."

Political operative Carol Turoff phoned Baca at the judge's residence the Wednesday evening before the hearing.

According to Baca, Turoff said special prosecutor Dennis Wilenchik wished to speak with the judge.

Baca quickly put an end to the conversation with Turoff explaining that she refused to listen to any such proposal.

"I was taken aback that I got such a call," said Baca.

Indeed. Within hours, the judge notified all parties that she wanted an immediate status hearing in her closed courtroom.

Carol Turoff, who phoned Baca, is a recent two-term member of the Commission on Appellate Court Appointments. During her eight years of service, she helped select four of the five sitting Arizona Supreme Court justices. Additionally, she deliberated on the selection of 17 judges of the Arizona Court of Appeals. While her term expired in 2004, she has remained highly active politically and was an early supporter of County Attorney Andrew Thomas.

Larry Turoff, her husband, was appointed a senior member of County Attorney Thomas' management team following the election.

Faced with the judge's declaration from the bench that she'd been contacted by a seasoned political operative whose very fields of influence were judicial appointments — not to mention pillow-talk insight into the prosecutor's office — Wilenchik was equal parts insulting, evasive, and defiant.

The special prosecutor said initially that since he had not participated in the conversation between Turoff and Baca, he could not say that it was an accurate recounting.

"It is, counsel," countered the judge, who pointed out that she had taken notes.

"I did not order or tell Carol Turoff to do anything," said Wilenchik.

Baca pointed out that Turoff revealed that the idea of a meeting between the special prosecutor and the judge was not Carol Turoff's idea but, in fact, originated with Wilenchik.

The special prosecutor rambled a bit as he attempted to suggest that he really had not wanted to discuss any of the grand jury proceedings with Judge Baca. He was more interested, he claimed, in "a global conversation" about relations between the courts and the County Attorney's Office.

Even if he'd suggested as much to Turoff, such an implausible alibi would hardly have laundered his attempt to have a private huddle with the judge. The relationship between the Superior Court, Wilenchik, and the County Attorney was itself the subject of sensitive motions, making Wilenchik's approach to Baca unethical, no matter which explanation he selected.

And the fact of the matter is that the subject in front of Judge Baca was New Times.

Already facing unprecedented grand jury subpoenas that threatened the newspaper's independence, those of us present in the courtroom now faced the obvious conclusion that special prosecutor Wilenchik attempted to subvert the process by getting to the judge.

Wilenchik's attempt to contact the judge outside the presence of our attorneys is not a gray area.

Lawyers have a term for this behavior: ex parte, or " . . . one side only, as in a controversy; in the interest of one party."

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