So Wilenchik demanded information from every New Times reporter who'd written critically about Arpaio, not just Dougherty. He issued grand jury subpoenas without actually convening a grand jury — demanding detailed information about the browsing habits of everyone who so much as glimpsed at our Web site. As the paper resisted, Wilenchik attempted to set up that infamous meeting with Judge Baca, a meeting she immediately deemed improper.

Finally, when New Times revealed the contents of the subpoena, the investigation got so out of control that the supposed "victim" on the case sent his men out under the cover of night to arrest New Times' executive editor and CEO in their homes. That one was such an overreach that even Andrew Thomas cried foul: He fired Wilenchik the next day.

The bizarre denouement, though, is that the very actions that drew a public outcry have failed to result in accountability for anyone. When New Times sued, U.S. District Court Judge Susan Bolton found that Arpaio, Thomas, and Wilenchik were all within their rights. It doesn't matter how horrifying their actions; they argued that their offices give them immunity, and last March, Bolton actually agreed.

The State Bar, we know now, has done no better: Andrew Thomas got off the hook by arguing that he'd only appointed Wilenchik. He wasn't responsible for anything after that. (Never mind that he'd chosen as special prosecutor a man with an inherent conflict.) And Wilenchik got off the hook by arguing — well, we still don't know just how he did it. But the fact is, he's home free. The Bar didn't even issue a reprimand.

There's nothing New Times can do about the Bar's decision. But New Times' lawyers are appealing Bolton's ruling, and they make a compelling case that she erred in granting these officials immunity. In a brief filed last Thursday, attorneys Michael Meehan, Don Moon, and Michael Manning argue that Wilenchik lost immunity when he fabricated the existence of a grand jury. They also argue that Andrew Thomas should have never enjoyed immunity in this case: A prosecutor is not entitled to immunity for administrative actions, like hiring or firing employees. He must answer for hiring Wilenchik.

More importantly, the attorneys lay out a First Amendment claim against Arpaio and Wilenchik.

In a memo written to persuade prosecutors to take up the case, Arpaio's own lawyer explained why New Times should be investigated for publishing the sheriff's home address online, when government Web sites with the address have faced no similar persecution.

Unlike New Times, the sheriff's lawyer wrote, those Web sites had not been "historically anti-Arpaio."

So why was New Times the focus of a special prosecutor?

Because we were critical of the sheriff.

The newspaper's lawyers cite a case called White v. Lee, which was decided by the same circuit court now pondering our appeal. In that case, the court held that officials "may not rely on 'investigative authority' to shield investigative actions that chill protected speech and that occur after it is crystal clear that there is no 'case' to 'investigate,'" as New Times lawyers write.

"As here," they add, "White was a case about public officials throwing their weight around in an investigation of citizens who had simply and obviously exercised their First Amendment rights."

The case should shred the officials' defense.

"The press has a right to publish anything in the public domain," Moon explains. "The sheriff's address was all over the Net, he knew it was all over the Net, and the investigation he demanded was a pretext to go after journalists who had questioned his real estate investments and his conduct in office. We don't believe his conduct is protected by immunity."

The State Bar may not have a problem with what Thomas or Wilenchik did. Judge Bolton may not, either.

But the Constitution's framers would surely have a big problem with all three. And we can only hope that the appeals court is smart enough to understand why — and finally, do something about it.

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16 comments
ConfusedCitizen
ConfusedCitizen

As incredible as it sounds, at least at this point Briggs is doing the correct thing (NOT commenting on a pending legal matter) and Sylvia Nobel (and I've met the woman, she is a top-rated kook) is trying to make sure the case is tried in the court of public opinion. Doe-eyed, fawning journalists looking for the next red-meat story aren't subject to such things as rules of evidence and cross-examination, which is why we won't know what the correct outcome is until the suit is settled. Briggs is hardly the only one walking away from Real Estate investments, by the way, nor the only one (lawyer or otherwise) being bankrupted by the housing crisis. The $15,000 in political contributions attached to his wife is almost certainly something done by the firm she works with - and I believe she's a lobbyist as well? That would make it even more logical. But Briggs has been painted with the brush most easily applied, that of the public smear. An educated public might see through this, but one continuously bombarded by poor educational standards and a belief in canary-colored "journalism" will continue to embrace the papers, at least until the stain starts to get on them. I prefer to look towards those held accountable, rather than those who can toss around accusations while hiding behind the sheild of "journalism" to avoid having to support their accusations.

Tina
Tina

Thanks for providing the link to the 2/21/08 New Times "Prelude to a lawsuit...." article. Reading or re-reading it was like a reawakening as to how really bad the MCSO has been for many years now. Unlawful abuses of power, arrogantly and unlawfully denying public records requests (even the smallest of Arizona's governing bodies or agencies know better than to pull that one) and the reminders or clarifications of previous Arpaio actions and "events."

Concerned Citizen
Concerned Citizen

James Bailey, Your comment says it all. If these were doctors, they would have their names posted everywhere and no longer in practice. Lawyers destroy many lives and especially the County Attorney and their prosecutors who obviously have done business as usual for so many decades, they can no longer see themselves. Easy convictions are all that matter along with the cases that "grab" the media headlines -- as they seek higher office and leave their destruction behind.

observer
observer

#10 has my vote. That's how we see it. Waiting for who Thomas sells out next.

Thomas protected himself
Thomas protected himself

Sarah I only take issue with your statement that Wilenchek's actions were so outrageous in regards to the New Times fiasco that Andrew Thomas fired him. He fired himbecuase it made him (Andrew Thomas) look bad. If Thomas had any conscious at all we would not be here. There also would not be 30 other pending complaints. Mr. thomas saw Wilenchek as a political liability. If the sheriff gets indicted it will be interesting if Andy kicks Joe out of bed too!. You wait and watch Thomas is for one person and one person only..... the scary guy he sees in the mirror every morning. He is no public servent. He should not be allowed to practice. I am sure Mr. Wilenchek removed Mr. Thomas from the Christamas card list this year. It's is hard to stay friends when you have been made a scapegoat.

Bubba Law
Bubba Law

If Ms. Noble's assertions are correct, Mr. Briggs and his wife will not be able to discharge the debt. The debt was arguably incurred by embezzlement, which, if proved to the bankruptcy judge, will result in a nondischargabilty ruling. Basically, a debtor cannot discharge a debt incurred by an illicit or illegal act. I would anticipate that Ms. Noble's attorneys are, as we speak, preparing to file an adversary action.

Ms Info
Ms Info

That's crazy that Mark Briggs is still allowed to practice law, but even crazier that he's allowed to help appoint judges. He's still on the Supreme Court's Commission on Appellate Court Appointments.

James Bailey
James Bailey

I've had it with the so-called "honorable" attorneys in this State. It's time to call on all the document preparers out there to band together and form an association that will provide low cost legal services in a coordinated fashion.

When it comes to filing simple matters (UCC forms, LLC or incorporations, land transactions, etc.), a document preparer is capable of giving legal advice just as any lawyer is and they'll charge 1/4 less. It's obvious the bar has no teeth and they have definitely lost my confidence in their ability to do anything to protect the public interest.

If they're so toothless that they won't discipline an attorney who has so clearly breached the ethical rules on the basis of political views of some of the "senior" members of the disciplinary panel, they can't enforce any laws against perfectly capable and educated citizens providing other citizens legal advice.

I'm not calling for a boycott of attorneys in Arizona YET, but a few more screw-ups like this and the legal profession will likely take the place of the "oldest" profession in terms of integrity.

The State Bar of Arizona can NOT police it's own members as so clearly demonstrated in this matter.

When members of the State Bar's disciplinary board are so obviously biased in their views that they can't evaluate "plain as the nose on your face" facts when laid in front of them.

I would hope that a member of the staff (or one of their wives) releases the recordings of the discipline board's deliberations in this matter. WHAT a story that would make.

BTW - There's a listing of those "officers of the court" who ignored the facts on the disciplinary panel page of the state bar www.azbar.org

Call each one of them and ask them WTF!

Coz
Coz

Probably never Tommy, Maricopa County seems quite happy living in it's Nazi Germany world.

>>When, I wonder, will Arizona join as part of the United States of America?

TommyC
TommyC

Another great piece of work, Ms. Fenske. Again, I applaud your courage and efforts and thank you for sharing with us readers the civil and criminal acts perpetrated by MCSO and MCAO.

Chad, I know a 'couple' lawyers who might be ethical and trusted.

Sad stuff about thomas and wilenchik and the state bar. I'm still amazed that the guy was able to generate subpoenas from a grand jury that didn't exist, and the state bar doesn't see a problem with that. But then I guess they don't see a problem with warrantless arrests without demonstrated probable cause.

When, I wonder, will Arizona join as part of the United States of America?

Coz
Coz

Once again all this proves the Arizona Bar is as worthless as tits on a bull.

Chad Snow, Attorney
Chad Snow, Attorney

Great stories, Sarah. The problem with lawyers is that it's the few rotten million that ruin it for the other eleven...

Peter Veeck
Peter Veeck

If people could be self-policing there would be no need for police.

Tina
Tina

Since I'm still fuming over that outrageous Wilenchik subpoena to New Times of a couple years ago (which demanded MY identity as no more than a New Times reader of online articles written about Arpaio's actions) I'll just repeat what I said when the State Bar's decision was made public.

"As a New Times reader of articles reporting on Arpaio's doings, I felt VERY threatened by that all-encompassing "grand jury" subpoena to New Times -- demanding identities of online readers' who accessed any of those articles over a time span of about two years.

THEN when it came out that Wilenchik had not even convened a grand jury before issuing that god-awful subpoena, I could barely contain my rage."

Sarah Fenske's brief summary of the case that New Times lawyers have pulled up for their appeal of the court ruling, looks to be directly on point. Thank you New Times for your perseverance.

 
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