Can't you just see Thomas' office trying the same argument if another "independent" prosecutor chafes at their attempts of control? Hey, they can't tell you anything about their discussions with our office — that's attorney-client privilege!
Thomas fought hard to seal Wilenchik's responses to the Bar. But while Thomas was successful in making sure the 16-page letter wasn't used in the case against him, he failed on a bigger front: It's now part of the Wilenchik file. So are affidavits from two lawyers working for Wilenchik, Adam Polson and Rob Somers.
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Fresh off a series of major losses, Andrew Thomas is trying to pick another fight with the board of supervisors.
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And now that the Wilenchik file is open to the public, we can see why Thomas was fighting so hard to keep the document under wraps.
Because, despite Thomas' protestations to the contrary, the documents suggest that Thomas' office definitely consulted on the decision to arrest New Times' executive editor and CEO.
New Times published details of Wilenchik's invasive subpoenas on October 18, 2007. That very day, a group of lawyers at Wilenchik's firm met to discuss the situation. And, according to Polson's affidavit, they got the chief of Thomas' special crimes bureau, Vicky Kratovil, to join them by phone.
"Kratovil also called in or we called her to discuss hypothetical charges against the authors of the article," Polson wrote.
Later that afternoon, Wilenchik got a call from Chief Deputy David Hendershott.
At that point, Wilenchik wrote, Hendershott had already spoken with someone high up in Thomas' office — Chief Assistant County Attorney Sally Wells.
"[Hendershott] called to say he had talked with Sally Wells and she had told him to contact us regarding the arrest," he wrote.
After that phone call, Hendershott sent a deputy to Wilenchik's law firm. Wilenchik introduced the deputy to his staff.
One of the lawyers working for Wilenchik, Rob Somers, later recalled the day's events in an affidavit.
"It was my understanding from Mr. Wilenchik's introduction that the Maricopa County Attorney's Office had advised Chief Hendershott that our office should be involved in any matters relating to the New Times violations of law," Somers wrote.
But, according to affidavits from Somers and others in the room, the lawyers present actually instructed the deputy to issue citations to New Times executives, not make arrests. When they learned of the arrests the next morning, they assumed that Wilenchik must have made the call later.
Not so: According to both Wilenchik and Hendershott, it was all Hendershott.
And Hendershott, we now know, consulted Sally Wells before he ever sent his deputy over to Wilenchik's office.
What did Wells say? Did she give Hendershott advice, or did she just immediately send him over to Wilenchik?
We don't know. We may never know.
But we do know an independent prosecutor when we see one — and it's clear from the Bar files that Wilenchik wasn't one. The Sheriff's Office was running back and forth between Wilenchik and Thomas' top aides. Wilenchik's staff consulted a deputy county attorney the day of the arrests. Hendershott was in contact with Wells. Everybody was mixed up in the same stew.
Really, it reminds me of how Thomas' deputy, Lisa Aubuchon, continued to advise the sheriff on the case against Supervisor Stapley, even after Thomas booted the case to Sheila Polk.
Barnett Lotstein can swear on his grandmother's grave that his office wouldn't meddle with any new independent deputy county attorneys. I don't believe him. I don't believe anyone in the Maricopa County Attorney's Office, not anymore.
These cases will never be independent unless they go to county attorneys outside Maricopa County. Thomas fooled us once by appointing Wilenchik as special prosecutor. He would have fooled us twice if only Sheila Polk had kept her mouth shut and made nice.
We surely aren't naive enough to let him do it again. Are we?
