This left Lacey and Larkin with a tough decision, one they summed up in the 2007 article that spurred their arrests.
"In our humble opinion," they wrote, "Wilenchik's clumsy intervention behind the scenes with the judge was well beyond 'inappropriate.' Wilenchik's behavior raised the issue of an attempt to rig a grand jury already veiled in official secrecy.
Tony Blei
Lacey with reporters after his release from jail.
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"In our deliberations, we faced the obvious: A grand jury investigation is a fearsome thing; a tainted grand jury is a tipping point."
Violating grand jury secrecy is a misdemeanor. The law primarily exists to protect those under investigation, not to create a star-chamber accountable to no one.
But as we all later learned, there was no grand jury.
And yet Wilenchik sought warrants, and Arpaio's Selective Enforcement Unit — used primarily to go after his political enemies — was ordered to arrest the execs under the cover of darkness.
Lacey was arrested in front of his girlfriend. Larkin before his wife, who was threatened with arrest by SEU members for arguing with them. This, as the Larkins' children slept in another part of their home.
The Larkins had spent that evening celebrating their 15th wedding anniversary. But Larkin ended up spending much of the night in the custody of MCSO goons, who lectured him on the sanctity of grand jury proceedings, despite the absence of any actual grand jury in the case.
"I just sat there and took it," said Larkin at the time. "I didn't want to argue with [them]. I think the First Amendment trumps grand jury secrecy."
While Larkin was being harangued, Lacey was getting thrown into Sheriff Joe's Fourth Avenue Jail, only to be released early the next morning.
A scrum of reporters met him. Lacey referred to his arrest as "Mr. Toad's Wild Ride," the dark, chaotic Disneyland attraction.
"One guy said, 'What are you in for, DUI?" Lacey recalled of a cellmate. "I said, 'Nah, I'm in here for writing.'"
He reminded fellow journalists that the story was about Wilenchik's illegal subpoenas, which sought the "the identity, the browsing habits, the buying habits" of New Times' readers.
"The fact that they have subpoenaed that kind of information . . . is what the story's about," he told them. "It's not about me getting out of jail at four in the morning."
And there are still much larger issues involved.
The Ninth Circuit's majority opinion left Wilenchik on the hook for violations of the Fourth and First amendments to the U.S. Constitution.
Thomas, as mentioned, scored absolute immunity. But as he's currently looking down the barrel of disbarment this fall — when a disciplinary panel of the State Bar of Arizona will review his numerous ethical and allegedly illegal practices — he's hardly escaping unscathed.
But what about Arpaio?
The majority found that the sheriff had qualified immunity from civil liability, insisting in its ruling that certain facts were in dispute as to who ordered the arrests.
True, Arpaio's fired and highly indictable former chief deputy, David Hendershott, once asserted, in what probably was an attempt to block a path to his boss, that he ordered the late-night arrests.
"Hendershott has fallen on his sword so many times for Arpaio that you have to feel sorry for the sword," said Lacey while discussing the Ninth Circuit's decision. "I think the tale is far from told, as far as levels of responsibility here."
As far as who ordered what and when, Lacey said, these issues rightly should be taken up during depositions and other discovery.
The most conservative member of the Ninth Circuit's three-judge panel likely was Judge Jay Bybee, whose name is synonymous with the so-called "torture memos" written during President George W. Bush's administration, the ones that allowed water-boarding to be used on detainees at Guantanamo Bay.
Bybee signed the protocols as an assistant U.S. attorney general. Still, as a judge, Bybee shows sympathy for the underdog in the New Times case. He dissented from the majority and blasted Arpaio's involvement in the Lacey-Larkin arrests, which he labeled a "sordid tale of public abuse of office."
The conservative jurist agreed with the majority on Thomas' immunity, but he stated he would prefer seeing the action against Arpaio proceed. This alone gives New Times hope of prevailing with the larger en banc panel.
There also was bad news for Arpaio in the majority's opinion, which green-lights the corresponding lawsuit in the state courts and remands part of the case back to Bolton in federal court.
Though the two-judge majority agreed with Bolton's dismissal of New Times' claims against Arpaio, the judges' footnote to the statement mentioned that the plaintiffs could conceivably "develop sufficient facts" to file an amended claim before Bolton.
Which New Times plans to do.
It'll then be Bolton's call, but it bears observing that Arpaio's maniacal appetite for revenge was the driving force behind everything Thomas, Hendershott, and Wilenchik did.
As with Arpaio's vendettas — against the Maricopa County Board of Supervisors, Phoenix Mayor Phil Gordon, and other enemies — the sheriff's lust for retribution overpowered all other factors.
Indeed, all switchbacks lead to one man — the one with the stars on his collar.
