Breathtaking Abuse of the Constitution
The initial grand jury subpoena named New Times Media LLC.; that's us, Michael Lacey (right) and Jim Larkin. We founded Phoenix New Times in 1970 in reaction to the war in Vietnam; our newspaper company has since expanded across America. The two of us live here, our kids go to school here, and we begin every day confronting the issues of journalism here. In nearly 40 years of work, this is our first joint byline. (You see, grand juries have their positive side.)
This newspaper and its editorial staff both current and former are the targets of unprecedented grand jury subpoenas dated August 24.
The authorities are also using the grand jury subpoenas in an attempt to research the identity, purchasing habits, and browsing proclivities of our online readership.
It is, we fear, the authorities' belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.
These are the issues as we understand them.
In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat's paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present."
Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.
In addition to the omnibus subpoena, which referred to our writer Stephen Lemons directly, reporters John Dougherty and Paul Rubin were targeted with individual subpoenas.
More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.
Every individual who looked at any story, review, listing, classified, or retail ad over a period of years.
The seemingly picayune matter of Sheriff Arpaio's home address getting printed at the bottom of an opinion column on our Internet site and the very real issue of commercial property investments the sheriff hid from public view have now erupted into a courtroom donnybrook against a backdrop of illegal immigration disputes, Mexican drug cartels, the Minutemen, political ambition, and turf disputes between prosecutors and the judiciary.
And given the diva-like drama that Arpaio attaches to even the mundane, you can add to the grand jury tension the paranoia of a Keystone Kops assassination "plot" against "America's toughest sheriff."
Behind these operatic and public developments, an ethical stain has spread over the secret proceedings of the grand jury.
Special prosecutor Wilenchik has sabotaged the integrity of the investigation.
Not content with using the hidden power of sweeping grand jury subpoenas, the government's lawyer attempted to get the ear of the sitting judge out of earshot of New Times' attorneys.
Special prosecutor Wilenchik used a politically potent emissary in a behind-the-curtain attempt to set up a meeting between the judge overseeing the grand jury and Wilenchik.
In a hastily called hearing October 11, the judge labeled Wilenchik's attempt to set up an ex parte discussion "absolutely inappropriate."
In our humble opinion, 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.
In our deliberations, we faced the obvious: A grand jury investigation is a fearsome thing; a tainted grand jury is a tipping point.
We intend now to break the silence and resist.
This is hardly the first time even if the scope here is breathtaking that law enforcement attempted to use a grand jury to get at the confidential records of reporters or editors. But the contemptuousness of this troika of ambitious politicos is reflected in their attempt to target the readers of New Times.
In a grandiose insult to the Constitution, Arpaio, Thomas, and Wilenchik used the grand jury to subpoena the online profiles of anyone who viewed four specific articles on the sheriff.
The pertinent section of the secret grand jury subpoena reads, in part: "All internet web site information for the Phoenix New Times internet site related to the web pages . . . [four specific articles on the sheriff]. The information should include, but not be limited to: The Internet Protocol addresses of any and all visitors to each page of . . . [four specific articles on the sheriff]. . ."
Energized, perhaps, by this mugging of Constitutional safeguards, Arpaio, Thomas, and Wilenchik then shot the moon. The grand jury subpoena also demands Web site profiles of anyone and everyone who visited New Times online over the past two and a half years, not merely readers who viewed articles on the sheriff.
The subpoena demands: "Any and all documents containing a compilation of aggregate information about the Phoenix New Times Web site created or prepared from January 1, 2004 to the present, including but not limited to :
B) the total number of visitors to the Phoenix New Times website;
C) information obtained from 'cookies,' including, but not limited to, authentication, tracking, and maintaining specific information about users (site preferences, contents of electronic shopping carts, etc.);
D) the Internet Protocol address of anyone that accesses the Phoenix New Times website from January 1, 2004 to the present;
E) the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present;
F) the website a user visited prior to coming to the Phoenix New Times website;
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."
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 Times and 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.
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."
The Arizona Rules of Professional Conduct are unequivocal: "A lawyer shall not communicate ex-parte with such a person (judge, juror, prospective juror) during the proceeding . . ."
Were it not for Judge Anna Baca's impeccable character, her willingness to short-circuit the conversation with friend Carol Turoff at the same time that she made a record of the approach, Wilenchik's brazen tactic would never have surfaced.
And yet he remains the special prosecutor.
There will be many questions about our decision to make public the secret machinations of the special prosecutor armed with grand jury powers.
Consider this: When the wife of a senior member of County Attorney Andrew Thomas' management team feels free to contact the sitting judge, and when the special prosecutor who initiated this idea of an ex-parte meeting sees nothing wrong with conduct his own profession prohibits, we feel compelled to shed light upon these remarkable proceedings.
And make no mistake: Special prosecutor Wilenchik sees nothing wrong with what he did.
Judge Baca told the prosecutor that it was "absolutely inappropriate."
"With all due respect," argued Dennis Wilenchik, "it was absolutely appropriate."
It is little wonder that special prosecutor Wilenchik found nothing inappropriate about his ex parte contact with Judge Baca; his instinct to engage in subversive tactics underscores his lack of professional ethics.
On October 3, precisely one week before Turoff phoned Judge Baca, Wilenchik smeared Superior Court Judge Timothy Ryan in an orchestrated campaign that is part of County Attorney Thomas' anti-illegal immigration strategy.
National media are now writing about GOP efforts to mount a Rovian campaign to embarrass Democrats who are not strident enough in their willingness to crack down on illegal aliens. But County Attorney Thomas mounted such attacks from the earliest moments of his initial campaign for office.
The latest outburst directed at the Maricopa County Superior Court is widely recognized as part of Thomas' preliminary salvos in an anticipated bid for the governor's office.
The attack on Judge Ryan, in which Wilenchik labeled the justice "a danger to public safety," grew out of the courts' efforts to deal with a recently enacted proposition that requires denial of bail to illegal aliens charged with certain felonies. Ryan and other judges are attempting to instill standards that law enforcement must meet in order to establish that a defendant is indeed an illegal alien.
It is hardly a trivial matter. This summer, Arpaio's jail denied admittance to Ramon Delgadillo, who'd worked 25 years as a court translator. Despite his extensive track record, the Sheriff's Office demanded papers that proved he was a naturalized citizen.
Although Arpaio was forced to change jail policy, the confusion underscored the need for coherent and reasonable guidelines while considering bail for suspected illegal aliens.
Wilenchik addressed the issue with such outlandish hostility that there were immediate calls for complaints to be filed against him with the state Bar.
Although Wilenchik's role as hired gun was highlighted by his inability to answer questions from Judge Ryan about the cases in dispute, he nonetheless attacked the judge's questions as "self-serving."
Tellingly, County Attorney Thomas, though unhappy with certain rulings and conduct of Judge Ryan, neither appealed the decisions in question nor asked for judicial review, which are the legal routes for redress.
Instead, members of the news media were notified in advance that they should attend a hearing in Judge Ryan's court. At the hearing, Wilenchik made the incredible demand that Ryan step down from all cases.
Rather than proceeding through normal legal channels, Wilenchik's ad hominem attack marked the beginning of a three-day public assault on the courts by Thomas, highlighted by the grandstanding demand that all 93 judges in Maricopa County be replaced by out-of-county judges.
The presiding judge of the county Superior Court, Barbara Mundell, denied the motion, noting that "no facts to establish bias or prejudice of any, and certainly not all of the 93 judges" was put into evidence.
Still pending, as we went to press, was the effort to remove Judge Ryan individually.
Lost in Wilenchik and Thomas' tactics were the people involved in the cases. As Judge Mundell noted, all the victims, witnesses, and defendants would have suffered unnecessary hardships and delays under Wilenchik's preposterous motion.
Of course, the idea to strike Judge Ryan and his 92 colleagues in Superior Court was pursued with little regard for legal victory but maximum regard for publicity value. And the execution of this media ploy was both heavy-handed and vicious, playing fast and loose with anti-immigrant prejudices.
The same kind of heavy-handed unscrupulousness by Wilenchik was reported by New Times reporter Paul Rubin in the lawyer's recent defamation defense of Sheriff Joe Arpaio ("Below the Belt," September 20).
In the 2004 election, Arpaio's office leaked the accusation that the sheriff's opponent, Dan Saban, now Buckeye's police chief, had raped his adoptive mom 30 years earlier.
In fact, the accusation was leaked to a television reporter before the Sheriff's Office actually investigated the charge. The rape report aired before it was subsequently discredited.
Despite the sleazy behavior of Sheriff Arpaio's henchmen, Saban had little in the way of actual damages and sued only to clear his name. He made a point of not asking for financial compensation.
Rubin's story noted that Wilenchik went well beyond merely defending the sheriff.
"Newsworthy are the extralegal machinations Wilenchik employed outside the courtroom to try to ruin Saban's life," wrote Rubin. "In recent months, Wilenchik sent virulent anti-Saban letters to several authorities, including Governor Janet Napolitano, Attorney General Terry Goddard, the Buckeye Town Council, the Mesa Police Department (Saban's longtime former employer) and the Arizona Peace Officer Standards and Training Board, the state police-certification agency known as POST.
"The missives are filled with malevolent innuendo and, in many instances, outright misinformation and disinformation."
The story goes on to detail the content of Wilenchik's letters, which have nothing to do with the defense of Sheriff Arpaio in the courtroom and everything to do with destroying Police Chief Saban.
Citing public documents, Rubin also detailed Wilenchik's employment by the county, as well as his recent hiring to pursue the investigation of New Times' putting Sheriff Arpaio's home address on the Internet. The article never mentioned the existence of the grand jury. While it recounted the nearly three-year-old controversy over Arpaio's address, it did not state the address.
Though Saban lost his quixotic suit, he told Rubin, "I still think it was very important to shine the light on this sheriff and what he and his people are capable of doing."
Twenty-four hours after this article appeared, special prosecutor Wilenchik obtained a grand jury subpoena for Paul Rubin, too.
The subpoena demanded "All document, records and files" associated with the writing and editing of this story, as well as conversations and meetings related to the publishing of it.
It is impossible to view Rubin's grand jury subpoena as anything other than what it was: an act of vengeance by Wilenchik.
Elected in 1992, Joe Arpaio, "America's toughest sheriff," drew the attention of our writers and then-columnist Tom Fitzpatrick right from the start.
Over a cup of coffee, the newly elected Sheriff asked how he might "get next to" Fitzpatrick, who had resurrected Arpaio's old nickname from when he served with the Drug Enforcement Agency: "Nickel Bag Joe," a reference to Arpaio's fondness for penny-ante busts.
In fact, neither Sheriff Arpaio nor anyone else could get next to Fitzpatrick.
Sheriff Arpaio had no better luck with any of our other writers.
While voters lapped up the sheriff's harsh approach to inmates in his jails from forcing them to wear pink underwear, to feeding them oxidized, green bologna, to working them in chain gangs, to housing inmates in tents New Times writers pointed out that the cruelty and violence in Arpaio's lockups prompted Amnesty International's first investigation in America.
And people continued to die under Arpaio's care. Crippled people, blind people, people out of their minds. Local attorney Michael Manning has collected nearly $20 million in damages from the county over inmates killed in Arpaio's custody.
When Arpaio stood yet again for election in 2004, New Times' relationship with the sheriff was 12 years old.
Sheriff Arpaio hid nearly $790,000 in cold hard cash in three real estate investments that former New Times staff writer John Dougherty discovered in July 2004, in the middle of a heated primary election.
Arpaio stashed an indeterminate amount of cash in another six parcels of commercial and residential real estate.
With more than a million dollars invested, how could there not be questions?
Columnist Dougherty wondered how a public servant surviving on a $78,000 sheriff's salary and a government retirement check could afford such an investment portfolio.
It was not a pointless query. In 12 years overseeing (at the time) a $140 million law enforcement empire, Arpaio had never suffered a thorough audit by the county.
Perhaps the sheriff inherited a fortune from a distant relative.
A paper trail that should have been public would have reassured voters.
But the normal public real estate records maintained by the government were not available when it came to Sheriff Arpaio.
He used an arcane statute meant to conceal home addresses of law enforcement officials to shield his investments.
Sheriff Arpaio petitioned the court and obtained an order, but rather than merely delete his home address, he removed all the information about all his commercial properties. The redacted records covered such data as deeds, mortgages, affidavits of value, and conveyances of title.
"It's because of all the death threats," Arpaio explained to Dougherty in the summer of 2004. Of course, that's what America's toughest sheriff says about most things, though it hardly explains how hiding commercial real estate transactions created safety.
During the same time the sheriff's commercial property records were hidden from the public, his home address was there for anybody interested to see on the County Recorder's, county Elections Department and the Arizona Corporation Commission Web sites. The address was also on myriad other sites on the Internet.
To underscore just how far the sheriff had perverted the law, Dougherty included Arpaio's home address, which he had learned from the other Internet sites, at the end of the second item of his column.
There is another fascinating aspect to all this. There is a second arcane Arizona law that put us at odds with Sheriff Arpaio.
That law says you cannot publish a law enforcement officer's address on the World Wide Web. Yet it is perfectly legal to publish an officer's home address in your newspaper, or on a billboard. You can broadcast that address on radio or television.
Like every other news organization we are aware of, the content of our newspaper goes up on our Web site automatically. Now almost three years after the fact, this criminal law, a Class 5 felony, provided a tool for special prosecutor Dennis Wilenchik to serve our organization with a total of three grand jury subpoenas.
Because we've been no less critical of County Attorney Andrew Thomas' policies than we have of Sheriff Arpaio's, the top prosecutor declared a conflict of interest and initially shipped out the alleged Class 5 felony to Pinal County, where it languished for nearly two years before it was punted back to Maricopa County.
At one point, prosecutors in Pinal County agreed that perhaps the best solution was for New Times to file a Constitutional challenge to the Web site statute.
Then the cockamamie card was played.
A Mexican drug cartel acting on behalf of the Minutemen through the intercession of a pro-immigration rights radio talk show host intended to assassinate Arpaio, according to a sheriff's office investigation detailed on the front page of the Sunday, October 7, edition of the Arizona Republic.
Now just think about this for a second. The Minutemen hate Mexicans sneaking across the border. They are even less fond if the Mexicans are smuggling drugs.
And we are supposed to believe that the Minutemen, seldom associated with unexplained stashes of bling, agreed to a $3 million assassination fee and put 50 percent down?
And that this was brokered by Elias Bermudez, a talk radio host, former mayor of Mexican border town San Luis Rio Colorado in Sonora, and an outspoken critic of Sheriff Arpaio and, obviously, no fan of the Minutemen?
And a key linchpin in this comic book farce was a teenage girl in a prep school in Hartford, Connecticut, who was an exchange student at one point in San Luis. If the drug cartel needed to contact the Minutemen "for any reason," they could use a particular e-mail address . . . which, as the officers discovered, belonged to a kid in a private school.
Sheriff's deputies combed the poor child's computer, as well as her prep school. Nothing.
Did we mention that the genesis of this fantasy was a confidential source from the border who failed the pivotal polygraph question about whether he was telling the truth about a plot to off Sheriff Arpaio?
The thread to all this was that the Minutemen wanted to stir up hostility to immigrants for shooting Arpaio. It was never clear how this was going to be blamed upon mojados, but that was hardly the most glaring question.
Or as Chris Simcox told the morning newspaper, "Look, Joe Arpaio is like a hero to us as Minutemen. Why would we want to go against the toughest sheriff in the country?"
When quizzed by the Republic, Chief Larry Black in charge of the unit that works threat assessment and evaluates the wave of fist-shaking directed at Arpaio admitted that not a single, factual lead from the confidential source checked out.
"No, it didn't," Black told the newspaper. "And it was killing us."
Just like it was killing Arpaio's threat-assessment boys in 2003 when prosecutors took hapless James Saville to trial for "plotting" to kill Arpaio. Jurors wound up deciding that deputies set up the assassin, coaxing and entrapping him. Saville was acquitted ("The Plot to Assassinate Arpaio," August 5, 1999).
Then there was the time Arpaio identified a threat upon his life that turned out to be an art student's sculpture of a spider left upon his lawn.
Half a million dollars and almost 17,000 hours later, the latest investigation of the Minutemen/Bermudez caper has gone nowhere, but yet the case remains open.
Coincidentally, we guess, New Times' alleged Class 5 felony bounced out of Pinal County and back into County Attorney Thomas' office at just about the time Arpaio was putting on his helmet and moving from one hotel to another to avoid the reputed gunslingers from the Mexican drug cartels.
According to the disappeared confidential informant, none of whose claims could be verified, Los Zetas, the enforcement arm of Mexican drug smugglers, knew where Sheriff Arpaio lived.
As these coincidences began to congeal: Los Zetas knew where Arpaio lives, New Times knows where Arpaio lives, conceivably New Times readers know where Arpaio lives . . .
BAM. GRAND JURY.
Or maybe these events are not related at all.
Maybe Dennis Wilenchik and Andy Thomas and Joe Arpaio just believe that even though the sheriff's home address is all over the Internet, is readily available on several government Web sites and is not much of a secret at all, that New Times and its readers should be keelhauled before a grand jury.
Dennis Wilenchik recently filed papers with the judge arguing against our motion to open up the proceedings.
We are told to trust the process.
In 2004, John Dougherty filed public-records requests in the middle of the sheriff's contested election. He wanted public information in nine separate areas, from the death of a prisoner to the accounting for the millions of dollars that flowed through jail vending machines.
Arpaio's office refused to produce any records until we filed a lawsuit.
None of the information was produced in time for the election.
But we worked with the system and stayed with the lawsuit, and today, three years later, we are still waiting for the resolution within the courts.
The election is long over.
Special prosecutor Dennis Wilenchik argued in his paperwork that if we didn't like the intrusiveness of the subpoenas, we had choices within the system.
When Dennis Wilenchik surreptitiously contacted the judge presiding over our grand jury, he argued that we should not be alarmed.
"If there is prosecutorial misconduct in the proceedings, petitioners have remedies for that. Just ask Mike Nifong, the Duke [University] lacrosse players' prosecutor," wrote Wilenchik in his response to our motion to remove him from the case.
That's our remedy? Look to Duke? Look to the case where the defendants' lives were ruined, jobs lost, educations canceled, fortunes squandered on attorneys, reputations smeared, and the landscape scorched with the due process of the law?
When Dennis Wilenchik doesn't understand that his behavior is "absolutely inappropriate," we want to take our chances not with the process but with the public.
In 1970, we started this newspaper because we believed in the public's right to know.
Nothing has changed.
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