Judge Anna Baca delivered her stern rebuke in genteel tones. She described the abuses of the grand jury process committed by since-"fired" Special Prosecutor Dennis Wilenchik in his investigation of New Times as threatening to the average citizen.
"It's a serious situation in terms of the protection I believe the Legislature meant to give anybody who got a subpoena," lectured Baca. The judge's comments foreshadowed a formal, written opinion expected in days.
Wilenchik issued four grand jury subpoenas from August through September that demanded New Times reporters' notes, going back to 2004, on every story published about controversial Sheriff Joe Arpaio.
In an unprecedented attack upon the Constitution, Wilenchik also subpoenaed newspaper records that could identify anyone who had read New Times online.
Yet none of the subpoenas were filed with the judge. And, in fact, no grand jury ever reviewed any evidence.
This newspaper and its readers' first safeguard resided in the possibility that the foreman of the grand jury or the judge might have reviewed those subpoenas with alarm and quashed the intrusion as an insult to the Constitution.
As initially reported in this column, Wilenchik ignored Supreme Court guidelines and state law in his zeal to prosecute this newspaper.
Wilenchik simply took the law into his own hands and became a one-man grand jury, as well as prosecutor. Before it was all over, he jailed the leadership of this newspaper.
Judge, jury, and executioner, so to speak.
A hearing on November 26 made simple the extraordinary contempt the Maricopa County Attorney's Office had, and has, for even the flimsiest checks and balances that protect citizens from the ominous authority of a grand jury.
In fact, Deputy County Attorney Sally Wolfgang Wells offered a defense that contradicted her previous explanations at a hearing last month. Her position at the most recent hearing was less artful than shameless.
On October 24, Wells had explained in open court that the grand jury subpoenas would be found in their proper place.
"Those originals are kept by . . . in a folder that is assigned to the clerk. There's a clerk on the grand jury panel, and those originals should be kept in a folder with that clerk until the grand jury expires and, at that time, they are returned to my office," Wells said.
One month later, she was unable to produce the subpoenas or any evidence of notice to the judge. While there was certification of two of the six subpoenas to a grand jury foreman, this partial compliance was moot because there was no grand jury; hence, there was no review by either judge or jury.
Caught having to defend the renegade prosecution of Wilenchik, Wells maintained that the law did not say what it clearly said. To make matters worse, she alibied that her office had done things this way for 25 years.
The prospect of a grand jury process operating without prosecutorial constraint for a quarter-century is startling. Yet the players involved downplayed the transgressions coming to light in Baca's court.
After the latest hearing, Special Assistant County Attorney Barnett Lotstein underscored this cavalier approach when he characterized the impact of the grand jury subpoenas upon New Times and its readers as "no harm, no foul."
Lotstein, both a spokesman for the office as well as a senior consultant on its political agenda, succinctly captured the office's perspective upon constitutional safeguards. In fact, his comment echoes previous sentiments expressed by Wilenchik himself weeks ago.
The former special prosecutor reiterated his position on the day of the latest hearing.
"I believe this is all much ado about nothing," Wilenchik said in an e-mail to this newspaper. (Wilenchik was "fired" from handling criminal cases by County Attorney Andrew Thomas following public outrage last month over the New Times case, but he continues to work for Thomas on civil matters.)
In this week's issue, Sarah Fenske reports that Sheriff Joe Arpaio and the County Attorney's Office have attacked political rivals from the head of the Arizona Civil Liberties Union to state legislators to the state's attorney general to campaign workers to candidates running against the sheriff.
The political investigations extend back to Arpaio's first years and continue today without a grand jury. These witch hunts have been no less threatening to the constitutional rights of free speech exercised by those who raised voices in opposition.
Unlike ours, those voices are largely silent today.
The sheriff and the county attorney swept aside their victims and the Bill of Rights.
So, of course, when law enforcement came after the notes of reporters, as well as the identity of newspaper readers, when they jailed journalists who wrote about the subpoenas, when they were discovered to have abused the grand jury process, they could say, sincerely: no harm, no foul; much ado about nothing.
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