He Just Doesn't Get It
Disgraced "special prosecutor" Dennis Wilenchik responded last week to critics with a talking-in-tongues defense reminiscent of Robert De Niro's divine delirium as he sank beneath the waters in Cape Fear. Wilenchik dispatched a press release filled with astonishing and devious assertions. What Wilenchik lacked in clarity he compensated for with length. He rambled on for a mind-numbing eight pages (as befits a barrister who keeps an oil painting of his own head).
Wilenchik's stunning retort foreshadows the defense he will use in the State Bar's investigation of ethics complaints filed by fellow attorneys outraged at his conduct.
Even in those isolated places where Wilenchik stumbled onto the truth, his admissions simply compounded his original breech. (The full retort is available here.)
Yes, he admits, he intentionally subpoenaed the identity of anyone who'd read New Times online over the past four years.
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"It is critical to understand that at no time did we seek to learn who had hit the web site for any purpose at all other than . . ." writes Wilenchik. He then goes on at length to explain the reasons why he wanted to violate people's privacy.
He doesn't get it; you can't abuse individuals' constitutional rights simply because you think you have a good reason.
Christians have a good reason why they want to establish Christ as our personal savior: They don't want you to burn in Hell for eternity.
But the Constitution protects us from the law-abiding as well as the God-fearing.
Likewise, Wilenchik agreed that he did, indeed, ask Carol Turoff to contact the sitting judge, Anna Baca, during the New Times grand jury probe.
"My discussion with Carol Turoff . . . She was to determine only if the court had any interest in any such discussion," said Wilenchik, who claimed he only wished to discuss issues of court reform.
He doesn't get it; the law does not tolerate certain ex parte discussions; it tolerates no ex parte discussions.
Judge Baca called the contact "highly inappropriate."
In fact, virtually everything about Wilenchik's inquisition was inappropriate.
How did a panel of ordinary citizens, a grand jury, bring us to such a place that free people cannot read a newspaper without government threat?
The answer ought to give pause: There was no grand jury; there was only Dennis Wilenchik.
And he was utterly ruthless. Why?
Remember, the paper's alleged infraction did not involve a crack cocaine ring. The transgression was a newspaper article that ended up online nearly 3 1/2 years ago.
Yet the men with the badges and the men with the writs were every bit as menacing as the men with the glass pipes.
Prosecutors are supposed to assist grand juries.
Instead, Dennis Wilenchik anointed himself the grand jury.
Wilenchik simply issued breathtakingly invasive subpoenas without any knowledge or oversight by the grand jury. No grand jury saw any part of this case. Arguably, no panel of citizens would have ever agreed to subpoenas that abused the rights of anyone who read a newspaper.
When the judge revealed that Wilenchik tried to contact her covertly, my partner and I made a decision: We wrote a story revealing the grand jury subpoenas.
Wilenchik and his apparatchiks then ordered the arrest of my partner, New Times CEO Jim Larkin, and myself.
Undercover officers from the Maricopa County Sheriff's Office, exquisitely named the Selective Enforcement Unit, banged on the doors of our homes and led us off to jail in handcuffs.
And why not?
For years, local prosecutors and deputies have chipped away with impunity at the Bill of Rights contained in the Constitution not to mention at human decency in an unrelenting grind of prisoners, migrants, political opponents, reporters, editors, judges, and, finally, readers.
Is it any wonder that the special prosecutor felt bulletproof?
Wilenchik wrote up a grand jury subpoena apparently on his own authority on August 24, demanding the identity of anyone, and everyone, who'd viewed New Times online since January 1, 2004. His grand jury subpoena also demanded to know what other Web sites our readers viewed, what variety of things they read in our paper, and the online shopping habits of our readers.
The original grand jury subpoena (one of three; the others went to specific New Times reporters) further targeted this newspaper's writers and editors, demanding nearly four years' worth of notebooks, memos, records, or any other paperwork involving any story we'd published about Sheriff Joe Arpaio.
The alleged crime was simple: In the 2004 election, we published a story that revealed that Sheriff Joe Arpaio owned more than a million dollars of commercial real estate, the details of which were hidden. He did this by utilizing an obscure statute that permits law enforcement to hide a home address for security reasons. The sheriff exploited this statute to mask his commercial wheeling and dealing.
When our story went online, we became vulnerable to the vindictive accusation that we violated state law.
Never mind that the sheriff's address is widely available on the Internet, including on official state government Web sites; never mind that the only threats we are aware of were entirely bogus. We'd given the prosecutor an opening, albeit a 3 1/2-year-old opening.
While reporters' sources were placed at risk by the grand jury subpoenas, it was clear that public outrage focused on law enforcement efforts to identify newspaper readers and their online habits.
County Attorney Andrew Thomas fired Wilenchik as special prosecutor the day after our arrests though he's still being used on county civil cases. Judge Baca then convened a hearing to consider the release of all grand jury documents at the request of the Arizona Republic and Channel 12, joined by New Times and the State Bar of Arizona.
In a dramatic turn of events, Judge Baca's questioning of Chief Assistant County Attorney Sally Wells revealed that no grand jury had ever reviewed any of Wilenchik's effort. He never met with the jurors. Wilenchik was little more than a rogue wolverine.
Wilenchik evaded case law and statute.
The Arizona Supreme Court made clear in 1982 that "before subpoenaing witnesses or evidence," prosecutors "must obtain the consent of that grand jury.
"[A] prosecutor may not exercise dominion over those investigations by evading the grand jury's will . . . Our Legislature, in its wisdom, chose by more restrictive legislation not to allow state and county prosecutors to investigate on their own initiative."
The Legislature later gave prosecutors more discretion. But even with more rope, Wilenchik still managed to violate state statute by ignoring the law that requires him to, at minimum, report his activity to the grand jury and to the judge.
Today, Arizona law allows a prosecutor to issue a subpoena without prior grand jury review. But prosecutors must report to the grand jury foreman and the presiding judge of the Superior Court the existence of any subpoena within 10 days of issuing it.
Wilenchik did neither.
We are accustomed to scoundrels who hide behind patriotism. Today, however, local miscreants abuse the Constitution, break the law, invade our privacy, threaten their political opposition, endanger our most cherished rights and then hide behind their children.
By the end of last week, both Thomas and Wilenchik used their families to invoke their status as victims.
Thomas called a press conference claiming that a daily newspaper blog endangered his children because the writer provided a link to a government Web site showing the prosecutor's home address (see The Bird this week).
Wilenchik's mealy conclusion to his personal War and Peace was that those who "tarnished" his reputation sought to "thereby harm my family."
Their familial concerns are theatrical, belated, and one-sided.
When my partner, Jim Larkin, was led off in handcuffs in the middle of the night from his home, his young children were inside. As his horrified wife watched, he was driven away in an unmarked car with license plates from Sonora, Mexico. Little wonder that she worried that her husband was being taken for ransom by the smugglers who are so frequently in the news.
Let each of us consider our families yet remain focused upon the issue.
When you speak of assaults upon the Constitution, you run the risk of being identified as a crank, a tax resister, a prisoner. Worse, you raise a problem so trapped in the robes of history as to exceed the grasp of the individual.
Not so here.
The State Bar of Arizona needs to hear your thoughts about both Wilenchik and Thomas.
In Jim Harrison's recent novel, Returning To Earth, he quotes one man saying this: "You have to learn to ignore the disastrous big picture and come down to the singular . . . cast your role as a screwdriver rather than a tank."
So it is with the local assault upon the Constitution.
Consider less Jefferson and Holmes; consider more your pen and pad.
As I wrapped up last Friday night, a janitor came into my office and emptied out the trash basket with notes and uneasy drafts of this column.
When he spoke, I could not help but think that this man knew better than most the sort of war that Arpaio and Thomas have waged against migrants.
Then he smiled broadly.
It is also, I hope, a great beginning.
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