Joe Arpaios men fail to justify criminally charging New Times reporter Ray Stern in a public records dispute
When I read our lawyer's interviews with the deputies in Maricopa County Sheriff Joe Arpaio's most notorious division, I had one question: Who staged this piece of theater?
You too can read, for the first time, excerpts of deposition statements from Arpaio's leaders and foot soldiers. The chiefs and deputies drift between truculence, amnesia, and chivalry. The dialogue is worthy of David Mamet.
But that's just my take (and I have an obvious conflict of interest). You can decide for yourself whether the sheriff's men sound scripted.
The deputies from the Selective Enforcement Unit were deposed because County Attorney Andrew Thomas rolled over and allowed Sheriff Joe Arpaio to file criminal charges against New Times journalist Ray Stern.
Our writer had started to photograph public records in the office of Michele Iafrate, the lawyer who filters Arpaio's paperwork for media scrutiny.
Iafrate forbade Stern from copying the public documents with his camera. When he questioned her decision, he was evicted from the office.
Stern's cheek triggered yet another assault by county law enforcement on Arizona's public records statute.
Following Iafrate's power play over the public records, Arpaio's elite, plainclothes deputies appeared at Stern's home about 8 that night and presented him with a criminal complaint for disorderly conduct. He was accused of making unreasonable noise. They threatened that he would be jailed if he did not sign the papers.
In addition to the remarkable transcripts from Arpaio's deputies, we also present for your inspection a surprise witness. Originally a critical part of the sheriff's case against Stern, this woman actually confirms the reporter's claim that he was civil throughout the impasse in Iafrate's office.
Furthermore, the surprise witness claims that other prosecution witnesses were coerced into giving testimony against Stern.
The plot contains one other startling twist: Arpaio's own attorney will undermine the sheriff's case.
Ray Stern was home with his two young children on October 18 when the deputies knocked. Their residence is not the usual crime scene. His wife, who smokes neither crack nor meth, and has no apparent tattoos, was absent that evening to teach her class, "Mothers Who Write."
Though charged with a criminal offense, Stern was not led off to jail. He was allowed to sign the complaint. Perhaps the presence of a developmentally disabled youngster and her 6-year-old sister induced some level of restraint. Or, perhaps, the deputies were in a hurry and did not wish to waste time placing the kids with Child Protective Services over a misdemeanor.
After the deputies' departure, they rushed off to Jim Larkin's home.
Larkin, this newspaper's CEO, and I were arrested and hauled off to jail that night for revealing in a New Times cover story the existence of an illegal grand jury that had subpoenaed the notes of our reporters as well as the identity of readers who had viewed New Times online. Our cover story ("Breathtaking Abuse of the Constitution") hit the streets early that morning, October 18.
The same morning our story appeared, Stern had, coincidentally, pointed out to attorney Iafrate that Arizona's public records law contains no prohibition against photographing public records. He did not curse. He did not yell. He did not threaten anyone. His crime was temerity and impertinence. He stands accused of making unreasonable noise.
Emerging from jail, I found the news media in a frenzy and the public in an uproar. Later that day, County Attorney Andrew Thomas hastily called a press conference, killed the illegal grand jury, fired the lawyer behind the grand jury, and dropped all charges against Larkin and myself.
Thomas, however, quietly allowed the criminal proceedings against Stern to proceed. Claiming a conflict of interest, the county attorney kicked the prosecution over to the City of Phoenix, which recently booted the case to the City of Mesa. Because he had not been taken to jail — only cited — Stern was off the public's radar screen.
While the subsequent lawsuit against county authorities (filed because of our arrest) received extensive attention, Stern's court case remained invisible.
Deputy Chief Sheriff Scott Freeman oversees the Special Investigations Division, wherein reside the men who serve in the department's Selective Enforcement Unit.
These few men secure the safety of Arpaio, self-proclaimed "America's toughest sheriff." They protect Arpaio from bombs, bullets, knives, blunt instruments, shrapnel, improvised explosive devices, assassinations, and the dark thoughts and deeds of the tens of thousands of hombres forced to wear pink underwear while incarcerated in a county jail or tent.
The two men who showed up on Stern's porch on October 18 were from the Selective Enforcement Unit.
When New Times lawyer Steve Suskin questioned Chief Freeman on May 29 about Stern's citation, the chief, despite 25 years of service, remembered not a single thing.
He did not remember whether the reporter was from a television station. Or whether the reporter had a gun. Or whether the reporter was from New Times. Or whether the reporter was Ray Stern. He did not remember whether he'd spoken to attorney Michele Iafrate about a disorderly conduct complaint. He did not remember who on the 19th floor — where the sheriff's command staff has offices — might have told him about the alleged crime.
Upper management might not remember, but they are not clueless. If you do not remember, you cannot be accused of lying. You cannot be contradicted. You cannot be charged with perjury. You certainly cannot be accused of participating in a conspiracy.
By contrast, consider the deposition of Sergeant Jerry Gentry. His memory is not perfect; there is much he forgets. But some things he does remember clearly.
Sergeant Gentry remembered that he was informed of the alleged disturbance of the peace by Freeman rather than by the alleged victim, Michele Iafrate.
He further remembered that the disturbance occurred shortly after 9 a.m. yet he was not contacted by Freeman until shortly before noon. This detail sticks with Sergeant Gentry because he promptly phoned Iafrate, who was at lunch.
The roughly three-hour gap between the alleged disturbance of the peace and Sergeant Gentry's call to the alleged victim, Michele Iafrate, will prove, ultimately, to be a busy time on the 19th floor for Arpaio's brain trust.
In fact, there was so much activity that no one, least of all Chief Freeman, can precisely recall what happened. Clearly, the discussion that would lead to the arrest of Larkin and me was already under way.
Asked whether he was aware of his unit's investigation regarding our grand jury article the very morning he was contacting Iafrate, Sergeant Gentry replied, "Well, it's an obvious yes. I did."
The lost three hours at central command is simply called, for now, "the gap."
For example, during "the gap," Sergeant Gentry cannot recall who it was in the Sheriff's Office that Michele Iafrate contacted about Ray Stern's behavior.
Suskin: "She had made some contact with the MCSO prior to the conversation you had with her, right?"
Gentry: "She must have."
Suskin: "And did you then understand . . . who it is that she called at the Maricopa County Sheriff's Office to initiate this?"
Gentry: "I don't know."
Suskin: "You don't recall her telling you in your conversations with her on the phone that day?"
Gentry: "No, I didn't ask her, 'Whom did she call?' And she didn't know whom she called or what number she called or anything like that."
So . . . Sergeant Gentry did not ask. And even if he did ask — which he did not — she did not know. Sergeant Gentry did know that much.
Gentry also knew that Ray Stern cussed and swore in Iafrate's office.
Gentry: "She [Michele Iafrate] called me back and told me that Ray Stern had been there. And had been disruptive . . . he was there to review some records. And that he had gotten disorderly and used profanity and gotten loud and had intimidated some of the employees in her office."
Asked about the cussing, Gentry again confirmed the swearing. Not once but repeatedly.
Suskin: "Okay, you specifically recall her telling you in this conversation that he used profanity."
Gentry: "Yes, profanity, definitely."
Suskin: "That sticks out in your mind?"
Though Chief Freeman remembers nothing, Gentry, a Selective Enforcement Unit middle manager, recalled just enough to be contradicted by a grunt, Detective John Graham, who remembers many details.
Detective Graham was dispatched by Gentry to conduct the actual investigation at the crime scene, the offices of lawyer Michele Iafrate.
Unlike other witnesses, Detective Graham admits that he knows precisely who Ray Stern is and where Ray Stern works.
It does not take a trick question to learn that Detective Graham even reads the newspaper that employs Stern.
Detective Graham is equally candid that his investigation was, frankly, unprecedented. He simply could not remember ever before being sent to investigate something so picayune; after all, he is a member of the Selective Enforcement Unit, and targeting this type of crime was not normally his duty: "I don't recall having been dispatched for a disorderly conduct."
Furthermore, the witness was adamant that Ray Stern used no profanity.
"If [Stern] had said a cuss word to a lady," testified the courtly Detective Graham, "it would have been in my report."
Detective Graham's report mentions no profanity.
Asked about the contradiction to his testimony, Sergeant Gentry backtracks and acknowledges that, in any case, profanity is beside the point.
"I don't think [profanity] matters at all," countered Gentry. "It's the volume and the way he was . . . [Stern] refused to leave. And argumentative, loud argumentative."
Actually, Gentry is mistaken about that, too; no one claimed that Stern refused to leave.
Detective Graham interviewed five women at the Iafrate law offices and, according to his report, not a single one alleged that Stern refused to leave.
In fact, according to the official report, he repeatedly asked on his way out the door: "Why are you kicking me out?"
Detective Graham's report quotes Stern only on a single other note. Michele Iafrate remembered the reporter departing with a withering rejoinder upon his lips: "Good luck with your [law] practice."
An ironic tone? Surely. Argumentative? Perhaps.
Whether any attorney should suffer argument, let alone irony, begs the question: Is this disorderly conduct or merely disorderly conversation?
It is here that we must pause to consider terror.
"I believe that Mr. Stern raised his voice . . . which made other people in the building concerned . . . of their safety," testified Detective Graham.
In his report, Detective Graham wrote: "Ray Stern disturbed several employees in a normally quiet business by unnecessarily raising his voice to a level which caused concern for the safety of another employee."
But when interviewed about his report and his recollection of how the women in the law firm described the Stern incident, Detective Graham cannot pinpoint anyone who was actually terrorized.
The primary witness, Carrie Shehorn?
"Well, I don't know if I would actually consider her, what she told me, as being scared. Iafrate told me she was 'rattled,'" recalled Detective Graham.
"Was Courtney [Coleman] scared?"
"I don't believe she was, no," said Detective Graham.
"I don't believe she was scared, no. She was concerned," recalled Detective Graham.
In his report, Detective Graham identified one witness, Beverly, who was so agitated that she considered calling for help.
"Beverly told me she didn't know if she should stay in the basement or come upstairs to see what was going on," wrote Detective Graham about the Stern commotion. "Beverly told me she contemplated calling 911 because she wasn't sure what was going on."
Based upon this, Detective Graham concluded Beverly was scared, though he also admits she never used the word scared.
In reality, Beverly was concerned.
But she was not frightened by Ray Stern.
Beverly was frightened by her boss, Michele Iafrate.
We know this because, in an unsolicited e-mail, Beverly contacted New Times.
"I witnessed the alleged 'disorderly conduct' incident on or about 10/18/08," Beverly Goodman wrote in a letter. "Moreover, I have information that some Iafrate employees were coerced into making less-than-truthful statements to an MCSO law enforcement officer who was summoned."
According to Goodman, the other women in the office, the paralegals and secretaries, took their cues from attorney Michele Iafrate.
Goodman once made the mistake of returning to the law firm with a copy of New Times and was reprimanded — not by Iafrate, but by one of the other women more experienced in the office culture — for reading the paper.
Goodman said the tone at the office came from the top.
"I was told by Michele's assistant that we don't like the New Times," said Goodman. "We don't read the New Times. At first, I thought she was joking. I mean, I like reading the New Times. But it was very clear to me that Michele didn't like New Times, so we weren't supposed to read New Times."
Moreover, everyone at the law firm knew Stern was with New Times and that he was coming to Iafrate's office to review potentially embarrassing documents of the sheriff's.
"I knew someone from the New Times was coming. And there was a big hullabaloo," testified Goodman.
She explained that the staff was geared up for "some sort of confrontation."
What is a legal office without a bit of drama? Why was Goodman convinced that Iafrate had steered the statements of witnesses? What happened as the deputy arrived?
"Carrie Shehorn came into our office," recalled Goodman. "And she told Jill, 'Oh, he's here. He's here' [referring to Detective Graham]."
These were not the first citizens to have ever become anxious at the arrival of a law enforcement officer. But Goodman felt Iafrate clearly signaled to her staff what she expected them to say.
Goodman's answers are both atmospheric and specific.
"They [the other women in the office] just really like Michele," said Goodman of the environment. "Everything Michele liked, they liked."
But there was more to this than just a vibe.
"It's difficult to answer if you don't know this culture," explained Goodman. "Michele recapped, while we were all standing there, what she believed happened . . . That this guy had come in. And from what she was saying, it sounded like she was saying that he had threatened them. And was refusing to leave, and he had been doing something wrong . . . she flat-out said that he had been refusing to leave."
One woman already had said that she did not witness anything.
"I believe it was Courtney," said Goodman.
Iafrate's comment, Goodman claimed, was that this staff person "still needed to give a statement."
"Courtney told me that she could hear yelling and went into the conference room to make sure that everything was all right," wrote Detective Graham in his report.
Well, now . . . Is this coercing witnesses, coaching employees, or simply the mark of an attorney with excellent leadership qualities?
From another perspective, let's cast a gimlet eye upon Ms. Goodman. She worked at the firm for only two months before losing her position.
But even if you characterize Ms. Goodman as that most peptic observer — a disgruntled former employee — her direct testimony, as opposed to her judgments upon office culture, is troubling.
In her deposition, she informed New Times that she never considered calling 911. She was never frightened by Stern's behavior; Stern was not abusive or loud. In fact, she could barely hear him. The only voices she'd heard were those of the women who worked for Iafrate, and Iafrate's.
"I don't recall saying, 'Call 911,'" said Goodman in her interview. "There was nothing that Ray Stern did that would have caused me to think about calling 911."
Asked whether she'd heard any "commotion, yelling, screaming, or curse words of any kind," Goodman repeatedly answered with one word: "No!"
Goodman explained to our attorney that she was nervous about walking past the room where Stern was because Michele Iafrate was demanding that the reporter leave.
But it was not Stern that gave her pause.
Goodman did not wish to get caught in the crossfire with her boss. Though she could not understand why they would evict Stern and had been concerned about this, she was clear that Stern did not cause a scene.
"He was . . . He looked a little puzzled, I guess. I mean, he was trying to explain to her that there is no statute prohibiting whatever it was, photos or whatever," said Goodman.
Suskin: "And so then, did he leave?"
Iafrate did not respond to a request for comment.
New Times sued Arpaio in the fall of 2004 over the lawman's refusal to produce public records involving nine separate cases.
Beginning that May, in a run-up to the fall primary election, New Times reporter John Dougherty filed public records requests that Arpaio's staff ignored.
Dougherty sought paperwork regarding jail deaths, the multimillion-dollar vending machine business in Arpaio's jail, SWAT team incidents, building contracts, employee records, and favoritism shown to celebrities convicted of drunk driving.
It is critical to note that Arpaio produced records only after the election, and then only after we filed suit.
The records produced were incomplete.
The state court of appeals decided that the paperwork was not promptly furnished, as required by law, and has ordered the county Superior Court to consider New Times' request for attorney's fees.
The sheriff is appealing to the Arizona Supreme Court.
Today, more than four years after our original request for public records, the case is yet to be resolved.
The sheriff has been represented by Michele Iafrate, the very same attorney in the middle of the unreasonable noise charge against Ray Stern.
The Appellate Court's decision in the Dougherty case contained language that is worth keeping in mind as you consider the Stern prosecution:
"If the court determines that a person was wrongfully denied access to or the right to copy a public record and if the court finds that the custodian of such public record acted in bad faith, or in an arbitrary or capricious manner, the superior court may award to the petitioner legal costs, including reasonable attorney fees."
We must wait for the courts to determine whether taking a photograph of a public record is anything other than copying. Iafrate's bad faith, or lack thereof, also awaits judgment.
But the documented record of outright defiance of the law in the Dougherty records requests is a matter of court record
On July 2004, Dougherty requested the paperwork on the death of an inmate in Arpaio's jail.
The sheriff's director of media relations, Lisa Allen, handled the request. Here is her testimony:
Allen: "I was told that there was no death. I told Dougherty, and I figured that was the end of it."
Attorney: "Even though you learned a few days later that there was a death?"
Allen: "Even though I learned different."
The court noted: "She also testified that MCSO made no records regarding the death at the jail until three months after it occurred, but then testified that she 'honestly did not know what paperwork was available' between the death on July 9 and the release of the records on October 14 because she did not look."
Responding to a tip, Dougherty filed a request to determine whether prominent individuals or supporters of Arpaio convicted of DUIs were given favorable housing in a Mesa county jail facility instead of the harsher, open-air Tent City.
When Arpaio stalled, the court ordered the sheriff to produce the most knowledgeable person on the Mesa inmates. Instead, Arpaio produced a witness who knew less than Dougherty.
Attorney: "If you want to know on any given day what individuals are in the East Mesa Jail Facility, is it possible for you to find that out from the computer?
Lieutenant Edmund Shepard: "Not me. I don't have access."
Attorney: "There's no way to determine who is in the District One Jail on any given day?"
Shepard: "I can only answer by saying I have no idea how to get it out of there."
In summation, attorneys for New Times pointed out a rather extraordinary matter of record.
"The sheriff: never claimed that the papers sought were not public record; never claimed that one single page was privileged; never claimed that the privacy interests of any person was involved; never claimed that production of any page would impede investigations; never raised any other contention that disclosure would not be in the 'best interest of the state'; never claimed that the records were withheld because redactions were necessary; never said that public records could not be disclosed until a judicial in camera examination occurred to determine what records qualified for public access; and throughout the litigation, raised no other justification for withholding records."
Actually, that last point is not entirely accurate.
Lisa Allen made her justification plain.
Attorney: "So, because you were angry, because you didn't like what Dougherty published, you didn't respond to the request for 142 days, correct?"
Allen: "I didn't really want to communicate with him during that period of time."
Attorney: "So the answer to my question is, that's correct?"
Attorney: "That's why you didn't respond. Is that right?"
It's striking to me how obfuscation and delay have been replaced by darker tactics. The press is now often menaced and threatened in pursuit of the public's right to know.
For example, the editor of Phoenix Magazine, Ashlea Deahl, described for readers a threatening phone call she received from County Attorney Andrew Thomas' then-special prosecutor, Dennis Wilenchik, last year.
After venting about the magazine's intention to profile Arpaio's election rival, Dan Saban, Wilenchik demanded an advance copy of the story that he could review.
"The cherry on top? Wilenchik wanted to let us know that he knows someone with our magazine has personal ties to a prisoner in one of Sheriff Joe's jails (another story altogether)," wrote Deahl. "There was nothing more to it — no direct threat — but the context was there: Watch what you print about my buddy and boss, Sheriff Joe."
The sheriff's attorney felt free to suggest that the editor's former boyfriend, then incarcerated on unrelated charges, would feel the consequences of her magazine's articles.
This year, Joe Dana of Channel 12 vigorously pursued the sheriff's questionable exchange program with law enforcement units in Honduras. In pursuit of that story, he examined the relationship between Chief Deputy David Hendershott and a vendor, Hummingbird Defense Systems, and the vast expenditures involving Arpaio's office and their Central American counterparts.
Approached for a response at a public meeting, Hendershott refused comment. Instead, he accused Dana of criminal conduct.
"Are you willing to tell me why you impersonated me to achieve my personal financial records, when I was personally on vacation? Are you prepared to tell me how you broke a Class 6 felony law in this state to three people? You broke the law!" accused Arpaio's second-in-command.
Dana explained in his report that he had no idea what Hendershott was talking about.
But given the number of Arpaio's political foes who have been jailed, and given that, eight months before this exchange, the sheriff arrested and jailed two journalists and cited a third for criminal conduct, Hendershott's questions are more threatening than rhetorical.
The latest chapters of the struggle by the media for access to public records occurs against the backdrop of an unprecedented civil rights fight on the streets of Phoenix. These sordid events led to a second attack upon Ray Stern.
At a César Chávez luncheon in March, Phoenix Mayor Phil Gordon had decried the sweeps of Mexican neighborhoods for illegals conducted by Sheriff Arpaio as part of County Attorney Andrew Thomas' election pledge to purge Maricopa County of Hispanic immigrants.
"The posse didn't lock up murderers," noted the mayor. "They locked up people with broken tail lights." And then deported them.
Mayor Gordon subsequently asked the Justice Department to look into allegations of racial profiling by Arpaio and his deputies.
On Arpil 9, the New York Times excoriated Arpaio and urged Congress to subpoena the sheriff to account for the roundups of Hispanics.
The sheriff did not hesitate for a moment.
He lashed out at the critic responsible for the unwelcome attention.
On April 24, his men filed a public records request seeking six months' worth of the mayor's e-mails, cell phone records, and meeting-calendar entries. The demand included a call for similar documents from Phoenix Police Chief Jack Harris and City Manager Frank Fairbanks.
On June 11, New Times' Stern received a tip that the sheriff's deputies had shown up at City Hall to inspect the records.
The two deputies present did not intend to pay for copies of the nearly 10,000 e-mails produced by the mayor's office. Taking a page from Stern's book, they intended to make their own copies; instead of a camera, however, the deputies brought a portable copying device. No one objected this time.
The cooperation at City Hall, however, did not prevent a confrontation. Once again, Sheriff Arpaio's men threatened to arrest Stern.
The reporter asked to inspect the public records being copied, and the sheriff's men informed him that he'd be arrested if he touched the public documents. Phoenix City Attorney Gary Verburg arrived on the scene of the dispute and informed the deputies that Stern had an absolute right to view the public documents.
The deputies ignored Verburg and called for backup.
MCSO Captain Jim Miller arrived with reinforcements.
"Miller proved himself to be a real bully, practically begging me to make a move that would allow him to arrest me," wrote Stern of the incident. "He accused me of wanting to take public records literally from his deputies' hands, warning me that such an action would certainly lead to arrest. He picked up a couple of random folders sitting on the records counter and waved them in my face. 'Take these papers from my hand,' he snarled. 'Take these from my hand.'"
In a June 17 editorial titled "Paranoia-ville," the Arizona Republic described what happened next: "Then, with tensions escalating, Assistant City Attorney Elaine Caldwell arrived along with four Phoenix officers. Reading the relevant statutes, Caldwell stated, for the second time that day, that Stern had as much right to view the records as they did."
In his internal report to Chief Deputy David Hendershott, Captain Miller proudly recounts taunting Stern, provoking the reporter with the barely masked intent of arresting yet another journalist. When the Phoenix Police intervened, Miller suffered a meltdown.
"The [Phoenix PD] Commander told me that I shouldn't arrest Stern because the documents were public record," noted Captain Miller. "I was flabbergasted at his response and became animated with him. I explained that if Stern touched any deputy, he would be arrested and it would not be wise for him to interfere with us if we took that action . . . I warned the commander that if he interfered with our arrest, there would be a problem."
For the record, Stern never touched, expressed an interest in touching, or moved to touch a deputy. This bogeyman sprang from Captain Miller's fervid imagination.
Captain Miller went on to conclude that he and his men were "humiliated" and believed, for numerous reasons, that the "City Attorney conspired in some way to partner with Stern."
This is stunning nonsense. At the very moment that Miller fantasized about a conspiracy, the Phoenix City Attorney was, in fact, prosecuting Stern in the Arpaio/Iafrate/Thomas case. They were hardly co-conspirators.
The confrontation over the City Hall e-mails was defused only when concerned staffers made available to Stern the documents the sheriff's deputies had already copied. With the Phoenix police as bodyguards, Stern reviewed the public records.
Ray Stern has taken photographs of public records, without incident, at the state Department of Public Safety. How did Stern legally take photographs of public records in that instance and then get a criminal complaint thrown at him by Michele Iafrate for the same activity?
In a rather remarkable exchange, Stern's city of Phoenix prosecutor provided a startling insight. Iafrate did not initially seek criminal charges against the reporter.
Suskin asked city prosecutor Diana Herrera why Iafrate had not called Phoenix police, or dialed 911, if she had a disorderly conduct situation on her hands?
Why had she called Arpaio's command staff?
Herrera informed Suskin that Iafrate had merely called the sheriff, her client, to update him on Stern's record inspection. She did not call seeking to file charges.
Herrera recounted her initial remarks to Steve Suskin during the deposition of another witness: "Her primary purpose of calling the sheriff's department at all, was to let them know [that] hey, this is occurring, because it's going to affect another case in which they're involved in."
Prosecutor Herrera added, "She was calling to let them know that this is going to affect the timeline."
Somewhere in "the gap" between Stern's visit to Iafrate's office at 9 a.m. and the phone call from Detective Graham to Iafrate, someone — not Iafrate — decided to go after the reporter on criminal charges.
And what timeline of another case might Iafrate have had in mind?
We do not know precisely, because Iafrate declared herself a victim of Ray Stern and asserted her right not to answer any questions.
But we do know that on the morning in question, October 18, Thomas, Arpaio, and Wilenchik were already preparing our arrests. Grand jury documents, subsequently released by the judge, show that on that day Wilenchik demanded from the court the arrest of Jim Larkin, Michael Lacey, and our attorneys, Tom Henze, Janey Henze, and Steve Suskin. The authorities also sought $90 million in fines. All this retribution stemmed from the article we published October 18 revealing the existence of the illegal grand jury.
We further know that another of Arpaio's attorneys, Wilenchik, was in direct contact that day with the Sheriff's Office.
What we do not yet know is: Who in the Sheriff's Office decided to roll Ray Stern into this ongoing assault upon the press?
When Michele Iafrate called to update the sheriff on Stern's review of the public records, who suggested she had the makings of a criminal complaint?
Who told Chief Freeman to tell Sergeant Gentry to order Detective Graham to snap the Selective Enforcement Unit into action?
By the end of the business day on October 18, everyone had their game faces on.
Around 4:30 p.m., New Times' lawyers received a fax from the courts: Dennis Wilenchik had asked the judge to arrest me, Jim Larkin, and three of our paper's attorneys.
Between 4:30 and 5, Gentry instructed Graham to file criminal charges against Ray Stern.
No deputy had interviewed Stern.
The men from Arpaio's Selective Enforcement Unit did not wait for a ruling from the judge. On the evening of October 18, they descended upon my home, Jim Larkin's home, and Ray Stern's home.
On Wednesday, September 3, nearly a year after knocking on Michele Iafrate's door, Stern will return to court, seeking to have the charge dismissed on constitutional grounds. Non-provocative speech directed at a government agent cannot be criminal because of the First Amendment of the Constitution, Suskin argues.
We are not the only media outlet whose right to public records has been abused by Thomas and Arpaio. In fact, Stern went to Iafrate's office seeking documents related to the sheriff's handling of public records with all the news media.
Stern persisted, even after he was evicted. He got the records and wrote a story about Arpaio's abuse of Arizona's public records statute and the sheriff's cynical manipulation of the state's news media ("The Right to Know," December 13, 2007).
With his appearance in court on Wednesday, Stern's fight against the criminal complaint is closing in on one year.
He continues to file requests for public records in the sheriff's possession.
In June, Stern asked for a list of citizens who were said by Arpaio to have donated money to help finance his immigration roundups.
Stern was allowed to view the documents, but he was not allowed to take notes. Later, he paid for copies of the donations, but all the identifying data regarding the contributions was blocked out.
In other words, Arpaio does not want the public to know who is paying to round up, arrest, and deport illegal immigrants.
Stern asked Captain Paul Chagolla, another of the sheriff's public information officers, why Arpaio publicized the name, address, and phone number of a mayor's aide who claimed she was the victim of racial profiling but kept secret the names of public donors who financed these sweeps?
When contacted for this article, Captain Chagolla advised that we should consult our own attorney on the law . . . "I cannot comment any further."
According to Stern, Captain Chagolla responded, "These people are deserving of privacy."
That remains to be seen.
The bigger picture, however, is quite clear.
Sheriff Joe Arpaio, with the assistance of County Attorney Andrew Thomas, has pioneered a strategy to subvert Arizona's public records law: stall, litigate, arrest, and prosecute.
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