In a hearing held late Monday a.m. following up on the New Times grand jury imbroglio, Superior Court Judge Anna Baca concluded that, "Mr. [Dennis] Wilenchik as special prosecutor did not comply with the requirements of issuing subpoenas," in the case. Baca also found that a sheaf of documents (including actual subpoenas, affidavits of service and other notices) handed over to her Monday by Chief Assistant County Attorney Sally Wolfgang Wells, should have been in the grand jury file from jump, despite Wells' assertions to the contrary.
At issue in yesterday’s pettifogger gabfest: How grand jury subpoenas are issued; who should be notified of these otherwise secret subpoenas; and what checks exist on the authority of a rogue prosecutor playing the elastic Mr. Fantastic and overreaching, as happened with erstwhile prosecutor Wilenchik.
As this blog’s previously reported, Baca ordered Wells on October 24 to search the C.A.’s files for the existence of the original grand jury subpoenas and other pertinent paperwork. On November 7, Wells advised Baca that the County Attorney had obtained the prosecution file from ex-special prosecutor Dennis Wilenchik, but, "No documents were located in that file that should have been part of the Clerk of the Court's file."
This was evidently as vague to Judge Baca as it was to a layman like moi, so Baca specified that the County Attorney file a supplemental report, and that a representative from the prosecutor's office be present November 26 to discuss the contents of the grand jury file. Wells responded last week, stating "copies of subpoenas and certifications" had never been part of the court's file in a grand jury proceeding. According to Wells, they're normally returned to the prosecutor's office after they're filed.
As New Times attorney Tom Henze pointed out during Monday's hearing, "This is important stuff, this is not technical," though that's the way the C.A.'s office wants to play it. Henze informed the court that Arizona Revised Statute 13-4071 states grand jury subpoenas can be issued only by the judge, the county attorney, or the clerk of court. According to a 1982 AZ Supreme Court Ruling, the judge and the county attorney cannot do this without the grand jury's prior consent. The legislature later amended the law, adding a subsection C, detailing specific things that must be done if the clerk of court issues the subpoena "without prior authorization."
New Times’ subpoenas were signed by the Clerk of the Superior Court. That's how Wilenchik chose to have the subpoenas issued. The very documents Wells submitted to the court today testify to this fact. (The subpoenas bear the clerk’s signature, not Wilenchik’s.) Therefore, the requirements of the law were not met. There may have been notifications to the grand jury foreman for two subpoenas, but there were none for the subpoenas issued to reporters Paul Rubin and John Dougherty. Nor are there records of notifications being made to the presiding judge, as stipulated by statute.
Henze observed that there's nothing in the record proving that the grand jury foreman was given anything, just a couple of notices filed with the grand jury clerk. Who knows if the foreman actually eyeballed them?
Bottom line is, either you have the authorization of the grand jury, or you don't. Wilenchik did not. The procedures specified by statute are there to protect us all from one man assuming the role of the grand jury, as my boss New Times co-founder Mike Lacey detailed in his November 1 column, "He Just Doesn't Get It." That "He" being Wilenchik.
I don't think County Attorney Andrew Thomas gets it either. His underling Wells basically stated that the C.A.'s office reads the law as if the AZ Supreme Court never stepped in and ruled on it, as if the state legislature never amended the law to state what procedures should be followed if a prosecutor wants to issue a subpoena minus the grand jury's imprimatur.
Wilenchik remains as dense as plutonium on this. When I asked him for a response to Baca's statement that he did not adhere to the law’s requirements, he said in part,
"The issue is not only moot, but another one blown completely out of proportion by either you or your paper. To the extent any technical notice was not sent to the court at most it would have been only a notice and not the subpoena itself, and to the extent the individual's subpoenas were not copied to the clerk of the grand jury there is no reason to believe this was anything other than inadvertent by those here involved in that and certainly for no improper motive or purpose."
The Wily One makes an interesting assertion there, that, “To the extent any technical notice was not sent to the court at most it would have been only a notice and not the subpoena itself.” Chief Assistant County Attorney Wells used this argument in court to pooh-pooh the matter, stating that the statute mandates only that the foreman be notified “of the fact of the issuance of the subpoena within ten days following its issuance.”
This, despite the fact that the County Attorney’s office insists it doesn’t have to follow these rules in subsection C of the law anyway.
Yet, as observed in Monday’s hearing by Village Voice Media counsel Steve Suskin, the notifications of subpoena issuance signed by Wilenchik and submitted to Baca yesterday by Wells directly reference the subpoenas, and actually have the subpoenas to New Times attached! Specifically, they read, “The County Attorney has requested the issuance of Grand Jury Subpoena No. GJ97. Said Subpoena was issued on August 24, 2007, by the Clerk of the Superior Court as reflected in the attached subpoena.” [Emphasis mine.]
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Who’s buffaloin’ who here? Doesn’t the language of these notifications to the grand jury foreman and the fact that subpoenas were attached to them directly contradict Wells arguments, as well as the disingenuous statement by Wilenchik above? They also further demonstrate that Wilenchik was attempting to operate under subsection C of the statute, but did not adhere to its rules. Um, is anyone paying attention over at the State Bar? They’re investigating Wilenchik, you know.
Yesterday, Henze called Wilenchik's conduct "sanctionable." And John Dougherty's attorney Bruce Feder asked the court to order the C.A.'s office to go back again and look for the documents that are still missing. But Baca did not do that, saying, "We have what we have," in regards to paperwork. She promised that she would be issuing a more detailed minute entry on the matter in coming days.
And so concludes this latest edition of the Feathered Bastard’s Online Law Review & Legalese Emporium. What's so unsettling is how, well, unsettled the whole thing is. In spite of the C.A.'s office quashing the grand jury and the subpoenas, the C.A. does not believe its former attack schnauzer Wilenchik did anything inappropriate in the actual issuance of these subpoenas.
So it's OK, in their opinion, that Wilenchik "anointed himself the grand jury," as Lacey so memorably put it. That is not a good thing for any citizen of Maricopa County. Because another "Wilenchik," operating as his own Star Chamber, could be appointed in the future. Hell, Wilencheckbook still reps the county in civil cases, racking the taxpayers' bill to up to $2 mil so far. The C.A. calls that justice? “Just us,” is more like it.