Pop quiz time.
Which of the following statements are true:
a) Employees at a Mexican restaurant in central Phoenix went to work while they were sick, spreading a nasty bacterial infection to diners.
b) Raiding the home of a famous rapper, sheriff's deputies found crystal meth and/or cocaine.
c) A developer in the East Valley participated in "wanton destruction of Arizona's heritage resources."
d) All of the above.
If you regularly watch the news, or skim the Republic, you probably picked D. That's because every one of those statements was made, in press conferences and news releases, by a prominent public official.
The problem is, at least two of the statements are false.
County Attorney Andrew Thomas said at a televised press conference last year that employees at Ajo Al's passed a heinous bacterial infection to the restaurant's customers. But Ajo Al's owners fought back, and when the case finally made it to court, prosecutors admitted that they wouldn't even attempt to prove Thomas' press conference claims.
Yeah, the restaurant had a dirty can opener or two, and it wasn't storing some food properly. But the health department never found a link between employees and the bacteria in question. Thomas had just gotten a bit carried away.
So how about B?
Sheriff Joe Arpaio's staff recently had to back away from claims that sheriff's deputies found crystal meth or cocaine when deputies raided the Cave Creek home of rapper DMX. Turns out they found a bit of pot, but the "white powdery substance" they described wasn't meth. It wasn't coke. It was, in fact, a completely legal substance.
And that brings me to C.
This one is a bit trickier. We don't know, yet, whether Attorney General Terry Goddard's statement about a local developer pillaging the land is true. Goddard's case against the developer, George Johnson, is still pending in court, as is Johnson's libel suit against Goddard.
But we do know this: After Johnson sued Goddard, Goddard didn't claim that the case should be dismissed because he'd spoken the truth. (That's always the best defense in a libel case.) He didn't even argue that he was acting in good faith, that he thought his statement was true. (Legally, that's good enough for a public official like Goddard.)
Instead, Goddard attempted a power grab. In his appeal to the Arizona Supreme Court, Goddard is actually arguing that, as attorney general, he should have "absolute immunity."
Basically, Goddard wants the right to lie like a dog the right to knowingly, even maliciously, say whatever the hell he wants, without any recourse for anybody who is slandered along the way.
I only wish I were kidding.
Obviously, it's way too much to ask that our politicians triple-check their facts before they open their yappers. But I can't believe that we're even debating whether they should have to act in good faith. It doesn't matter whether the cameras are rolling. That simply ought to be a given.
It's bad enough that a prosecutor who isn't paying attention to detail can nearly drive a family-owned restaurant like Ajo Al's out of business. Give politicians in this state absolute immunity and, the next thing you know, they'll all be claiming that their political opponents did something as heinous as raping their own mothers.
Oh, wait . . . They're already doing that, aren't they?
Knowing everything we know about Sheriff Joe, it's no surprise that his staff decided to smear his political rival, Dan Saban, by releasing a dubious allegation against Saban to a TV reporter.
And while County Attorney Andrew Thomas certainly seems a whole lot more ethical than Arpaio, it's not hard to imagine him taking the low road.
But that's never been Terry Goddard's style. No one could accuse Goddard of being too aggressive, much less malicious. He's just so darn nice, a milquetoasty beta male more interested in inveighing against easy targets like crystal meth and predatory lenders than taking on controversy. (Indeed, the biggest question among his staff may be what he does all day.) He may want to be governor, but he's no Eliot Spitzer.
And that's why I was so shocked to hear that Goddard, of all people, was claiming that he needed the absolute right to run his mouth.
As a prosecutor, Goddard already has limited immunity. Attorneys general can't be sued, for example, for things they say in the courtroom, arguing a case, or stuff they write in legal briefs.
Paul Bender is a professor at the Arizona State University Law School as well as its dean emeritus and the former principal deputy solicitor general of the United States. Under current law, he says, Goddard can't be sued just because he violates someone's rights. As an elected state official, he'd have to do something egregious, or grossly negligent.
"It would have to be something that a reasonable person would know was illegal," Bender says.
Goddard initially made his argument for "absolute immunity" to the Arizona Court of Appeals, asking the court to throw out developer Johnson's lawsuit against him without even considering the merits of the case. So what if he was just making stuff up, Goddard's brief implied he shouldn't have to face a lawsuit under any circumstances.
The appeals court disagreed with a 2-1 vote. Smart judges. But rather than take the hint, Goddard appealed to the Arizona Supreme Court. (At press time, his lawyers were expected to make their case in front of the court on Tuesday, October 2.)
Goddard's attempt has raised eyebrows in the legal community.
"It's kind of surprising because it's unnecessary," Bender says, noting that Goddard could have easily defended his remarks by saying that they merely repeated information in legal briefings, or even arguing that since he believed the information was true, he had full legal immunity.
So why would he argue that he needs more protection?
Beats me. More importantly, it beats Paul Bender, too.
"It's hard to justify why he should be absolutely immune from lawsuits," the law professor notes. "Absolute immunity would allow him to say things that are outrageous. Because if it isn't outrageous, he's protected already."
Goddard's spokeswoman declined comment, saying the court records speak for themselves.
Patrick Van Zanen is one of the attorneys handling the case for the developer suing Goddard. "Look, all we're saying is that you can't knowingly and maliciously defame somebody," he tells me. "That's not asking too much."
Goddard argues that, as a public official, we the people are his clients. He has a duty to share the facts of his cases with us without fear of lawsuits.
But, as Van Zanen asks, "if you're knowingly and maliciously giving false information about a case, have you informed your client or have you misled them?"
Just look at that sleazy TV reporter in Joe Arpaio's smear of his rival, Dan Saban. As my colleague Paul Rubin reported, Arpaio's top deputy leaked a sketchy allegation against Saban, then running for sheriff, to Channel 15's Rob Koebel. Saban's adoptive mother claimed that, when he was a teenager, he'd raped her. Never mind that the alleged incident had happened more than 30 years earlier and that the woman was only now coming forward; Koebel ran with the story almost immediately ("Below the Belt," September 20, 2007). He didn't bother to check out the facts that would have made it clear that Saban's accuser was a woman with serious credibility problems.
For lazy reporters, it's all too easy to justify running with a dubious story just because it came from an official source. And that doesn't serve anything except, maybe, journalistic ambition. The public gets misled, and, ultimately, someone gets slandered.
You only have to look at what happened in the Ajo Al's case to see that. After Thomas made his careless allegations against the restaurateurs painting a vivid word picture of diners with diarrhea and vomiting TV stations all over town, as well as the Republic, ran with the story enthusiastically.
A few days later, I got a call from the restaurant's owners, Karen and Dennis "Pat" Dains. They were going out of their minds. Business had dropped precipitously. (In fact, their lawyer tells me, in the year since Thomas made his claims, they've lost a staggering $1 million in business and Ajo Al's has the records to prove it.)
The Dains knew that the health department had found no link between their employees and the bacteria that Thomas accused them of spreading. But they couldn't get anyone to listen, despite soliciting every media outlet in town. They were yesterday's news; nobody would take their call.
I wrote a story about their case ("Panic Attack," July 13, 2006) that made it startlingly clear to me just how much damage careless public officials, and a complicit media, can do.
Recently, the Dains have filed a notice of claim, announcing their intent to sue the county for more than $8 million. But even if they win, it's too late to get their reputation back.
It's something that Bender, the ASU law professor, has seen time and time again.
"Really, the things that prosecutors say at press conferences can be very harmful and the things they say can hurt people for a long time, even if they're not true," he says.
So why would we want to give any public official complete and total immunity from lawsuits? It's bad enough that they can drag a private citizen's name through the mud on a whim.
If the Supreme Court gives them the right to do it with malice, we're all completely screwed. In fact, we're probably all guilty of raping our very own mothers.
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