Who's Sorry Now?

Looking pale and uncharacteristically gun-shy, Maricopa County Attorney Andrew Thomas approached the podium in his office's eighth-floor conference room, fully prepared to say his handpicked special prosecutor had acted inappropriately.

Following the arrests of New Times founders Michael Lacey and Jim Larkin (Village Voice Media's executive editor and chairman/CEO), ferocious and near-universal criticism of Thomas' office ensued. Lacey and Larkin were nabbed in the middle of the night on misdemeanor counts of revealing the contents of a grand jury subpoena in their double-bylined cover story, "Breathtaking Abuse of the Constitution" (October 18).

The public was outraged, not only by the arrests, but by the broad scope of the grand jury subpoena demanding detailed, extensive information on all those who had visited New Times' Web site since 2004 — including IP addresses, cookies, and browsing habits. The arrests of Lacey and Larkin smacked of police-state tactics, and everyone from legal scholars and attorneys to bus drivers and secretaries realized they had a stake in this First Amendment fight.

Constitutional law professor James Weinstein at ASU's Sandra Day O'Connor College of Law didn't mince words in a statement to the New York Times.

"That subpoena is grossly, shockingly, breathtakingly over-broad," he charged. "This is a case of harassment of the press."

Less than 24 hours after the arrests, Thomas' staff called the Friday, October 19, press conference that ended up being standing-room only. His introductory remarks were punctuated by nervous coughs. He soon zoned in on the reason for the hastily organized event.

"The arrests that were conducted last night I had no knowledge of," he claimed. "I got a phone call informing me of that fact. In looking at this matter in its totality over the last 24 hours, it has become clear to me that the investigation has gone in a direction that I would not have authorized. It was an error on my part to allow the matter to proceed to that point without having the proper, well, without basically having the personnel in place to ensure we didn't go off track."

Thomas announced the firing of ally and former boss Wilenchik as a special prosecutor in this and all future matters, though he later admitted Wilenchik would remain on a list of attorneys used for civil litigation.

"We are not going to proceed with this investigation," Thomas stated in the extraordinary mea culpa, adding, "There is a right way and a wrong way to bring a prosecution, and to hold people accountable for their offenses. And what happened here was the wrong way. I do not condone it, I do not defend it. And so it ends today."

The County Attorney tried to hedge his apology by stating that New Times had been "reckless" and "indefensible" when it published the home address of Sheriff Joe Arpaio online as part of a John Dougherty column about the sheriff's questionable real estate investments. He alleged that "crimes have been committed," but when asked why numerous other Web sites were not investigated for doing the same, Thomas revealed his own misinterpretation of the law.

"There's a big difference between that and putting his name and address on the front cover," as the New Times did in a 2006 Christmas card to Arpaio ("Joe Strikes Back," December 21, 2006). Reporters at the press conference pointed out to Thomas that the law in question did not apply to print publication of such addresses, only to Internet publication.

Furthermore, numerous government Web sites, such as that of the Arizona Corporation Commission, contain the sheriff's home address. In fact, Thomas and Arpaio list their home addresses in their most recent online financial disclosure statements.

Thomas refused to apologize for the arrests of the New Times executives by sheriff's deputies. In fact, he said it was New Times that owed the sheriff an apology for violating the home-address law.

When reporter Howie Fischer of Capitol Media Services asked if Thomas planned to step down because of Wilenchik's actions as a deputized member of his office, the embattled top prosecutor was incredulous.

"Well, that's kind of a draconian step," Thomas exclaimed.

The late-evening arrests of Lacey and Larkin popped a political zit that had already come to a head. Private attorney Wilenchik, doing Thomas' bidding as a special county attorney, had asked for Superior Court Judge Timothy Ryan's recusal on all matters pertaining to the County Attorney's Office in what essentially is a fight over Proposition 100, which denies bail to illegal immigrants alleged to have committed certain felonies.

Wilenchik asked that all 93 judges of the Maricopa County Superior Court be dismissed in favor of an out-of-county judge. The move was shot down by presiding Judge Barbara Mundell. And one day before the Larkin-Lacey arrests, Judge Edward Burke dealt Wilenchik and Thomas another blow when he rejected their motion to have Judge Ryan removed for bias and prejudice.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons