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.
This attack on the independence of the judiciary drew condemnation from the Arizona Republic, which called Wilenchik Thomas' "pet bully" in an October 18 editorial, observing that:
"Wilenchik's courtroom manner in proposing his motion to [Judge Ryan], captured for all to see on YouTube, says more about the attorney's power play than even his meandering, scattergun 'motion' did: He was rude, demonstrably unprepared to defend the details of his motion and crudely insistent on interrupting the judge at every turn. It was a disgraceful performance by a so-called officer of the court."
So, even before the Lacey-Larkin article and their arrests, the lawyer was being perceived as a political liability for Thomas, who plans to run for re-election next year and, two years after that, possibly for the governorship.
The Arizona State Bar had already started an investigation into Thomas and Wilenchik's possible ethics violations in their public fight with Superior Court judges. And now, the actions of the duo in the grand jury matter against New Times including Wilenchik's attempt to have private (or ex parte) communications with the judge in our case, the issuance of an over-broad and likely unconstitutional subpoena, and the vindictive arrests of Lacey and Larkin have brought them under further State Bar scrutiny.
During the Friday-afternoon press conference, Thomas sounded plaintive, almost hurt, by questions about the State Bar's investigation.
"People don't understand, when you're a lawyer, you can only practice in this state if the State Bar allows you to," he complained. "And that is deeply offensive on First Amendment grounds for . . . the State Bar to gin up what I think will be shown to be trumped-up charges to try to chill my free speech."
The statement seemed highly ironic, as plainclothes MCSO deputies had, just hours before, arrested Lacey and Larkin on misdemeanor charges for exercising their free-speech rights.
Specifically, they were charged with Class 1 misdemeanors that, in the most egregious of cases, could net an offender six months in jail and a $2,500 fine. Needless to say, a misdemeanor infraction does not usually prompt a nighttime raid on citizens' homes.
MCSO flack Paul Chagolla was quoted in an Associated Press article stating that "the arrests came at the requests of the prosecutor." By that, New Times assumed he meant then-Special County Attorney Wilenchik.
Contacted about Chagolla's statement, Wilenchik denied he had asked for the arrests. Asked who did request the arrests, he replied in an e-mail, "Don't know. If I find out, will be back."
However, when Chagolla was e-mailed by New Times with Wilenchik's denial, the sheriff's flack was very specific about who requested the arrests.
"On that day, sheriff's detectives worked with assigned prosecutors from the special prosecutor's office, Mr. William French and Mr. Rob Somers," responded Chagolla. "Detectives were contacted by Mr. Somers, and it was he that asked for the arrests to be made. Sheriff Arpaio had no participation in the decision to make these arrests."
As detailed in Paul Rubin's cover story on Buckeye police chief Dan Saban's unsuccessful lawsuit against Arpaio and the MCSO ("Below the Belt," September 20, 2007), French is a former Maricopa County Superior Court judge who worked for Wilenchik on the suit. Rob Somers also helped Wilenchik on the case. Both men are listed on the "attorney profile" page of one of the Wilenchik & Bartness firm's Web addresses.
Wilenchik denied any wrongdoing and took umbrage at the suggestion that the he had transgressed legal rules.
"The only rule I know that was flagrantly violated was the grand jury secrecy law and court orders," Wilenchik wrote in another e-mail.
More may be revealed if and when the grand jury records are unsealed, as has been requested by the Arizona Republic and Channel 12. As this story went to press, Judge Anna Baca called a hearing for October 24 to hear arguments in the Republic's motion. County Attorney spokesman Barnett Lotstein has indicated that Thomas' office would not object to having the files unsealed.
Whoever is ultimately pinpointed as the source of the complaint against New Times' founders, the entire raid was orchestrated to have the very chilling effect that Thomas decries in the State Bar's relatively discreet investigation of him and Wilenchik.
"Why would [the MCSO] arrest on a misdemeanor in the middle of the night?" asked former County Attorney Rick Romley, a staunch Republican who held Thomas' position for 16 years. "That's unheard of. A misdemeanor?! And there have been criticisms of Arpaio not going after 70,000 warrants of murderers and rapists, and yet he had the resources to do this? That raises a lot of questions."
Some retaliation was anticipated for the bold move of disclosing a grand jury subpoena, and detailing Wilenchik's unethical attempts to influence Judge Baca by having an intermediary call her and try to set up a tête-à-tête with Wilenchik. In the third paragraph of the Lacey-Larkin story, the authors acknowledged the risk in what they were doing.
"It is, we fear, the authorities' belief that what you are about to read here is against the law to publish," they wrote. "But there are moments when civil disobedience is merely the last option."
The exposé had been kept under wraps, with very few Phoenix New Times employees knowing what was about to happen. As the paper was going to press, Lacey called a meeting of the editorial staff to inform them of the pending bombshell. Writers and editors were warned that anything could happen, including a raid of the office or arrests.
The banging on the door of Larkin's Paradise Valley home began around 9:45 p.m. The 58-year-old CEO, who could pass for a banker if you didn't know him better, was asleep, having returned earlier that evening from the Royal Palms Resort and Spa where he, his wife, Molly, and Lacey had celebrated the Larkins' 15th wedding anniversary. By the time the MCSO operatives arrived, everyone was snug in bed, including the Larkins' three small children.
The Larkins put in a call to the Paradise Valley police and would not open the door until they arrived.
"I wanted some real cops there," said Larkin.
As soon as the Paradise Valley officers arrived, Larkin opened the door and the sheriff's deputies slapped cuffs on him, reluctantly allowing him to put on shoes and pants before hauling him off in an unmarked car with Mexican plates. There were four MCSO undercover deputies, no warrant was presented, and the deputies flashed their badges only after Larkin demanded to see identification.
Larkin described the MCSO cops as "physically intimidating." At one point, they even threatened to take his wife into custody.
"She was up in their face, and they didn't like that," he stated. "She wanted to see more ID, and she didn't like the [unmarked] car I was getting into."
The undercover agents, believed to be members of Arpaio's Selective Enforcement Unit (charged with protecting Arpaio from alleged threats) first took Larkin to the MCSO's Mesa unit, then hauled him all the way down to the Fourth Avenue Jail, where he sat in a holding tank for an hour with about 20 other men. Then he was dragged in handcuffs before the sheriff's Sergeant Mike Traverse, who seemed to be in charge of the operation. Traverse lectured him sternly on the importance of grand jury secrecy and how Larkin had somehow endangered the process of arresting real criminals.
"I just sat there and took it," said Larkin. "I didn't want to argue with him. I think the First Amendment trumps grand jury secrecy."
Lacey was still awake at his house near Bethany Home Road and 12th Street when the knock on his door came about 9:30 p.m.
"My girlfriend says, 'It's the cops!'" recounted Lacey. "I go to the door, and there's a guy in plainclothes showing me his badge. He said, 'Are you Mike Lacey?' I said, 'Sure.' He said, 'You're under arrest for revealing grand jury documents.'"
Later, outside the Fourth Avenue Jail, Lacey joked that he was processed along "with all the other New Times readers."
They took his fingerprints, his mugshot, screened him medically, and took his belt (the usual procedure). Before he was transferred to a single cell "and not the Glen Campbell cell," he said Lacey spent about half an hour in the holding tank, where he engaged his fellow inmates in idle conversation.
"There are a lot of folks in there with a variety of issues," Lacey related. "One guy said, 'What are you in for, DUI?' I said, 'Nah, I'm in here for writing.' It was like all jail or prison situations very noisy."
Once transferred to the solitary cell, he had access to his own pay phone and toilet. Neither of them worked. Nor was there room to lie down, so he sat it out, waiting for the lawyer representing New Times in the grand jury subpoena case, Tom Henze, to make the $500 bail for the minor offense.
Outside the jail, a crowd of reporters and TV news crews awaited Lacey's release. Close to 4 a.m., he finally emerged. The 59-year-old executive editor of Village Voice Media then answered queries in front of the jail, as he tucked in his shirt and put his belt back on.
Lacey compared Arpaio's 15-year tenure as sheriff to "Mr. Toad's Wild Ride." He then delivered a discourse on the importance of the First Amendment fight over the grand jury subpoena.
"The problem is that it takes me being arrested for you guys to show up," he told the assembled media. "This is a story we're all involved in. Those subpoenas are what you should be writing about. The sources they want from us on all of these stories are what you should be writing about. The fact that they want to have the identity, the browsing habits, the buying habits, what shopping carts people have filled, what sites people have visited on the Web before they came to us, what sites they visited after they left us. The fact that they have subpoenaed that kind of information all of which is in our paper and on our Web site is what the story's about. It's not about me getting out of jail at four in the morning."
Lacey reviewed the history of how an article more than three years ago had come to this point, discussing how New Times columnist John Dougherty was, at that time, looking into Arpaio's personal land transactions and questioning how a civil servant on an income of then-$72,000 a year, plus a federal pension, could afford to sink close to a million dollars in cash into commercial real estate.
It was because Arpaio was stonewalling Dougherty and because the sheriff had hidden information from the County Recorder's files about his land holdings, Lacey reminded, that Dougherty had revealed Arpaio's home address. Dougherty's point was that if Arpaio was so afraid of harm, why did he redact information on his commercial property and let his home address remain on multiple Internet sites, including those of the Recorder and the state Corporation Commission?
Asked if he thought there would be further arrests of journalists, Lacey replied, "The way that this operates is that they select someone to make an example out of, and they selected our organization. Hopefully, other media organizations will begin to speak up and speak out about what's going on here."
(One other New Times staff member was harassed, though not arrested, that night. On the morning of October 18, writer Ray Stern had been at the law offices of Michelle Iafrate in Phoenix, reviewing a stack of press releases which the MCSO had e-mailed to other news organizations yet refused to mail to New Times. Stern began to photograph the public documents with a digital camera, and Iafrate demanded that he leave, saying it was somehow improper to take pictures of public records. Stern protested and then left, only to be hit with a citation for disorderly conduct that evening by more plainclothes deputies. The charge against him is still pending.)
Although it was too early for the veritable tsunami of indignation that was to follow, Channel 3's Mike Watkiss was on the air soon after Lacey's release calling the abusive grand jury subpoena and the subsequent arrests the biggest story in Arizona journalism since the assassination of Don Bolles.
Asked about that comment after the fact, Lacey smiled and said, "That's a little grand for me, but I like good writing when I see it."
As daylight broke, word of the arrests spread quickly. New Times' offices were inundated with queries from the media. TV cameras showed up unannounced at our front door. Phones of editors, reporters, and other staff buzzed incessantly.
The significance of what had just happened was immediately recognized by broadcast and print news organizations large and small. From the New York Times and blogs like Gawker to the Arizona Republic and the East Valley Tribune, the tale proved irresistible. After all, how many times in recent history have an American editor and publisher been jailed for a piece they penned?
That's more like something that occurs in Myanmar, Iran, or Venezuela. Not in the United States, where freedom of the press is enshrined in the Constitution.
Regardless of political affiliation, almost everyone but the most die-hard Arpaio-lovers blasted what they deemed an unprecedented attack on the First Amendment.
Clint Bolick, director of the conservative Goldwater Institute's Scharf-Norton Center for Constitutional Litigation, issued a statement, saying, "Regardless of one's ordinary proclivities regarding the players involved, there is only one place for friends of freedom to stand at this moment: shoulder to shoulder with the New Times."
Reason magazine declared online that Arpaio's investigation "looks an awfully lot like retaliation" and called the grand jury subpoena "probably unconstitutional."
Arizona Republic columnist Laurie Roberts stated on her blog that "Grand jury probes are secret and for good reason" as "a grand jury may investigate a person or entity and decide not to bring charges." If the whole thing's kept under wraps, the reputation of the target is protected. But in this case, the targets were themselves putting out the information.
"If anyone is harmed, as a result, it's [New Times]," Roberts stated, adding, "Unless, of course, the sheriff comes off looking like a kangaroo cop . . . and [the] prosecutor looks just plain heavy-handed and drunk with power."
Gawker.com, a frequent and often acerbic critic of the Village Voice in New York, quoted Voice editor Tony Ortega's plea, "I hope that, whatever other journalists think about the Voice or VVM, they can see that this represents one of the worst abuses of a newspaper's First Amendment rights in memory." Gawker's blogger responded with, "Gotta say, we can't disagree with that."
USA Today, the Washington Post, and Editor and Publisher published stories on the arrests. TV and radio stations provided hourly updates to viewers and listeners. The AP noted that Village Voice Media is "the nation's largest publisher of alternative weekly newspapers with 16 papers and a combined circulation of 1.8 million."
New Times has been deluged with letters to the editor and comments on the original Lacey-Larkin piece and on blog items about developments in the story. Some readers dared the trio to arrest them, too.
"I am appalled that your media executives were arrested for publishing a story which the public has every right to know about," wrote one reader. "This sheriff is clearly abusing his authority. He is the one who should be in jail. And if the prosecutor wants to subpoena me as a reader, I'd be glad to come to Arizona at his expense, just for the privilege of telling him to take a hike!"
Wrote another, "Wow. Thank you for bringing to light this egregious abuse of power. Cockroaches hate the light!"
Arizona Attorney General Terry Goddard called Lacey with words of encouragement.
"He said it sort of reminded him of the old days," Lacey related. "And that it was as important a story that New Times had ever undertaken."
The piling-on continued after Thomas dropped the charges.
Jack Shafer, editor at large for the online magazine Slate, advised County Attorney Thomas, "Never pick a fight with people who buy their whiskey by the truckload, their ink by the tanker, and their pixels at wholesale."
The Association of Alternative Newsweeklies, in an action taken "in solidarity" with New Times, issued a press release stating that more than 40 weekly newspapers in North America "are providing links on their Web sites that direct readers to the many places on the Internet where the home address of Maricopa County Sheriff Joe Arpaio is listed."
In its Sunday, October 21 lead editorial, the Arizona Republic lambasted Thomas, Arpaio and Wilenchik, announcing that the Republic and Channel 12 (KPNX) had filed a motion to unseal all documents associated with the grand jury.
"The public has a clear and compelling interest in seeing all of the records of this outrageous attempted prosecution and the arrests of two New Times executives for one very clear reason: The prosecutors used their subpoenas to try to get a broad, intrusive look at the interests of the newspaper-reading public," the newspaper wrote. As mentioned above, Judge Baca has granted an expedited hearing on the matter.
There was a distinct minority of naysayers. KTAR 92.3-FM morning host Darrell Ankarlo called the original Dougherty column "irresponsible journalism," then proceeded to flub the County Attorney's name, calling him "Andrew Card."
Following Thomas' verbal dressing down of him, Dennis Wilenchik told Republic reporter Lynh Bui in an e-mail which was reported in a front-page story on October 21 that the case had been "hysterically and falsely reported" in the press.
While asserting that he respected the County Attorney's decisions, the pugnacious Wilenchik denied that he had mishandled the case, as Thomas has maintained. And he claimed that there was "absolutely no unethical contact or intent" in his attempt to establish private communications with Judge Baca, who was overseeing the grand jury looking into New Times.
Wilenchik also threatened in the e-mail to the daily newspaper, "Any further attempt to besmirch my reputation earned after 30 years will not be tolerated."
By any estimation, Wilenchik has turned into an albatross around Thomas' neck.
"Wilenchik is taking the spear and he should be taking the spear because it was just such an over-reach," said political insider Jason Rose of Rose & Allyn Public Relations in Scottsdale. He stated that he believed all contact between Thomas' office and Wilenchik should be severed, even in civil litigation.
"I thought the request Dennis made [in the subpoena] was outrageous and insane," observed Rose. "Whether it's Dennis or me or any aide to any politician at any point in time, you're not the show. Don't ever get confused that you are the show. Don't get caught up in one victory in court on behalf of Arpaio, or that you're Buster Badass because you're working for the County Attorney and the sheriff at the same time.
"Your job is to follow the law and represent your client and your cause with honor and dignity. Not with arrogance and imprudence. That's what took place here. And he absolutely should've been fired."
Rose, who has advised Republicans including Arpaio and Thomas, acknowledged that Thomas had been hurt by the controversy, but didn't believe it to be a fatal blow to his career.
"Look, politics is a lot like baseball," said Rose. "Sometimes there are foul balls. Sometimes there are errors. And in this case, I don't think there's any question there's a foul ball. And I think it's absolutely the case that the County Attorney will not only recover from this but will continue on as County Attorney and, perhaps, other things in the future."
However, Rose's analysis only holds if Thomas, as he's claimed, truly had no knowledge of the over-broad grand jury subpoena, the arrests, and Wilenchik's attempts at an ex parte communication with Judge Baca. It should be recalled that Thomas was working in concert with Wilenchik over the County Attorney Office's challenges to the county judiciary.
Former County Attorney Romley questioned how Thomas could fire Wilenchik as prosecutor if Wilenchik (whom some wags now call "Wilencheckbook" because of the nearly $2 million he's racked up in the county's employ) had truly been independent. Romley characterized the entire episode as "amateurish" and said he believed that its after-effects would dog Thomas.
"Somebody in the first year of law school would have identified the ramifications of that subpoena," insisted Romley, adding, "There are a lot of questions out there, and I hope this doesn't go away."
County Democrats certainly plan to make an issue of it a year from now when they challenge Thomas' re-election bid. Maricopa County Democratic Party chairman Mark Manoil seemed delighted, though not overconfident, at Thomas' fumble.
"We're glad to see that this is coming to light, because we think this is not the one and only instance of over-reaching and abuse of power that people in Maricopa County have been subject to by both Arpaio and Thomas," Manoil offered. "Wilenchik seems to have been a very willing surrogate for Thomas. We think there's a lot more investigation that needs to be done about their relationship."
Arpaio, for his part, is renowned for having the political longevity of a turtle. But he too may suffer a backlash because of the Lacey-Larkin arrests.
"He has a such a deep reservoir of political capital with the voters," said Rose of Arpaio, noting, "But there's no question it was drawn down this past week. Because if you're talking about . . . New Times, [Arpaio] starts looking petty."
Manoil asserted that Arpaio's now-Democratic challenger, Buckeye Police Chief Dan Saban, would likely turn Arpaio's role in the New Times case into a campaign issue next year when he'll be vying to give Arpaio a one-way ticket to retirement.
"I think Saban would be a reassuring presence of somebody who's not interested in partisan bullying or intimidation tactics, but really just getting the job done," Manoil maintained.
For his part, the sheriff has insisted he was "the victim" in all this, though there has not been any serious publicized threat on his person in the time span since the original Dougherty column was published in July 2004.
Now, Thomas and Wilenchik must answer questions from the State Bar about their actions in the New Times matter.
Many made the point that Thomas' dropping of the case against New Times after intense public pressure was a victory to be savored by the press and the public.
"There used to be a fighter in Jersey that Ali fought one time called Chuck Wepner," Lacey recalled. "He was called the 'Bayonne Bleeder.' His deal was that he could take a lot of punishment, and at the end of 15 rounds, he'd still be in your face. This is like one for the Bayonne Bleeders. It's one for our side."