Breathtaking Abuse of the Constitution

Page 3 of 6

The special prosecutor rambled a bit as he attempted to suggest that he really had not wanted to discuss any of the grand jury proceedings with Judge Baca. He was more interested, he claimed, in "a global conversation" about relations between the courts and the County Attorney's Office.

Even if he'd suggested as much to Turoff, such an implausible alibi would hardly have laundered his attempt to have a private huddle with the judge. The relationship between the Superior Court, Wilenchik, and the County Attorney was itself the subject of sensitive motions, making Wilenchik's approach to Baca unethical, no matter which explanation he selected.

And the fact of the matter is that the subject in front of Judge Baca was New Times.

Already facing unprecedented grand jury subpoenas that threatened the newspaper's independence, those of us present in the courtroom now faced the obvious conclusion that special prosecutor Wilenchik attempted to subvert the process by getting to the judge.

Wilenchik's attempt to contact the judge outside the presence of our attorneys is not a gray area.

Lawyers have a term for this behavior: ex parte, or " . . . one side only, as in a controversy; in the interest of one party."

The Arizona Rules of Professional Conduct are unequivocal: "A lawyer shall not communicate ex-parte with such a person (judge, juror, prospective juror) during the proceeding . . ."

Were it not for Judge Anna Baca's impeccable character, her willingness to short-circuit the conversation with friend Carol Turoff at the same time that she made a record of the approach, Wilenchik's brazen tactic would never have surfaced.

And yet he remains the special prosecutor.

There will be many questions about our decision to make public the secret machinations of the special prosecutor armed with grand jury powers.

Consider this: When the wife of a senior member of County Attorney Andrew Thomas' management team feels free to contact the sitting judge, and when the special prosecutor who initiated this idea of an ex-parte meeting sees nothing wrong with conduct his own profession prohibits, we feel compelled to shed light upon these remarkable proceedings.

And make no mistake: Special prosecutor Wilenchik sees nothing wrong with what he did.

Judge Baca told the prosecutor that it was "absolutely inappropriate."

"With all due respect," argued Dennis Wilenchik, "it was absolutely appropriate."

It is little wonder that special prosecutor Wilenchik found nothing inappropriate about his ex parte contact with Judge Baca; his instinct to engage in subversive tactics underscores his lack of professional ethics.

On October 3, precisely one week before Turoff phoned Judge Baca, Wilenchik smeared Superior Court Judge Timothy Ryan in an orchestrated campaign that is part of County Attorney Thomas' anti-illegal immigration strategy.

National media are now writing about GOP efforts to mount a Rovian campaign to embarrass Democrats who are not strident enough in their willingness to crack down on illegal aliens. But County Attorney Thomas mounted such attacks from the earliest moments of his initial campaign for office.

The latest outburst directed at the Maricopa County Superior Court is widely recognized as part of Thomas' preliminary salvos in an anticipated bid for the governor's office.

The attack on Judge Ryan, in which Wilenchik labeled the justice "a danger to public safety," grew out of the courts' efforts to deal with a recently enacted proposition that requires denial of bail to illegal aliens charged with certain felonies. Ryan and other judges are attempting to instill standards that law enforcement must meet in order to establish that a defendant is indeed an illegal alien.

It is hardly a trivial matter. This summer, Arpaio's jail denied admittance to Ramon Delgadillo, who'd worked 25 years as a court translator. Despite his extensive track record, the Sheriff's Office demanded papers that proved he was a naturalized citizen.

Although Arpaio was forced to change jail policy, the confusion underscored the need for coherent and reasonable guidelines while considering bail for suspected illegal aliens.

Wilenchik addressed the issue with such outlandish hostility that there were immediate calls for complaints to be filed against him with the state Bar.

Although Wilenchik's role as hired gun was highlighted by his inability to answer questions from Judge Ryan about the cases in dispute, he nonetheless attacked the judge's questions as "self-serving."

Tellingly, County Attorney Thomas, though unhappy with certain rulings and conduct of Judge Ryan, neither appealed the decisions in question nor asked for judicial review, which are the legal routes for redress.

Instead, members of the news media were notified in advance that they should attend a hearing in Judge Ryan's court. At the hearing, Wilenchik made the incredible demand that Ryan step down from all cases.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Michael Lacey
Contact: Michael Lacey
Jim Larkin
Contact: Jim Larkin