Dennis Wilenchik, the one-time special prosecutor whose investigation into New Times led to the nighttime arrests of its top executives, has been cleared of all wrongdoing by the State Bar of Arizona.
And, sadly, this isn't one of those New Times spoofs. The State Bar really has dismissed all claims against Wilenchik.
Three separate complaints were dismissed in June, July, and November of 2009, according to records obtained by New Times. Strangely, although New Times itself filed the complaint that was dismissed in July, the newspaper was never notified.
In fact, Steve Suskin, the attorney who filed the complaint for New Times, says no one from the Bar contacted him at any point in the investigation. Suskin actually learned about the dismissal from a New Times reporter.
Rick DeBruhl, the Bar's newly named chief communications officer, tells us that the lack of communication was due to the fact that numerous people filed complaints about the case. Suskin, he says, "was not the only complainant; other people complained as well, and all the complaints were rolled into one." At that point, the State Bar became the complainant -- so no one was notified when the case was closed.
The Bar is working on overhauling its processes, and DeBruhl promised that better communication will be a part of that: "We're going to do a better job of informing the people who are complaining."
Suskin said he disagreed with the Bar's decision.
"The State Bar's dismissal of the detailed professional ethics charges against Mr. Wilenchik was underwhelming -- zero analysis of the facts and the law, and no real reasons cited in the decision," Suskin said. "The Bar never contacted us during their 'investigation,' nor even extended the courtesy of notifying us of their decision. Another pathetic episode for the rule of law in Maricopa County."
The letter dismissing the New Times matter notes that Wilenchik failed to turn over all the materials demanded by investigators. It also mentions that there was "a robust debate" among attorneys at the Bar about whether they could prove by "clear and convincing evidence" that Wilenchik had violated the Rules of Professional Conduct.
But even though Wilenchik issued grand jury subpoenas without ever actually convening a grand jury, tried to involve the judge in the case in an ex parte meeting, and let things get so out of control to the point that the "victim" in the case, Sheriff Joe Arpaio, was able to arrest this newspaper's owners under the cover of night, the Bar ultimately decided that, well, there was nothing they could do about it.
The Bar's acting chief counsel, Maret Vessella, wrote that after that robust debate, ultimately, "I exercised my perogative on the side of dismissal."
Wilenchik has also been cleared of any wrongdoing in his treatment of Judge Timothy Ryan, who he branded "a threat to public safety," and in an unrelated complaint filed by the chief deputy county attorney in Pima County, records show. (Amazing: even a chief deputy county attorney can't even get the Bar to act, apparently.)
One of the dismissed complaints, filed by retired Judge Kenneth Fields, informed the Bar of Wilenchik's attempt to use an intermediary to arrange an ex parte meeting with Judge Anna Baca, who was handling the New Times case. Baca was so horrified she immediately called all the parties into court to disclose Wilenchik's actions, which she deemed improper.
But here's how the Bar dealt with that one:
Due to the contentious and high profile nature of the matters that were pending before Judge Baca, it was foreseeable that the Court would view Mr. Wilenchik's attempted contact with her ... as a breach of lawyer ethics. We accept, however, Mr. Wilenchik's explanation ... that he did not intend to influence Judge Baca's decision any substantive legal issues pending before her. We do not wish to deter appropriate efforts by our members to participate in identifying and bridging communication gaps between the bench and Bar. Therefore, we are dismissing this matter with the suggestion that Mr. Wilenchik closely reflect on the current status and nature of any pending litigation before a judge prior to attempting to contact that judge on even a seemingly unrelated matter ...
"Closely reflect"? Is this therapy, or an investigation?
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Wilenchik, who normally specializes in construction-defect cases, was promoted to special prosecutor by his former employee, Maricopa County Attorney Andrew Thomas. He was tasked with looking into whether New Times broke the law by publishing Sheriff Joe Arpaio's address online -- a prosecution Arpaio pushed for years even though his address is widely available on government Web sites. (The difference, Arpaio's lawyer told prosecutors, is that New Times is "historically anti-Arpaio" -- the First Amendent, of course, being of no matter in Maricopa County.)
Thomas fired Wilenchik just one day after Executive Editor Michael Lacey and CEO Jim Larkin were arrested in their homes and hauled off to jail. Lacey and Larkin were accused of violating grand jury secrecy by publishing a cover story detailing Wilenchik's invasive subpoenas.
In an email earlier today, Wilenchik said, "There was no basis for any of [the Bar complaints] including the claims by the New Times either, and I am gratified the Bar ultimately saw fit to dismiss all of these claims without further proceedings based on their lack of merit."
We're glad someone's pleased with this outcome, because we sure ain't.