New Times Appeal in Lacey vs. Arpaio Heard by Appeals Court Panel

Should Sheriff Joe Arpaio, former County Attorney Andrew Thomas, and former Special Prosecutor Dennis Wilenchik be held accountable for their investigation into this newspaper -- and the jailing of its owners?

That question is now in the hands of the U.S. Court of Appeals for the Ninth Circuit. A three-judge panel heard an appeal Friday from New Times attorney Michael Meehan -- and the responses of attorneys representing Sheriff Joe Arpaio, former County Attorney Andrew Thomas, and former special prosecutor Dennis Wilenchik, too. (Cue the booing and hissing now.)

As you can probably guess, everybody on the defense argued strenuously that they weren't responsible for the October 18 arrests of Michael Lacey and Jim Larkin, the executive editor and CEO of this newspaper and the Village Voice Media chain.

It's interesting to note that Lacey and Larkin were supposedly arrested by sheriff's deputies for publishing details of a grand jury subpoena. That's illegal under Arizona law.

But -- and this turned out to be a key area Friday -- the special prosecutor, Wilenchik, never bothered to get a grand jury to sign off on his subpoenas. And even though Arizona law allows a prosecutor to issue subpoenas and then get clearance from a grand jury 10 days later, Wilenchik never did that, either.

So even lawyers for the unholy triad of Arpaio, Thomas, and Wilenchik now admit that the subpoenas were not valid "grand jury subpoenas" at the time New Times exposed their existence.

So how were the arrests not a violation of this paper's First Amendment rights?

New Times argues that the trio -- Arpaio, Thomas, and Wilenchik -- hatched a conspiracy to go after their loudest critic. But each member of that once-tight alliance is now trying to separate themselves from the others. Here's our best attempt to summarize their convoluted arguments:

* Arpaio should not be liable for the investigation into New Times because "all he did, as a potential victim of a crime, was to ask for an investigation," argues his lawyer Eileen Gilbride. "That's not unconstitutional."

As for the resulting arrest, well, even though Arpaio's chief deputy David Hendershott is on record claiming he ordered it, that's okay. "[Lacey and Larkin] knew they were publishing grand jury subpoenas," Gilbride says. "They took the risk." Even if, you know, those subpoenas weren't actually valid.

* Wilenchik should not be liable for his actions because, as prosecutor, he has absolute immunity. And even if the subpoenas weren't valid, no one knew that yet. "They're valid until the judge said they're not valid," argued Scott Zwillinger for Wilenchik. "You can't simply ignore that." Zwillinger's argument was mostly procedural: Since the judge had yet to declare them invalid, there was probable cause to arrest Lacey and Larkin. 

* Thomas is not liable because, well, he merely selected Wilenchik, argued his lawyer, Tim Casey. It was the county Board of Supervisors that ultimately agreed to hire him.

Why does that distinction matter? Precedent apparently holds that county attorneys like Thomas have immunity for "investigative" decisions (like how a case is handled) but not their hiring decision.

So shouldn't Thomas be on the hook for hand-selecting his old boss, a guy whose lack of prosecutorial experience directly led to the invalid subpoenas?

"The plaintiffs allege that he hired a crony to conduct a witchhunt," one judge noted. "Why does that keep this on the investigative side?"

Lovely question. But Casey responded that Thomas decision to select Wilenchik came from his "investigative" function: A decision like that, Casey said, "requires judgment, discretion, legal knowledge."

The irony is staggering: Here's a guy who hired the sheriff's own lawyer to serve as prosecutor in a case where the sheriff was a victim. Wilenchik had so little prosecutorial experience, he couldn't even issue valid subpoenas.

But Thomas is now trying to claim he has immunity because the hire required his "judgment," his "discretion," and his "legal knowledge"? Wow.

There's a complete audio recording of the appellate hearing online here. We found the discussion very interesting but didn't have a clear sense of where things were going; the judges had plenty of good questions for both sides.

If you get a chance to listen, share your thoughts in the comment section. Who do you think prevailed?

A decision is expected in coming months, so stay tuned...

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Sarah Fenske
Contact: Sarah Fenske