Almost a year after New Times' two top executives were arrested and jailed, a federal judge dismissed parts of the newspaper's lawsuit against the Maricopa County officials involved and left other parts in play.
In her October 7 ruling, U.S. District Judge Susan Bolton dismissed County Attorney Andrew Thomas from the action entirely, saying he has special immunity as a prosecutor. But she did not release Sheriff Joe Arpaio and former county Special Prosecutor Dennis Wilenchik from all alleged blame in the incident.
A week before Bolton's action, prosecutors dropped a misdemeanor "disorderly conduct" charge against New Times writer Ray Stern, who was cited on the same night (October 18, 2007) that the paper's executive editor, Michael Lacey, and its chief executive officer, Jim Larkin, were hauled out of their homes by the sheriff's Selective Enforcement Unit and incarcerated for hours.
Judge Susan Bolton
Lacey and Larkin's alleged crime was writing a story about abusive grand jury subpoenas — from a grand jury that turned out not to exist — seeking a wide array of privileged information about New Times journalists and the paper's online readers ("Breathtaking Abuse of the Constitution").
In Stern's case, he was accused of raising his voice in the office of one of the sheriff's taxpayer-funded private attorneys, Michele Iafrate, after he was ordered not to photograph public records reluctantly put on display for his review after a formal request under the Arizona Public Records Law ("David & Goliath," August 28).
The Selective Enforcement Unit also appeared at Stern's home, and his charge was turned over to Thomas' office for prosecution. Thomas cited a conflict of interest and asked City of Phoenix prosecutors to step in. Citing their own conflict, they eventually turned the case over to the City of Mesa. It was finally dropped after Mesa prosecutor John Pombier said, "There is no reasonable likelihood of conviction."
One reason had to be that former Iafrate employee Beverly Goodman — who was at the lawyer's office and heard the confrontation — testified in a deposition that Stern did not raise his voice.
Another reason: A jury might have agreed with Stern and New Times lawyer Steve Suskin that "the citation written by the MCSO was a sham likely motivated by vindictiveness and a desire by the sheriff to retaliate for facts and opinions previously published in New Times."
The newspaper's false-arrest lawsuit alleges that Thomas, Arpaio, and Wilenchik broke the law and violated the First Amendment rights of Lacey and Larkin by jailing them on the very day that they published their article on the subpoenas.
While Judge Bolton dismissed Thomas as a defendant in the suit, she did not entirely release Arpaio and Wilenchik. It was under the bombastic Wilenchik's hand that the subpoenas against New Times and its readers were issued. And he was the one appointed by Thomas to prosecute the paper and, by extension, Lacey and Larkin.
After a national outcry over the arrests of the pair, Thomas was forced to fire Wilenchik as special prosecutor (although he remains in Thomas' employ on civil matters involving Arpaio), drop the investigation of New Times, and dismiss felony charges of revealing grand jury secrets against the paper's executives.
In her ruling, Bolton did not disagree with allegations that Thomas' grand jury subpoenas were overreaching and possibly malicious, but she said that overreaching subpoenas and Lacey and Larkin's night in jail do not constitute racketeering and other federal allegations alleged in the New Times complaint.
A press release issued by the County Attorney's Office after her ruling gave some media outlets the impression that the entire lawsuit was dismissed, but New Times attorney Michael Manning says, "The heart of the case remains intact. We're moving forward with the action. This is part of the litigation process that we're disappointed with."
Manning says an appeal is under consideration, as is submitting a revised complaint in federal court by an October 31 deadline set by Bolton.
The judge wrote in her summation, "Plaintiffs allege that Wilenchik issued subpoenas that were overbroad and improper, and sought arrest warrants and fines; even if these actions were done maliciously or for an improper purpose, Plaintiffs have not alleged that they are indictable under federal or state law."
Bolton did not rule out that Arpaio was motivated by malice.
"The fact that Arpaio sought to have plaintiffs criminally prosecuted does not constitute abuse of process," she wrote, "merely because Arpaio disliked plaintiffs and enjoyed doing them harm."
The judge dismissed the federal allegations of racketeering and negligence against Wilenchik and Arpaio. She did not dismiss claims of gross negligence, malicious prosecution, and false arrest and imprisonment. These, she concluded, can be handled in Superior Court — unless facts presented in an amended complaint convince her otherwise.
Michael Lacey's response to Bolton's ruling and information about how Thomas and Wilenchik's prosecution came about are contained in the accompanying sidebar.
In a separate action against Arpaio, New Times has filed a complaint for special action, asking that a Superior Court judge force the sheriff to hand over public records that his office has refused to produce in the suspicious death of an inmate.
The disputed records include video footage of the final minutes of prisoner Juan Mendoza Farias' life. Farais died on December 5, 2007, after an altercation with 11 guards in the Lower Buckeye Jail that left him with bruises and welts covering much of his body.
An independent medical examiner reviewed Farias' autopsy and told New Times that he was beaten and suffocated before he died ("Dead Again," September 11).
Last July, New Times asked the sheriff for video footage and other public records about Farias' death. In August, Lieutenant Dot Culhane, a legal liaison for the sheriff, said the footage and records would not be released because they are part of an ongoing investigation.
Case law in Arizona, however, dictates that merely claiming an investigation is ongoing — without showing specific, serious harm that releasing the records would cause — is not a valid reason for law enforcement to deny a public-records request.
On September 11, New Times published a story about Farias' death, in which it was mentioned that Arpaio's staff would not deliver records that Arizona law deems public.
The next week, New Times received a letter that included Farias' booking photograph. In it, Pam Woody, another legal liaison, wrote that if the video of Farias' death were released, guards might see it, which could compromise the sheriff's investigation into the death.
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"For example," Woody wrote, "if a witness were to view a videotape of the incident or have information relayed . . . by someone who viewed the videotape, it is possible that the witness' memory of what occurred will be altered to conform to what they believe they are seeing or what they have been told."
In the October 6 complaint, New Times attorney Suskin writes that "Arpaio's refusal to allow examination of the original videotape or other digital display of the death of Mr. Farias or to provide copies of other documents, as requested, constitutes a violation of [state law]."
The complaint adds that withholding the video "is without merit, speculative, made in bad faith, and insufficient as a matter of law to avoid compliance with the Arizona Public Records Law. Arpaio presented nothing more than global generalities of the possible harm that might result from release of the requested public records."
The sheriff has 20 days from the time he was served with the complaint to file a legal explanation for withholding the records. The complaint for special action is not a civil lawsuit seeking monetary reward. Special action is a legal device that requires government agencies to abide by the law.