By Paul Rubin
Late one night six months ago, plainclothes Maricopa County sheriff's deputies showed up in unmarked cars at the homes of New Times founders Michael Lacey and Jim Larkin.
The grim-faced cops arrested the men on misdemeanor charges of revealing so-called grand jury proceedings -- orchestrated by then-county special prosecutor Dennis Wilenchik -- in a cover story in this publication.
That article revealed the unprecedented attempt by authorities to subpoena the identities and reading habits of New Times readers, as well as to obtain notes and correspondences of the paper's writers and editors regarding Sheriff Joe Arpaio.
According to a lawsuit filed Tuesday, April 29 in Maricopa County Superior Court, defendants Arpaio, County Attorney Andrew Thomas, Wilenchik and two county agencies subverted "the grand jury process" and committed other wrongdoing in seeking this information. Read about Arpaio's bizarre reaction to the lawsuit here.
Listed as plaintiffs in the suit are Lacey, Larkin and New Times.
Sheriff Joe Arpaio
Despite the term "grand jury," it turned out that no panel ever convened to hear and discuss the underlying case--the merits of a potential criminal complaint against New Times for publishing the sheriff's home address on its Web site in a July 2004 column by former staff writer John Dougherty.
That allegedly broke a never-before-used and therefore legally untested Arizona law barring such publication on the Web (though not in any other media, including radio, television, print or even billboards).
Wilenchik and three other attorneys from his private Phoenix law firm had been on the case since July 2007, when the county Board of Supervisors, at the urging of County Attorney Thomas (a friend and former employee of Wilenchik's), hired the lawyers as special prosecutors to take over the lingering New Times case.
Using the powerful mechanism of subpoenaing the paper and its reporters, Wilenchik and his team sought to show that publication of Arpaio's home address had posed "a serious and imminent threat (the language of the Internet-publication law)" to the sheriff's personal safety, and that proof just might exist somewhere in the bowels of the paper's computer hard-drive.
New Times never did turn over anything to Wilenchik, and the whole affair blew up in his face (and also, more pertinently) in the faces of Thomas and Arpaio after the arrests of Lacey and Larkin.
In the end, the Internet publication case against New Times went away, as did the misdemeanor charges against the paper's executives, who spent time in Arpaio's infamous jail system (Lacey at the Fourth Avenue Jail in downtown Phoenix, and Larkin in a holding facility in Mesa). In the firestorm of public criticism that greeted Thomas and company after the bizarre arrests, Thomas fired Wilenchik and the other lawyers working on the case as special prosecutors. He has continued to use the blustery Wilenchik in civil matters affecting Arpaio's office.
Wilenchik and Thomas are subjects of a continuing investigation by the State Bar of Arizona into the events surrounding the New Times case, among other matters.
The 34-page lawsuit, filed by attorney Michael Manning, provides a summary of what happened in the case, and why.
When New Times' "fair criticism" became too much, Manning writes, Arpaio, Thomas and Wilenchik "flexed their politicial muscle in the form of a conspiracy. They abused their governmental authority by attacking the press, punishing free speech, demeaning the role and function of an impartial prosecutor and an independent judiciary, perverting the grand jury process, and serving notice to citizens who read news on-line that neither their identities nor their reading habits are safe from the reach of vindictive government officials and their confederates."
As for the wild few days that ended in Wilenchik's dismissal, Manning writes: "On October 18, 2007--the same date [New Times] published the article revealing the [overreaching] subpoenas--Wilenchik filed a motion in the court for an Order to Show Cause. The motion demanded that Judge [Anna] Baca hold New Times in contempt, issue arrest warrants for Mr. Lacey, Mr. Larkin and three of their lawyers, and fine the newspaper what could amount to a bankrupting $90 million.
"The requested fine was a blatant attempt to use prosecutorial power to target and ruin the business enterprises of New Times, a newspaper that had been labeled an `anti-Arpaio' paper for publishing articles critical of Arpaio, Thomas and Wilenchik. But, the ire of these public officials, whose feelings were too wounded by this `misbehaving' newspaper, could not await the Court's response to Wilenchik's motion."
That same night, the suit notes, Arpaio's Selective Enforcement Unit took Lacey and Larkin into custody. Larkin was released sooner than Lacey, who was greeted early the next morning by a throng of media outside the downtown jail. The story of the arrests of the newspapermen soon went national.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Phoenix New Times's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Phoenix's stories with no paywalls.
Support Our Journalism
"There was no probable cause for the arrests and, certainly, no justification for them. Misdemeanor violations that do not threaten lives are usually handled by the issuance of citations, not by commando raids, arrests, handcuffs and jail cells in the dead of night," Manning writes. . The lawsuit does not ask for a specific amount of money, but does seek general and punitive damages. In requesting a jury trial, Manning lists several reasons, the central one being civil-rights violations by Arpaio, Thomas and Wilenchik. Manning argues that the three violated constitutional guarantees of free speech and a free press.
The defendants, Manning says, are guilty of retaliatory conduct in falsely arresting Lacey and Larkin, executive editor and CEO of Village Voice Media respectively, and in maliciously prosecuting New Times.
The circumstances surrounding the arrests resulted in a series of stories, titled "Target Practice," last fall.
For more on this story, see Ray Stern's piece: Sheriff Joe Arpaio, this time, reveals his home address himself.