County Attorney Andrew Thomas has not issued a single grand jury subpoena in the wake of the fallout from my arrest and that of my business partner, New Times CEO Jim Larkin.
According to a document leaked to the paper from inside the prosecutor's office, Thomas is mulling his next step.
"Please inform your attorneys and staff that MCAO [Maricopa County Attorney's Office] should not issue any new GJ subpoenas until they receive the new template and instructions. Those documents will be provided as soon as possible," wrote Chief Deputy County Attorney Sally Wells in a November 26 e-mail to the staff.
Maricopa County corruption
As we approach the New Year, those guidelines are still up in the air, raising the question: Why can't Thomas simply follow the state statute his office routinely violated?
In this week's conclusion to our series "Target Practice," in which we have taken a hard look at the practices of Thomas and Sheriff Joe Arpaio, Amy Silverman examines the fudged résumé of former Special Prosecutor Dennis Wilenchik; Sarah Fenske explains that despite having the largest budget in the county, the Sheriff has never had a full audit of his office's finances; and Megan Irwin takes you into the world of kidnappings, ransoms and migrant terror.
After the arrests of Larkin and myself on October 18, I published a column, "He Just Doesn't Get It" (November 1), alleging that then-Special Prosecutor Wilenchik broke the law by not following state statutes governing the conduct of a grand jury.
Two weeks later, on November 14, Judge Anna Baca scheduled an end-of-the-month hearing to review the contents of the secret grand jury file in our case and to examine the legality of the subpoenas that were issued.
All grand jury subpoenas are serious, but, more than most, these involved the public welfare. The County Attorney had sought journalists' notes and files going back nearly four years covering all articles written about Sheriff Arpaio. More alarmingly, the secret subpoenas demanded the identity and online viewing habits of any person who had read New Times on the Internet in the same time frame.
These secret grand jury subpoenas reflected an abuse of the U.S. Constitution that was unprecedented in American legal proceedings.
"That subpoena is grossly, shockingly, breathtakingly overbroad," James Weinstein, a constitutional law professor at the ASU College of Law, told the New York Times. "This is a case of harassment of the press."
Not content with undermining the Constitution, Wilenchik also short-circuited the limited safeguards that ensure the integrity of the grand jury process.
At the November 26 hearing with Judge Baca, Thomas' office was represented by Chief Deputy Wells, who informed the court that the prosecutor had conducted grand juries in this fashion for 25 years.
Judge Baca ruled that the County Attorney and his special prosecutor had indeed violated the grand jury statute; they had informed neither the foreman of the grand jury nor the judge of the subpoenas. Indeed, there was no grand jury. Dennis Wilenchik had, in effect, been a one-man grand jury.
County Attorney Thomas' stalemated effort to devise new grand jury guidelines is merely the latest development in a cascading series of events since our October 18 cover story, "Breathtaking Abuse of the Constitution."
When the story, coupled with word of our arrests, hit the Internet and the streets, reader outrage filled the airwaves, overwhelmed e-mail accounts and dominated headlines locally. There were more than 80 television broadcasts on the subject in Phoenix.
County Attorney Thomas called a press conference on the very day I was released from jail.
Claiming mistakes were made, Thomas fired special prosecutor Dennis Wilenchik, dropped all charges against Larkin and myself, and quashed the subpoenas.
Thomas clearly hoped to mollify citizens outraged that their First Amendment right to read a newspaper without provoking a government investigation had been trampled.
The uproar, however, did not abate and attracted national attention from newspapers ranging from USA Today to the New York Times. Countless Web sites — local, national, and international — also weighed in alongside talk radio broadcasts hammering the issue of First Amendment rights.
The State Bar of Arizona revealed that it was expanding an investigation into both Thomas and Wilenchik to include allegations that the special prosecutor proposed an improper meeting with the judge, Anna Baca, presiding over the secret grand jury attack upon New Times and its readers.
There is no way to guess what would have happened had Larkin and I opted to resist the grand jury proceedings with the typical legal defense.
Everything changed with our act of civil disobedience. That small spark touched off public revolt.
To some, it might appear that New Times survived this attack, scarred but unrepentant.
But this clash with County Attorney Thomas, Special Prosecutor Dennis Wilenchik and Sheriff Joe Arpaio raised fundamental questions that trumped any newspaper's meager scorecard of wins and losses.
Why did law enforcement ever believe that it could use secret grand jury subpoenas to target the online readers of New Times?
You don't serve grand jury subpoenas upon people who pick up a newspaper from a newsstand. You don't investigate those who log onto their laptops to look through a publication.
Newspaper readers are not mobsters.
How in the hell did freedom of the press and the First Amendment become such fragile doctrines?
The staff of this newspaper determined it must examine the sad logic of the outrageous subpoenas.
The month before my arrest, I happened to visit Dachau, a very short drive for the residents of Munich, Germany. The second floor of a nearby housing development looks out upon the assembly field of the infamous camp. A McDonald's, with its happy meals, is but a few hundred yards from Dachau's gate.
Dachau evolved into a concentration camp, but in the beginning it was merely a resettlement station for communists and other political malcontents; in fact, this effort to maintain order in fractious Germany was considered so banal that the New York Times covered the opening of Dachau. The Red Cross gave it passing marks.
It was in Dachau that I found the memory of poet and pastor Martin Niemoller. He survived the concentration camp, and his words written after the war survived him.
If you don't recall his name, you will recognize his work.
When the Nazis came for the communists, I remained silent;
I was not a communist.
Then they came for the sick, the so-called incurables, and I didn't speak up,
Because I wasn't mentally ill.
Then they came for the Jews, and I didn't speak up.
Because I wasn't a Jew.
When they came for me, there was no one left to speak out.
Niemoller's elegant critique was on my mind again after I walked out of jail and met with the writers and editors of New Times.
I suggested that what appeared to be a stunningly arrogant subpoena aimed at our readers was not simply a high-risk tactic that suddenly turned the Constitution on its ear; this challenge of the First Amendment evolved gradually after years of abusing the rights of others.
Our series of articles undertook the prosaic: Let's look at those others.
And so we examined the County Attorney and the Sheriff's assault upon the rights of prisoners, political opponents, journalists, migrants and judges. The hostilities took shape over 14 years. They did not begin with judges, but by the time Thomas, Arpaio and Wilenchik arrived at the courthouse with their dark accusations in October, who but the jurists was shocked? When law enforcement subsequently stumbled upon readers as a target of secret writs, the authorities had little reason to reflect.
And please, despite acknowledging Niemoller, do not for a second think that I am making some puerile, dorm-room allusion to the horrors of fascism. I am not. But the pastor's insight into our bond with society's others is apt.
Others. Such a simple thought for writers; it is not so simple for the community.
Who are the others; must we deal with all of the others?
The isolation of others in Phoenix began with prisoners in Arpaio's jails. He built unprecedented political popularity promising to treat them harshly.
Clearly the community has spoken, repeatedly: What do these inmates have to do with us?
Even Niemoller's work, with all that informed it, generated unsettling questions about who was, or was not, part of the community. In some versions of his poem, the mentally ill are left out as a class in favor of social democrats. There are charming reports that, during the McCarthy era, the communists were dropped from the poem when Niemoller was invoked.
Those of you scanning these words will decide who are members of the community. But it is plain: what began with the sheriff's inmates ended with this newspaper's readers.
For two years, I spent not enough Sundays on a pew inside Sacred Heart church in Galveston, Texas. In 1900, this Gulf Coast community was all but wiped off the map by a hurricane that killed about 8,000 men, women and children. The 16-foot storm surge and 140 mile-per-hour winds flattened everything in their path; it stands today as the deadliest natural disaster in the history of America.
At the end of every mass at Sacred Heart, the congregation prayed, without embarrassment, to the Virgin Mary to spare them from such torment ever again.
In a secular world, such an invocation is almost quaint.
Today, we rely not upon divine intercession but rather upon government for protection. (And the practical citizens of Galveston, not trusting entirely in Catholic supplication, demanded that City Hall rebuild with the protection of a stout sea wall).
But where do we turn when government — in this case, law enforcement — threatens its citizens like a grim force of nature?
Of course, the Constitution and the Bill of Rights offer refuge, but the reality is that they are Olympian ideals that grow suddenly distant when most needed. Arizona's prisoners' rights lawsuit, Hart vs. Hill, is 30 years in the courts with no resolution is sight. This paper's brief act of defiance cost us a quarter of a million dollars in legal fees, hardly a viable option for most. The federal government failed to pass laws that address the very real problems associated with illegal aliens. A vacuum ensued. Race-baiters, Thomas and Arpaio, filled the void and cater now to an angry mob, despite the fact that migrants enjoy the same Constitutional rights as the rest of us.
Constitutional scholar and dean emeritus of the ASU law school, Paul Bender, pointed to a rather shocking solution, given his background.
People must resist.
Lawyers are necessary. Courts are a refuge. The laws of government are a foundation.
But people must resist.
In a discussion about Thomas, Arpaio and Wilenchik, and their treatment of the "others," Bender did not mince words: "If law enforcement got the idea they could attack enemies who criticize, that's extremely dangerous . . . if they succeed in terrorizing people it becomes a crisis . . . I cannot imagine what was on Wilenchik's mind . . . very, very, far out assertions . . . virtually bizarre . . . gross violation of the First Amendment . . . the Sheriff's roundup of immigrants, very questionable . . ."
Bender's solution is not procedural.
"The judges stood up to him [Thomas]," Bender told me. "You stood up to him. The people stood up."
That's rather grand; after all, there are many incapable of standing. They are on the run or in cells. How do we get "the people" to see their bond with "the others," the Mexicans, the prisoners?
How do we convince our readers that their community is linked directly to migrants?
In Sacred Heart church, they have stained glass windows depicting the Corporal Acts of Mercy.
These are the Biblical admonitions calling, if not for a sense of community, at least for a sense of responsibility.
Instead of the customary — visit those in prison — Sacred Heart's stained glass urges, "Ransom the captives."
In Phoenix, Sheriff Joe Arpaio has created a 14-year run of terror directed at inmates. Andrew Thomas has painted a bull's-eye on Mexican migrants. And when Arpaio finds illegal aliens kidnapped and held for ransom in drop houses, they are charged and deported.
This series hoped to make clear the larger community. We sought to link prisoners, political enemies, journalists, migrants, judges and readers.
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