In my Wednesday blog post ("County Attorney’s office (finally) files `Notice of Intent to Dismiss' charges in Lacey/Larkin matter"), I mentioned a cryptic document recently filed by Chief Assistant County Attorney Sally Wolfgang Wells, entitled, "State's Report of Document Search." Responding to an October 24 order from Judge Anna Baca to look into the whereabouts of the original grand jury subpoenas to New Times and to writers Paul Rubin and John Dougherty, Wells informed the court that the County Attorney had obtained the prosecution file from former special prosecutor Dennis Wilenchik, but that, "No documents were located in that file that should have been part of the Clerk of the Court's file."
Apparently, Judge Baca found that explanation inadequate, because now Baca has issued a sternly-worded dictum demanding a supplemental report from the County Attorney's office be filed with her by November 21. This second report is required to inform Baca of the following:
"(1) whether the MCAO has any documents that reflect when and if the subpoenas were issued at the request of the grand jury...(2) whether the MCAO has the originals or copies of Notices of the issuance of the subpoenas to the grand jury foreman and Notices to the presiding judge... and (3) whether the MCAO has the original subpoenas and affidavits of service."
Baca also set a post-Thanksgiving hearing on the contents of the grand jury file for Monday, November 26.
You can read Judge Baca's entire order, here.
Don't know if Judge Baca has ESP, but she seems to be reading my mind in the following passage:
On November 7, 2007, the Clerk’s office reported that it does not have any documents in its possession other than those retrieved at the October 24, 2007 hearing. The MCAO reported that it obtained the prosecution file in 430 GJ 97 from the office of former special prosecutor Dennis Wilenchik and that “no documents were located in that file that should have been part of the Clerk’s file.” It is not clear what documents are referred to as “documents that should have been part of the Clerk’s file.” The court now clarifies its prior order and directs the MCAO to supplement its November 7, 2007 report to the court.
What's the big deal about these missing subpoenas? I mean, New Times founders Mike Lacey and Jim Larkin already published the infamous subpoena to New Times in their cover story "Breathtaking Abuse of the Constitution." You know, the one that got Sheriff Joe's Selective Enforcement Unit slapping the cuffs on the duo in the middle of the night and hauling them off to the hoosegow.
Yet, as Lacey wrote in his November 1 column, "He Just Doesn't Get It," Wilenchik "anointed himself the grand jury," instead of facilitating the grand jury. The special prosecutor was required by law "to report to the grand jury foreman and the presiding judge the existence of a subpoena within 10 days of issuing it." Wilenchik didn't do that.
Could the subpoenas be missing because they might offer proof that Wilenchik did not play by the rules?
Lacey calls Wilenchik out as a serial prevaricator in his most recent column, "Wilenchik's a Liar, and There's More." Therein, Lacey discusses how Wilenchik personally sought the arrests of Lacey, Larkin, and their lawyers, Tom Henze, Janey Henze, and Steve Suskin. But when asked after the fact who issued the order for an arrest, Wilenchik buffaloed us in an e-mail, "Don't know. If I find out will be back . . ."
As Lacey points out in this week's column, Wilenchik's being disingenuous. Not only did he ask for the arrests, he wanted New Times' lawyers thrown in Sheriff Joe's gray bar hotel as well. And he was aiming at bankrupting New Times, asking for up to $90 million in fines against us for the alleged grand jury disclosure.
Lacey revealed that New Times bills "approximately $14 million annually," adding, "that's our revenue before printing, rent, supplies, salaries, benefits, and taxes."
So Wilenchik was looking to put New Times under, as well as lock up all our execs and lawyers. Then Wilenchik refuses to own responsibility for all this, and now they can't find the subpoenas that set this prosecutorial Titanic in motion?
I asked County Attorney flack Michael Scerbo for an explanation of the County Attorney's report to Baca and the absence of those subpoenas.
"We have nothing to add relating to the State's Report of Document Search," he told me. "The report is self explanatory."
Like they say on jump street, Mike, better tell it to the judge.
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