Questions asked by a Ninth U.S. Circuit Court of Appeals panel in yesterday's hearing of the New Times vs. Sheriff Arpaio false- arrest lawsuit seemed to lean toward the newspaper's position.
Watch the hearing yourself and let us know if you agree. The Ninth published the hearing video this afternoon (scroll down to see it), and we've prepared a quick guide to some of the highlights. You can also check out the story published yesterday by the SF Weekly's Peter Jamison, who attended the hearing.
If you didn't already know, New Times is suing Arpaio, former Maricopa County Attorney Andrew Thomas and lawyer Dennis Wilenchik over the 2007 nighttime arrests of Village Voice Media Executive Editor Michael Lacey and VVM CEO Jim Larkin, and the nefarious plot that preceded those arrests.
The short version:
By 2007, New Times had published numerous stories that criticized Arpaio, Thomas and Wilenchik, the latter being Arpaio's personal lawyer and Thomas' former boss.
After New Times published Arpaio's home address in a story about the sheriff's questionable real-estate deals, Arpaio, Thomas, and Wilenchik targeted the paper with a selective investigation and attempted prosecution. Wilenchik issued sweeping, bogus grand-jury subpoenas that sought -- among other things -- the IP addresses of everyone who had visited our Web site for several years.
Lacey and Larkin were arrested after publishing a story that revealed details of the subpoenas. Thomas, responding to a national outcry the next day, announced the whole thing had been a mistake and dropped the case.
The lawsuit against the county officials stalled in 2008 after U.S. District Judge Susan Bolton ruled that Arpaio and Thomas have immunity as public officials. Wilenchik was left in the suit as a defendant. Now the case is in the hands of the Ninth Circuit Court, which is deciding questions such as whether the sheriff and the ex-county attorney engaged in an illegal conspiracy that erases their immunity.
Rather than force you to watch the whole, one-hour-and-five-minute hearing, we've provided timestamps (in minutes and seconds) for your viewing convenience:
7:55 -- Michael Meehan, New Times' lawyer, was the first up. Here, (seven minutes and 55 seconds into the video), Meehan gives a short primer on how the alleged conspirators came together to violate the rights of the executives with the bogus subpoenas. At 12:00, Meehan explains how his clients were harmed not just because Thomas decided to choose a special prosecutor in the case, but because he chose Wilenchik, who wasn't neutral and wanted to do the bidding of Arpaio and Thomas because it meant more county work for him.
14:00 -- The discussion turns to Thomas' potential immunity from the lawsuit. In Bolton's ruling and the June 2011 ruling of a three-judge panel of the Ninth Circuit, Thomas was said to have immunity -- but the 11-judge panel on Wednesday revived the notion that Thomas may not escape the suit. We contacted Meehan today, who says he now believes there's a "reasonable prospect" that Thomas could be put back in.
22:00 -- A bit of comic relief. Judge Harry Pregerson, listening to the hearing by phone, calls in a question. He spends a couple of minutes discussing a Civil War-era federal law and asks whether it would apply to Arpaio and the others.
"Maybe you can get a special prosecutor appointed," quips Chief Judge Alex Kozinski, producing a burst of laughter in the courtroom.
"Well, I don't think that's funny," Pregerson replies stiffly.
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
46:00 -- Tim Casey, the lawyer for Thomas and Wilenchik, begins his spin on why Thomas is deserving of absolute immunity. Some of the judges seem skeptical.
56:25 -- Meehan comes back for some additional arguments.
Meehan says today that, based on the judges' questions, they'll probably find that a conspiracy did exist, which would be good news for New Times' side of the suit.
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Although it wasn't brought up in the hearing, Meehan says he hopes the judges consider strongly the accusation of illegal selective investigation in addition to the other allegations.
How long before the Ninth will rule is unclear. The court's three-judge panel, which decided in June that the lawsuit could proceed, took a year to make a decision. Meehan says he doesn't think it will be as long, this time.
If the Ninth Circuit decides in New Times' favor, Bolton will get the case again. She watched the hearing from the federal courthouse in Phoenix yesterday.