Phil MacDonnell, second-in-command to County Attorney Andrew Thomas (who had assumed office five months earlier), gave the okay for the agency's Incident Review Board to evaluate the case against John Dougherty, a veteran reporter then at New Times.
It had started with a Dougherty column published in July 2004 partially about Sheriff Joe Arpaio's refusal to release financial details about his surprisingly extensive real estate holdings.
Dougherty concluded his opinion piece by revealing Arpaio's home address in Fountain Hills. Actually, "revealing" might be the wrong word. Because the location of the sheriff's residence is available all over the Internet — including on government Web sites, people-search sites, and even (at one time) on a Republican Party site.
The prosecutors had to decide whether publication of the address on the New Times Web site had violated May 1999 legislation signed into law by Governor Jane Hull. And if it had, would a jury vote to convict the reporter?
The law made it a felony to put addresses and other personal data of police officers on the Internet — if that information posed an "immediate and serious threat" to the officers and if the person who published had meant for it to be a threat.
It still was okay to publish that same information in newspapers and magazines and to report it on television or on the radio.
In April 2005, John Stolze, a respected investigator with Thomas' office, had drawn the sticky assignment of looking into what became known as the "Dougherty matter." That was nine months after publication of the column containing the sheriff's home address.
According to files recently released to New Times by the County Attorney's Office, Stolze got involved after MCSO Lieutenant Ray Jones (commander of Arpaio's Selective Enforcement Unit) alleged: "Sheriff Arpaio is afraid and concerned for his and his wife's safety, because of the actions of Dougherty."
The files show that Arpaio made his feelings about Dougherty known to County Attorney Thomas in their first official meeting soon after Thomas assumed office in January 2005.
But after familiarizing themselves with the previously unused and legally untested law, Stolze and others came to believe that the section about an "imminent and serious threat" would be tough for prosecutors to overcome, among other issues.
How, they wondered, could Arpaio claim such a pressing "threat" when he hadn't tried to seek redress for months after the fact and when nothing threatening had happened to him in the interim?
"Lieutenant Jones related that MCSO did not request an investigation until April 2005, nine months later, because Sheriff Joe did not want to make it look like it was politically connected," prosecutor Liz Gilbert and Stolze's supervisor, Mark Stribling, wrote in their May 2004 internal memorandum, referring to Arpaio's successful November 2004 re-election bid.
"Underlying problems with case: The nine-month time delay to report the incident . . . and showing that Sheriff Arpaio was in fear for his safety. The fact that Sheriff Arpaio's home address, Social Security number, and other personal information [are] available to the public via the Internet from numerous Web sites. Note: Sheriff Joe and John Dougherty are involved in a long-standing ongoing feud and civil suit.
"High-profile case," they concluded. "Sheriff Joe Arpaio is demanding that this case be charged. Sheriff Arpaio has several high-level employees calling Liz Gilbert to see when this case will be filed. Latest call indicated that there would be problems between the Sheriff's Office and the County Attorney's Office if this case is not charged."
The newly released files and other sources of information suggest that personnel in Andy Thomas' office played it straight with the Dougherty probe — at least at the start.
They did so despite repeated appeals by Arpaio to the new county attorney for action, and an onslaught of paperwork by sheriff's official Ronald Lebowitz, an attorney, urging Dougherty's criminal prosecution.
Instead, the Incident Review Board apparently declined in August 2005 to recommend prosecution under the 1999 Internet publication law — which calls for fines and a possible prison sentence.
The use of "apparently" is necessary because paperwork from the panel's August 9 meeting wasn't included in the records recently released to New Times under the state's Public Records Law.
But four people familiar with what happened at the meeting tell the paper that the consensus of the 13 board members was that, even if Dougherty had broken the law, convicting him would be difficult.
One main hitch was that Arpaio's home address was available across the Net. And, just as important, how could prosecutors prove that the reporter's aim in publishing the address was to get someone to do harm to Joe Arpaio or his family?