Friday, November 28, 2014

I fought the law and...

Pin it

PHM0908LAW1a

The late-night, at-home arrests of New Times executives last fall sent shockwaves through Arizona. Was it an “inappropriate abuse” of police powers exercised by Sheriff Joe Arpaio and County Attorney Andrew Thomas, or were the elected officials just policing a “law-breaking newspaper?” Now the New Times is suing for millions, and a court will decide if Maricopa County’s top law enforcement officials must answer for what happened that night. Here’s the inside story that leads you down the winding road to this blistering showdown.

October 18, 2007, started off as a night worth celebrating: It was the 16th wedding anniversary of Jim and Molly Larkin, a couple who treats each other – after four children and all these years – like they’re still on their honeymoon.

They’d had drinks at the Royal Palms Resort and Spa on Camelback Road with Jim’s longtime business partner, Michael Lacey and Lacey’s girlfriend, but even on a night when they could have painted the town, the Larkins preferred to go home and eat dinner with their children.

It had been a busy day in the lives of these newsmen, who started publishing an anti-Vietnam War publication out of Arizona State University in 1972 and had become the nation’s largest, most successful alternative newspaper owners, with 15 papers and the legendary Village Voice of New York City in their stable. That day, they had defiantly broken the law with a cover story in their flagship paper, the Phoenix New Times, that read: “Grand Jury Targets Phoenix New Times and Its Readers.”

Lacey and Larkin shared a byline for the cover story – the first time in 35 years that CEO Larkin had lent his name to an article. Normally, it is Executive Editor Lacey who does the spouting off in print, but this time, the full force of the newspaper chain was on board. The article revealed what they called a “breathtaking abuse of the Constitution” and took aim at three people: Maricopa County Sheriff Joe Arpaio, County Attorney Andrew Thomas and their private attorney, Dennis Wilenchik.

The story exposed what they called “unprecedented” grand jury subpoenas; it would turn out these were bogus subpoenas, but neither the newspapermen nor their attorneys knew that yet. They believed a real grand jury had gone after them, their editorial staff and their readers for angering Arpaio four years earlier when the paper published the sheriff’s home address in Fountain Hills. They believed a real grand jury wanted notes on any article about the sheriff that their staff had researched over the last four years, and wanted personal information on anyone who had visited the New Times Website  during those years, demanding the identity, purchasing habits and browsing histories of their online readers.

The journalists and their attorneys knew it was a misdemeanor, or a minor offense, to publish secret grand jury proceedings. As they wrote: “It is, we fear, the authorities’ belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option.”

PHM0908LAW3Now, at about 10 p.m., the Larkins were home in their two-story hacienda in Paradise Valley. They had put their youngest daughter and two boys to bed – their oldest girl was at a sleepover – and were sound asleep themselves when they awoke from the sound of pounding at their front door. Peeping out from a window, they saw four “thug looking guys” dressed in street clothes.

“They wouldn’t say who they were or why they were there, and Molly kept telling me, ‘Don’t open the door,’” Larkin remembers.

“What do you want?” Larkin yelled through the locked door.

“You know what we want, buddy,” one of the men yelled back.

Larkin grabbed his cell phone and called one of his veteran investigative reporters, Paul Rubin.

“Larkin was freaked,” Rubin recalls. “He told me, ‘My kids are here, what do I do?’ I told him to go outside, but he said, ‘They’re not wearing uniforms, I’m not sure they’re cops.’ The specter that these guys are kidnappers wasn’t out of the question.”

Meanwhile, Molly called for help, dialing 911 to the Paradise Valley police. “I wanted witnesses,” she said. “This could easily have been a home invasion.”

It wasn’t until the Paradise Valley police arrived that the Larkins opened the door. “Once I saw the Paradise Valley cops, I knew real police were here,” Jim says.

But even then, the plain-clothes officers didn’t produce any badges.

“They wanted to arrest Molly because she demanded to see their ID,” Larkin says.

Eventually, they showed the metal shields that identified them as deputies from Sheriff Joe Arpaio’s “Special Enforcement Unit,” formerly called the “Threat Assessment Squad,” which was created to investigate threats on the life of the man who calls himself “the toughest sheriff in America.”

The sheriff’s deputies told Larkin he was under arrest. The Paradise Valley police stood by, saying they didn’t have jurisdiction over this matter.

“What are you arresting me for – for publishing a newspaper?” Larkin asked sarcastically.

“What newspaper, that tabloid?” one officer spat back, parroting the dismissive label Sheriff Joe uses to describe the New Times.

“I told them they should be ashamed of working for a man like Arpaio,” Molly says, adding that they told her, “Your children should be ashamed of you.”

Outside were unmarked cars – at least one with Mexican license plates – and Jim was put in the backseat of one in handcuffs. In his pocket was a cell phone with a GPS tracking feature that let Molly track him. She was on the phone before her husband left their home, convincing a friend to physically follow the car.

Then she called Rubin. “She’s screaming into the phone that they’re not going Downtown [to the county jail] but are on the freeway going south,” Rubin remembers. “I was trying to keep her calmed down, but this was terroristic shit.” He says he remembers feeling very anxious, too.

By then, Rubin had been called to Lacey’s home because sheriff’s deputies dressed in civilian clothes had carted Lacey away in handcuffs as well.

PHM0908LAW3a“They wanted to know if I had weapons,” Lacey remembers, “and I told them, ‘Only my computer.’” As he was hauled off, his girlfriend, New Times writer Sarah Fenske, was in tears, begging the officers not to hurt Lacey. “They weren’t aggressive and they reassured her,” he says. “They gave her a phone number, but it didn’t work.”

Deputies put Lacey into an unmarked SUV and drove him to a strip mall parking lot, where Lacey says he watched his arresting deputies conferring with other law enforcement people.

“One guy tried to reassure me that I’d be out quickly because this was just a misdemeanor,” Lacey remembers.

They then drove him Downtown to the Fourth Avenue Jail, where they took off his belt and put him into a holding cell with 30 to 40 others.

“There were people in there for drugs and alcohol, and a fair number of gang bangers,” Lacey says. “They asked me what I was in for, and I told them for writing an article, and they couldn’t believe it. I didn’t feel worthy.”

He only stayed in the holding cell a short time and then was put into an isolation cell that was so small he could sit or stand but couldn’t lie down. As he stood there, he says he wondered just how many people the sheriff’s elite squad has roused from their beds at night and arrested for committing a misdemeanor. Meanwhile, Molly Larkin had a most remarkable reaction when she heard Lacey had also been arrested: “I felt a little safer because I didn’t think they would take both of them out in the desert and kill them,” she says. As hysterical as that sounds, she says it shows how terrified she was.

By then, Molly was burning up her cell phone with calls for help. She called a friend from The New York Times, who was in San Francisco reporting on a story. “They’ve taken Jim,” she said, summarizing the “ominous” scene she’d just witnessed. She says he called the sheriff’s office to try to find out what was going on. Molly also called a friend at the Washington Post. “I thought the only people who would help Jim were newspaper people, because the police wouldn’t help,” she remembers.

And she called a friend who works for the FBI, who rushed over to the Larkin home and sat with Molly for the next several hours.

Rubin also was on the phone, calling local reporters to alert them to what was happening.

“I called Michael Kiefer at The [Arizona] Republic, and he told me his editors were balking at the reliability of the arrests, thinking it was a New Times prank.” (The New Times is notorious for publishing at least one fake cover story a year – a technique that has fueled critics’ charges that it isn’t a “real” newspaper.)

PHM0908LAW4PHM0908LAW4a

“They wanted to know if I had weapons,” Lacey remembers, “and I told them, ‘Only my computer.’” As he was hauled off, his girlfriend, New Times writer Sarah Fenske, was in tears, begging the officers not to hurt Lacey.


Rubin, who has been named Arizona’s Journalist of the Year three times and a runner-up seven more times, says he used his own reputation to vouch for his bosses and convince newspaper and television reporters that this story was legit.

As Rubin drummed up media interest, New Times attorney Tom Henze showed up at Lacey’s home. He and Rubin went by Henze’s house to pick up $500 in cash for bail money. “The magnitude of the moment didn’t escape Tom or myself,” Rubin says. “They’d done what they thought was right. This act of civil disobedience wasn’t done for PR purposes, but when all was said and done, this was going to be pretty cool for these guys in exposure, and in taking a stand against a totalitarian sheriff, county attorney and their minions.”

Meanwhile, Larkin was driven to the “Mesa Hilton,” the Mesa jail where high-profile prisoners usually end up (singer Glen Campbell was one of the most famous people ever booked there). “Originally, they took me to Mesa because they wanted me to miss the morning call for arraignment,” Larkin supposes, “and then they could have kept me all day. But they took me Downtown, and I sat in a holding tank for a couple hours before they wrote me a ticket and drove me home.” He shakes his head at the absurdity of being arrested at home late at night and hauled to jail, only to end up with a ticket.

Lacey was released on $500 bail around 4 a.m. He walked out of jail, putting on his belt amid the glare of lights from every major television station in town.

“I was stunned to see all the news media,” he says. “Obviously, it’s shocking when law enforcement showed up at my house, but this was part of an ongoing problem that had been going on since that summer. We’d been dealing with an outrageous demand for information – all our reporters’ notes for four years, the viewing and purchasing habits of our online readers. It was the most outrageously broad subpoena I’d ever seen – I had not even read about anything so over the top.”

The next morning, Jim and Molly Larkin explained everything to their children, who hadn’t woken up during the arrest. By then, the late-night arrests had become not only the biggest story in Phoenix but a headline-maker across the country.

PHM0908LAW5Nothing about the arrests seemed right. This kind of surprise raid is usually reserved for drug lords or murderers, people accused of crimes that endanger society and accrue harsh jail time – not journalists who faced, perhaps, a fine for publishing an article. Who ever heard of officers in street clothes  in an unmarked car – one from Mexico, no less – conducting such a maneuver? A common media reaction to the arrests was that they were meant to “intimidate” the New Times.

If this had been an ordinary situation, you’d have expected Sheriff Joe Arpaio to bluster that all the critics were wrong, that he was just doing his job, and he wasn’t about to be intimidated into ignoring the law just because it was unpopular. He would have been expected to stand firm, as he has done so often in controversial situations, and defy anyone who challenged him.

If this had been an ordinary situation, you’d have expected County Attorney Andrew Thomas to scold the media for being sympathetic to a newspaper that had broken the law in publishing the article. He would have been expected to stand firm with the sheriff and remind everyone he was the highest law enforcement officer of this county and he would do his job.

But none of that happened.


Thomas, Arpaio Backtrack
Mike Lacey can be brash, obnoxious and arrogant – even he calls himself a “prick” – but he didn’t dare attend the press conference County Attorney Andrew Thomas called the afternoon of October 19.

“I got home from jail, changed clothes and came into work,” he says. “Things were exploding, lawyers and media from all over were calling. And then we heard about the press conference. I thought they were going to reveal some new offense, so I didn’t go because I thought I’d be arrested the second time. I was stunned to see what happened.”

What happened was one of the quickest mea culpas in Arizona history. As Thomas faced the media, he was well aware that criticism was already pouring in from the state’s entire political spectrum. Many complained that he allowed a “trampling” of the Constitution.

Already, Professor James Weinstein of the Sandra Day O’Connor College of Law at Arizona State University was telling The New York Times that the subpoenas were “grossly, shockingly, breathtakingly overbroad. This is a case of harassment of the press.”

Already, the conservative Goldwater Institute – usually a big Thomas supporter – was saying, “There is only one place for friends of freedom to stand at this moment: shoulder to shoulder with the New Times.”

Already, the State Bar of Arizona had confirmed it had received multiple complaints and launched an investigation into Thomas and independent prosecutor Dennis Wilenchik over the New Times case and other matters. (The results of that investigation are still pending.)

The New Times itself would report on the conference in its next edition with this statement: “The arrests of Lacey and Larkin smacked of police-state tactics, and everyone from legal scholars and attorneys to bus drivers and secretaries realized they had a stake in this First Amendment fight.”

There was standing room only in Thomas’ conference room as he tried to convince a skeptical media that he had nothing to do with the arrests. “The arrests that were conducted last night I had no knowledge of,” he said. “I got a phone call informing me of that fact. In looking at this matter in its totality over the last 24 hours, it has become clear to me that the investigation has gone in a direction that I would not have authorized. It was an error on my part to allow the matter to proceed to that point without the proper, well, without basically having the personnel in place to ensure we didn’t go off track.”

He also announced he was firing Wilenchik, his old friend and campaign benefactor, as the special prosecutor on this and any future case – although he’d later admit he still would employ Wilenchik for other county business. But most significantly, Thomas used the news conference to announce he was throwing out the case against the New Times and its readers.

After four years of threatening litigation against the paper, after pursuing the case when several reviews said there was no case to pursue, after the bogus grand jury subpoenas, after the nighttime arrests, Thomas said this: “We are not going to proceed with this investigation. There is a right way and a wrong way to bring a prosecution and to hold people accountable for their offenses. And what happened here was the wrong way. I do not condone it. I do not defend it. And so it ends today.”  

Even so, Howie Fischer of Capitol Media Services asked Thomas if he was going to step down from his elected post because of this mess. A shaken and incredulous Thomas said he wouldn’t and that, in fact, he would run for reelection in November.

Andrew Thomas wasn’t the only one skating away from this circus. Sheriff Arpaio, too, said this wasn’t his doing. As his spokesman, Captain Paul Chagolla said, “Sheriff Arpaio had no participation in the decision to make these arrests.” He did not comment on the way the arrests were made. Special prosecutor Wilenchik also claimed no responsibility, saying he didn’t authorize anyone to arrest Lacey and Larkin, although his story changed twice and both versions would be refuted by court records.

PHM0908LAW5aMike Lacey got news of Thomas’ bombshell backtracking from his reporters at the news conference. He remembers thinking it must be a joke his reporters were playing on him, but they assured him that Thomas had not only repudiated the arrests but had dropped the entire case against New Times.

Lacey was just as shocked by the widespread support being voiced throughout the country. He says he was heartened by the Goldwater Institute’s support. “One expects the ACLU to do the right thing, but I was stunned to see the Goldwater Institute stepping up. I went over to personally thank them. It was a moment of political courage and decency,” he says.

“Thomas Fires Prosecutor,” read The Arizona Republic’s front-page headline the next morning. “Amid public uproar, county attorney drops charges against ‘New Times,’” the subhead read.

In the story, Republic reporter Robert Anglen described Thomas as looking “contrite and atypically uncomfortable” as he faced the media. “The mea culpa was a gigantic victory for New Times,” he wrote, as the public saw the subpoenas and arrests as “an assault on free speech.”

The next day, Wilenchik sent a long e-mail to the Republic, saying he wouldn’t allow his reputation to be tarnished and maintained he had done nothing wrong in the New Times case. He chided the media, saying the story had been “hysterically and falsely reported.”

He didn’t speak directly on who had ordered the arrests, but he did defend the so-called grand jury subpoenas, saying the names of all the people who’d accessed the New Times Website since 2004 were needed so they could compare those names with anyone who wanted to “endanger” the sheriff.

The bad guys here, Wilenchik contended, were not himself, Thomas or Arpaio, but the New Times, which had “grossly and wantonly and purposefully violated this court” by airing the details of the grand jury subpoenas, among other things.


PHM0908LAW5bEditor: Arrests Part of ‘Systemic Effort’
“It’s not like we set out to target Arpaio,” Mike Lacey says, sitting behind his big, cluttered desk in the New Times building on east Jefferson Street Downtown. “But we’re unlike a lot of the media in Arizona. We didn’t think he was funny – not the pink underwear, not the green baloney. From the beginning, we’ve asked serious questions, and from the beginning, we’ve been stonewalled.”

For a long time, the New Times was about the only media outlet in the state that wrote critical stories of the sheriff’s office and how Arpaio was handling his job. They profiled cases in which young men had died in Sheriff Joe’s Fourth Avenue Jail (several of the cases became notorious “wrongful death” lawsuits that cost Arizona taxpayers millions). They asked questions about how he was spending taxpayer money and how he got away with repeatedly refusing to follow Arizona’s strict public records laws, which has also resulted in court decisions against the sheriff that have cost taxpayers thousands more.

It’s been years since anyone from the sheriff’s office would sit for an interview with the New Times; nor would they turn over public records. It sometimes would take years for simple requests to be met and, most recently, when a New Times reporter wanted to review public documents, it had to be arranged through a private attorney paid with tax dollars.

Lacey says he knew this crude treatment eventually would affect other outlets, saying it “spread like a virus to all the media.”

He adds, “They got away with it every step of the way; they not only got away with it, but started to get applause for it. Our arrest was the culmination of a systemic effort to stifle the free flow of information to prevent the press from covering the sheriff’s office.”

But Sheriff Joe’s loyal supporters stood up for his actions in the late-night raids. They didn’t care what the media or the county attorney or even the Goldwater Institute was saying. They wrote letters to the editor in every major media outlet, including PHOENIX magazine, posted comments online and called New Times attorneys with their support for the sheriff and their disgust at the paper. They called the New Times a “rag”  and a “porn vender” that spent its time printing lies and malicious dirt on the sheriff. One message said Sheriff Joe was doing the community a favor in attempting to shut down the New Times, calling it a “high-minded mission.”

Despite the New Times’ naysayers, the paper believes its fight is worth fighting. Larkin and Lacey now are suing Arpaio, Thomas and Wilenchik, claiming they formed a “conspiracy” against the newspaper under the federal and state Racketeer Influenced & Corrupt Organizations Act (RICO). These are the laws usually used to charge the Mafia and other organized crime gangs. Because of the suit, all three have declined requests for interviews for this story, requesting that their legal responses in this case speak for them.

If the officials had been trying to shut up the New Times, the late-night arrests have done just the opposite. Their lawsuit lays out a long and disturbing litany of actions that they claim “is one of the most nakedly oppressive, conscious-shocking assaults on a free press by police and prosecutors in U.S. history.”


PHM0908LAW6A Legal Storm Brews
It all started on July 1, 2004, when New Times investigative reporter John Dougherty asked a simple question: How could Sheriff Joe Arpaio, who earns $72,000 a year, plus a federal pension, afford to invest $690,000 “in cold, hard cash” in two commercial properties in Scottsdale and Fountain Hills?

Dougherty became even more suspicious as he kept searching, writing this in a column titled, “Sheriff Joe’s Real Estate Game”:  “The total amount of cash slippery Joe has stashed into at least six other real estate investments may be much more than this. How much I don’t know. That’s because the 72-year-old has taken the unusual steps to make sure the public can’t find out the amount of cash he’s stashed into Maricopa County real estate.”

Dougherty found the sheriff had hidden his ownership in these properties under a little-known Arizona law meant to protect law enforcement officials from “death threats.” As he wrote, “the redacted records include such key information as deeds, mortgages, affidavits of value and conveyances of title. Everything needed to determine if a deal is done fair and square.”

But amazingly, Dougherty discovered that Arpaio’s home address – arguably the most important address needed to protect him from death threats – was available on several public Websites. Dougherty wondered in print why the sheriff would go out of his way to hide his commercial real estate but not his domicile. To accent the point, the newspaper printed the sheriff’s home address at the end of the column and prominently on its cover.

There is no law in Arizona prohibiting the publication of the sheriff’s address in print or during a television or radio broadcast. But there is a law, although never before cited or enforced, that makes it illegal to publish the sheriff’s address on the “World Wide Web” if two crucial factors exist: If there is an “imminent and serious threat” to the sheriff or his immediate family, and if it was “reasonably apparent” to

Dougherty or the New Times that “making the information available on the Web” created a “serious and imminent” threat to Arpaio.

Arpaio would later say the newspaper violated that law when Dougherty’s article was automatically uploaded to the New Times Website. According to the lawsuit, internal MCSO documents suggest Arpaio saw this as a way to get back at the “anti-Arpaio newspaper.”

But Arpaio didn’t push the issue of facing an “imminent and serious threat” in July 2004 when the New Times article was published; nor did he ask the county attorney to bring charges against the New Times in August, September, October or any month in 2004. Those were the final months of Maricopa County Attorney Rick Romley’s tenure.

“It happened on my watch, but Arpaio never sent it to me,” Romley tells PHOENIX magazine. “I kept waiting for it. But he knew I wasn’t going to take it hook, line and sinker. There’s a lot of legitimate questions – was Joe really threatened?”

PHM0908LAW7Romley says it’s clear Arpaio waited until a far more sympathetic Andrew Thomas took office in 2005 before he went after the New Times, and even then, he still couldn’t find anyone to bring charges against the newspaper. Recently released records show Arpaio’s first meeting with the new county attorney in January 2005 included a request to charge the New Times. Thomas’ staff investigated the case but had concerns, noting in internal documents that there was no evidence of an “imminent and serious threat” to Arpaio because his home address had appeared on the New Times Website. The sheriff then officially requested an investigation in April 2005, almost 10 months after Dougherty’s article was published. Thomas’ office conducted a second evaluation, and the “Incident Review Memo” of that investigation spelled out the weaknesses of the potential case:

• There was a significant delay in Arpaio reporting the incident;

• There wasn’t sufficient evidence showing the sheriff really feared for his safety;

• The sheriff’s home address was widely available on the Internet and in public records.

New Times would question, in its pages and later in court, whether Sheriff Joe ever has received a reputable death threat, arguing he uses it as a “made-for-TV contrivance.” But Attorney Ron Lebowitz, who worked with Sheriff Arpaio and was a leading voice in pushing for the prosecution of the New Times, says the sheriff’s concern was legitimate: “His wife was scared to death,” he tells PHOENIX magazine. “She wouldn’t let the grandchildren sleep in one bedroom that faces the front for fear of a gunshot through the window.”

The same memo that pointed out the weaknesses of the case also noted there could be “problems” from the sheriff if the case wasn’t pursued, artfully suggesting the sheriff was so adamant about charging the New Times he might not be cooperative with the county attorney on other cases if he didn’t get his way on this one. Even so, on August 9, 2005, the Maricopa County Attorney’s Office declined prosecution of the case.

None of this was public information, of course, since the public only hears about criminal probes when charges officially are made.

As Romley notes, Thomas publicly claimed he couldn’t investigate the New Times because he had a “conflict of interest” since the paper was also writing critically of him. Therefore, he asked Pinal County Attorney Carter Olson to consider the charges Arpaio wanted to bring against the paper.

“We now know that’s a lie,” Romley says, noting the case was sent to southern Arizona only after Thomas’ office had twice considered – and twice refused – to bring charges. “It strikes me like, ‘Get a prosecutor, no matter what.’ It strikes me like Nifong,” Romley says, referring to the North Carolina district attorney who prosecuted several Duke University lacrosse players in 2006 for rape when the evidence was clear there had been no rape. (Mike Nifong was forced out of office, but the reputations of the accused young men were tainted and, in some cases, ruined, by the bogus charges.)

Arpaio didn’t fare any better with the attorneys in Pinal County, although it wasn’t for lack of trying. The record shows there was constant pressure, through memos and letters, trying to convince Pinal County that the newspaper should be charged with a crime. Attorney Ron Lebowitz wrote many of them and pushed constantly for charges. But Pinal County found the same flaws in the case as Maricopa County had and didn’t file any charges, nor did it issue a single investigative subpoena or convene a grand jury.

The case was in limbo when Carter Olson was appointed to the judicial bench in 2007, and his replacement cited his own conflict in the case, sending it back to Maricopa County and Thomas’ office.

Thomas was in a bind: His own office wouldn’t bring charges, and another county wouldn’t bring charges, but apparently, Sheriff Arpaio was still demanding charges be brought against the New Times.

PHM0908LAW7aThomas now made a move that put a bizzare twist on the case. He appointed an “independent special Deputy Maricopa County Attorney” to handle the New Times case: Dennis Wilenchik. It was a most suspicious decision – one that’s now being probed by the State Bar of Arizona.

Wilenchik’s ties to both Thomas and Arpaio ran deep. He had been Thomas’ last private employer, as Thomas was running for county attorney – a relationship Dougherty had questioned several times in columns, wondering if Wilenchik had been making “illegal campaign contributions” to Thomas in the guise of paychecks for non-existent legal work. (The bar association wonders the same thing and has an investigation under way on this relationship.) Since Thomas had become county attorney, Wilenchik had been getting lucrative contracts to do work for the county. He was doing almost all the sheriff’s legal work, from defending wrongful death lawsuits to handling a federal case on jail conditions to defending Arpaio in his frequent suits with the media that accused him of thwarting the state’s open records laws. All this for an attorney that, until Thomas’ election, specialized in construction contract disputes. Insiders tell PHOENIX magazine that Wilenchik’s lack of experience in the types of cases he was handling for the county raised eyebrows in almost every Phoenix law firm that has conducted business with the county. County records show that since 2005, Wilenchik had been paid more than $2.4 million by Maricopa County taxpayers for legal work done on behalf of Arpaio and Thomas.

As the New Times’ lawsuit asserts, “Thomas and Arpaio knew they were hiring an attack ally – not an ‘independent’ prosecutor untainted by benefactors to please and grudges to settle.”

The relationship was so publicly well known, a recent Arizona Republic editorial  called Wilenchik “Thomas’ pet bully.” But as a special, independent prosecutor, Wilenchik now had broad prosecutorial power, and he wasted no time using it.

As the New Times lawsuit contends: “Without ever appearing before any grand jury, Wilenchik began issuing broad and invasive subpoenas against the New Times, its reporters, its editors and its readers. On August 24, 2007, Wilenchik authored and approved two subpoenas, which demanded that the paper and its reporters reveal confidential sources and produce extensive records on nearly four years’ worth of reporters’ and editors’ notebooks, memoranda and documents, for any story that was critical of Sheriff Arpaio. The subpoenas also sought detailed information on hundreds of thousands of private citizens who had visited the New Times’ Website since 2004, including Internet cookies and browsing information on every individual who looked at any Arpaio story, review, listing or advertisement. The subpoenas were issued without any formal charges or indictments pending, and without notice to or the approval of a Court or grand jury.”

Furthermore, as New Times continued investigating the sheriff and his activities, Wilenchik went after those stories, too. Like Paul Rubin’s September 20, 2007, story titled, “Below the Belt.” It criticized Wilenchik’s “extra-judicial conduct” in defending Arpaio and others in a defamation suit brought by Buckeye Police Chief Dan Saban, who ran against Arpaio for county sheriff in 2004 and is running again in this November’s election. Rubin’s story had nothing to do with the Dougherty case, but within 24 hours, Wilenchik issued a grand jury subpoena seeking “all documents, records and files” on the story as well as “conversations and meetings related to its publication.”

The New Times suit states: “Rubin’s only ‘misstep’ was in criticizing Arpaio and Wilenchik. His story was not even remotely relevant to the matter Wilenchik had been hired to pursue.” As Lacey and Larkin would later write, “It is impossible to view Rubin’s subpoena as anything other than what it was: an act of vengeance by Wilenchik.”

PHM0908LAW7bThen, on October 10, 2007, came what the New Times calls “the final straw.” According to Maricopa County Superior Court Judge Anna Baca, who would have presided over the grand jury had there actually been one, Wilenchik tried to arrange a private meeting with her. This is called an ex parte communication and is strictly prohibited; judges are not supposed to huddle with either side of a lawsuit in an effort to keep things fair and impartial.

On October 9, Judge Baca received a call at her home from Carol Turoff, a former lay member of the committee that appoints appellate judges and the wife of Larry Turoff, a member of Thomas’ senior management team. Mrs. Turoff wanted to arrange a private meeting with Wilenchik and Baca. The next day, Judge Baca blew the whistle on what she called an “absolutely inappropriate” attempt at private communication.

Judge Baca called Wilenchik, New Times executives and their attorneys into her office to expose what Wilenchik had tried to do. He responded as though he’d done nothing wrong and claimed he wanted to talk to her about something other than the New Times case. She clearly didn’t believe him. Neither did the New Times. Seven days later, the New Times published its “Breathtaking Abuse of the Constitution” article.

The suit explains it this way:

“Greatly concerned about the abusive and intrusive subpoenas, the clandestine attempt to compromise the presiding Judge, and the patently inappropriate abuse of government power, New Times made a conscious decision to assert their First Amendment rights and responsibilities to the New Times’ readers.”

Sitting in his Paradise Valley backyard with Molly, Jim Larkin describes the decision to print the article like this: “We realized we were dealing with a crazy prosecutor, a vindictive and ignorant prosecutor. The legal system doesn’t contemplate an actor who acts crazy. It contemplates people who act rationally and in the rule of law. It’s impossible to interact with a prosecutor acting crazy and irrationally without acting crazy yourself.”

New Times didn’t yet know what Judge Baca would soon discover: There had been no grand jury reviewing evidence on the New Times; Wilenchik had acted on his own. The judge noted that county prosecutors in Arizona using the grand jury subpoena to gather evidence must either get prior permission of the grand jury or must notify the foreperson and presiding criminal judge within 10 days of issuing the subpoena. “Wilenchik did neither,” the New Times says in its lawsuit. “The grand jury was nothing more than an empty prop to Dennis Wilenchik and his ‘investigation.’”

The suit notes that, at worst, publishing authentic grand jury subpoenas is a misdemeanor, designed to protect witnesses and targets of negative publicity. “It is not designed to insulate, from public disclosure by a newspaper, the unethical and unlawful behavior of a prosecutor who is misusing his authority to attack the newspaper, its reporters, its readers’ right to privacy, and Constitutional freedoms,” the suit says. “And it was certainly not designed to shield a prosecutor from conducting an unconstitutional investigation without the involvement of the grand jury process or the Court. Wilenchik’s investigatory subpoenas were not grand jury subpoenas at all.”


PHM0908LAW8The Eye of the Storm
The New Times executives weren’t the only ones busy on October 18, as the newspaper’s explosive story filled news racks throughout the Valley.

That same day, Dennis Wilenchik was in Judge Baca’s court requesting a wide range of sanctions against the newspaper, from arrests to astronomical fines, that wouldn’t be known publicly until Judge Baca released the entire file on the New Times case a couple weeks later.

Judge Baca did not act on any of Wilenchik’s requests that day, but that didn’t stop Wilenchik. That night, Arpaio’s Selective Enforcement Unit carried out the arrests that put Lacey and Larkin in jail.

“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,” wrote the attorney hired to represent the New Times in this lawsuit, Michael C. Manning of Stinson Morrison Hecker. (Manning is best known for successfully suing Sheriff Arpaio for “wrongful deaths” within the county jail system, and so far has collected nearly $15 million for his clients.)

Meanwhile, Wilenchik kept trying to explain the arrests as somebody else’s mistake. He released an eight-page press release a week after the arrests, claiming they were the result of a “miscommunication” in his office. “My knowledge and intent was to have them cited – understanding that if they refused to accept the citations, they could be taken to jail and booked,” he wrote. But he was contacted four months later when one of Arizona’s most respected attorneys decided to come clean with what had happened in Wilenchik’s office in the hours before the arrests.

In a front-page Arizona Republic article by Yvonne Wingett, former Judge William French basically called Wilenchik a liar.

French is one of Arizona’s most respected attorneys, with a “sterling reputation,” the paper noted. His 45-year career includes being the county’s presiding criminal judge and serving as the special prosecutor in the impeachment of Governor Evan Mecham. He was in semi-retirement when Wilenchik approached him around 2005 to join his law firm, Wilenchik & Bartness. French did join the firm and was working on the New Times case when the paper published the so-called grand jury subpoena information.

French did not respond to requests for an interview with PHOENIX magazine, but what he told the Republic was startling.

French said that Wilenchik invited a sheriff’s deputy to come to the law firm and explain the options against the New Times for publishing what were supposed to be secret grand jury subpoenas. French remembers there were three choices: a citation, a complaint  or an arrest. He said he ordered a citation. It was October 18, 2007.

French said he left Wilenchik’s office about 4:15 that afternoon, as his associates were preparing the citation he had ordered. “He said he soon learned that Wilenchik, representing the Maricopa County Attorney’s Office, reversed the decision and ordered the journalists arrested,” Wingett reported.

“The next thing I know, all hell broke loose,” French told the Republic. “When I left, it was a citation. I was really shocked. They were a little iffy with me as to what happened. But there was nobody that was going to trump me in making those decisions but one person, and that was Wilenchik.”

He stressed that “it was absolutely the wrong decision” to arrest the executives, and he resigned from the firm shortly after. He said he was speaking out because he wasn’t going to let Wilenchik ruin his reputation.

Wilenchik responded to French with a guest column in the Republic on February 21, 2008. He chastised French for revealing “privileged conversations” and said French’s version of the events was wrong.

In the column, Wilenchik said it wasn’t up to him or French to decide what to do but Sheriff Arpaio’s office, which he said made the decision alone to arrest the New Times executives. He also strongly defended that position:

PHM0908LAW8a“Certainly the reaction of the press was predictable, as one of their own was arrested, but that arrest was lawful, warranted and was no mistake,” he said. “The decision to bring the owners of the New Times Downtown was therefore not only called for under the law, but was the decision of the sheriff’s office, not mine, and was the same procedure that would no doubt be followed in a similar case where someone other than a newspaper owner who thought he was above the law had intentionally violated the grand jury secrecy law.”

But the New Times lawsuit paints a very different picture that shows how outraged they remain: “The ethically corrupt and dangerous actions for which Thomas was later forced to fire Wilenchik were not, as Thomas sheepishly urged, a bolt from the blue. They were the perfectly foreseeable consequence of Arpaio’s vengeance toward the newspaper and Thomas and Wilenchik’s glaring conflicts of interest. What Thomas could not foresee when he secured the appointment of Wilenchik was that the New Times would resist Wilenchik’s tactics, the public and the press would become enraged with this blatant assault on a free press, and Thomas would be forced to fire Wilenchik and abandon an investigation that he was told should never have been undertaken in the first place.”

Judge Baca would end up adding more fuel to the fire when she ordered that the public and the media should see all actions and all evidence in the case against the New Times. This included documents that showed on the day of the arrests, Wilenchik signed a request for an emergency hearing asking “that the court issue a warrant for the arrest and confinement of respondents,” who were listed as Michael Lacey, Jim Larkin and their attorneys, Tom Henze, Janey Henze and Steve Suskin. (It remains unclear why the attorneys weren’t arrested as well.)

Those documents also revealed the other request Wilenchik made that day. He asked the court for an immediate fine of $3.5 million for the first week that the New Times’ grand jury article was on newsstands and an additional $1.68 million for every week the article remained on its Website. The math adds up to nearly $90 million per year in fines for a misdemeanor offense – for a newspaper that bills about $14 million a year. As New Times would later state, “The requested fine was a blatant attempt to use prosecutorial power to target and ruin the business enterprises of the New Times.” In other words, it was an attempt to bankrupt the paper.

And so, when the New Times filed notice on February 20 that it intended to sue, they suggested the court consider Wilenchik’s own figures in deciding the appropriate financial settlement. But then they stopped short of asking for $90 million and said they’d settle the case if the county paid $15 million. That demand was rejected, and at press time the case was still pending in the court system.


PHM0908LAW8bTop Lawyers Disagree on Case Details
Sheriff Joe Arpaio boasts one of the city’s most seasoned attorneys representing him in the New Times lawsuit, longtime Phoenix attorney William R. Jones Jr. of Jones, Skelton & Hochuli. In May, Jones filed a “motion to dismiss” the case against the sheriff in U.S. District Court.

“After wading through the sweeping diatribe in [the New Times] complaint,” he asserts, Sheriff Arpaio has done nothing wrong. Jones notes there is nothing illegal about the sheriff asking the county attorney to investigate the New Times for publishing his home address on the Internet, or arresting the executives after they published the grand jury information. Both actions were lawful under Arizona law, he points out.

Jones stresses that the New Times admits it knew there was a law prohibiting the publication of grand jury information yet “took the risk” and printed it anyway, “because they thought the subpoenas were improper.” That doesn’t matter, Jones argues in court documents, stating, “The statute, however, does not contain an exception allowing the publication of grand jury subpoenas if the accused questions the motives of the prosecutor or believes the grand jury subpoena is improper.” Therefore, he says, Sheriff Arpaio had “probable cause” to arrest the men and did nothing improper.

Jones also says there’s nothing to support the federal racketeering charge. He says the New Times “fails to allege one fact to support the existence of a racketeering claim against Sheriff Arpaio.”

And he argues that Sheriff Arpaio has “qualified immunity” from such lawsuits unless he clearly violated statutory or constitutional rights. “The defense is designed to protect ‘all but the plainly incompetent or those who knowingly violated the law,’” Jones notes, saying the New Times’ lawsuit proves neither.

He further argues that any state charges must also be dismissed “because not one fact is alleged to demonstrate that Sheriff Arpaio or his office conducted themselves negligently.”

Meanwhile, attorney Timothy J. Casey of Schmitt, Schneck, Smyth & Herrod is representing Andrew Thomas and filed a similar motion to dismiss the case. He makes most of the same arguments as Jones does, adding that the county attorney, while acting in the course and scope of his official duties, has “absolute immunity” from lawsuits under both state and federal law.

Former county attorney Rick Romley, however, tells PHOENIX magazine he thinks Thomas will have a problem claiming absolute immunity here because, while admitting he had a conflict of interest, he went over the line in shopping the case around and lying about it.

“The cover-up is bigger than the original act,” Romley says. “If he had another police agency do an investigation and the charging, then he’d have absolute immunity, but in this case, they did their own police work, their own investigation, and that opens the door so they can’t claim absolute immunity. Now they have just qualified immunity, and that isn’t enough if you can show bad faith.”

Romley says he knows too well the pressure Thomas was under from Sheriff Arpaio, because he’d been there himself:

“Any time there was a high-profile case, if we said no, we knew Sheriff Joe was not going to be happy. On other cases, if the media was not involved, we worked pretty well together, but when it was high-profile and Joe wanted publicity, we didn’t. That was one of the toughest parts of the job.”

He worries that the situation is dire: “The corruption of power becomes absolute when you feel there’s nobody to watch you,” Romley says, adding that the sheriff has systematically eliminated all watchdogs. He says Thomas, who should be a watchdog, is too afraid of Arpaio to stand up to him.

And Arizona Attorney General Terry Goddard, who has stood up to Arpaio, was “neutralized” last year when Arpaio launched an investigation into Goddard’s office. (Arpaio questioned if Goddard had not prosecuted a former state treasurer in exchange for a routine payment to the attorney general’s office. Goddard has called the charges “absurd.”) Romley views the Goddard investigation as a “political trick” that is keeping Goddard out of the picture “until after the election.” (Like Thomas, Arpaio is up for re-election in November.)

So, with nobody to say “no” to the sheriff, “Arpaio felt he was invincible,” Romley says, and that’s how the New Times fiasco happened. He says their lawsuit could end up being a “real liability for the county” and says the taxpayers, once again, will have to pay for any judgment on the misdeeds of the sheriff and county attorney.

John Dougherty, the reporter who started all this, isn’t with the New Times any longer. He now freelances for The New York Times and CBS News. But in a recent telephone interview, he says he was “heartened” that the public was “rightfully insulted” about what happened to the New Times.

He says he still wonders where Arpaio got all that cash to buy commercial real estate. “Maybe he got a million for writing his book, but if that’s true, why not say it? They flipped out when I started asking questions, and it had nothing to do with being worried about his safety and everything to do with anyone poking around on how he has all this cash. He’s in a box and he knows it.”

Dougherty says he never knew it was against the law for Arpaio’s home address to be on the Web and questions how that can be when it’s available “everywhere” in the public domain. (In response to the New Times story, a national writer for slate.com wrote, “How difficult is it to find Arpaio’s home address? It took me five minutes of Web plinking, and I didn’t need the New Times to find it.”)

For its part, the New Times has been showered with honors for standing up to the “bullies,” from the Arizona Press Club and the Society of Professional Journalists to the ACLU, which named Lacey and Larkin “Civil Libertarians of the Year for 2008.”

Lacey says the New Times will keep doing what it’s been doing all these years – taking hard looks at elected officials like Joe Arpaio and Andrew Thomas.

“Jim and I are too Irish to be intimidated by Sheriff Joe,” he says. “We just get more scar tissue.”

 

PHM0908LAW9The Other Visit from the Sheriff
As Michael Lacey and Jim Larkin were carted off to jail, one of their reporters was getting a visit from Sheriff Joe Arpaio’s deputies, too.

Ray Stern is about as opposite the image of a New Times reporter as you can get.

He is a small, quiet man who is married to New Times managing editor Amy Silverman and the father of two little girls. He’s known as a reporter’s reporter because he does the legwork and research that good reporters respect.

But a confrontation mutt, this guy isn’t. Anyone who knows him would find it difficult believing he could raise his voice enough to sound threatening.

On the night of October 18, 2007, as his bosses were being arrested, Ray Stern also had an at-home visit from Sheriff Joe Arpaio’s Selective Enforcement Unit.

They arrived at his doorstep with a citation for “disorderly conduct and unreasonable noise,” a Class 1 misdemeanor, for a confrontation over public records from the sheriff’s office. While his bosses have had all charges dropped against them, Stern is still battling these misdemeanor charges and could be facing six months in jail and a possible fine of $2,000.

Which makes what happened in early June of this year all the more remarkable. Stern again clashed with county deputies over the right to view public records – this time at Phoenix City Hall, with a city attorney and police officers backing Stern up. Some city officials who observed the confrontation thought Sheriff’s Captain James Miller tried to bait Stern so he could be arrested yet again. But more on that later.

The afternoon of October 18, 2007, was a typical working day for Stern. Weeks before, he had requested public documents from the sheriff’s office and had been told he could view them at the private Phoenix law office of Michele Iafrate on this afternoon.

This is where New Times – and now, Channel 12 – must go to review any public document requested from the sheriff’s office. The strange and unprecedented arrangement is seen by the media as another one of Sheriff Joe Arpaio’s ways of thwarting the state’s open records law, making it more difficult and time consuming for news organizations to get public information they have a legal right to review. Because news organizations are always on a deadline, “delay is denial,” First Amendment attorney Dan Barr tells PHOENIX magazine. “And that’s the sheriff’s game. He’s hoping to make it burdensome enough and cumbersome enough and hopes you just give up.”

Stern was looking at a stack of about 800 e-mails between the media and sheriff’s Captain Paul Chagolla, an Arpaio spokesman who often rails against the media for not treating his boss nicely enough. Or as one news executive puts it, Chagolla “intensely represents” the sheriff.

“They wanted to charge me 50 cents a page to copy the e-mails and I didn’t want to pay for copies, so I started taking photos of the pages and someone told me I couldn’t take pictures,” Stern remembers. “I objected and said, ‘What right do you have to tell me I can’t photograph a public document?’”

Someone mentioned calling the police, so Stern says he packed up to leave. On his way out, he again asked a secretary what her legal justification was for stopping him from photographing the e-mails, and she told him he’d have to talk to attorney Michele Iafrate.

“Bring her out,” he remembers saying, and out she came, telling him the public records law doesn’t allow pictures, only viewing. (Barr calls that interpretation “stupid,” noting, “the public records law doesn’t prohibit photographs.”)

PHM0908LAW9a“At no time did this become heated,” Stern says. “I didn’t even begin to cross the line into aggressive behavior. It really bothers me because I didn’t break any laws.”

He thought the whole thing was over until 8 p.m. when he was home with his two daughters. Two sheriff’s officers showed up at his door in street clothes. “I got cited on nothing but her [Iafrate’s] word. I asked him how they could come out and give me a ticket without investigating what happened,” Stern recalls.

When New Times got the police report on the incident, it revealed that a clerk in the basement of the law office, identified only as Beverly, heard Stern’s conversation and claimed the confrontation was so loud she considered calling 911.

New Times reported on all of that, including the so-called witness who contradicted Stern’s version of events. Lo and behold, that witness called him. Her name is Beverly Goodman, and she told Stern the police report got it totally wrong. She said she could hear everything and that Michele Iafrate’s voice was louder than Stern’s. She said she never contemplated calling 911.

“She just came out of the woodwork,” Stern says, and he expects to call her to tell the truth if this ever gets into court.

(Attempts to contact Michele Iafrate and Beverely Goodman for comment on this story were unsuccessful.)

Stern’s research into the e-mails led to his December 2007 story, “Information Blockade: The Sheriff’s Made a Career of Stonewalling Critical Media – the Public’s Right to Know Be Damned.”

Stern reported that while researching the story, media officials wouldn’t talk at all – or wouldn’t talk on the record – for fear of retaliation by the sheriff’s office.

“Arpaio has turned the public’s rightful access to information into a tool to try to force positive press coverage, blackballing media that are nothing more than critical of him,” he wrote. David Culliver, head of the Society of Professional Journalist’s Freedom of Information Committee, told him: “They are punishing the public.”

In the meantime, Stern is looking into what Michele Iafrate & Associates is costing taxpayers. He says records show the firm has done some legal work on cases the sheriff’s office is defending and also baby-sits journalists who are forced to review public records at its office. (First Amendment attorney Barr says he’s never heard of a case in which public records are regularly carted out of public buildings to a private attorney’s office so the media can see them.)

Stern says his review of records shows the law firm has billed taxpayers more than $500,000 since July 2005.

“It’s offensive that they can waste this money while thwarting the First Amendment,” he says.

Even more money was wasted – as The Arizona Republic noted editorially – in June when the sheriff’s office demanded copies of 10,000 e-mails between Mayor Phil Gordon, Police Chief Jack Harris and City Manager Frank Fairbanks.

Arpaio and Gordon have been clashing for months over the sheriff’s “sweeps” of Hispanic neighborhoods in which he seeks out illegal immigrants. The mayor contends Arpaio is using racial profiling to target subjects and, in the process, is arresting many Hispanic American citizens.

Arpaio counters that city officials are conspiring to set him up for racial-profiling charges, and he wants the public-record e-mails to prove it.

This led the Republic to editorialize on June 17: “Sheriff Joe’s train to Paranoia-ville has made another stop…. In the put-upon world of Sheriff Joe and his confrontation-happy cadre of deputies, everyone is a bitter enemy until proven otherwise. And everyone is subject to arrest. Or, in the case of New Times reporters and editors, multiple arrests. Such is the state of law in Paranoia-ville.”

Two sheriff’s deputies showed up at City Hall the week of June 9 with a hand-held scanner to copy the e-mails. (They explained they didn’t want to pay the 19-cents-per-page fee and, of course, nobody stopped them, because it is no more improper to scan public records in Arizona than it is to photograph them.)

As they were scanning, Stern showed up and demanded to see the same records the deputies were copying. The deputies refused and threatened to arrest Stern if he persisted. A city attorney showed up and declared that Stern had the same right to view the public documents as the deputies.

But the deputies continued to refuse and even dared Stern to touch the documents. “Reportedly… Capt. James Miller tried to bait Stern into taking a sheath of documents from his hand, which witnesses believe would have resulted in Stern’s arrest,” the Republic noted.

The deputies then called for backup, and four others showed up. So now there were six deputies involved, or as the Republic reported, “Sheriff Joe Arpaio has his deputies wasting their time as well as taxpayer dollars.”

Finally, assistant City Attorney Elaine Caldwell arrived with four Phoenix police officers and read to the deputies the appropriate law that says they were breaking the law by refusing to let Stern see the public records. Captain Miller later wrote an anguished memo blasting city police for siding with the reporter rather than with the sheriff’s deputies.

As the Republic bemoaned: “This is childish petulance and bullying. It is an utter waste of taxpayer dollars (a concept that seems to have less and less meaning for the sheriff and his minions) involving hundreds of work-hours of Phoenix clerical staff, lawyers, police officers and, yes, sheriff’s deputies.”

For the 140-pound Ray Stern, it was just another day of being a journalist in Maricopa County.

 

 

ValleyNewsFooterAd728x90