Arizona Republic - Sheriff's deputies arrest 'New Times' owners


Media and The Press

By admin, Section From The Wires
Posted on Mon Oct 22, 2007 at 07:58:22 AM EST

Paper at odds with county authorities

Michael Kiefer, Robert Anglen and JJ Hensley, The Arizona Republic

Phoenix New Times owners Michael Lacey and Jim Larkin were arrested Thursday night by Maricopa County sheriff's deputies on charges of revealing grand jury information, a misdemeanor.

The charges stem from a story published under their byline in the Thursday edition of New Times, in which they describe a subpoena the paper reportedly received from a grand jury convened by the Maricopa County Attorney's Office.

Lacey has been released from jail after posting bail; there's no jail record available on the status of Larkin. Efforts to reach them Friday have been unsuccessful. 

Grand jury proceedings are secret, and the two wondered in the opening paragraphs of the article whether they could face legal repercussions for making the subpoena public, but they viewed the subpoena as an attack on freedom of the press.

The alternative weekly newspaper, in its cover story, said the subpoena was part of an investigation orchestrated to get back at its reporters and the critical stories they wrote of County Attorney Andrew Thomas' political ally Sheriff Joe Arpaio.

The scope of the subpoena is unusually broad: It not only demands information from the reporters but also information about all the online readers of the publication since Jan. 1, 2004, including their Internet domain names and browsers and what other Web sites they visited before reading New Times.

Outside the jail this morning, New Times editor Rick Barrs told assembled media that the arrests had been an attack by Thomas' attorney.

"They're trying to muzzle us," Barrs said. "This is retaliation against us. And it's not just retaliation against us, it's retaliation against the press."

"I think that what has gone on here legally is without precedent," Lacey told the Republic earlier in the day, before the arrests. Lacey is executive editor of Village Voice Media, which owns Phoenix New Times and several other papers across the country.

It attempts to put a chill on reporters doing their jobs, he said, and invades the privacy of readers. Lacey says he didn't intend to turn over the information.

The architect of the unprecedented online dragnet is the same private attorney at the center of other recent controversies in the County Attorney's Office.

Dennis Wilenchik has helped Thomas launch a war against Superior Court judges over differences on cases dealing with undocumented immigrants, last week staging an unheard-of confrontation with the court's assistant presiding criminal judge.

The State Bar reports that it is investigating possible ethical complaints against Thomas and Wilenchik in the wake of that incident. 

A county attorney spokesman on Thursday night said he could not confirm if Wilenchik had sought the arrests.

The New Times subpoena originates from a series of articles published in 2004 and 2005. Underlying the subpoena is an allegation that the paper had published Arpaio's home address, which the County Attorney's Office alleges is a crime.

The subpoena specifically asks for documents and Web-traffic details related to:


* An article about a defamation suit filed against the sheriff by a political rival.


* An article detailing the history of antagonism between New Times and Arpaio.


* An article alleging that Arpaio had abused a law allowing public officials to keep home addresses private to shield nearly $1 million in cash real-estate transactions.

But the subpoena then went from requesting specific information to general information about the paper's online readers. The subpoena did not specify why that information was being sought.

The subpoena was not the only unusual tactic used by Wilenchik in the New Times case. 

According to Lacey, Wilenchik used a politically important intermediary to try to set up a private meeting with the Superior Court's presiding criminal judge, Anna Baca, whose responsibilities include oversight of the grand jury. It is improper for judges to comment on cases before them, especially when only one of the parties is present.

Baca, Lacey claims, ended the conversation with the intermediary, whose husband works for Thomas, and then dragged all the players - reporters, editors, lawyers on both sides - into her chambers to make a record of the matter. .

Lacey said that, during the hearing, Wilenchik denied he intended to talk to Baca about the New Times investigation and, instead, wanted to talk about the court's relationship with Thomas' office.

Baca said that legal ethics prevent her from talking publicly about the case.

Presiding Judge Barbara Mundell also declined to comment on the case, as did Barnett Lotstein, speaking on behalf of the County Attorney's Office, and Wilenchik. Attorneys are similarly barred from commenting on grand-jury proceedings.

Wilenchik has been at the center of several recent controversies.

He defended the Sheriff's Office in a defamation suit brought by Arpaio's political opponent in his past election, and last week leveled bias charges against the superior court's assistant presiding criminal judge. Wilenchik asked that Judge Timothy Ryan be removed from all cases involving the County Attorney's Office.

The motion was denied Thursday by another Superior Court judge.

But Wilenchik's actions have created a furor, and the State Bar of Arizona confirms that both Wilenchik and Thomas are the subjects of Bar investigations into ethical conduct over the interaction with Ryan.

Legal experts described the subpoena of New Times records and computer information as frightening, over-reaching and unconstitutional.

"It really is overbroad," said Kenneth Fields, a retired Superior Court judge. "And it touches on privacy issues of a lot of people who cannot be the subject of a grand-jury investigation. This is potentially thousands of people."

James Weinstein, professor of constitutional law at Arizona State University, called the subpoena "exquisitely overbroad" and "outrageous."

Weinstein said he has never seen or heard anything like the subpoena, which orders New Times to produce computer records of every person who has visited the New Times Web site in the past four years.

"It has got to be unconstitutional," he said.

Weinstein said the U.S. Supreme Court has been reluctant to grant special protection to the media unless the authority is abusing power and acting in bad faith, such as targeting the media for retaliation.

New Times has pursued Arpaio since he was elected. At the bottom of the investigation is one New Times story in which a reporter details several valuable pieces of real estate purportedly owned by Arpaio.

The purported crime, however, is that the paper published Arpaio's home address on the Internet, which is illegal under state law.

Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, D.C., questions the underlying reason for the subpoena. He said a case can likely be made that the newspaper's publication of Arpaio's address did not violate the law. He said that takes much of the bite out of the subpoena.

EPIC was established in 1994 and focuses on civil-liberty and privacy issues involving computers and technology.

Rotenberg said that the subpoena against New Times is sophisticated and frightening in its scope.

By demanding the Internet addresses and computer activity of anyone who accessed the Web site, Rotenberg said, the county attorney is attempting to document the intent of all the viewers.

Rotenberg stressed that he doesn't believe there was any "underlying criminal act" to support the subpoena. 

He said New Times' publication of Arpaio's address is protected under the First Amendment. 

Sheriff's spokesman Paul Chagolla said Thursday that his office could not comment on the subpoena, saying that Arpaio is a crime victim.

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Arizona Republic - Sheriff's deputies arrest 'New Times' owners | 1 comment (1 topical, 0 hidden)
county attorney drops charges (none / 0) (#1)
by admin on Mon Oct 22, 2007 at 10:16:16 AM EST
Amid uproar, county attorney drops charges against 'New Times'

Robert Anglen, The Arizona Republic

A criminal case against Phoenix New Times fell apart Friday amid a crush of public outrage and admissions that a special county prosecutor made serious mistakes.

Maricopa County Attorney Andrew Thomas dismissed all charges against the free weekly newspaper less than 24 hours after two New Times owners were arrested for publishing details of a grand-jury subpoena that demanded the Internet records of any person who had visited the newspaper's Web site since 2004.

Thomas' announcement came just hours after the State Bar Association confirmed that it had received multiple complaints and had launched an internal investigation into Thomas and special prosecutor Dennis Wilenchik for their actions in the New Times case and an unrelated one.

Thomas, who looked contrite and atypically uncomfortable as he faced cameras in a news conference, said he had no prior knowledge of the arrests or the demands set forth in the subpoena that his office sought.

"It has become clear to me that this investigation has gone in a direction that I would not have authorized," Thomas said, adding that he holds the First Amendment in great esteem and that it needs to be upheld.

"There have been serious missteps in this matter," he said. "I am announcing that Mr. Wilenchik will no longer serve as special prosecutor."

The mea culpa was a gigantic victory for New Times, which for three years has battled the County Attorney's Office over charges that reporters and editors broke the law when they published online the home address of Maricopa County Sheriff Joe Arpaio.

"This really is a win for the Constitution," said Michael Lacey, executive editor of Village Voice Media, which owns Phoenix New Times and several other papers across the country. He also said it was a victory for readers, who won "the right to read whatever they want without government interference."

On Thursday night, Lacey and New Times owner Jim Larkin were arrested on charges that they broke the law by publishing details of the subpoena in Thursday's paper. 

Lacey and Larkin acknowledged in their cover story that they risked prosecution but said the issues were too important to keep from the public. 

The two said the subpoena was part of an investigation orchestrated to get back at reporters and the critical stories they wrote about Arpaio, Thomas' political ally.

Public backlash over the arrests and the subpoena was immediate and overwhelming Friday, with conservatives and liberals saying Thomas had made an assault on free speech.

"There is only one place for friends of freedom to stand at this moment: shoulder to shoulder with the New Times," the conservative Goldwater Institute wrote in defense of the alternative newspaper.

The case, which has cost taxpayers undisclosed thousands of dollars, dragged on for years. It started when New Times launched an investigation of Arpaio's real-estate holdings in 2004. 

The story alleged the sheriff abused a law that allows peace officers to keep their addresses from being made public. It said Arpaio used the law to hide nearly $1 million in cash real-estate transactions while leaving his actual home address on public rolls. 

Thomas said Friday that he still believes New Times committed a crime by publishing Arpaio's home address. 

"It was inappropriate. It was wrong. It was arguably illegal," Thomas said. 

After Thomas dropped the case, Arpaio simply said, "I'm the victim." He declined further comment.

Sheriff's spokesman Capt. Paul Chagolla said, "From the beginning, the behavior and activity that the New Times engaged in victimized the sheriff and his spouse. To this day, they're still victims and still being victimized."

Because of Thomas' contentious relationship with New Times, which has repeatedly criticized his office, Thomas turned the case over to the Pinal County Attorney's Office for prosecution in 2004. The case was returned after two years of inaction.

To avoid a conflict of interest, Thomas selected Wilenchik to act as a special prosecutor and continue the investigation.

Wilenchik is a private Phoenix attorney for whom Thomas worked before taking office in 2004. Since then, Thomas has often hired Wilenchik as a contract attorney for the county and appointed him as Arpaio's exclusive attorney. Maricopa County has paid Wilenchik's firm $1.9 million since May 2005, county records show. 

Thomas said Friday that because of Wilenchik's "missteps" in the New Times case, he will no longer be used for criminal prosecutions. Those missteps include the decision to make arrests and the subpoena, which demanded years of reporter and editor notes on several stories and records involving the Internet habits of every visitor to the New Times Web site in three years.

Thomas, however, defended Wilenchik as a good attorney. He said Wilenchik could still be used in civil cases and his firm will remain on a list of outside attorneys used by the county.

State Bar of Arizona

But Wilenchik and Thomas are now the subjects of legal and ethical complaints with the State Bar of Arizona. 

The Bar, which has oversight of Arizona attorneys, can revoke a lawyer's license to practice law if it finds evidence of wrongdoing.

Arizona State Bar President Daniel McAuliffe confirmed Friday that his office has received multiple complaints against the two.

The Bar has also launched its own internal investigation into a campaign that Thomas and Wilenchik launched against Maricopa Superior Court judges, which led to an unprecedented request that all 93 judges in Maricopa County be replaced by judges from other counties.

Wilenchik and Thomas contend judges are mishandling cases involving illegal immigrants and accused the court's assistant presiding criminal judge, Timothy Ryan, of bias. 

Thomas' motions to dismiss Ryan and other judges were denied.

Bar complaints have also been filed against Wilenchik in the New Times case, alleging that he violated ethical rules by enlisting a political operative to broker a private and inappropriate meeting with Superior Court presiding Judge Anna Baca, who has oversight of the grand jury.

At his news conference Friday, Thomas denied any ethical violations and accused the state Bar of engaging in rumor-mill behavior that he called disgraceful.

"What they have done is they have attempted to smear me and this office for speaking out and criticizing judges who have been issuing rulings that, in my honest opinion as a prosecutor, endanger public safety," Thomas said.

But Thomas hasn't been scoring a lot of points with the public. Newspaper Web sites experienced a crush of e-mails, message board postings and blogs ranting against his office's actions in the New Times case.

The Attorney's Office was also vilified by civil-rights and journalism organizations, which described the arrests and the subpoena as an abuse of power.

"This is the type of action that should bring everyone, Democrats, Republicans, conservatives and liberals together," Arizona Republic reader and Thomas supporter Bob Haran wrote on the The Republic Web site.

"This attack on freedom of the press must end immediately, if not every freedom- loving American in Maricopa County must help fight to preserve a free press by organizing a recall of Thomas and Arpaio for abuse of power and malicious prosecution."

Source

Republic reporters Judi Villa and Yvonne Wingett contributed to this article.
Arizona Republic - Sheriff's deputies arrest 'New Times' owners | 1 comment (1 topical, 0 hidden)
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