On the night of October 18, 2007, Michael Lacey and Jim Larkin, founders and owners of the Phoenix New Times, an independent weekly publication in Phoenix, Arizona, were arrested and charged with the misdemeanor offense of revealing grand jury information. The alleged crime occurred when the New Times published an article that same day which described a subpoena it had received demanding that the paper disclose details about its online readers, among other information.
The underlying reasons for the arrests go back much further, though, to a series of unflattering articles involving Maricopa County Sheriff Joe Arpaio, published by the New Times in 2004 and 2005. Those articles – which are also available on PLN’s website – included one describing a defamation suit filed against Arpaio by a political rival, one about the history of antagonism between Arpaio and the New Times, and another alleging that Arpaio had abused a law enforcement privacy law to conceal his more than $690,000 in cash real estate purchases. The good sheriff earns around $78,000 a year plus a modest federal pension, which raises some interesting questions. [See: PLN, March 2007, p.14].
The New Times had published Arpaio’s home address in its article about the sheriff’s real estate holdings – arguably a violation of an obscure privacy law, even though his address was already publicly available through other sources. The privacy law, a low grade felony, prohibits publishing a law enforcement official’s home address online if it poses “an imminent and serious threat.”
The grand jury subpoena served on the New Times was a result of the alleged privacy law violation, though the law had never before been enforced. The subpoena sought information from the reporters who wrote the series of articles, as well as records related to online readers who had visited the New Times’ website since the beginning of 2004 – specifically their Internet IP addresses and a list of other websites they viewed before visiting the New Times site, plus aggregate website visitor data.
The subpoena was “grossly, shockingly, breathtakingly overbroad,” according to Arizona State University professor of constitutional law James Weinstein. “It is really overbroad,” agreed Superior Court Judge Kenneth Fields. “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.”
Marc Rotenberg, executive director of the Washington, D.C.-based Electronic Privacy Information Center, called the subpoena both sophisticated and frightening. He questioned its underlying justification, since the New Times could argue that its online publication of Arpaio’s home address was not an “underlying criminal act” which could support the subpoena. No criminal charges had been filed concerning the New Times’ alleged violation of the law enforcement privacy statute.
The subpoena was the brainchild of attorney Dennis Wilenchik, a political bedfellow of Sheriff Arpaio and Maricopa County Attorney Andrew Thomas. Wilenchik was hired by Thomas as a special prosecutor to investigate the New Times. Thomas had previously been employed as an associate at Wilenchik’s law practice; after being elected County Attorney, Thomas reportedly funneled more than $2,350,000 in county legal work to Wilenchik’s firm, including work performed for the Sheriff’s office. Wilenchik also served as personal counsel for Thomas and Sheriff Arpaio. Both Wilenchik and Thomas were the subjects of uncomplimentary articles in the New Times regarding their financial dealings and connections with Arpaio – yet apparently neither saw a conflict of interest in attempting to prosecute the paper that published those articles, or in acting as Arpaio’s personal prosecution “hit” team.
Wilenchik used questionable tactics during his investigation of the New Times in addition to the subpoena. For example, on Oct. 10, 2007 he tried to arrange a private meeting with Judge Anna Baca, the presiding Superior Court judge overseeing the grand jury, using a politically-connected intermediary, Carol Turoff. Turoff was on the state’s Commission on Appellate Court Appointments; her husband is a member of the County Attorney’s senior management staff. As soon as the intent of the meeting became apparent, Judge Baca terminated her conversation with Turoff and called lawyers on both sides of the case into court. She said the attempted ex parte communication was “entirely inappropriate.”
After Wilenchik served his subpoena on the New Times, the paper decided to inform their readers about the heavy-handed tactics being used by Arpaio’s henchmen, which sought private information concerning the paper’s website visitors. The arrests of Larkin and Lacey on misdemeanor charges of revealing grand jury information occurred the same day an article about the subpoena, titled “Breathtaking Abuse of the Constitution,” was published under their byline.
In a May 12, 2008 cover story, New Times writer David Carr described the arrests. “Jim Larkin and his wife, Molly, were in bed in their home outside Phoenix when a group of men in unmarked cars pulled up and began knocking on the door and shining flashlights in the house, saying, ‘You know what we want,’” wrote Carr. The Larkins called 911, but as it turned out the cops were already there. The men were members of Sheriff Arpaio’s appropriately-named Selective Enforcement Unit.
Both Larkin and Lacey, who was taken into custody under similar circumstances, were handcuffed and carted off to jail. They quickly posted bond and affirmed their intent not to release the subpoenaed information about the New Times’ website visitors. They now find themselves personally intertwined in the paper’s reporting on Arpaio – a topic the New Times and PLN have covered for over a decade, exposing abuse, corruption, political intrigue and embarrassing moments in Arpaio’s self-proclaimed career as “America’s Toughest Sheriff.”
If Arpaio harbored any satisfaction in seeing his nemeses at the New Times booked into jail, that satisfaction was short-lived. Following a public outcry, County Attorney Andrew Thomas removed Wilenchik from the New Times investigation and all other criminal cases. Thomas referred to the arrests as “very disturbing” and said there had been “serious missteps” in the case. “[I]t ends today,” he stated in an Oct. 20 news conference. Well, not exactly.
It was later revealed by Judge Baca, in a November 2007 order, that Wilenchik had issued the subpoena to the New Times without prior approval from the grand jury. Further, Wilenchik’s former partner, William French, said Wilenchik had authorized and advised Arpaio’s office to arrest Larkin and Lacey. The charges against the New Times executives were subsequently dropped, and the State Bar of Arizona is reportedly investigating both Thomas and Wilenchik.
On April 29, 2008 the New Times filed suit against the Maricopa County Sheriff’s Office, County Attorney Andrew Thomas and special prosecutor Dennis Wilenchik, raising claims of racketeering, conspiracy, negligence, false arrest, malicious prosecution and infringement of First Amendment rights. Regarding the arrests, the plaintiffs noted that “misdemeanor violations ... are usually handled by the issuance of citations, not by commando raids, arrests, handcuffs, and jail cells in the dead of night.”
The lawsuit seeks general and punitive damages as well as costs and attorney fees. It alleges that the defendants “abused their governmental authority by attacking the press, punishing free speech, demeaning the role and function of an impartial prosecutor and an independent judiciary, perverting the grand jury process, and serving notice to citizens who read news online that neither their identities nor their reading habits are safe from the reach of vindictive government officials and their confederates.” See: Lacey v. Arpaio, Superior Court of Maricopa County, Ariz., Case No. CV2008-009808. The suit is still pending.
According to New Times reporter David Carr, however, if Larkin and Lacey want to obtain some measure of justice through the courts they’ll have to wait in line. “Over $50 million in lawsuits have been filed naming the county and its sheriff as a defendant,” he observed.
PLN has extensively covered past abuses in Sheriff Arpaio’s jails, including his infamous “tent city.” [See, e.g.: PLN, June 2007, p.22; March 2007, p.32; March 2007, p.14; Nov. 2006, p.30; Aug. 2006, p.22]. As an independent media publication, PLN condemns Arpaio’s grossly inappropriate and possibly illegal actions in his vendetta against the New Times, which threatens the very existence of a free press. We look forward to reporting a favorable outcome in the New Times’ lawsuit.
Sources: Phoenix New Times, Arizona Republic
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Related legal case
Lacey v. Arpaio
|Sup Crt of Maricopa County, AZ, CV2008-009808
|State Trial Court