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Charges Against Phoenix New Times Editors Dropped/Private Prosecutor Dismissed

by Matt Clarke

In the middle of the night of October 18, 2007, Phoenix New Times founders Michael Lacey and Jim Larkin were arrested at their homes and charged with revealing grand jury information for publishing an article revealing that they had been subjected to a grand jury subpoena of breathtaking scope.

The subpoena demanded, among other things, detailed information on anyone who had accessed the New Times Web site over a period of years. Lacey and Larkin were released on bond the night they were arrested. An outpouring of shock and outrage from many independent and alternative media organizations ensued. This prompted Maricopa County Attorney Andrew Thomas to drop the charges against Lacey and Larkin less than a day later.

"The actions of Mr. Thomas and Sheriff Arpaio in this case are beyond outrageous. They abused their offices by engaging in Gestapo-like tactics designed to silence a newspaper that has been highly critical of them in the past," said Association of Alternative Newsweeklies (AAN) Executive Director Richard Kerpel.

Apparently Thomas agreed that private attorney Dennis Wilenchik, who had been hired as a special prosecutor in the New Times case and has often been used as as a personal "bulldog" by Arpaio and Thomas, had overstepped his authority. He dismissed Wilenchik from the case on October 19, 2007.

"It has become clear to me the investigation has gone in a direction I would not have authorized'," said Thomas.

What was the scope of the subpoena that prompted Lacey and Larkin to reveal the secret grand jury investigation? The New Times was required to reveal the following information about anyone who visited the New Times Web site from January 1, 2004, to the present: computer Internet Protocol address; type of browser and operating system used; internet browsing and shopping habits obtained from "cookies"; domain name; Web sites previously and subsequently visited; and time and date of each New Times Web site visit. As New Times Web site visitor Jack Shafer of Slate noted, "because it's usually a simple matter to deduce the name of a home Web user by his IP address, anybody who gathers all of this data will be able to assemble a many-faceted--and intrusive--portrait of me."

Wilenchik's misconduct went further still. He also attempted to circumvent the judicial process by arranging an ex parte meeting with the judge overseeing the grand jury. Judge Anna Baca refused to meet with Wilenchik one-on-one. In a closed-door meeting called by Baca, the attorneys and grand jury targets were informed that she had "no idea why Mr. Wilenchik wanted to speak" to her, but that the ex parte contact was "inappropriate" and she "was taken aback at the call" she received trying to set it up.

Wilenchik's initially denied having attempted to set up the meeting. When Baca pointed out that his intermediary told her the meeting was Wilenchik's idea, he changed his story: he wanted a meeting, but to discuss general issues of the relationship between the court, Wilenchik and Thomas, not the grand jury. He even argued with the judge when she called his behavior "absolutely inappropriate."

"With all due respect, it was absolutely appropriate," said Wilenchik.

Wilenchik also disagrees with Thomas, who said he made "serious missteps" in this case. However, Wilenchik will "respect Thomas's decision" to remove him from the case, while claiming it was a political decision and not based on his mishandling of the case.

The origin of this fiasco was a 2004 New Times piece which revealed that
Arpaio, who purportedly subsists on his $78,000 sheriff's salary and a government retirement check, hid almost $790,000 in cash real estate investments and ordered references to his commercial real estate transactions deleted from the public record. This is a reasonable question since Arpaio presides over a $140 million budget and has never been thoroughly audited by the county. The article contained the Sheriff's address, which was also available on other Web sites. After the article appeared on the New Times Web site, Arpaio claimed Lacey and Larkin had violated a law that prohibited the publication of the addresses of law enforcement personnel on the internet. Arpaio claimed he needed extra security due to fanciful and unproven alleged death threats. To read about Arpaio's many years of machiavellian behavior or get his address, see the Arpaio articles on the PLN Web site. Sources: Seattle Weekly, Austin Chronicle, Arizona Republic, Phoenix New Times.

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