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Ninth Circuit Holds Phoenix New Times Executives May Sue Special Prosecutor over Improper Arrests; Prosecutor Disbarred

by Matt Clarke

On June 9, 2011, the Ninth Circuit Court of Appeals held that executives with the Phoenix New Times, an alternative weekly publication, could sue a special prosecutor who arranged for their late-night arrests after the New Times criticized Maricopa County Sheriff Joe Arpaio, County Attorney Andrew P. Thomas and special prosecutor Dennis Wilenchik.

The New Times has long been critical of Arpaio. In a 2004 article that criticized the sheriff’s failure to list his personal information in the public records of his real estate transactions, the New Times published Arpaio’s home address. The address was already available on government and Republican Party websites, and would later be distributed by Arapio in campaign flyers.

After waiting almost a year for Thomas – a political ally – to be elected County Attorney, Arpaio sought to have New Times editors Michael Lacey and Jim Larkin prosecuted for violating an obscure state law that made it illegal to knowingly make available on the Internet a peace officer’s personal information if it is reasonably apparent that it would pose an imminent and serious threat to the safety of the peace officer or his or her family. Arpaio claimed that he had received death threats, thus the publication of his home address by the New Times was unlawful.

Thomas’ staff reviewed the case, determined it was weak and recommended that it not be prosecuted. Claiming a conflict of interest because the New Times had criticized “ethical irregularities” in his office, Thomas referred the case to the Pinal County Attorney’s Office, which took no action for nearly two years and then declined to prosecute because there was no evidence that the publication of Arpaio’s address had posed an imminent and serious threat.

Thomas then hired Wilenchik, his former law partner, to serve as a special prosecutor. Before a grand jury was sworn and contrary to Arizona law, Wilenchik issued subpoenas seeking wide-ranging information about the New Times, its subscribers and visitors to the publication’s website. The New Times published an article critical of the investigation that detailed the subpoenas’ demands. Without waiting for a court order, Wilenchik allegedly initiated a late-night raid by sheriff’s officers that resulted in the arrests of Lacey and Larkin at their homes on October 18, 2007 for disseminating grand jury information.

The charges were quickly dropped following a public outcry over the arrests, and Thomas removed Wilenchik as special prosecutor and disavowed any involvement in the arrests, subpoenas and other court proceedings. [See: PLN, Aug. 2008, p.12]. Thomas later resigned, effective April 6, 2010, to unsuccessfully run for the office of Arizona’s Attorney General.

“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 Richard Kerpel, executive director of the Association of Alternative Newsweeklies.

Lacey and Larkin subsequently filed a civil rights lawsuit in federal court against Maricopa County, Arpaio, Thomas and Wilenchik. The district court found that Arpaio and Wilenchik were entitled to absolute immunity, dismissed all federal claims in the suit and remanded the state claims to be heard in state court. Lacey and Larkin appealed.

The Ninth Circuit held that Thomas was entitled to absolute immunity and Arpaio was entitled to qualified immunity, but Wilenchik was entitled to neither. The complaint alleged that because Wilenchik had failed to adhere to Arizona law regarding grand jury subpoenas, he knew that the contents of the subpoenas published in the New Times were not protected grand jury material. He then allegedly initiated the arrests without probable cause to believe an offense had been committed, and thus was not entitled to qualified immunity. Further, the investigatory function of a prosecutor does not qualify for absolute immunity.

Therefore, the claims against Wilenchik alleging First and Fourth Amendment violations and malicious prosecution could proceed. The district court’s order was affirmed in part and reversed in part. On November 10, 2011 the Ninth Circuit agreed to rehear the case en banc; oral arguments took place on December 22, 2011, and the appellate court’s en banc ruling remains pending. See: Lacey v. Maricopa County, 649 F.3d 1118 (9th Cir. 2011), rehearing en banc granted.

Separately, an Arizona ethics panel held on April 10, 2012 that Thomas would be disbarred effective May 10. That ruling was unrelated to his involvement in the arrests of Larkin and Lacey, but rather because there was “clear and convincing evidence” that Thomas and former deputy county attorney Lisa M. Aubuchon had abused their power when they attempted to prosecute a Superior Court judge and two Maricopa County supervisors as part of a campaign to harass and embarrass political opponents. Thomas also had a conflict of interest in one of the cases but pursued it anyway.

Both Thomas and Aubuchon were disbarred for five years while the law license of another former deputy county attorney, Rachel R. Alexander, was suspended for six months and one day.

The 247-page ethics ruling concluded, “This is the story of County Attorneys who did not ‘let justice be done,’ but rather, birthed injustice after injustice. This is the story of the public trust dishonored, desecrated, and defiled. This multi-year-wreck-of-a-ride, operated by Andrew Thomas and staffed by Aubuchon and Alexander, outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.”

Sheriff Arpaio was involved in the politically-motivated prosecutions of county officials, but since he was not an attorney he was not named in the ethics complaint. See: In the Matter of Members of the State Bar of Arizona, Before the Presiding Disciplinary Judge of the Supreme Court of Arizona, Case No. PDJ-2011-9002 (April 10, 2012).

Additional sources: Phoenix New Times, Arizona Republic

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Related legal cases

In the Matter of Members of the State Bar of Arizona

Lacey v. Maricopa County