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Our Community Under Siege

Where do we turn when law enforcement threatens citizens like a grim force of nature?

By Michael Lacey 

County Attorney Andrew Thomas has not issued a single grand jury subpoena in the wake of the fallout from my arrest and that of my business partner, New Times CEO Jim Larkin.

According to a document leaked to the paper from inside the prosecutor's office, Thomas is mulling his next step.

"Please inform your attorneys and staff that MCAO [Maricopa County Attorney's Office] should not issue any new GJ subpoenas until they receive the new template and instructions. Those documents will be provided as soon as possible," wrote Chief Deputy County Attorney Sally Wells in a November 26 e-mail to the staff.

As we approach the New Year, those guidelines are still up in the air, raising the question: Why can't Thomas simply follow the state statute his office routinely violated?

In this week's conclusion to our series "Target Practice," in which we have taken a hard look at the practices of Thomas and Sheriff Joe Arpaio, Amy Silverman examines the fudged résumé of former Special Prosecutor Dennis Wilenchik; Sarah Fenske explains that despite having the largest budget in the county, the Sheriff has never had a full audit of his office's finances; and Megan Irwin takes you into the world of kidnappings, ransoms and migrant terror.

After the arrests of Larkin and myself on October 18, I published a column, "He Just Doesn't Get It" (November 1), alleging that then-Special Prosecutor Wilenchik broke the law by not following state statutes governing the conduct of a grand jury.

Two weeks later, on November 14, Judge Anna Baca scheduled an end-of-the-month hearing to review the contents of the secret grand jury file in our case and to examine the legality of the subpoenas that were issued.

All grand jury subpoenas are serious, but, more than most, these involved the public welfare. The County Attorney had sought journalists' notes and files going back nearly four years covering all articles written about Sheriff Arpaio. More alarmingly, the secret subpoenas demanded the identity and online viewing habits of any person who had read New Times on the Internet in the same time frame.

These secret grand jury subpoenas reflected an abuse of the U.S. Constitution that was unprecedented in American legal proceedings.

"That subpoena is grossly, shockingly, breathtakingly overbroad," James Weinstein, a constitutional law professor at the ASU College of Law, told the New York Times. "This is a case of harassment of the press."

Not content with undermining the Constitution, Wilenchik also short-circuited the limited safeguards that ensure the integrity of the grand jury process.

At the November 26 hearing with Judge Baca, Thomas' office was represented by Chief Deputy Wells, who informed the court that the prosecutor had conducted grand juries in this fashion for 25 years.

Judge Baca ruled that the County Attorney and his special prosecutor had indeed violated the grand jury statute; they had informed neither the foreman of the grand jury nor the judge of the subpoenas. Indeed, there was no grand jury. Dennis Wilenchik had, in effect, been a one-man grand jury.

County Attorney Thomas' stalemated effort to devise new grand jury guidelines is merely the latest development in a cascading series of events since our October 18 cover story, "Breathtaking Abuse of the Constitution."

When the story, coupled with word of our arrests, hit the Internet and the streets, reader outrage filled the airwaves, overwhelmed e-mail accounts and dominated headlines locally. There were more than 80 television broadcasts on the subject in Phoenix.

County Attorney Thomas called a press conference on the very day I was released from jail.

Claiming mistakes were made, Thomas fired special prosecutor Dennis Wilenchik, dropped all charges against Larkin and myself, and quashed the subpoenas.

Thomas clearly hoped to mollify citizens outraged that their First Amendment right to read a newspaper without provoking a government investigation had been trampled.

The uproar, however, did not abate and attracted national attention from newspapers ranging from USA Today to the New York Times. Countless Web sites — local, national, and international — also weighed in alongside talk radio broadcasts hammering the issue of First Amendment rights.

The State Bar of Arizona revealed that it was expanding an investigation into both Thomas and Wilenchik to include allegations that the special prosecutor proposed an improper meeting with the judge, Anna Baca, presiding over the secret grand jury attack upon New Times and its readers.

There is no way to guess what would have happened had Larkin and I opted to resist the grand jury proceedings with the typical legal defense.

Everything changed with our act of civil disobedience. That small spark touched off public revolt.

To some, it might appear that New Times survived this attack, scarred but unrepentant.

But this clash with County Attorney Thomas, Special Prosecutor Dennis Wilenchik and Sheriff Joe Arpaio raised fundamental questions that trumped any newspaper's meager scorecard of wins and losses.

Why did law enforcement ever believe that it could use secret grand jury subpoenas to target the online readers of New Times?

You don't serve grand jury subpoenas upon people who pick up a newspaper from a newsstand. You don't investigate those who log onto their laptops to look through a publication.

Newspaper readers are not mobsters.

How in the hell did freedom of the press and the First Amendment become such fragile doctrines?

The staff of this newspaper determined it must examine the sad logic of the outrageous subpoenas.

The month before my arrest, I happened to visit Dachau, a very short drive for the residents of Munich, Germany. The second floor of a nearby housing development looks out upon the assembly field of the infamous camp. A McDonald's, with its happy meals, is but a few hundred yards from Dachau's gate.

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