New Twist in Arrest of New Times Execs: Judge Faults Prosecutor

By: Dealing with fallout from a case in which two newspaper executives were arrested, a judge said Monday that a former special prosecutor didn't make required disclosures on secret grand jury subpoenas as required by state law.

Presiding Superior Court Criminal Judge Anna Baca said former prosecutor Dennis Wilenchik issued subpoenas to the Phoenix New Times newspaper and two of its writers but failed to make most of the required notices to the court and a grand jury after issuing the subpoenas on behalf of the grand jury.

Baca said she was considering what action to take and that she planned to issue an order within several days.
"It's a serious situation in terms of the protections" afforded people receiving subpoenas, she said.

The normal sanction would be to quash the subpoenas. That course isn't available in this case because the investigation already has been dropped, the judge noted.

Sheriff's deputies arrested Village Voice Media executives Mike Lacey and Jim Larkin at their homes Oct. 18 on misdemeanor charges of violating Arizona's grand jury secrecy law. They had reported on subpoenas that demanded extensive information on the New Times' reporting on Maricopa County Sheriff Joe Arpaio and on the alternative weekly's online readers.

One day later, Maricopa County Attorney Andrew Thomas said the investigation, which originally centered on New Times' online publication of Arpaio's home address in apparent violation of state law but also touched on threats against Arpaio, had gone astray. Thomas dismissed Wilenchik and ordered the case closed without prosecution of Lacey or Larkin.

However, the matter has stayed alive in court, with Baca's questioning why certain grand jury documents weren't in court files and whether Wilenchik complied with subpoena requirements.

Thomas' office contends that Wilenchik followed the office's long-standing practice and satisfied state law by issuing the subpoenas on behalf of the grand jury without either requesting the grand jury's authorization in advance or later notifying the court or the grand jury.

However, Baca said Wilenchik chose a course that required him to notify the court and the grand jury foreman after he issued subpoenas and he didn't make six of the required eight such disclosures. "That to me does not appear to be a superfluous portion of the statute," she said.

Attorneys for New Times and other media outlets argued the subpoenas were overly broad as well as legally flawed because of the lack of disclosures.

The media attorneys argued disclosures of subpoenas were important for accountability of prosecutors' use of the normally secret grand jury process and its ability to compel witness testimony and submission of evidence.

Otherwise, prosecutors can use the grand jury process to "run amok," said David Bodney, a lawyer for The Arizona Republic and Phoenix television station KPNX.

"This is important stuff," said Tom Henze, a lawyer for New Times. "You're calling in witnesses. You're doing it with the normal protections for the defendant."

Special Assistant County Attorney Barnett Lotstein said after the hearing that there was "no harm, no foul" to New Times because it was able to go to court to challenge the subpoenas.

Besides, even if Wilenchik had notified the court and the grand jury after issuing the subpoenas, that wouldn't have opened the door for oversight because each would have just been told that a subpoena had been issued and not what it sought, Assistant County Attorney Sally Wells earlier told the judge.

Henze scoffed at that, saying prosecutors would have had to respond if subpoena notices raised questions.
Robert Van Wyck, chief bar counsel for the State Bar of Arizona, said the court-sanctioned professional group's attorney discipline staff is conducting an ethics investigation of Thomas and Wilenchik in connection with the grand jury matter.