Blog For Arizona

Sheriff Arpaio Gets Into the Foreign Aid Game (UPDATED)

Sheriff "I Just Love, Love, Love the Hispanic Folks" Arpaio has been spending RICO funds to train Honduran police in a region of Honduras, a tropical paradise known for its sunny climes and great scuba-diving. 34 paid officer work weeks, over 30K in direct expenses, and an unspecified amount of equipment have headed south of the border in connection with the program. The Phoenix New Times broke the story and channel 12 reports:

Hmmm. Considering recent controversial jail closings justified by budgetary constraints and the generally tight budget environment, one wonders why this is a priority for Sheriff "Want Some Paid Vacay, Hendershott, My Boy?" Arpaio? We'll see if sheriff department employees will still be headed south in March as scheduled, now that the cone of silence on the program is gone. The U.S. invaded Honduras on March 21st, 1907, perhaps Arpaio's boys are going down to participate in a historical recreation of the event?

In my view, this is clearly a case of a thinly justified use of RICO funds to send favored employees on paid vacations using seized booty. The training program likely has some real benefit to Hondurans, and there does seem to be some approval by the Maricopa Board of Supervisors and the Governor's office for a training relationship with the Hondurans, but it is unclear that the extent of the program, or the paid man-hours involved, were directly authorized. Looks to me like Joe got the thin edge of the wedge in by getting the Supes and Governor to give a nod to some donations of equipment, and then tacked on junkets for his cronies himself.

Regardless, all of this is of questionable value to the citizens of Maricopa. I think they likely expect and deserve that seizures and forfeitures from criminals operating in Maricopa be used to ameliorate the effects of crime in Maricopa, not Honduras.

I like to know the officers on our streets well-rested and recently-laid, as much as the next guy, but there's a fine line between treating employees well and misuse of public funds. Lowered stress for these public servants is certainly a public good, but this program certainly gives the impression of being a slush fund for deputies to head south for a little paid vacay in exchange for giving a few lectures or demonstrations. If Sheriff "How Do You Say 'Per Diem' in Spanish?" Arpaio can produce some proof that these were really working vacations with 8-hour-a-day training schedules justify those man hours, I might change my mind about whether this program is actually corrupt, but regardless of any taint of corruption it seems like a wasteful use of limited resources.

It seems apparent that some enforcement agencies are getting up to some questionable stuff with these non-budget recovery assets, such as RICO funds. Recently, both the Maricopa and Pima County Attorneys blew a big wad of such non-budgetary funds on big glossy public information puff-pieces that were clearly campaign literature on steroids. Both offices justified the publications with the plausible public purpose of educating the public about their services and programs, and helping to prevent crime, but like these trips to Honduras, there is clearly also a plausible private benefit derived from the expenditures. The policies as to how and where these funds can be deployed clearly could use some tightening to avoid any appearance of impropriety when we discover some are being used to buy Margaritas in Honduras.

The episode with the county attorneys and some controversial billboards featuring Governor Napolitano have prompted some action in the state legislature to restrict the use of any public funds for public communication that could be deemed to promote an incumbent candidate for office. Such legislation, if properly drafted and implemented (two caveats that I do not give the current majority caucus the benefit of the doubt on), could be useful, but it only addresses one aspect of the problem. Sheriff "I wonder if any police agencies on the Riviera need some training?" Arpiao's little Honduran adventure indicates that the legislature's response may not be nearly comprehensive enough.

UPDATE 2/27: Well, it didn't take long for Sheriff "Does my tail look good tucked between my legs like this?" Arpaio to shut down his Honduran sub-station.

And it turns out that County Attorney Andy "Arrest the Press!" Thomas is the public official with the responsibility of seeing that RICO funds are spent wisely. Why am I not surprised that he approved this little boondoggle for his buddy Sheriff "Andy, my boys could use a tan" Arpaio.

The Maricopa County Democratic Party released the following statement about the scandal:

Sheriff Joe Arpaio has caved in to public pressure and the media and has suspended his controversial foreign aid project to Honduras, telling KTAR that "until we get out of this budget crunch, we're going to put it on hold." The MCSO attempted to provide cover for this waste of RICO funds saying it was to track the MS-13 gang, but never explained why they have never sent anyone working on gangs to the country, and instead sent two traffic investigators, a homicide investigator and an aviation expert. Let's just hope that this doesn't end the investigation.

A new report by Channel 12 states that the operation spent 34 of payroll, 125 hours of overtime, nearly $6,800 in shipping costs, and charged to a MCSO credit card $2,976 to buy measuring equipment, traffic accident templates and fingerprint kits that were given to the Honduran government--all paid for with YOUR tax dollars. Again, if this is an anti-gang project, why do they need traffic accident templates? What is even more revealing is that the story reports Maricopa County Attorney Andy Thomas is the person responsible for approving these funds!

One other small problems with Sheriff Joe "All them brown folk are interchangeable anyhow" Arpaio's excuse of MS-13 as the basis for he program: MS-13 originates from El Salvador and operates to a lesser extent in Guatamala and Mexico, but not in Honduras.

MS stands for Mara Salvatrucha. Get it? El Salvador? And Mara is La Mara, a street in El Salvadoe. If Sheriff Joe "Get me an atlas" Arpaio doesn't even know that about MS-13, color me unimpressed by his anti-gang efforts.

Police Chief Dan Saban's Endorsements Shut Out Showboat Arpaio

In a stunning demonstration of the widely-felt need for a new Sheriff in Maricopa County, six of the state's most prominent law enforcement associations endorsed Buckeye Police Chief Dan Saban for Maricopa County Sheriff.

In accepting the endorsement of these groups whose members number over 8,000 law enforcement officers and officials statewide, Saban said "These men and women are counting on me to restore professionalism to the management level of this office and to support their efforts as professional crime fighters."       

In explaining why rank-and-file officers and deputies want to a new Sheriff, Martin Bihn, spokesman for the Deputies Association said Arpaio is to blame for undermining public safety by diverting precious resources and money away from important crime enforcement projects to publicity projects. I would add his spending millions on odd predilections and bizarre conspiracy theories in which everyone is out to get Joe Arpaio.

The groups endorsing Saban include:       

• Maricopa County Deputies Association
• Arizona Conference of Police and Sheriffs
• Arizona Correctional Peace Officers Association (AZCOPS)
• Chandler Police Lieutenants and Sergeants Association
• Maricopa Community College Police Association
• Maricopa County Probation Association

No association representing any employee or officer in the Maricopa County Sheriff's Office has endorsed the current Sheriff. What does that tell you? It's time for a new Sheriff in town...

Though Saban re-registered as a Democrat for this contest, don't fool yourself that he's a Dem in any sense. He's absolutely a Republican, but defeating Arpaio among the very narrow and ideological electorate of a Republican primary is nearly impossible. Saban has done the smart thing that will allow the entire electorate of Maricopa County to decide who their Sheriff will be, not a tiny ideological minority.

Maricopa County Attorney Andrew Thomas' Self-Promotion and Unethical Electioneering

Andrew Thomas, who is up for re-election this November, is again doing what he seems to be best at (other than blatantly harassing the media should they criticize him): pushing the ethical envelope to serve his political ambitions and ideological viewpoint.

He distributed a crime prevention booklet to Maricopa residents (Download the booklet) through the distribution networks of local newspapers (at an as-yet undisclosed cost to taxpayers) without any notice to, or specific funding from the Maricopa Board of Supervisors.

Deanne Poulos, the communications director for the board of supervisors, said the members were not told about the project and only found out after the booklets were distributed Friday morning. “At this time we’re still searching for a funding source,” she said. [E.V. Tribune]

Nor is this the first time that Thomas has blatantly used taxpayer money to get his name prominently before the voters of Maricopa. "Recently, Thomas has been criticized for spending $2.5 million in public money since he took office in 2005 to pay for public service advertisements that promote his name." [E.V. Tribune]

Most recently, Thomas kicked off an anti-DUI billboard campaign where his name is splashed in a broad red strip with large lettering across the bottom. The letters used for Thomas’ name are nearly as large as the letters in the board’s message.[E.V. Tribune]

Let me make perfectly clear that I think the idea of a County Attorney issuing a crime prevention guide is laudable and forward-thinking. To the extent that the purpose and effect of this publication is to reduce crime, I applaud and credit CA Thomas for publishing it.

But the devil lies in the details, as always...

Pima County Election Integrity Standoff Ends

And so it ends, not with a bang, but with a whisper of data flowing between two computers. The Democratic Party and it's staunch allies, the Republicans (try to get used to that idea, at least on this issue...) and the Libertarians, and a great number of Independent active citizens, have prevailed in the battle for the databases.

Pima County activists have won an absolute first: the first ever complete time-series GEMS databases of multiple elections in progress. This is a national treasure for the election integrity movement. Now, of course, comes the hard work of analyzing that which has been won, fully understanding the architecture of the normal data operations of an honest election, and building tools to sniff out signs of fraud. A team of top experts from across the political spectrum is assembling from across the county and they are calling themselves: The Royal Purple Team.

They are setting up a wiki to collaborate on analysis of the data and the tool building and distribution. Let the word go forth to the world, Pima County has the map to the Diebold fortress of security through obscurity, and we fully intend to take over the fortress and replace their silly, increasing etiolated topiary maze with real security measures and millions of citizens' eyes on the prize which that fortress protects: our democracy.

Huzzah!

Maricopa's Gang of Three Still at it..

I don't have time to comment on any of this at the moment, but the New Times is still locked in a death-grip with Wilenchik, Thomas, and Arpaio. Here's the latest moves worth looking at:

Michael Lacey (New Times' publisher) Strikes Back
Arpaio's Continuing use of Intimidation of Political Dissent
Wilenchik has Conveniently Misplaced Case Documents, Judge Baca Not Well Pleased

A Tucson and Phoenix Municipal Election Yawn

Snoozers.

That is the consensus regarding the municipal election this year. There is really very little learn from these races other than how deeply voters seem not to give a crap.

Here in Tucson we rang up a whoppingly pathetic, though not unprecedented, 26% turnout. Sad. But the Phoenix run-offs generated a mind-bogglingly low 22% turnout in District 3 and a stunningly apathetic 14% in District 7 where Rep. Pastor's little girl Laura got her nepotistic derrière handed to her by 11 points despite big money and high-profile endorsements.

Of course, the likely results were clearly evident ever since the match-ups became known: Walkup and Scott re-elected, Democratic freshmen in Glassman and Romero. Voters always reject pay-raise initiatives, so Prop 100's defeat was predictable, though it was a surprisingly close 5 point race: perhaps voters are realizing that running the city should pay more than flipping burgers.

Prop 200 was obviously going to fail, but I expected it to be more of a contest. It ended up a 28%-72% wash-out, which I did not expect. Hopefully, no matter how badly Prop 200 got hammered (and deservedly so, in my view), it will inspire some serious effort by Arizona's governments to start a serious and systemic cooperation on the issue of water sustainability. It is unseemly and destructive in the extreme to see petty turf battles like the one currently raging between Pima County and Marana; local water wars in the courts must not become the way water disputes are settled, and local water initiatives, launched out of frustration over government inaction in the face of the fundamental existential issue of water supplies in desert communities, must not become the way we make water policy.

Personally, I can't imagine that all the money Prop 200 opponents raised was really necessary after all. I hope everyone asks for a refund.

There is one instructive and interesting wrinkle in the Tucson election returns worth mentioning. Democratic voters are apparently better at holding their noses when they vote than are Republican voters.

The evidence for this is in the ballot roll-off on the Mayoral, and City Council races.

In the Mayor's race, the number of blank votes cast (which indicates a valid ballot cast, but without an entry for that particular race) was 3,259. Despite not having a candidate, Democrats generally either voted for Walkup or cast a vote for the Green Party candidate.

In contrast, in Ward 1, where there was no Republican choice, the roll-off was 8,015 votes not cast. The proportion of votes for the Green in Ward 1 was almost identical to the proportion in the Mayor's race (71%-29% vs. 73%-27%), but the roll-off was twice as great. The salient difference between the races was the Mayoral race was GOP vs. Green, and Ward 1 was Dem vs. Green. The Republicans chose to not vote rather than vote for a non-GOP candidate at more than twice the rate of Democrats faced with the same choice. Admittedly, Croteau was surely more appealing to Dems than Beryl was to Republicans, but Beryl was endorsed by Dan Spahr, after all.

In Ward 2 and 4, where there were clear Democrat vs. Republican match-ups, the roll-off was a few hundred votes lower than even the Mayor's race (2,620 and 2,957, respectively).

I think that this is good evidence that Democrats have an easier time than Republicans compromising their values and voting for the lesser evil. That is, I suppose, both a blessing and curse.

Arpaio's Fiscal Irresponsibility

Link: Sheriff Arpaio is more than $1 mil over OT budget.

Sheriff Joe "Most Spend-Thrifty Sheriff in America" Arpaio is about $1.3 million dollars over-budget for officer over time for the year - just 4 months into the fiscal year! He's on track to be more than $6.8 million dollars over-budget just for over time at the current pace.

"Three areas made up the bulk of the overspending. Officials planned on paying about $102,400 for investigations; about $548,700 was spent. About $148,300 was budgeted for patrol; about $959,800 was spent. And about $131,500 was budgeted for enforcement support and specialized response activities; about $713,300 has been spent."

I wonder how much of that additional $446K on over time investigators was spent trying to track down Mexican drug lords conspiring with Minuteman vigilantes to off ol' Joe "Help, Help! Peoples Is Tryin' to Kill Me!" Arpaio?

We know he spent over $500K investigating his paranoiac persecution fantasies. And who knows how much he and Andrew Thomas' attempt to intimidate and harass the New Times will ultimately cost tax-payers when the dust settles?

Sheriff Joe "Don't You Debate Me About the Law, Boy!" Arpaio is abandoning his legally-mandated duties to secure and protect Maricopa County's courts in an effort to economize.

"The court has a constitutional duty to protect the public and to deliver justice to victims, families, children and those accused of committing a crime," presiding Judge Barbara Rodriguez Mundell said in a prepared statement.

"The failure to transport inmates to courtrooms affects the timely resolution of criminal cases and deprives victims of their rights. It also causes significant delays to jurors who are waiting to serve on criminal trials. It impacts the rights of families to have their custody and child-support issues resolved.

Her statement continued, "Suspending inmate transportation services to the courts is a misguided policy that directly impedes the courts' ability to provide timely, fair and impartial justice to the community."

As a result of the Sherrif's new staffing policy 46 defendants involved in 61 cases did not arrive in court. Eleven judicial officers were affected by the policy, which had a ripple effect throughout the court. In some courtrooms, juries waited up to an hour before they could start trial.

Sheriff Joe "Defendants? We Don't Need No Stinkin' Defendants!" Arpaio seems set on a collision course with Maricopa's judges, much like his protegé Andrew "You Can't Handle My Cases" Thomas. I'm betting on the judges.

Already, Sheriff Joe "I Didn't Really Mean What I Just Said" Arpaio is sent out his posse to run up the surrender flag when Maricopa's judges didn't roll over and play dead when he shut down their courtrooms.

"Friday's memo to Superior Court Administrator Marcus Reinkensmeyer stated strongly that the Sheriff's Office would no longer serve Justice of the Peace Courts, would not transport defendants to non-criminal courts, and would take defendants to immigration status hearings only if they had been arrested by deputies in the first place.

State laws require county sheriffs to transport prisoners and to provide security wherever judges determine there is a risk of danger.

Sheriff Joe Arpaio deferred comment to Sheriff's Office Chief Loretta Barkell. Barkell wrote Friday's memo, which she said was a "miscommunication." What appeared to be unilateral decisions of things the office would no longer do, she said, were merely suggestions that were implemented by mistake."

In other words, Sheriff Joe "Tuck My Tail and Run" Arpaio surrendered at the first sign of resistance. Some tough guy.

The profligacy, waste and abuse by Arpaio and Thomas are but a microcosm of the profligacy, waste and abuse the Republican Party engages in everywhere they are entrusted with public money. We are sitting in a smoking crater of debt gifted to us by just a few short years of Republicans in charge of the executive and legislative branches of our federal government. It will be years, if not decades, of hard work and sacrifice to dig the public fisc out from under the GOP's wreckage.

Arpaio's wanton spending and abuse of his office is yet another reminder of why you can't spell 'profligate' without the GOP.

Wilenchik's New Times Grand Jury: a Networked Journalism Project

UPDATE: I've now made the materials released thus far by Judge Baca in the New Times affair available online to anyone who is interested in viewing them:

• GJDocuments1.pdf
• GJDocuments2.pdf
• GJDocuments3.pdf
• GJDocuments4.pdf
• GJDocuments5.pdf
• GJDocuments6.pdf
• GJDocuments7.pdf
• GJDocuments8.pdf
• GJDocuments9.pdf
• BacaTranscripts.pdf

A preliminary review of the documents reveals that Judge Baca released all documents related to the legal tussle following the issuance of the Grand Jury subpoena. She did not release any materials, other than the subpoena, related to the matter before the Grand Jury or transcripts of the Grand Jury proceedings.

Even so, some of the briefs submitted by both sides are quite illuminating. There are some by Wilenchik's firm that represent perhaps the least professional demeanor I have ever seen a lawyer manifest in a written document addressing a court. I'll be posting on the subject in the near future.

Original Post:

The Grand Jury proceedings having been unsealed on October 24th, it is time to take a look under the veil of secrecy and see what there is to see. There is still no word from the MSM about anything in that record, so it may be time to see what empowered citizens can find.

The clerk of the court has prepared a disc with the relevant documents available at the courthouse in Phoenix for $18. I think would be a an ideal opportunity to demonstrate what networked journalism can do, even on a smaller locally-oriented blog like this one. National blogs have made good use of their readers to investigate large document dumps, I'd like to see if we can do the same here in Arizona.

Step 1: DONE Raise the money to pay the price of access to materials. $18 isn't much, but demonstrating that you are willing and able to foot the bill for access to primary materials is an important first step in networked journalism - it shows we're not dependent on corporate deep pockets to get at the truth; we are willing and able to take responsibility for informing ourselves together. FOIA requests and duplication/preparation costs can be prohibitive in some cases, but this time I'm shooting to raise just $25 to cover the materials and their timely delivery.

Step 2: DONE Make the materials openly available to readers. I plan on either posting the whole disc online for download, or uploading each document for viewing online, whichever seems most practical.

Step 3: IN PROGRESS Enlist Arizona blog readers in a search for improper needles in the haystack. Traditional journalist are likely to be pouring over this materials as well, but what will they miss or not find newsworthy? I will network with other liberal bloggers in Arizona to get the word out about the project, and I will set up a reporting system for finds of interest. All information generated will be made publicly available for anyone to use.

Step 4: I and other bloggers will analyze and comment upon what we find interesting and important in the results of your spade-work.

More to follow soon...

Thomas and Wilenchik Guilty of Abuse of Process?

The arrest of the founders of the New Times for revealing the contents of an overly broad Grand Jury subpoena was not only an egregious example of prosecutorial harassment by Maricopa County Attorney Andrew Thomas and his hand-picked 'special prosecutor' Dennis Wilenchik, it may also have been a blatant misuse of the law. I have never heard of a witness being arrested for divulging information relating to himself from a Grand Jury proceeding.

I generally don't blog in a lawyerly style, or at least I try not to. But I'm going to make an exception here since the topic of this post is essentially a matter of statutory interpretation. I'll make some allowances for a general readership, but I'll just apologize in advance if the going gets a bit turgid and get on with it.

Testimony, the names of witnesses, and records under the review of a Grand Jury are confidential, and criminal penalties or contempt citations for those who reveal such material are appropriate, though somewhat uncommon. But when you consider the law more closely, look at the lack of precedent for Wilenchik's and Thomas' action, and consider the legitimate policy purposes behind Grand Jury secrecy, their actions begin to look much less like law enforcement, and a lot more like conscious and calculated abuse of the legal process.

It struck me as a little odd that witnesses would be arrested for revealing the contents of a subpoena for their own records; the requirement of secrecy is intended to prevent the party being investigating from knowing that they under scrutiny and taking steps to cover their tracks, or to prevent embarrassment or legal exposure should a third party get a hold of sensitive material that would be closely held if not for the Grand Jury's investigatory powers.

The courts have clearly articulated several additional reasons for Grand Jury secrecy: to protect the integrity and progress of the investigation, to protect the innocent people from public disclosure that they were under investigation, and to protect witnesses from subornation or intimidation. None of these policy purposes are served by an accused or a witness being barred from disclosing the contents of testimony or materials related only to themselves.

So, I did a truly minimal bit of research in "Grand Jury Law and Practice" by Beale, the unofficial handbook for Grand Jury practice, which is certainly the minimum I would expect of a prosecutor taking the unusual step of arresting witnesses for violation of Grand Jury confidentiality. I literally only had to skim the chapter on Secrecy of Proceedings to begin to have grave doubts about the propriety of the actions of the Maricopa County Attorney and his special prosecutor. I can see now quite clearly why the State Bar is investigating their actions in this matter.

Arizona's law, as is just about every state's, is largely a reflection of the Federal Rules of Criminal Procedure regarding Grand Jury practice; under the Federal Rules it is only those associated with the actual proceedings of the Grand Jury - the jurors, the attorneys, court staff who are privy to the proceedings - who are barred from disclosures by criminal and contempt penalties. Witnesses are free to discuss and divulge their own testimony; in fact, it is highly improper for a prosecutor to try to convince a witness that he required to keep his testimony secret.

Arizona's law regarding disclosures seems somewhat more broad (§13-2812), making it a misdemeanor for "a person" to "disclose to another the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding." So what does that mean? And does it include a subpoenant disclosing the contents of their own subpoena duces tecum, like the one New Times was hit with?

First, it is important to remember the reasons why we hold such materials in confidence. It is largely to protect the materials produced in response to the subpoena from disclosure to third parties, not to prevent the public disclosure of an abusive subpoena by the witness it is served upon. The use of §13-2812 as a weapon to silence a subpoenant who is complaining of a violation of his rights flies in the face of the entire body of Grand Jury practice law, undermines the public accountability of our public officials using the Grand Jury system, and does nothing to serve the legitimate policy purposes of the grant of secrecy to Grand Juries. Sanctions could only be justified if the subpoenant's actions disrupt the investigation by alerting a suspect that they are under investigation. Consider a bank or and ISP whose records are subpoenaed as part of an investigation of one or more of their customers. Divulging the subpoena in such a case could possibly impede the investigation; when the party under investigation is the subpoenant themselves, such a justification for punishment is lacking.

Most states that follow the outlines of the Federal Rules specifically by uniformly excluding witnesses from the reach of the confidentiality rule. Arizona itself does not specifically enumerate witnesses as being bound by the obligation. Further, the Supreme Court has struck down state statutes barring witnesses from disclosing their testimony before a Grand Jury on First Amendment grounds. Butterworth v. Smith, 494 U.S. 624 (1990). There is, therefore, good constitutional and legal reasons to believe that §13-2812 cannot be applied to a witness disclosing their own testimony. If a witness cannot be punished for revealing their own testimony or presentments, can they or should they be punished for revealing the contents of the subpoena that compelled that testimony or production of evidence?

Just what is covered by Grand Jury secrecy? The question hinges on what is considered a "matter occurring before the Grand Jury." The language used for this term of art in Arizona is a "matter attending a grand jury proceeding." Certainly documents produced in response to a subpoena duces tecum qualify, though, according to a long line of federal rulings, only if their disclosure would reveal something about the proceedings before the Grand Jury. Records existing prior to and independent of the Grand Jury investigation are exempt from secrecy requirements.

The purpose of that prohibition is to protect the Grand Jury's process, and to protect witnesses from having their testimony or evidence disclosed to third parties - indeed that is by far the most litigated aspect of Grand Jury evidence disclosure. The disclosure of the subpoena itself may reveal matters attending the proceedings of the Grand Jury: the thrust of their investigation can likely be inferred by the production demands in the subpoena. But when the subject of the subpoena is also the target of the investigation, and also the one disclosing the subpoena, are any of the purposes protected by Grand Jury secrecy harmed? That is a question that might plausibly be answered in a variety of ways, and the lack of binding precedent on that answer might ultimately save Thomas' and Wilenchik's bacon.

For me, the answer to the question is that the purposes of Grand Jury secrecy are not implicated by the New Times' revelation of the subpoena. In fact, a great public service was done to check the abuses of a special prosecutor who was out of control. I can't imagine why Wilenchik's outrageous demands escaped the notice of the Grand Jury's presiding judge, except that such oversight tends to be very hands off - a cynic would even say 'non-existent'. Arizona's judges should certainly be more vigilant regarding Grand Juries empaneled by the Maricopa County Attorney in the future, and especially watchful if Dennis Wilenchik is acting as a special prosecutor.

My view of the matter is bolstered by the fuller context of Arizona's statutory provisions relating to Grand Jury secrecy. Statutes, when their terms are not clear, are often interpreted in conjunction with other statutes concerning the same subject. Given such a broader ambit for determining statutory meaning, there may be much less to argue about than when §13-2812 is considered in isolation. Part of the broader context is §21-411(B) that lays out quite specifically what must not be disclosed as a "matter attending a grand jury proceeding": the statute enjoins the reporter and typists working on the transcript "not to disclose any testimony or the name of any witness." Arguably, this is what is actually intended to be afforded protection under Arizona's Grand Jury statutes, and it clearly does not include the subpoena itself, nor are the witnesses themselves within the scope of the obligation of secrecy regarding their own testimony and presentments, and especially not when the target of the investigation is the subpoenant.


I can't begin to hazard a guess as to how the State Bar will veiw these matters, but they are likely to be taking amicus briefs on the matter, and we'll have a look at their reasoning when the matter is closed. If I'm feeling particularly ambitious I might take a look at whether Thomas' maintaining this prosecution against the New Times for the past couple years might constitute malicious prosecution. I'll say now, that there's an awful high bar to clear in maintaining a suit for malicious prosecution against a public prosecutor, and with good reason, but I've seldom seen a weaker case maintained for more clearly political ends than this one.

Governor Andrew Thomas... NOT!

American demagogues, such as Senator Joe McCarthy, tend to over-reach in a system designed to prevent over-reach (how we can explain the lack of resistance to Bush's over-reaching, I haven't yet figured out). Eventually, these authoritarian personalities, drunk on power and their initial success take a bite they are unable to chew. In McCarthy's case, it was the Army Hearings. In Andrew Thomas' case, it is the Phoenix New Times and its founders Michael Lacey and Jim Larkin.

To bring you up to speed I will summarize the situation to date.

The New Times published a story critical of Sheriff Joe Arpaio's real estate speculations that included his home address. That story was also posted to their website. Arpiao complained that posting his address on the web site violated an Arizona statute (§13-2401) that makes it a class 5 felony to publish personal information of certain public safety officials on the web in some circumstances.

"A.  It is unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent."

Did the Sheriff's address on the New Times website pose an imminent and serious threat to the Sheriff or his family considering that the information was easily available from other public sources, as well as the New Times' print edition? Was such a threat, if it existed, reasonably apparent  to the publishers of the New Times? The Sheriff and the County Attorney maintain that independent death threats against the Sheriff, many of which can't be publicly divulged "for security reasons," make the publication a threat. Ah, patriotism and "security," the last bastions of scoundrels.

Some legislative history is needed to put this in context. The law in question was passed in response to internet-based hit lists of judges and other public officials by extreme right-wing fanatics. The law was meant to address a specific problem of how to prosecute and discourage the posting of such hit-lists on the internet, not to harass and intimidate media outlets critical of an allegedly corrupt sheriff.

So, here's where the issue gets political. Andrew Thomas decided that he would pursue this charge, despite the law's clear and manifest misapplication to this case, despite the fact that there was no way a jury would ever find that publishing the sheriff's address on the New Times' web site constituted an "imminent and serious threat" to the Sheriff (amply demonstrated by the fact that over two years have passed and Sheriff Joe is still kicking), and despite the fact there was no way it was "reasonably apparent" that publishing on the internet that which had just been printed in their newspaper could pose a such a "serious and imminent" threat. There was no reasonable prospect of success in this prosecution. A fact that Thomas is saying is his reason for dismissing the case now. What exactly changed between his attack dog siccing the Grand Jury on the New Times and now that made the case unwinnable? Bad press, one must assume. These issues Andrew Thomas will consistently and obstinately elide or dodge in his defense of having maintained the charges against the New Times for years. The reason for that evasion is that the charges are completely baseless and maintained entirely for the purpose of political intimidation of a media outlet.

Thomas recognized that no one would stand for his office pursuing these charges, because of the conflict of interest (read, his personal political motivation to pursue these charges) would be too obvious. So he passed the charges off to the Pinal County Attorney's office. They properly did nothing for almost two years; in essence, they took a 'pocket veto' approach to declining to prosecute. So Andrew Thomas pulled the case back and farmed it out to his political attack dog Dennis Wilenchik. Wilenchik used to employ Thomas while he was running for County Attorney, and thus not doing much actual work for his salary. Wilenchik recently savaged the entire Maricopa bench for failing to 'properly' interpret Prop 106, which Thomas authored. Wilenchik was dispatched as special prosecutor for Trish Groe's DUI case, and though he was unable to make it go away, he sat on it until he was sure there was no way to dismiss the charges. Wilenchik is Thomas' creature, or the other way around. In any case, it is laughable that Thomas would think anyone would believe that there was anything independent about 'special prosecutor' Wilenchik.

Wilenchik convened a Grand Jury to investigate the charge, now almost three years old. Wilenchik got the Jury to issue a subpoena to the New Times (pdf) that was grossly and abusively broad. It demanded 4 years worth of server records, including personal information on New Times internet readers that could not conceivably be relevant to the case - Wilenchik and Thomas maintain that they might find information about those responsible for death threats in that hay stack, an absurdity not worth dignifying with a rebuttal. The subpoena was clearly just more attempt at legal harassment. It was never intended that the New Times should respond to it; it was intended that New Times spend thousands in legal fees defending against it.

But then Lacey and Larkin zigged when the were supposed to zag. They published the Grand Jury subpoena instead of complying or litigating. They took the venerable 4th estate option of taking the matter to the court of public opinion. Of course, to reveal Grand Jury deliberations is a misdemeanor, so they were breaking the law by doing so, but felt it was a justifiable act of civil disobedience. The effect was overwhelming and immediate. The nation's media started turning their focus to the dust up in the desert. Media outlets, seeing themselves in the New Times' plight, editorialized harshly and covered the story with very little sympathy for the man behind the curtain: Andrew Thomas.

Wilenchik, apparently deaf to the media's immediate outrage, turned up the heat and sent out Sheriff's deputies to arrest Lacey and Larkin that very night for that misdemeanor infraction. They rousted them from homes and their families, cuffed them, and threw them in jail for 7 hours on charges that would normally warrant appearance tickets. Again, the harassment that lay at the base of this whole fiasco was made so apparent that Thomas, who by now was seriously feeling the disapprobation from all quarters, not only from the national and local media, but even from conservatives in his own political constituency, had to pull the plug on his jolly little scheme to get some payback on the New Times.

Thomas fired Wilenchik as special prosecutor, though carefully saying supportive things about his crony and keeping the door open for future work for Wilenchik from the County Attorney's office (which has already piled up billings for Wilenchik's firm in excess of a million taxpayer dollars). Thomas held a press conference to fall on his sword and dismiss the charges and admit that 'mistakes were made' in that passive-voiced admission which admits nothing that politicians are so well-versed at. In short, he cut and ran, hoping to leave the episode behind him.

Watch the extraordinarily illuminating video of the press conference (part 1, part 2, part 3, part 4), or read the transcript.

But it's not going to be that easy for Thomas. You see, Andy Thomas dreams of being the Big Cheese in Arizona. The Governorship is the prize his eyes have been on all along. But with the national media now clued-in as to who and what Andrew Thomas really is: a snarling little rat terrier-sized Joe McCarthy, the only votes he's going to be getting are from folks who think that Ann Coulter has sound judgment. Even prudent Republicans are sounding the alarm about Thomas' judgment and respect for civil liberties, free press, and personal privacy. Thomas can duck and try to hide behind the bogus 'special prosecutor' he created of Dennis Wilenchik. He can claim that he's not responsible for the excesses of Wilenchik in prosecuting the case, but nobody believes that Thomas didn't know and approve of what Wilenchik was doing.

We know better, and the State Bar knows better. A complaint has been filed against Wilenchik and Thomas as a result of this fiasco. I can only hope that both will be disciplined and/or disbarred. But their over-reaching doesn't stop there. A whole raft of Maricopa County Superior Court Judges, whom Wilenchik tried to get recused from all cases involving the County Attorney (in essence, all those Judges' cases) because they disagreed with Thomas' interpretation of Prop 106, have filed an ethics complaint against Thomas, too. Andrew Thomas has stepped in it, and he deserves every moment of discomfort and distress it may cause him.

Andy Thomas has over-reached. He tried to harass the fourth estate by misusing the powers of his office in a calculated political vendetta. He tried to bait and discredit the whole Maricopa criminal bench just to score political points. He bit off way more than he could chew. He has just had his own Joseph Welch moment. Now people are seeing him for what he is and they aren't going to trust him with elected power ever again. That means Mr. Thomas can kiss his dreams of the Governor's office goodbye. All one ever has to do now to ensure his defeat is remind people of how he behaved during the New Times Affair.

"You've done enough. Have you no sense of decency, Mr. Thomas, at long last? Have you left no sense of decency?"

Maricopa Sheriff Arpaio's 500K Paranoiac Episode

Ran across a great local perspective on Joe Arpaio's six month long $500,000 investigation of an alleged plot against his life by immigration activists on P.S. Burton's blog:

Secret Informant initiates $500,000 In Public Expenditures:

Maricopa County Sheriff’ Joseph Arpaio spent an estimated $500,000 in tax payer dollars this past six months defending himself from an imagined assassination plot that he worried would incite a National furor over illegal immigration.

The imagined plot, according to a paid informant, involved the Minutemen hiring a Mexican drug cartels hit squad and a immigrant-rights advocate acting as middleman. Sheriff’s officials now admit none of the paid sources information seems to have turned out true. According to the informant, Mexican Nationals would be blamed for the assassination, carried out by Los Zetas, an enforcement arm of a smuggling organizations made up of former Mexican police and soldiers.

The informant, claiming to play the role of translator in the plot said he witnessed a down payment of $1.5 million for the hit on Arpaio. 88 sheriff employees were tasked to the investigation for about 16,720 hours on the clock including $82,000 in credit-card bills. The case details and expenditure reports, obtained by a public-records request.

The grand motive, as related by the paid informant, was to incite Americans about illegal immigration and a Nation in mourning for the loss of its beloved Sheriff Arpaio would demand congress empower the Minutemen militia to defend the United States border. Arpaio still claims there was good reason to believe the plot was real.

To date no formal request for a presidential level secret service detail has been made. Though the sheriff evidently considers himself a National leader who’s killing would cast the country into Kennedy like mourning.

The alleged plot was to be carried out Easter weekend. According to deputy Larry Black who admitted to the Arizona republic the informer provided only two pieces of intelligence that were provable: “He knew how long it takes Arpaio to walk from his downtown Phoenix office to his parking garage”, and “he knew the sheriff recently had dined at a particular Mexican restaurant” in north Scottsdale.

Black head of the sheriffs super double top secret special investigations unit said investigators had to take the threat seriously when they heard those facts. “The honest truth was he was believable.”Asked if any of the investigation verified any factual leads, Black said, “No, it didn’t. Black conceded he no longer believes an assassination plot was planned.

The plot is detailed in sheriff’s records, And began with a March 18 meeting in San Luis Río Colorado, Mexico.

It took place at a home referred to as the “green house,” 7 miles south of town, surrounded by a 6-foot-high block wall with a metal gate. According to the story, two Minutemen leaders secretly met with the administrator of a Mexican narcotics ring. The Minutemen wanted Arpaio killed to “rally more support for their cause, which is to secure the U.S.-Mexican border and stop illegal immigration.”

They agreed on a price of $3 million in cash, with a $1.5 million down payment. Elias Bermudez, a Phoenix immigrant-rights advocate and talk-radio host, was the middleman in the plot. Bermudez said he never heard of the plot until he was contacted by investigators. the hit team would kill Arpaio up close with handguns.

“Pure fabrication,” Bermudez said. “I told them I had no reason to wish for the demise of the sheriff. The idea of me and the Minutemen trying to hire someone to do this is outlandish.”

This just illustrates what an odd, paranoid universe Arpaio inhabits. The Minutemen are going to hire a Mexican drug cartel to whack him, with an immigration rights activist acting as middleman? You have got to be kidding me. And Arpaio wants us to trust him to have a role in the United State's relationship with Mexico by enforcing immigration laws? I don't think so. Anyone who could be induced to spend half-a-million taxpayer bones on some paid informant's drug-induced ramblings shouldn't even be holding public office. Arpaio should have seen through this fantasy from the get-go: no one would pay $1.5 million for his worthless hide.