A special prosecutor assigned to investigate Phoenix New Times broke the law in issuing subpoenas in the case, a judge said Monday.
Judge Anna M. Baca of Maricopa County Superior Court said in a hearing that evidence shows Dennis Wilenchik, a private attorney deputized by the County Attorney’s Office for the investigation, acted under a section of the grand jury laws that required him to notify the grand jury foreman and the county’s top judge that he was issuing subpoenas.
But there is no evidence that Wilenchik ever notified the court, and paperwork that shows notification to the jury foreman exists in only two of four subpoenas issued to New Times and its reporters in August and September.
"Mr. Wilenchik, as special prosecutor, didn’t comply with the statutes," Baca said.
Baca called Monday’s hearing for the prosecutor to either produce the missing documents or explain why his office didn’t have to follow the statutes.
Wilenchik wasn’t in court Monday and he didn’t immediately return a message seeking comment. He did say previously that he had turned over everything he had to the county attorney.
Deputy County Attorney Sally Wells argued that Wilenchik acted under a subsection of the law that didn’t require notification to the foreman or the court, a process the County Attorney has followed since 1982.
Baca said she would issue a written ruling in the next day or two and she wondered aloud what remedy could be applied since the case has been dropped.
Barnett Lotstein, spokesman for Maricopa County Attorney Andrew Thomas, said Baca’s ruling was "no harm, no foul."
He said no one’s rights were violated because neither the foreman nor the judge can stop grand jury subpoenas from being issued.
A person can always challenge a grand jury subpoena in court before anything is confiscated, Lotstein said.
But New Times’ Editor Michael Lacey said Baca’s ruling was "very heartening."
"They just ignored what little checks and balances there are in the grand jury system," Lacey said.
The county attorney’s case against New Times exploded last month into political controversy after the paper’s top executives, Lacey and Jim Larkin, published a story about grand jury subpoenas demanding broad access to reporters’ notes and files and information on Web site visitors.
The investigation began in 2004 when New Times published the home address of Maricopa County Sheriff Joe Arpaio on its Web site.
An attorney at Wilenchik’s law firm, who had also been deputized, ordered the arrests of Larkin and Lacey for disclosing grand jury information. Thomas dropped all charges against the executives, stopped the investigation and fired Wilenchik from the case on Oct. 19.
Wilenchik has said the arrests were the result of a miscommunication and that he intended to only cite the executives.