He Just Doesn't Get It

While reporters' sources were placed at risk by the grand jury subpoenas, it was clear that public outrage focused on law enforcement efforts to identify newspaper readers and their online habits.

County Attorney Andrew Thomas fired Wilenchik as special prosecutor the day after our arrests — though he's still being used on county civil cases. Judge Baca then convened a hearing to consider the release of all grand jury documents at the request of the Arizona Republic and Channel 12, joined by New Times and the State Bar of Arizona.

In a dramatic turn of events, Judge Baca's questioning of Chief Assistant County Attorney Sally Wells revealed that no grand jury had ever reviewed any of Wilenchik's effort. He never met with the jurors. Wilenchik was little more than a rogue wolverine.

Wilenchik evaded case law and statute.

The Arizona Supreme Court made clear in 1982 that "before subpoenaing witnesses or evidence," prosecutors "must obtain the consent of that grand jury.

"[A] prosecutor may not exercise dominion over those investigations by evading the grand jury's will . . . Our Legislature, in its wisdom, chose by more restrictive legislation not to allow state and county prosecutors to investigate on their own initiative."

The Legislature later gave prosecutors more discretion. But even with more rope, Wilenchik still managed to violate state statute by ignoring the law that requires him to, at minimum, report his activity to the grand jury and to the judge.

Today, Arizona law allows a prosecutor to issue a subpoena without prior grand jury review. But prosecutors must report to the grand jury foreman and the presiding judge of the Superior Court the existence of any subpoena — within 10 days of issuing it.

Wilenchik did neither.

We are accustomed to scoundrels who hide behind patriotism. Today, however, local miscreants abuse the Constitution, break the law, invade our privacy, threaten their political opposition, endanger our most cherished rights — and then hide behind their children.

By the end of last week, both Thomas and Wilenchik used their families to invoke their status as victims.

Thomas called a press conference claiming that a daily newspaper blog endangered his children because the writer provided a link to a government Web site showing the prosecutor's home address (see The Bird this week).

Wilenchik's mealy conclusion to his personal War and Peace was that those who "tarnished" his reputation sought to "thereby harm my family."

Their familial concerns are theatrical, belated, and one-sided.

When my partner, Jim Larkin, was led off in handcuffs in the middle of the night from his home, his young children were inside. As his horrified wife watched, he was driven away in an unmarked car with license plates from Sonora, Mexico. Little wonder that she worried that her husband was being taken for ransom by the smugglers who are so frequently in the news.

Let each of us consider our families yet remain focused upon the issue.

When you speak of assaults upon the Constitution, you run the risk of being identified as a crank, a tax resister, a prisoner. Worse, you raise a problem so trapped in the robes of history as to exceed the grasp of the individual.

Not so here.

The State Bar of Arizona needs to hear your thoughts about both Wilenchik and Thomas.

In Jim Harrison's recent novel, Returning To Earth, he quotes one man saying this: "You have to learn to ignore the disastrous big picture and come down to the singular . . . cast your role as a screwdriver rather than a tank."

So it is with the local assault upon the Constitution.

Consider less Jefferson and Holmes; consider more your pen and pad.

As I wrapped up last Friday night, a janitor came into my office and emptied out the trash basket with notes and uneasy drafts of this column.

When he spoke, I could not help but think that this man knew better than most the sort of war that Arpaio and Thomas have waged against migrants.

He said a few words in broken English about our grand jury story and concluded: "A great victory."

Then he smiled broadly.

It is also, I hope, a great beginning.