Federal judge thwarts Wilenchik's delay attempts in massive jail-deaths suit against Arpaio
By John Dickerson
Six attorneys and a federal judge wrangled in U.S. District Court for three and a half hours this week over the issue of moving forward with possibly the most important inmates’ rights lawsuit ever filed against the Maricopa County Sheriff Office: Hart vs. Arpaio.
Lawyer Dennis Wilenchik, representing the county, attempted to delay the case, but U.S. District Judge Neil Wake didn’t allow it. And for the first time in the case’s 30-year history, the county attempted to separate itself from the sheriff (a county employee who supposedly answers to the Board of Supervisors but who insists that he answers to no one as an elected official).
A portrait of the bombastic barrister: Dennis Wilenchik
The case is one of more than 2,500 civil rights lawsuits filed against the Sheriff's Office, as New Times reported in December. Former county prosecutor Jack MacIntyre, one of Arpaio's legion of highly paid flacks, sat reading the Wall Street Journal while the attorneys argued, no doubt conjuring up what kind of spin the MCSO will put on the federal court proceeding.
Hart vs. Arpaio is a class-action lawsuit brought by the ACLU and jail inmates against the MCSO. The case is unique in that it only addresses pretrial detainees, who await trial and are legally innocent until proven guilty.
New Times last reported on Hart vs. Arpaio (formerly Hart vs. Hill) in December, when it pointed out that nothing had happened in the lawsuit for three years.
U.S. District Judge Earl Carroll, 82, had been presiding over the case since 2004. Four months after New Times' story, Carroll – known to move at a leisurely pace in matters before him -- recused himself. Now that the case is in Judge Wake's court, it is expected to move forward rapidly.
At the case management conference on Monday, Wake told Wilenchik repeatedly not to attempt delaying resolution of Hart vs. Arpaio for no good reason.
“I’m not making any assertions,” the judge said to Wilenchik, “but I don’t want any foot-dragging or waiting. I want cooperation to get these records produced. I have no doubt that you will work to get those records produced.”
Phoenix's federal building.
The session started at 3 p.m. on the fifth floor of the glass-and-steel Sandra Day O'Connor Federal Courthouse in downtown Phoenix and ended about 6:30.
As Wilenchik waited for the conference to get started, he took off his glasses, checked his gold Rolex watch and then told the plaintiffs' attorneys, “I'm just trying to make a living. That’s getting harder and harder to do.”
Maybe Wilenchik was joking. New Times reported in a December profile titled "Dennis the Menace" that the county has paid him and his firm more than $2 million in legal fees since 2005. (In some quarters, he's known as "Wilencheckbook.")
At the table with Wilenchik sat Michelle Iafrate, Arpaio's newest private attorney paid for at taxpayer expense, a wispy woman with a militaristic demeanor. For the first time in the case, Wilenchik claimed he was serving as the county's private attorney only, making it clear that he is not also representing Arpaio, as he has many times in the past. Wilenchik insisted that he is representing the county's Correctional Health Services -- but not the sheriff whose inmates CHS services.
If this is confusing, it's also confusing why the county needs two highly paid private attorneys to handle its side of Hart vs. Arpaio. Sorry, its side and Arpaio's side of the case. That is, isn't there somebody in the County Attorney Andrew Thomas' office who could handle this?
Across the way sat plaintiff’s attorney Debra Hill of the Phoenix law firm Osborn Maledon and ACLU National Prison Project attorney Margaret Winter, who had flown in from Washington D.C.
Right out of the gate, Wilenchik interrupted Judge Wake to say the county might be willing to withdraw a motion to dismiss the suit, but that he hadn't asked his client yet. Iafrate seemed stunned. She said she was unaware that Wilenchik planned to make such a declaration. Presumably, she will be running over to Arpaio's office to ask him what he wants to do, now that Wilenchik suddenly doesn't speak for the sheriff.
Wilenchik waxed that he was only informing the court of the county's possible withdrawal of the motion to save everyone's time -- but the judge wasn't buying it.
“That’s a different issue," Wake said. "Until the motion is withdrawn, we are moving forward.”
When Wilenchik mentioned that the case had already sat for 30 years, Judge Wake replied, “I didn’t wait 30 years! I’m not waiting four years. I’m not waiting four months.”
The discussion centered on the discovery of jail records, with plaintiffs' lawyer Hill and the ACLU arguing that they need access to primary jail medical records, especially those regarding inmate deaths.
Wilenchik kept interrupting: “If I may, your honor.” "If I may, your honor."
He finally was allowed to state, “I’m sure there are death records somewhere. The issue is whether they’re maintained in some order of semblance. I don’t believe they are. We have statistics that show the number of deaths are significantly lower than other metropolitan jails.”
Well, if the deaths are fewer, the lawsuits over them certainly aren't. Arpaio has been served 50 times as many jail-conditions lawsuits as the sheriffs (or jail custodian) in New York, Los Angeles, Chicago, and Houston combined, as New Times reported in December.
ACLU attorney Winter replied, “Again, there should be a hospital log. It’s one thing for them to say on paper that they have a system or a policy or procedure. What matters is whether patients who need hospital care actually get it. To look into this problem, the experts need to actually look, and there should be a log. If there’s not a log, that in itself is something our experts can use.”
Judge Wake ultimately directed both sides to work together to identify exactly what records are available and how they’ll be accessed.
“The judge basically set the discovery schedule we had proposed,” Hill said after the conference. “Our experts are going to be able to inspect the jails as proposed and have casual conversations with inmates. He’s entering a protective order so we can examine medical records.”
Hill is scheduled to meet with Wilenchik and Iafrate later this week on the medical-records issue.
“We are delighted that this case is moving forward and that our experts will have an opportunity to inspect the jails to confirm, as we believe, that the sheriff and county are failing to meet constitutional minimums in the critical areas of medical and mental healthcare, environmental health and safety,” Hill said.
It is mere coincidence that plaintiff's attorney Hill and former Sheriff Jerry Hill, who was the original defendant in the suit filed in 1977, share the same last name. Damien Hart was an inmate whose constitutional rights were allegedly violated in the jail. He was deemed the opening name in the class action.
Wilenchik continues to represent the county, at the behest of County Attorney Thomas, despite Thomas' having fired him as a special prosecutor last October, after Wilenchik ordered the arrests of New Times' two top executives for writing a cover story about abusive grand jury subpoenas that the abrasive lawyer had authored. An Arizona Bar Association investigation of Wilenchik and Thomas is under way in their handling of the New Times case and in their brazen attack on county Superior Court judges last year.