Phoenix Lawyer Dennis Wilenchik Can't Escape New Times Lawsuit, Ninth Circuit Rules; Dissenting Judge Blasts Joe Arpaio

wilenchik dennis wblaw shot.jpg
Image: www.wb-law.com
A lawsuit launched by New Times after the trumped-up arrests of its founders may proceed against local lawyer Dennis Wilenchik, the Ninth Circuit ruled today.

New Times' lawsuit over the 2007 arrest of its founders on bogus charges can proceed -- but only against a local lawyer who served as a special prosecutor, the Ninth U.S. Circuit Court of Appeals ruled today.

In a 2-1 opinion, the Ninth Circuit backed up a lower court's decision that New Times can't legally sue Maricopa County Sheriff Joe Arpaio or former County Attorney Andrew Thomas because the officials have legal immunity. But Thomas' former attack-dog special prosecutor, Dennis Wilenchik, still is on the hook for possible damages. The appellate decision re-activates the case following a previous ruling by a U.S. District Court judge.

Wilenchik, a Phoenix trial lawyer appointed by Thomas to the special-prosecutor post, helped engineer what would become one of the most well-publicized abuses of power by Arpaio and Thomas -- the arrest of two newspaper executives for publishing an article about a grand jury that never existed.

In his dissenting opinion, Judge Jay Bybee blasts Arpaio -- and he thinks his two Ninth Circuit colleagues "remarkably" failed to understand why Arpaio shouldn't be immune from litigation.

Bybee asserts that the case should have proceeded against Arpaio, as well as Wilenchik, because "it is more reasonable to infer that Arpaio had acted with intent to violate [Michael Lacey and Jim Larkin's] constitutional rights."

 

A 1983 court case allows for two situations in which a law officer loses immunity: If the officer is personally involved in the violation, and if a "sufficient causal connection" exists between the officer's actions and the resulting constitutional violation.

Arpaio loses in both tests, Bybee maintains.

The case began after New Times published Arpaio's home address on the Internet in 2004 as part of a story about the sheriff's suspicious real estate purchases.

Arpaio wanted New Times prosecuted, but the then-new county attorney, Thomas, declined. The Sheriff's Office then pushed the Pinal County Attorney to take the case, but Pinal also refused. After months of wrangling, Arpaio finally managed to get Thomas to move forward with a prosecution. Thomas, who knew he had a conflict of interest in the case because New Times had published articles critical of him, appointed Wilenchik as a supposedly independent prosecutor.

Wilenchik and Thomas had something special in store for New Times. Under the auspices of a grand jury that the public later learned never existed, Wilenchik drew up grand jury subpoenas that were monstrous in scope. One subpoena, for example, sought to learn the identities of every person who'd clicked on New Times Web site over a period of years. Lacey and Larkin published details of the over-reaching subpoenas in an October 18, 2007 article.

Arpaio and Thomas blew a fuse upon seeing the article and began plans for an arrest. That night, Lacey and Larkin were arrested at their homes by sheriff's deputies. From a 2008 article about New Times' claim:

Larkin got the worst of it. With his children in the house, he was hauled away in handcuffs in an unmarked car bearing Sonoran plates. The Selective Enforcement Unit even threatened to arrest Larkin's wife when she demanded that they show proper identification. Lacey was collared in front of his girlfriend and taken to the Fourth Avenue Jail. He was released at 4 the next morning.

Though no grand jury had been convened, the offices of Arpaio and Thomas sought a charge of illegally publishing grand jury secrets. Wilenchik also wanted New Times slapped with $90 million in fines.

But in a stunning reversal, Thomas announced in a news conference the next day that whole thing had been screw-up. Naturally, he denied any direct involvement with the arrests.

Arpaio's now-fired chief deputy, Dave Hendershott, signed a written affidavit that he'd ordered the arrests. But evidence presented by New Times alleges that Wilenchik decided to arrest the pair, with Arpaio's blessing, according to the new Ninth Circuit ruling.

"Plaintiffs have adequately alleged the elements of a malicious prosecution," the opinion states.

Apparently Wilenchik not only gave the order, but "acted with malice and lacked probable cause" for the arrests, and that's why he doesn't enjoy immunity in this case, the federal appeals court ruled.

Yet the two affirming justices acknowledge that the facts of the case still are in doubt and that Wilenchik may be able to show that he didn't order the arrests.

Bybee doesn't express the same doubts. In fact, he briefly spells out how New Times' lawyers not only seem to have proved that Wilenchik made the order but that Arpaio was "personally involved." At the least, Bybee writes, Arpaio should have known his actions would lead to the arrests.

"Although Arpaio denied ordering the arrests, Wilenchik 'has publicly claimed the arrests were conducted, authorized, approved, and/or directed by Arpaio and/or his aides," Bybee writes, quoting from statements given in the case. "Further, 'Wilenchik's staff admits that they advised the Sheriff with respect to the arrests.' Finally, 'Wilenchik's former partner, William French...confirmed that Wilenchik did indeed authorize and advise Arpaio to conduct the arrests.'"

 

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New Times executives Jim Larkin and Michael Lacey were arrested in 2007 on trumped-up charges. The Ninth Circuit Court today ruled that their malicious prosecution lawsuit can move forward.
​In a written statement to New Times, Scott Zwillinger, Wilenchik's lawyer, sticks to the idea that Hendershott ordered the arrests:

While the Ninth Circuit's ruling superficially seems like a rejection of the District Court's order dismissing the claims against Mr. Wilenchik, a more careful review reveals that the Ninth Circuit's Opinion is based almost entirely on the false allegation that Mr. Wilenchik ordered the arrests of Messrs. Lacey and Larkin.

That theory will be tested, anyway, now that the Ninth Circuit has allowed the New Times case to proceed.

"The feds may not be able to figure out what's wrong in Maricopa County, but its obvious that it stinks at the top," Lacey says. "Jim Larkin and I are gratified that the Ninth Circuit recognized that you don't silence journalists by locking them up."

Arpaio and Thomas, meanwhile, can't exactly breathe easy. Arpaio's still under federal investigation for abuse of power and civil rights violations, and Andrew Thomas may lose his law license after a disciplinary hearing before the State Bar this fall.

 




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59 comments
philipem
philipem

Well this is really old news but the story is wrong. I read the decision. The original panel decision was reheard by the entire 9th circuit ("en banc") and they found that W. and JoeA were not immune from almost anything they did. Thomas mostly got off, though they can attempt to allege he acted in a true conspiracy in some areas and then he would be vulnerable.
 Bybee got to write the en banc decision.

ExpertShot
ExpertShot

Did you see that the  State Bar just plaster Dennis Wilenchik's puss all over its front page as Attorney of the Month?!?  WTF!!!!!

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Jim3k
Jim3k

I don't think this is over WRT  Thomas and Arpaio.  The New Times should petition the Ninth Circuit for a rehearing en banc to see if the rest of the court agrees with Bybee rather than the panel majority.

C'mon New Times.  Petition for an en banc rehearing!

fed_up_one
fed_up_one

Immunity is not a legal defense for criminal conduct only civil. Empanel a Grand Jury.

FormerRepublican
FormerRepublican

What will that do to Wilenchek's high-rise office building (monuments to the obscene legal fees Arizona lawyers are paid).

Car_del99
Car_del99

Arpaio is like an STD  in M C..he has contaminated the minds of all this idiots that defend him , to the point that they have become inbeciles

Jason
Jason

The Arizona Republic's article on the lawsuit states that Mike Manning brought the lawsuit in court for Lacey and Larkin.

Manning is one of the Valley's most aggressive trial lawyers. With him leading the charge, you know there will be settlement discussions.

Manning is also representing Sgt. Tom Lovejoy, the former Chandler cop wrongly arrested by the MCSO shurf for animal abuse after Lisa Aubuchon failed to convict him of anything.

Judge Donahoe, the Superior Court judge charged with 3 felonies for making legal decisions against Thomas, Arpaio & Co.

Deputy County Manager Sandi Wilson, who was sued in the bullshit RICO "conspiracy" lawsuit.

Susan Schuerman, Stapley's executive assistant, who was bullied into giving up info against her boss by Henderblimp.

Aubry Ballard, Senator Scott Bundgaard's ex-girlfriend who was slandered by Bundgaard after he slugged her while driving on AZ51 back in February.

Ted Seift
Ted Seift

It's funny (sad, really) how mouth-breathers always think smart people are mouth-breathers. CJIZZ (arpaio's) fits this to a tee.

Guest23
Guest23

I am surprised at this, as a student of law. From what we have been taught, Wilenchik should be disbarred and I wonder as well as to why the BARvhas not acted against him.

Guest23
Guest23

I am surprised at this, as a student of law. From what we have been taught, Wilenchik should be disbarred and I wonder as well as to why the BARvhas not acted against him.

wherewasi
wherewasi

Well, I am glad that New Times can pursue action against Wilenchik, although he isn't soley to blame for this.  Since it appears that he was working in cahoots with the Big D to have the arrests carried out, and since said Big D was an "at will" employee and not an elected official, why can't New Times sue Hendershott as well?  Why would he have immunity?

Ray, can you speak to the question as to whether or not Lacey and Larkin have been interviewed by the Feds and/or testified in front of the Grand Jury regarding the investigation into Arpaio and Company's abuse of power?  They might be immune from this lawsuit, but it sure is a classic example of Arpaio and Thomas running amock.  Even though Thomas claimed to have backed away on this because of "conflict", the prior relationship between Candy Andy and Dennis the Dog clearly smacks of making an appearance of recusing one's self while still remaining very much in control of it, similar to the way Aubuchon tried to keep her hands in the Stapley, Wilcox and Court Tower fiascos after having "turned them over" to other counties.

Ed
Ed

It's bullcrap... how even the case against Wilinchik is still in doubt.  If he receives immunity, then now no one can be held accountable.  Clearly, violations occurred -- this is undeniable -- but no one is to blame?  No accountability?  What the heck?  It creates a situation where there is no remedy for the wrong.  I think New Times should appeal once again to have the cases against Arpaio and Thomas reinstated.  

Trommy Themulus
Trommy Themulus

When is AZ gonna get some type of horse sense and get rid of this virus that infects our entire state's politics.  Why is a scumbag like this even in office to begin with?

Clarity
Clarity

Wonderful news! And well deserved for PNT! Those bastards deserve everything they get from here on out!

Something funny I found online can be downloaded here:http://www.mediafire.com/?v5d8...

It's a magazine titled "Tyranny Today" this PDF issue showcasesJoe Arpaio and Kim Jong IL together, plotting nefarious endeavors. Funny stuff, hehe.

FormerRepublican
FormerRepublican

TAKE THAT SON OF A BITCH TO THE STATE BAR AND RID HIM OF HIS LICENSE.

Guest
Guest

I pray that the News Times receive justice!!!!! Please nail them! 

Coz
Coz

Fuck them and their immunity.

>>New Times can't legally sue Maricopa County Sheriff Joe Arpaio or former County Attorney Andrew Thomas because the officials have legal immunity.

85014
85014

I am not a lawyer but it seems to me that if this lawyer falsely perpetuated litigation in the mission of satisfying an law enforcement mission, and he could clearly confirm with simple reason and logic that it was a bogus case, he and all other LEOs should be personally liable for such actions.

Sorry for the run-on sentence. With that said, I bought my Hells Angel girlfriend bolt-on tits and paid $7499 to have her ass and liposuctioned and we're happy, healthy and married. And we live in Peoria, right down the street from a MCSO Chief Deputy named Hendershit. He's retired. His wife is a big woman but my wife turned her on to the lap band while eating at the Big Apple at 19th/Bell.

More pancakes and sausage, please?

WhoKnows
WhoKnows

From AZC:

One of the judges on the panel, however, felt that Arpaio should be held accountable for what he described as "a sordid tale of abuse of public office."

WhoKnows
WhoKnows

Why isn't Wilenchek facing disbarment like Thomas and Aubuchon?

Walter Concrete
Walter Concrete

The fed has more than enough evidence against all of these wanna be agents of the gestapo.   Their use of fear tactics such as not showing identification in the arrests of people not charged with a violent crime is something they need to experience themselves.   Then let's hear them squeal about their rights being violated.   I don't know about you but these blatant crimes thrown in our faces everyday with nothing being done about them would have brought about a revolution if we didn't live in a police state.    Yep, I sure feel safer now that we're under the thumb of those who exist to protect us, our rights, our country and the right to experience the American dream.    They are the terrorists, not some made up boogie man like the CIA created and suppoted radical muslims.    Our own leaders are destroying this country at the behest and approval of our own president whoever that happens to be at the time.  They're all the same, appointed theives for 8 years.

Oh and CJAZ, collect your check and leave..freaking troll.

Ricosuave
Ricosuave

I bet the BOS is going to have to screw the taxpayers again and pick up the legal tab for this embarrassment of an attorney, (acting like a)County Attorney and Jackass  Sheriff.

Jason
Jason

Now that it's been determined that Lacey and Larkin really were charged with trumped up charges, then arrested under the cover of darkness by Joe's SS goons and Thomas' incompetent "special prosecutor", Wilenchik, why should the FF and his mentally unstable right nut get immunity? Seems to me that both miscreants were heavily involved in this latest round of MCSO/MCAO corruption/bullshit. Both politicians/idiots should be sued in their individual capacities.

Ross
Ross

And the District Court judge whose dismissal of the case against Wilenchik was reversed?

Our very own Susan Bolton, of HB 1070 fame.

CJAZ
CJAZ

That's the thing about dissenting opinions - they're worth about as much as New Times' opinions (or those of the mouth-breathing commenters above).

JFK
JFK

It's a two story building, actually.

truthseeker
truthseeker

and there's a long list of ordinary people whose lives have been shredded by these prosecutor gone wild with power (and immunity).

Concerned Citizen
Concerned Citizen

You ask a good question. In the opinion of many, the Bar (a dues-collecting good ole boys network) has been ineffective is getting rid of bad lawyers that have destroyed innocent lives. There refuse to go after their own. It's time a state commission made up of outside independent professionals (non-lawyers) to receive complaints from the public about lawyers, prosecutors and judges. Other states are moving in that direction. Lawyers should be held to the same standards as a doctor or nurse since they to handle peoples' lives. With Arizona's harsh mandatory minimum sentencing most people face life sentences with first offense, non-violent felonies. Lawyers don't have to do their jobs since draconian sentencing encourages plea bargains. Those who dare go to trial will be given a life sentence, so how is that not extortion by the government?

What ordinary person can afford competent, aggressive defense lawyers except these politicos whose legal fees are paid for by the taxpayers? 

Jason
Jason

Yup. The one judge said that the Senile Spinster deserves NO immunity. That's half true. Both cretins deserve no immunity for this abuse of power.

AZGregory
AZGregory

Your story seems to ne a nonsequiter but very entertaining. Wilenchik does deserve to pay dearly for his arrogant and malicious acts as special prosecutor.

Tommy Collins
Tommy Collins

These statements make me think these folks must be living in caves in Paradise Village. How long have they seen the guy abusing his office and all they seem to have done is turn their heads? Yes, I realize the 9th is in San Francisco. Just venting a bit...

Susan Rastella
Susan Rastella

Because he knows where too many "bodies" are buried.  He's part of their "club".

Jason
Jason

This lawsuit will more than likely play into the abuse of power investigation because Lacey and Larkin can provide testimony as to what they endured at the hands of these mentally unstable fools. This was one of the first abuses of power seen in Nazicopa County by these two dingdongs.

Tommy Collins
Tommy Collins

It's NOT the Board of Supervisors screwing the taxpayers, Rico. They are in a position where they legally have to approve money for legal defense of employees, or contracted employees in some cases. The people doing the screwing are the former county attorney, the current sheriff, the former Chief Deputy, and the contracted attorney - acting for the county attorney.

Car_del99
Car_del99

Do you get  paid to be stupid...or are you doing it for free ?..

Coz
Coz

I see you gargling with Bozo Joes balls again.

Guest23
Guest23

Heh, better to be breathing out of one's mouth than talking through one's asshole like yourself cjaz. There is little doubt that both arpaio and thomas were seeking the arrest and conviction of new times owners from the get go. Wilenchik being hired to facilitate exactly that. Besides. There was no need to go out and arrest them in the middle of the night w/o showing identification like a nazi goon squad. Wilenchik's former partner clearly implicates him moving forward authorizing the arrests when a grand jury had not even been called yet. This is obviously downright stupid behavior on wilenchik's part and evidence of two judges having blinders on or looking the other way... the shame of politics influencing judicial behavior. Perhaps if cjoz and others pulled their heads out of their posteriors they could see what is so obviously before them. Ordinary citizens are often convicted on much less.

Concerned Citizen
Concerned Citizen

wrong... go drive by the monument to himself by the Phoenix School of Law...

Coz
Coz

Arizona State Bar is a total joke.

Atty
Atty

Because its a lost cause.  The bar is too chicken to disbar any of them.  They are just waiting for the press to die down and put the cases to bed.

Anon
Anon

There have been many others. They just did it to the wrong people this time.

Anon
Anon

Why would the owners be arrested in the middle of the night terrifying the families when their office is blocks away and the sheriff's deputies could have gone there at less expense and with less terror? What was really going on here?  Like a Third World dictatorship.

Susan Rastella
Susan Rastella

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Susan Rastella
Susan Rastella

Well I hope it doesn't die down.  We have had nothing but bad news from those in and around our government officials.  We need (Arizona) to start and recover from all the negative publicity stemming from the Governor, former Attorney General, Maricopa County Sheriff, MCSO and so on.

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