Sheriff Joe Arpaio's Contempt Of Court Case Resumes – What You Need To Know

By Jude Joffe-Block
Published: Wednesday, September 23, 2015 - 1:45pm
Updated: Wednesday, September 23, 2015 - 5:58pm
(Photo by Ross D. Franklin/AP via Here & Now)
Joe Arpaio

PHOENIX — Five months after the first round of civil contempt of court hearings against Maricopa County Sheriff Joe Arpaio concluded in April, the proceedings will resume again on Thursday.

Arpaio and four others are facing civil contempt of court for violating U.S. District Court Judge Murray Snow’s orders in a long-standing racial profiling case. The sheriff and his chief deputy already admitted they violated court orders and can be held in contempt. Snow will decide at the end of these hearings whether the sheriff and his staff disobeyed court orders intentionally or unwittingly, and what remedies — such as civil fines and additional oversight — are necessary. The judge will also decide whether to refer the case to a federal prosecutor to pursue criminal contempt charges against the sheriff and others. 

The April proceedings lasted four days and yielded a major surprise when Arpaio confirmed from the stand that he had launched two secret investigations that seemingly relate to Snow.  

The five-month intermission period since April has also been plenty dramatic.

First the sheriff’s office was forced to turn over records relating to the investigation performed by a confidential informant in Seattle named Dennis Montgomery. Some of those documents may suggest one of Montgomery’s projects was to link Snow in an alleged anti-Arpaio conspiracy with the U.S. Department of Justice and plaintiffs’ lawyers.

Then the sheriff’s lawyers attempted to get Snow to recuse himself from the case, but Snow refused and a federal appeals court sided with the judge.

Tensions escalated in recent months as the sheriff’s office failed to turn over records. When it came out in July that the sheriff’s office had withheld several Montgomery hard drives and other evidence, Snow ordered the U.S. Marshals to go to the sheriff’s office and take the records into the court’s custody.

The DOJ civil rights lawyers who sued the sheriff for discriminating against Latinos in 2012 formally joined this case as intervenors in August and settled their own suit. And as a sign of just how strange this case has become, a separate team from the DOJ is reviewing one of the hard drives Montgomery gave the sheriff’s office since testimony in April alleged Montgomery had claimed to have taken records from the CIA.

This round of hearings is expected to run until Oct. 2, but the parties have also reserved several dates in October and November for additional hearing dates.

In addition to Arpaio and Sheridan, Deputy Chief Jack MacIntyre, Lt. Joseph Sousa and retired Executive Chief Brian Sands are also facing civil contempt charges. The contempt hearings are based on three different incidents where MCSO officers violated court orders.

- MCSO failed to turn over video and audio recordings of traffic stops when plaintiffs had requested that evidence in 2009, before the trial.

- After the court became aware in 2014 that deputies were filming and storing their own videos of traffic stops, Snow gave the sheriff’s office specific orders for how to quietly retrieve those videos before deputies could be tempted to destroy the evidence. But MCSO failed to follow Snow’s instructions and wound up frustrating the course of action prescribed by the court. Instead, Sheridan ordered a deputy chief to send out a mass email to supervisors asking them to recover the videos.

- MCSO failed to implement an order Snow issued in 2011 forbidding the agency from detaining immigrants solely for being in the country without legal status.

Lawyers for the plaintiffs in the underlying racial profiling case are trying to prove the sheriff and others intentionally violated court orders and that more oversight is needed to fix deep problems in the agency.

“Although the defendants Sheriff Arpaio and Chief Sheridan have admitted liability for the three grounds of civil contempt, they have done everything they can to obscure everything that actually happened,” said Cecillia Wang, a lawyer with the American Civil Liberties Union who represents plaintiffs. “In fact, MCSO from bottom to top is an agency that doesn’t adequately allow for problems to come to the surface and to be dealt with. Instead what they do is take steps to excuse misconduct by deputies and to let very serious problems that affect the civil rights of people who live in this county from being vindicated.”

Among the remedies Wang will be seeking are reforms to the sheriff’s internal affairs operations that investigate and discipline officers for misconduct, as well as improvements to the way the agency handles complaints from the public and follows up with problematic behavior.

The sheriff’s internal affairs operations became an issue in this case after the judge’s independent monitor identified deficiencies in MCSO’s investigation of Deputy Charley Armendariz’s suicide in 2014. Days before Armendariz’s death, a collection of hundreds of IDs, license plates and drugs was found at his residence. That discovery triggered a number of side internal investigations to determine if other members of Armendariz’s unit were engaging in theft, but the monitor harshly criticized the internal interviews as unprofessional.

Arpaio’s lawyer John Masterson said he will be trying to prove the agency is doing a good job on internal investigations.

“Our position is that our internal affairs investigations are thorough and reasonable under the circumstances and certainly do not violate the court’s orders,” Masterson said. “And to a large extent don’t even involve the plaintiff’s class.”

 The focus for the defense will be presenting evidence to show MCSO’s violations of Snow’s orders were not willful.

“If anything it was miscommunication, or misunderstanding of the court order as opposed to intentional behavior by the sheriff or any of the command staff at MCSO,” Masterson said.

The Montgomery Investigation: What The Sheriff Knew

One topic that is likely to surface in this next round of hearings is how much Arpaio knew about Dennis Montgomery’s investigation relating to Snow, and whether the sheriff’s April testimony on the subject was truthful.

Montgomery once contracted with the federal government on counter-terrorism programs and now calls himself a CIA and NSA whistleblower. He has been accused of being a scam artist in several high-profile media accounts, but denies those allegations.

On April 23, Snow questioned Arpaio directly from the bench and asked him if he was familiar with a Phoenix New Times article from June 2014. The article alleged the sheriff had hired Montgomery as a confidential informant to investigate Snow and link the judge to a conspiracy with the U.S. Department of Justice in an effort to disqualify Snow from the case.

Arpaio, who was under oath, confirmed he had hired Montgomery, who lived in Seattle at the time, but denied Snow was the target.

"Did you ever — you see that the article says that what Montgomery was actually doing was investigation me. You see that that's what the article says?" Snow asked the sheriff.

"It's not true," Arpaio said.

“Are you aware that I have ever been investigated?” Snow asked.

"You investigated?" Arpaio asked back. "No, no."

When asked if the sheriff was aware of any investigations of Snow’s family, the sheriff then disclosed he had a private investigator verify a Facebook tip from a woman who claimed she heard Snow’s wife say the judge wanted to get the sheriff out of office. 

The Montgomery investigation was separate from that incident. Arpaio suggested Montgomery was investigating illegal wiretaps of various people, including “many judges,” possibly including Snow. The sheriff said Montgomery was focused on exposing “bank fraud” and “computer tampering.” He also said Montgomery had not proven trustworthy and the investigation was wrapping up.

Sheridan took the stand the following day and reiterated that the sheriff's office had lost confidence in Montgomery. Sheridan said Montgomery “had information that the CIA hacked into individual bank accounts, I think there were approximately 50,000 of them, Maricopa County residents. He had their names, their bank account numbers, and their dollar amounts.”

Sheridan testified that Montgomery had made copies of CIA records to prove the federal government was engaged in illegal surveillance. He also testified that Montgomery had claimed the DOJ was engaged in illegal wiretaps and had sent Snow an email.

Snow asked Sheridan, “Did you ever hear the sheriff describe (Montgomery’s) work as an investigation of a conspiracy or something of that nature between the Department of Justice and me?”

Sheridan answered, “No, sir.”

Snow asked, “Did you ever hear him describe it as an investigation of me to anyone at the MCSO?”

Sheridan said no and told Snow that he gave a direct order to his staff not to investigate the judge.

But since that testimony, the sheriff’s office has turned over records that appear to suggest Snow may have been the target of one of Montgomery’s investigations. The documents include timelines and flowcharts suggesting links and phone calls between Snow’s chambers, a former clerk, the DOJ and the law firm Covington & Burling, which represents plaintiffs.

Documents like this one apparently produced by Dennis Montgomery alleging a conspiracy involving Judge Murray Snow were circulated in a 2014 meeting the sheriff attended, according to witness accounts in depositions.

Recent depositions have revealed that Arpaio held a meeting with his lawyers and several staff members to discuss Montgomery’s credibility in January 2014. According to more than one witness, Montgomery's flowchart showing links between Snow, the DOJ and Covington & Burling were circulated in that meeting, and that alleged conspiracy was discussed.

According to those depositions, the meeting included Arpaio’s former lawyers Tim Casey and Tom Liddy, as well as John Masterson and Joe Popolizio, lawyers who at the time represented the sheriff in his DOJ lawsuit but joined this case this summer.

Casey said in a recent deposition that the lawyers in the room found the information to be “hogwash.” When pressed whether anyone else expressed an opinion of the alleged conspiracy, Casey revealed his client, Arpaio had. Casey did not disclose the sheriff’s view due to attorney-client privilege. Since that deposition, however, Snow has ruled that the attorney-client privilege for that meeting had been waived, so Casey may have to eventually answer that question.

The revelation that Montgomery’s investigation and conspiracy theory was the subject of a meeting the sheriff attended raises questions about Arpaio and Sheridan’s earlier testimony in April.

Snow, who was present in Casey’s deposition, reminded the defendants’ lawyers of their ethical obligations to disclose to the court if they become aware their clients have presented false evidence or testimony.

“I don't remember exactly what previous testimony was, but I do remember previous testimony regarding aspects of whether or not this Court was ever the subject of an investigation by the MCSO or if the MCSO ever knew of an investigation of which this Court was the subject,” Snow said, referring to Arpaio and Sheridan’s April testimony, as well as a sworn statement by Arpaio.

“It seems to me that counsel need to evaluate that testimony in light of their own or not they have a duty of candor toward the tribunal that they have to fulfill,” Snow said. “I'm not saying you do. It's up to you to make that determination.”

Snow pointed out that some of the lawyers who are actively on the case were also apparently witnesses to the meeting in question.

Late Wednesday, sheriff's attorneys filed a motion asking the judge to preclude any questions about Montgomery in the upcoming hearing. The motion argues that Montgomery is irrelevant to the case and that Arpaio and Sheridan did not find Montgomery to be credible.

"Defendant Arpaio submits that the probative value of the Montgomery Investigation is substantially outweighed by the danger of unfair prejudice, confusing the issues, undue delay, and wasting the Court’s time," the motion reads.

Decision To Not Disclose Found IDs

Another issue that may come up is a decision MCSO made in July to not disclose evidence to court-appointed monitor.

After it came out that there was a widespread practice of deputies seizing driver’s licenses and IDs and hoarding them in office bins, Snow ordered the sheriff’s office in February to turn over copies of all IDs seized from Latino drivers.

Since then, the sheriff’s office has periodically discovered more stashes of ID in abandoned offices and lockers. In July, a sergeant brought 1,459 IDs to the property and evidence room, but an internal decision was made not to disclose them to the court’s monitor.

But the monitoring team found out about the IDs and the decision not to disclose them. Snow held an emergency hearing on the matter on July 24. He ordered U.S. Marshals to take the IDs from the sheriff’s office. 

In recent depositions, plaintiff’s lawyers have tried to get to the bottom of who gave the order to not tell the monitor about the1,459 new IDs during a July 17 meeting. MCSO officers who attended the meeting have denied in their depositions that any of the other sheriff’s staff present gave the order. When plaintiffs’ lawyers asked if it was Arpaio’s lawyer Michele Iafrate who gave them the order, they have invoked attorney-client privilege. Snow has since ruled that the privilege has been waived in that meeting as well. 

The sergeant who had the IDs in his possession, Jonathan Knapp, may testify in the coming days.

Lawyers On The Stand

At least two of the sheriff’s former lawyers are expected to be called to testify, Tim Casey and Deputy County Attorney Tom Liddy. The two men co-led Arpaio’s defense team on this case for years until Casey withdrew from the case in November. Liddy withdrew on the first day of the April contempt proceeding, citing a conflict of interest since the 9th U.S. Circuit Court of Appeals had named Maricopa County as a defendant in the case.

It is unusual for lawyers to have to testify about a former client. In addition to the Montgomery investigation, plaintiffs' lawyers are expected to question Liddy and Casey about MCSO’s failure to follow Snow’s 2011 pre-trial order on immigration enforcement. In April, the sheriff and others suggested they were relying on advice of counsel regarding how to handle the court’s 2011 order, which waived the attorney-client privilege and made it possible for plaintiffs to question Liddy and Casey.

Arpaio, Sheridan and the three other MCSO staff facing contempt are also expected to testify in the coming week. At some point the plaintiffs may call a Latino deputy who alleges his colleagues failed to investigate crimes reported by Latinos and claims he was retaliated against when he reported misconduct.

Updated Sept. 23 5:58 p.m.


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