Judge Questions Truthfulness Of Sheriff Joe Arpaio’s Testimony

By Jude Joffe-Block
Published: Sunday, November 22, 2015 - 10:35pm
Updated: Monday, November 23, 2015 - 8:29am
Audio icon Download mp3 (4.34 MB)
(Photo by Jude Joffe-Block - KJZZ)
Lawyers representing the plaintiffs in the racial profiling case against Sheriff Joe Arpaio posed outside the courthouse after closing arguments in the contempt of court hearing.

The federal judge overseeing the contempt of court case against Maricopa County Sheriff Joe Arpaio questioned whether the sheriff and his chief deputy had been truthful in their testimony.

U.S. District Court Judge Murray Snow’s comments came on Friday, the 21st day of the contempt hearing and the day set aside for each party to give closing arguments.

Arpaio and four others are facing civil contempt of court for violating Snow’s orders in a racial profiling case. The violations have to do with failing to collect and turn over evidence, and ignoring Snow’s 2011 pre-trial order to stop detaining immigrants who could not be charged with any state crimes.

During the attorneys’ presentations, Snow volunteered issues that concerned him. He had more questions for the sheriff’s lawyer than he did for the plaintiffs.

One ongoing topic in this case is whether the sheriff used a confidential informant in Seattle to investigate Judge Snow in an effort to discredit the judge and retaliate against him after he ruled against the sheriff’s office in a racial profiling lawsuit in 2013.

Arpaio has been accused in the past of targeting his critics with investigations and unfounded criminal charges.

“Whether he was investigating me or not does not mean as much to me as to whether (Arpaio) was truthful on the stand,” Snow said from the bench.

The judge also said he believes the sheriff’s story and Chief Deputy Jerry Sheridan’s story about the Seattle investigation changed over time. He said there is a question “whether these gentlemen are telling the truth, or trying to deceive this court.”

Snow first asked the sheriff about the Seattle investigation in April, in response to a June 2014 Phoenix New Times article that alleged the sheriff was using a confidential informant named Dennis Montgomery to investigate Snow and link him in a false anti-Arpaio conspiracy with the U.S. Department of Justice.

"Did you ever — you see that the article says that what Montgomery was actually doing was investigating me. You see that that's what the article says?" Snow asked the sheriff on April 23.

"It's not true," Arpaio said at the time.

 “Are you aware that I've ever been investigated by anyone?” Snow asked.

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

Arpaio and Sheridan told the judge they had hired Dennis Montgomery, a former federal intelligence contractor, as a confidential informant because he said he had evidence of bank fraud impacting Maricopa County residents. Sheridan said Montgomery said he had records from the CIA that proved the agency was hacking into Maricopa County residents’ bank accounts.

Both Arpaio and Sheridan testified they no longer believed Montgomery to be credible.

But later, evidence surfaced that Montgomery had also sent the sheriff flowcharts and timelines about a purported conspiracy involving Snow, the U.S. Department of Justice and the law firm that represents the plaintiffs in this case. Montgomery’s documents also alleged that Snow had authorized a wiretap of the sheriff.

In October, Arpaio testified again and acknowledged he had received those timelines and flowcharts. At that point, Snow asked Arpaio why he had answered "no" to the judge’s questions in April given the sheriff’s awareness of Montgomery’s research concerning Snow.

“I don't think there was any investigation,” Arpaio answered in October. “(Montgomery) just came up with a flowchart. I don't call that an investigation. We didn't investigate it,”

The fact that Snow brought up the sheriff’s testimony on Friday suggested he was not satisfied with the sheriff’s explanation in October.

Masterson told Snow he believed Arpaio’s original answer in April was accurate since there had been no “investigation.”

“I think the evidence is clear the sheriff did not lie,” Masterson told reporters after court. “I understand I am parsing questions, but I think the sheriff answered honestly to the questions made to him.”

In court, Snow asked Masterson if he could conclude Arpaio and Sheridan were not credible on other topics if he determined they misstated the facts under oath on this topic. Masterson acknowledged it was up to the judge to use any information he had to evaluate their credibility.

Snow said the court had to spend thousands of dollars and “waste a bunch of time” to get to the bottom of issues the sheriff and his staff were not forthcoming about, including 50 hard drives from Montgomery they did not turn over to the court, and 1,459 identification cards they did not report to the court. Snow resorted to ordering the U.S. Marshals to seize those items from the sheriff’s office.

“I think it is pretty clear the judge is concerned about the credibility of Sheriff Arpaio and Chief Sheridan,” said Cecillia Wang, a lawyer with the ACLU who represents plaintiffs after court. “And he has good reason to be, the record is replete with instances where they lied.”

Wang said Snow’s comments on Friday make clear he is aware of all the evidence in the case and the sequence of events.

“Some of the excuses that have been made in arguments by defendants, he simply realizes don’t hold any water,” Wang said.

Wang argued to Snow the sheriff’s office’s internal investigation process is broken. She pointed out that no one at the sheriff’s office was found to have violated any policies for failing to implement the court’s 2011 preliminary injunction to stop detaining immigrants not suspected of any state crimes.

“It was known around MCSO rumor mill that no one was held responsible for this court’s preliminary injunction and that reinforced the message that people will not be held to account, even for violating federal court orders,” Wang told Snow in court.

An attorney for the U.S. Department of Justice’s civil rights division also addressed Snow on Friday about the problems with the sheriff's internal investigations. The judge allowed the DOJ to intervene in this case after it settled its own civil rights suit against the sheriff this summer.

DOJ lawyer Paul Killebrew told Snow that his agency is working to reform police departments all over the country, and that civil rights violations go hand in hand with a lack of internal accountability within departments. Killebrew called this case “extreme.”

“We have never seen facts like these,” Killebrew said. He said there is evidence the sheriff’s internal affairs investigations are both biased and not carried out competently.

Another lawyer for the plaintiffs, Stanley Young, argued the sheriff intentionally disobeyed Snow’s order to cease detaining immigrants for political reasons.

“They wanted the sheriff to be able to tell the public he was enforcing all of the immigration laws … that was for his political benefit, particularly for his reelection in November 2012,” Young told Snow. 

When it was the sheriff’s lawyer John Masterson’s turn to address the judge, he argued the violations of Snow’s orders were not willful. He said the court’s 2011 order was hard for law enforcement officers to understand and the sheriff’s former lawyer did not adequately explain it to the sheriff’s staff.

“There was not appropriate advice given to MCSO on how to comply with the court's order,” Masterson told Snow.

Arpaio’s former lawyer, Tim Casey, testified that he explained the court order as “arrest or release” — that sheriff’s deputies could either arrest immigrants on state charges or release them, but could not detain them solely to turn them over to federal immigration officials for deportation if they were suspected of being in the country illegally. But Masterson cast doubt on whether Casey had in fact explained the order to the sheriff’s staff in those simple terms.

“Were there mistakes made? Absolutely. Were Court orders violated? Absolutely. But the key we wanted to get across to the court, and the public for that matter, is it was not intentional,” Masterson said after court.

After court, the sheriff’s opponents said they felt the judge’s comments from the bench boded well for their side, and they even had a celebratory dinner.

Mary Rose Wilcox, a former Maricopa County supervisor and outspoken Arpaio critic, invited the plaintiffs’ legal team and other community activists over to her former restaurant, El Portal, for tamales.

“The decision isn’t out yet, we are just relieved it is over, and relieved everyone did so well,” Wilcox said.

It’s unknown when Judge Snow will rule on civil contempt. First the parties will file more information in the coming weeks.

Snow may also allow expert witnesses to testify about what remedies are needed at the sheriff’s office. Once the issue of remedies is sorted out, Snow will eventually decide whether to refer the case to a prosecutor to pursue criminal contempt charges.  

Updated 11/23/2015 8:29 A.M.