Histrionics Lesson

Again, a judge bends over and allows Sheriff Joe Arpaio to sneer at Arizona's public records law

Superior Court Judge Michael D. Jones should be proud of himself. He has made it virtually impossible for the public to find out what is going on inside a sheriff's department that is noted for cruelty, ineptitude and downright stupidity.

In ruling against New Times in a public records lawsuit filed last September 23, Jones stated that the Maricopa County Sheriff's Office -- which includes a jail system with more than 10,000 inmates and pretrial detainees -- did not act in bad faith in refusing to produce documents sought under the Arizona public records law.

New Times is appealing.

Jones made the ruling despite overwhelming evidence presented in the case that clearly shows the sheriff's office acted in bad faith. Not only did the MCSO fail to provide records I formally requested in writing for several months, the department's communications director said the MCSO would "never" release public records to New Times.

Faced with no other option, New Times filed suit. Only after that happened did the MCSO reluctantly provide some of the records requested. The MCSO still has not responded to some of my public records requests dating back 14 months.

The August 3 ruling will make it easier for Arpaio to keep secret horrific conditions inside the county's overcrowded jails. Wrongful-death lawsuits seeking more than $30 million in damages are already pending against the MCSO.

The dunderheaded decision will also allow the sheriff to more easily hide from the public and the press on issues ranging from the performance of his deputies in police operations to prostitution stings gone awry to undercover drug investigations in area high schools.

New Times filed the suit in the months leading up to last September's Republican primary. Arpaio was facing a spirited challenge from retired Mesa Police Department Commander Dan Saban.

Arpaio's communications director, Lisa Allen-McPherson, said at the time that the sheriff's office was refusing to release the records because she does not like New Timesand does not believe it is a legitimate newspaper. Needless to say, the state public records law does not allow a government agency to base decisions regarding the release of public records on such arbitrary and ridiculous criteria.

Arpaio's vindictive -- and what I still contend to be illegal -- refusal to release the public records to New Times is typical of his arrogant behavior since he was first elected in 1992.

It is clear to me that Arpaio ignored the state public records law in the summer of 2004 to protect his foundering reelection campaign from further damage. Arpaio, a former Democrat turned Republican, had lost support of his own party when top county Republicans voted to endorse Saban in the primary. Among other things, GOP leaders were angry that Arpaio backed now-Governor Janet Napolitano, a Democrat, during the final days of the 2002 election instead of Republican Matt Salmon.

By last July, Saban had won endorsements from every police union and fraternal organization in the state. Despite Arpaio's popularity with the public fueled by his tough-guy image, the 73-year-old sheriff is widely despised in law enforcement circles for his relentless self-promotion and general incompetence.

Saban continued to gain momentum when U.S. Senator John McCain endorsed him. Clearly worried that his tenure as sheriff could be ended by the upstart challenger, the last thing Arpaio wanted was more damaging information from public records getting into my hands. I already had used MCSO records obtained under the public records law to prepare a feature story sharply critical of Arpaio ("In the Crosshairs," June 24, 2004). Public records had always been hard to get from the MCSO, but in an attempt to keep a negative story based on public records from coming out again before the primary, Arpaio's public information officers started ignoring requests for documents from New Times.

This went on for four months before New Times sued.

Filing a lawsuit to obtain public records is an expensive and time-consuming process. The public records law is supposed to allow the press -- and, for that matter, any citizen -- timely access to records. If a government agency refuses to respond to a public records request, the only recourse is to seek a judge's order.

Many of the records New Times sought were routine police reports. The sheriff's office, for example, refused to release the arrest records and incident reports in a July 23, 2004, SWAT team raid on an Ahwatukee house that left the home burned down, a puppy incinerated and a car smashed after the brakes failed on MCSO's armored personnel carrier ("Dog Day Afternoon," August 5, 2004).

Other records requests involved the release of voluminous numbers of documents. One asked for a complete accounting of the millions of dollars generated from the sale of food and other items to inmates locked in county jails, including Tent City. Another sought the release of booking records for a Mesa jail facility where Arpaio has allowed the well-heeled (including country-music legend Glen Campbell) to serve jail sentences in air-conditioned comfort in return for substantial campaign contributions or other favors ("Arpaio's Running Scared," July 15, 2004; "Special Treatment," August 19, 2004; and "Jailgate Explodes," August 26, 2004).

Despite the public's legal right to know what the hell happens to money generated by governmental agencies, the complete canteen financial records -- including an accounting of where millions of dollars a year are deposited -- and the Mesa jail booking records still have not been released.

By October of last year, the MCSO began producing a fraction of the records I had requested in some cases months earlier. Among them were the police reports from the Ahwatukee raid.

Need I reiterate that these records, available in July, were only released after the suit was filed.

Also, the MCSO's halfhearted compliance with state law came only after Arpaio had defeated Saban (by the narrowest margin of his career) in the Republican primary and would be facing weak competition in the general election.

If there ever was a public records lawsuit that clearly documented bad faith on the part of a government agency in refusing to release public records, ours was it.

As part of my job as an investigative reporter, I have filed public records requests for more than 20 years, and I have never encountered a government agency with less regard for the open-records law. Not even former Arizona governor J. Fife Symington III resorted to the obstructionist tactics of Arpaio and his lackeys.

What's worse is that Judge Michael D. Jones is letting Arpaio get away with violating state law.

Despite the aforementioned stack of evidence showing the MCSO's indisputable bad faith in complying with the public records law, Jones commented in his ruling: "This Court rejects Petitioners' claims as unsupported by anything other than argument and histrionics."

Histrionics!? Jones must be referring to some of the columns I have written about the scoundrel Arpaio rather than the evidence before him. Did he even read the case file, which jurists are supposed to use solely to make their decisions? I have to wonder this, because to wonder anything else suggests that Judge Jones is quivering under his robe at the very thought of ruling against the self-proclaimed "toughest sheriff in America."

The evidence in the case clearly shows it was the MCSO that resorted to "argument and histrionics" to block the timely release of public records. Apparently, Jones did not read Lisa Allen-McPherson's sworn affidavit and deposition. In those, she admitted under oath that she told me during a heated confrontation last September 3 in front of the Fourth Avenue Jail that the sheriff's office would not release the records requested by New Times.

I told Allen-McPherson that she was violating the state public records law, which prompted her to yell back in front of then-candidate-for-sheriff Saban and several news reporters: "So sue us!"

Talk about histrionics.

If Allen-McPherson had a legitimate reason for not releasing the records -- such as honestly believing they were not covered by the public records law -- I could possibly begin to understand Judge Jones' ridiculous ruling. But the excuse Allen-McPherson offered was based on the fact that New Times has been calling bullshit on Joe Arpaio for 12 years.

Here's what she said in the sworn affidavit filed in the MCSO's response to New Times' suit: "I told Dougherty I thought he was a liar and never wanted to respond to his requests." She reiterated that she was not going to comply with the public records law in her November 29 deposition. Her reason:

"I don't like [Dougherty's] paper. I don't think his paper is legitimate."

I have to admit, I was thrilled to hear Allen-McPherson utter such idiotic statements under oath. I thought at the time that she had handed the case to us on a silver platter. What judge with half a brain would not see that the MCSO spitefully violated state law?

Well, that would be Judge Michael D. Jones.

Not surprisingly, Arpaio is publicly gloating over Jones' ruling. The sheriff is claiming that New Times' efforts to obtain the public records are part of a long-standing "feud."

In a press release that, as usual, was sent to every media outlet in the Phoenix area except New Times, Arpaio brags that the courts have repeatedly ruled against this paper's efforts to obtain public records from his office.

"This is the third time they have sued for claims about public records and the third time they have been slam-dunked by the courts. This shows the transparent animosity and spite that this outfit has for me in its writings," Arpaio spewed in the release.

"It is obvious that the voters have seen through their vicious attacks, too," he claimed, "since they have been after me now for over 12 years and I'm still here."

Arpaio's characterization of the dispute between the MCSO and New Times as a "feud" belittles the serious matter at hand. We have been seeking public records from the MCSO because we believe they would reveal the truth about Sheriff Joe Arpaio's operation. Come on, you would have to be a moron to believe that Arpaio has been aboveboard!

But he is right about one thing. We havebeen needling this top county law enforcement officer for more than a decade to obey the law.

What's getting lost in all this -- and it is a point that obviously escapes Judge Jones -- is that the public has the right to know how Arpaio runs his taxpayer-financed office. Did Jones not notice that none of the records requests I filed from late May on were responded to until after we filed suit in late September? The smattering of MCSO records that writers from this paper have managed to obtain over the years reveal a persistent and chilling pattern of abuse.

There has been an ugly string of horrific events inside Arpaio's jails: beatings, deaths of inmates strapped into medieval "restraint" chairs, suicides, and deaths caused by detention officers' failure to supply routine medical treatment.

Time and again, these tip-of-the-iceberg public records showed Arpaio doing whatever was necessary to further his political career, even if it meant wrecking the lives of innocent people through illegal wiretaps, unwarranted surveillance and entrapment ("The Plot to Assassinate Arpaio," August 5, 1999, and "Unlikely Unabomber," December 19, 2002).

This is not a feud. It is a battle to defend the constitutional rights of Arizonans against a police agency that has the power to arrest, incarcerate and kill with impunity. Unfortunately, New Times has been able to count even fewer allies than President Bush in his war with Iraq.

The Arizona Republic, where the sheriff's son-in-law is deputy editor of the paper's editorial pages, rarely finds fault with Arpaio. The East Valley Tribune isn't much different. And TV news (from which former anchorwoman Lisa Allen-McPherson sprung) for the most part regurgitates propaganda generated by the MCSO's disinformation office.

New Times had no choice but to turn to the courts. We had hoped that Judge Jones would see through the claims of Arpaio's lawyers, that Jones would see that the evidence New Times presented was incontrovertible.

But the judge was no more up to the task than his predecessors. As Arpaio notes in his self-congratulatory statement, this was not the first time New Times has lost a public records lawsuit filed against the MCSO.

The first major public records case we lost was in April 1998 when Superior Court Judge Rebecca Albrecht ruled that financial records maintained by Arpaio's volunteer posses were not subject to the state public records law.

New Timessought the records after learning that posse members and MCSO deputies had collected about $500,000 in cash from the sale of pink underwear. The cash was taken in paper bags to MCSO offices under the direct control of Arpaio's chief deputy, David Hendershott. Thousands of dollars later turned up missing ("Undie-Gate," April 2, 1998).

Earlier this year, New Times lost a special action before the Arizona Court of Appeals seeking an order directing the Maricopa County Recorder's Office to unseal Arpaio's real estate records. A state law allows police, judges, prosecutors and public defenders to seek removal of their addresses and phone numbers from records filed at the County Recorder's Office.

But rather than simply redact the address and phone number of Arpaio's personal residence -- as the law intended -- County Recorder Helen Purcell removed all documents related to the sheriff's extensive commercial and residential real estate holdings. That's right, the documents were simply removed from public review. These are records that would be readily available regarding the real estate dealings of any of the rest of us.

All we have been able to find out about Arpaio's real estate ventures is that he has invested large sums of cash -- at least $790,000 -- into three commercial projects ("Sheriff Joe's Real Estate Game," July 1, 2004, and "Stick It to 'Em," July 8, 2004).

The appeals court, in ruling against New Times, inexplicably said it didn't know if it was possible for the Recorder's Office to simply redact Arpaio's home address. Apparently, rarefied court members aren't familiar with the existence of black Magic Markers.

With the county and state courts so far abdicating their duty to enforce the law when it comes to Sheriff Joe Arpaio, it is now up to MCSO employees to courageously step forward with evidence of the widespread skulduggery that I believe permeates the sheriff's office. I'm calling on them to leak it to us.

Otherwise, what the sheriff calls a "slam-dunk" on New Times will become a knockout punch to the citizens of Arizona.

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