Joe Arpaio, Paul Babeu and the Garrity Rule

Babeu's probe of Hendy is compromised from jump
Babeu's probe of Hendy is compromised from jump

One misconception out there is that the inquiry into MCSO Deputy Chief Frank Munnell's memo by Pinal County Sheriff Paul Babeu could result in criminal charges being filed against those Sheriff Joe loyalists now suspended with pay: Chief Deputy David Hendershott, Director Larry Black, and Captain Joel Fox.

Though Munnell alleges criminal activity in his love letter to Joe, he makes it clear that he's asking for an "administrative investigation," as opposed to the criminal ones being done by the FBI and the Arizona Attorney General's Office.

An administrative investigation is just what Babeu is doing, not a criminal one, as his spokesperson Tim Gaffney confirmed to me yesterday. Even if Babeu -- oddly, both a rival and an ally of Arpaio's -- were so inclined, his interviews of Hendershott and other MCSO employees cannot become the plaything of prosecutors in the course of a trial.

Why? It's because of something called the Garrity Rule, the result of the 1967 U.S. Supreme Court decision Garrity vs. New Jersey, which held that if a police department orders an officer to cooperate with an internal investigation, the officer's statements cannot be used against him or her in criminal court.

So, essentially, if Babeu orders Hendershott and the others to answer questions as part of his probe, they will have immunity from prosecution for any statements made during their interviews. Hendy could sing his face blue to Babeu, knowing full well it can't come back to bite him. At least not in a way that will put him in the pokey.

The idea behind Garrity is that cops and public employees enjoy the same 5th Amendment right against self-incrimination as we all do. Their bosses can force them to talk upon threat of dismissal, and what they say could lead to termination or some other discipline, but that's about it. Garrity material cannot be used in a criminal trial.

The Fraternal Order of Police has a pretty good explanation of the Garrity Rule, here. (Look under "Hot Topics.") According to Gaffney, Hendershott, Black, Fox and Munnell have already received their Garrity warnings. Or at least Babeu has so ordered.

"My understanding from sitting with [Sheriff Babeu], is that he told [Acting Chief Deputy Jerry] Sheridan that he wanted them all admonished," Gaffney told me.

When I asked if the Pinal County Sheriff's Office had confirmed that Sheridan had done so, Gaffney replied by e-mail that, "Sheriff Babeu asked that it be done and we have not heard otherwise."

Because these individuals will enjoy de facto immunity from prosecution in the Babeu inquiry, they will not be Mirandized.

According to the law enforcement professionals I've spoken with, law enforcement agencies often conduct parallel investigations into alleged wrongdoing, both criminal and administrative, that do not overlap.

I wondered why Babeu was not doing a separate criminal investigation.

"Isn't the AG's office doing the criminal part of the investigation?" Gaffney replied.

Gaffney explained that the MCSO had asked Babeu to do an internal investigation, so that's what Babeu's doing. He also told me that Babeu planned to release his report to the public when the probe is concluded, including all Garrity material.

If Babeu develops information on lawbreaking apart from the Garrity stuff, he will forward it to the proper agency for review, Gaffney explained.

"Sheriff Babeu is all about transparency," claimed Gaffney. "He's said that at the conclusion of the investigation, he's going to forward his entire investigation to Sheriff Joe Arpaio, he's going to forward his recommendations. Then he's going to hold a press conference, and he will explain it publicly, what was alleged, what was determined, and what his recommendations are."

I'm not sure if "transparency" is the impression of the PCSO I got from my colleague Paul Rubin's cover story on the Louie Puroll matter, "Pinalcchio." But be that as it may, it will, ironically, be Arpaio who metes out punishment (if any) resulting from the Munnell memo.

Should Arpaio actually sack any of these men, according to the county, they will get to keep their pensions. (The county says Black and Hendy are already drawing theirs.) If criminal charges ever drop from the state AG or the federal grand jury looking into the MCSO, that could change, though. 

Interestingly, Garrity material can be used in civil cases. Tort titan Mike Manning told me that he has used Garrity material in the past to impeach or cross-examine witnesses in lawsuits.

And he said the knowledge that their Garrity statements will be made public may color what Hendershott, Black and Fox will say under the hot lamp, or what their lawyers will advise them to say under the hot lamp.

Manning found fault with the PCSO not doing a separate criminal investigation. Additionally, he argued that the PCSO does not have the resources to do the sort of probe that is required, unlike Munnell's first pick, the Arizona Department of Public Safety.

And Manning, who has scored huge settlements against Arpaio's office in the past, insists there's an inherent conflict in the way the inquiry is being conducted.

"What if they find evidence that Arpaio knew more than Munnell says he knew?" asked Manning. "They're going to make a report to Arpaio where there is at least circumstantial evidence that Arpaio knew a great deal about what Hendershott was doing.

"This whole thing just does not make sense," he continued. "This guy [Babeu] was a knucklehead for agreeing to do this, and to report to Arpaio."

That is, unless the ever-ambitious Babeu backstabs Arpaio and slips some incriminating evidence to the feds on the sly. But surely Babeu has his own skeletons, and Maricopa County's version of J. Edgar Hoover may have the keys to that closet.

In other words, the fix is in, for Babeu's investigation, anyway.

Clarification: I should note that with any rule, there are exceptions. A prosecutor could look at Garrity stuff, but would have to verify the facts within independently. And there are rare cases where Garrity info has been used in criminal proceedings. Please see the third part of the Fraternal Order of Police series on Garrity, here. Thanks to TommyC for all his expert comments on this.

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