Arpaio Pal Klayman Shot Down, DOJ Okayed, and More in Latest Sheriff Joe Contempt Hearing

A status conference in downtown Phoenix before federal Judge G. Murray Snow continued his court's inexorable march toward a second round of contempt hearings in the ACLU's big racial-profiling case, Melendres v. Arpaio, scheduled to begin September 22.

In the hearing this week,  Snow allowed the U.S. Department of Justice to intervene in the case, denied for a second time an attempt by right-wing attorney Larry Klayman to interject himself into Melendres, and unsealed previously sealed status conferences dealing with a criminal inquiry into MCSO Detective Brian Mackiewicz that I first revealed in a column published last week.

Mackiewicz was Sheriff Joe Arpaio's lead detective in the so-called Seattle investigation, which involved the MCSO's employing an alleged computer guru, Dennis Montgomery, to detail a non-existent, anti-Arpaio conspiracy involving Snow, the DOJ, and various other parties.

As I previously reported, my sources have told me that Mackiewicz is under investigation by the MCSO for allegedly spiking his overtime pay while in Seattle and because of Montgomery's allegedly building a computer for him. 

The detective has denied any impropriety. He also admitted to me during a series of conversations that he is under investigation, but for what he would not say.

Last week, MCSO spokeswoman Lisa Allen confirmed to me that Mackiewicz is under investigation criminally by the MCSO but would not give details.

That confirmation, which I noted in my column, inadvertently may have led to the court's unsealing hearings pertaining to Mackiewicz.

On Tuesday, Allen also confirmed to me that Mackiewicz has been on administrative leave for about a week now.  Attorneys present for the sealed hearings, who asked not to be identified, explained that Snow's monitor in the case, Robert Warshaw, had sought access to the MCSO's internal investigations involving anything related to the ongoing contempt proceedings. 

These lawyers said Arpaio's civil attorney. Michele Iafrate, did not want any discussion of the MCSO's criminal investigation into Mackiewicz done in open court. So Iafrate requested that part of a July 31 hearing be sealed. 

On August 7, Snow ordered an emergency hearing, also under seal, to address the defense's failure to turn over the Mackiewicz material to the monitor.

Just before that hearing, Iafrate filed notice with the court, suggesting that she had given the monitor the requested documents.

When I reached Mackiewicz by phone Tuesday afternoon, he declined to comment.

Birther attorney Larry Klayman did not appear in court Tuesday, either in person or by telephone, to argue that he be allowed to represent Montgomery pro hac vice, a temporary status given to attorneys operating outside the jurisdiction wherein they normally practice. 

Judging by his most recent filing with the court, Klayman may have anticipated Tuesday's outcome. 
In it, Klayman refers to the court as having "threatened to destroy Sheriff Arpaio," and Snow as "this sitting trial judge, who is subject to likely disqualification." 

Iafrate, claims Klayman, "has not represented the Sheriff zealously and within the bounds of the law," and the ACLU, "and their collaborators at the Phoenix New Times...hate [the] defendants because they do not comport with their political agendas for the so-called right of illegal aliens to remain in this country..."

Though Klayman also represents Arpaio in a federal lawsuit against the Obama administration's immigration policy, he contends that he has no conflict of interest in the case, and that Montgomery seeks to intervene "to protect his property rights" in the various hard drives and other data now in the court's possession.

Snow was unconvinced, and observed that Jonathon Moseley, Klayman's fellow attorney at the conservative advocacy group Freedom Watch, already had been denied pro hac vice status for similar reasons.

The judge noted that Klayman "may be a witness in this case," as Klayman was in contact with the MCSO while Montgomery was still working for the organization and had exchanged e-mails with Mackiewicz about the Seattle operation.

Snow was troubled that Klayman had "attacked this court" and had made "unwarranted attacks against Ms. Iafrate." 

The judge also worried about Klayman's ability to "infuse invective into this lawsuit," and so denied Klayman's attempt to represent Montgomery in the case. Snow left the door open for Montgomery to be represented by other counsel.

Whatever you think of Klayman, he has served as a kind of guiding light on legal strategy for Arpaio's defense team.

On his own, Klayman first sought to have Snow recuse himself in May. When Snow did not act on the motion quick enough, Klayman sought a writ of mandamus from the Ninth U.S. Circuit Court of Appeals, in a bid to force Snow's hand.
Though the Ninth peremptorily shot down Klayman's petition and invited him to not file anything similar in the future, Arpaio's defense counsel copied Klayman's arguments and even resubmitted an affidavit from Klayman's legal expert in the matter.

And when Snow refused Arpaio's attorneys attempt to disqualify him from the case, what did Arpaio's legal team do? Play copycat to Klayman, seeking a  writ of mandamus from the Ninth, which is currently pending.

In another development Tuesday, Snow allowed the DOJ to intervene in Melendres.

This means, essentially, that DOJ attorneys will work alongside lawyers from the ACLU and Covington & Burling on the case. 

DOJ attorney Rafael Gomez was present to address the 50 hard drives recently seized by the U.S. Marshals on order of the court.

Gomez said that his "client entities" — presumably U.S. intelligence agencies such as the CIA — only wanted to review the one hard drive and two bankers boxes of material that had been made available to them previously; they then will decide what to do about the additional 50 hard drives. 

Gomez said he could not reveal who these "client entities" are, as that information may be classified pending a review of the material. He said his clients were concerned that by opening the 50 hard drives they could compromise the metadata on the files. He could not say how long it would take for a decision to be reached.

Snow seemed annoyed by this and advised Gomez that he was not going to wait for the U.S. government to make a decision before allowing the parties to examine the files.

Both Iafrate and ACLU attorney Cecillia Wang indicated that they wanted access to the 50 hard drives.

Snow ordered the parties to consult and hopefully agree to protocols in handling the material.

During the hearing, the judge tangled more than once with Arpaio attorney John Masterson of Jones Skelton & Hochuli PLC, which had been representing Arpaio on the separate DOJ lawsuit on similar civil rights matters, United States v. Maricopa County.

Now that the DOJ case is all but settled, Masterson and his co-counsel Joe Popolizio seem to have taken up permanent residence in Snow's courtroom. 

"Your clients' track record in producing documents is very poor," Judge Snow told Arpaio-attorney John Masterson. "Your clients have destroyed documents [in this case]."

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Masterson is a tall, lean attorney with a bald pate, and a gray horseshoe mustache that makes him look like he stepped out of a Spaghetti Western. Think Lee Van Cleef with a law degree.

He challenged Snow on several issues, including an MCSO cache of 1,500 IDs seized by the marshals, interviews of MCSO staff being done by the monitor team, and even Snow's communications with the monitor. 

On the 1,500 IDs (mostly from Latinos), Masterson objected to the suggestion that they "would have been destroyed," if the monitor had not intervened, insisting, with some bombast, that there "was not a scintilla of evidence" the IDs had been taken unlawfully.

Regarding interviews being done by the monitor as part of the monitor's probe of the Montgomery investigation and other matters, Masterson claimed the monitor was "running rampant over the rights of my clients," and that the monitor's investigation had "gone from fishing expedition to specific inquisition."

Masterson further challenged Snow's "ex parte" discussions with the monitor, though Snow wondered how he could fulfill his obligation to supervise the monitor without ever talking to him.

On the 1,500 IDs, Snow observed that the IDs had been slated for destruction in years past and that the issue really had been, "The MCSO wished to withhold those documents from the monitor."

Snow told Masterson that the MCSO had engaged in "a widespread practice of seizing IDs" from Latinos without a good reason to do so.

"The MCSO just took possession [of the IDs]," said Snow, "depriving people of their personal property."

The judge also said the IDs should have been turned over before the 2012 trial in Melendres because they had been requested by the plaintiffs.

Snow lectured Masterson on the history of Melendres, recounting testimony of how deputies would routinely take the IDs and later throw them away into bins they referred to as "unicorns (some reference to never having seen them)," and how deputies would post seized license plates on the walls of their offices as trophies. An outlaw mentality that persists in the MCSO.

"Your clients' track record in producing documents is very poor," Snow told Masterson firmly. "Your clients have destroyed documents [in this case]."

On the issue of monitor interviews, Snow reiterated that Masterson retains the right to be present during them, to object, and that they are not compelled interviews. That is, the interviewee need not participate.

In fact, Mackiewicz already has refused to be interviewed by the monitor, as was revealed in court Tuesday.

According to the monitor staff, the detective appeared at an appointed meeting lawyer in tow.  Mackiewicz's attorney advised him not to talk, and he didn't.

Cold Case Posse commander Mike Zullo, also a part of the Montgomery investigation, showed up for his monitor interview, but he begged off as he hadn't yet hired an attorney.

Snow suggested the possibility that some of the interviews could be folded into depositions the plaintiffs will be doing, and Masterson liked that idea.

Masterson even said he might need to depose the monitor himself.

For the plaintiffs, Wang said they may reopen old depositions, and she offered a list of new depositions the ACLU is interested in doing.

These include depositions of former MCSO attorney Tim Casey, Deputy Maricopa County Attorney Tom Liddy, Mackiewicz, Zullo, MCSO's head of internal affairs, Captain Steve Bailey; Sergeant Travis Anglin, and private investigator Don Vogel, who probed statements allegedly made by Snow's wife on behalf of the MCSO.

In other words, this case is about to get a lot more interesting. 

The next status conference before Snow is scheduled for Friday, August 21, 10 a.m.
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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons