If MCSO big shots thought they were bringing in a ringer by hiring private investigator Don Vogel to look into the agency's disobedience of a federal judge's order, boy, were they wrong.
Vogel, a former detective with the Mesa Police Department, testified last week in the ongoing contempt trial of Sheriff Joe Arpaio and four of the sheriff's current and former henchmen. His investigation into the MCSO's violation of a December 2011 preliminary injunction from federal Judge G. Murray Snow in the civil rights case Melendres v. Arpaio was particularly damning for Arpaio and other MCSO muck-a-mucks.
Back then, Snow ordered the agency to cease enforcing federal civil immigration law. Deputies were no longer allowed to hold individuals based on mere suspicion of illegal presence, which in and of itself is not a crime, according to the U.S. Supreme Court.
(Note: The Supreme Court's 2012 decision on Arizona's immigration law, Senate Bill 1070, states: "As a general rule, it is not a crime for a removable alien to remain present in the United States. If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.")
As Arpaio's ex-lawyer Tim Casey summed it up in recent testimony, deputies must either arrest a suspect based on state charges or release him or her. The MCSO cannot hold suspected illegal immigrants for later pickup by U.S. Immigration and Customs Enforcement or some other federal agency.
But Arpaio ignored Snow's 2011 order, and save for a few exceptions, his men did likewise.
It was not the only matter Vogel was hired to investigate for the MCSO, but this particular probe directly implicates Arpaio in the willful defiance of Snow's order.
Ironically, last October, Vogel was recommended as an outside investigator by none other than Arpaio's chief deputy, Jerry Sheridan, after Snow and his monitor, Robert Warshaw, determined that the captain in charge of the MCSO's Professional Standards Bureau had a conflict of interest in the case.
Vogel may have been Sheridan's pick, but he did not play cat's paw to the chief deputy. Instead, the veteran detective found fault with nearly all of the MCSO's brass, including Arpaio.
"Sheriff Arpaio failed in his responsibility to have proper oversight and control over important information affecting the practices of the Maricopa County Sheriff's Office," Vogel concludes in his report. "It is clear that he did not maintain oversight and control over the information in the December 23, 2011 court order in the Melendres case."
The report was completed in April 2015, not long before the first round of hearings in the contempt trial. Though it lacked certain information not available at the time, like Casey's avowal under oath that he informed Arpaio of the injunction the day it happened and that he briefed Arpaio and others at the MCSO on what the injunction meant.
Casey further testified that he raised the issue of non-compliance with Arpaio after the 2012 trial in the case, when he said he first suspected his clients were not following the judge's directive.
The attorney explained to the court that he again confronted Arpaio in October 2012, after the ACLU complained in a letter to him that the office was not abiding by the preliminary injunction.
But Casey only testified in Melendres after he was ordered to do so by the court.
At the time Vogel was doing his investigation, the detective did not have Casey's cooperation because of the attorney-client privilege issue. In fact, Vogel came up on a brick wall when he requested Casey's billing records, getting the perpetual runaround from the defendants.
Only when he complained to the County Attorney's Office, and got his own counsel to request the records, did Vogel receive redacted copies of the billings. But this was after he had interviewed the sheriff, and Vogel's deadline did not allow for an additional interview.
Casey did not bill anything for his work on December 23, 2011, though he remembered calling Arpaio directly that day. Other higher-ups received an e-mail on that date, which Casey described as "in follow-up to my recent telephone call" about the preliminary injunction.
Attached to the e-mail was a copy of the court's order. Arpaio very conveniently does not use e-mail. But he admits to watching TV news and reading newspapers, including New Times.
This passage from Vogel's interview with Arpaio in last February is both illuminating and amusing.
Vogel: Do you read the paper?
Vogel: Do you read the New Times?
Arpaio: Once in a while. When I'm in it, which is once a week.
Vogel: If any of this stuff was in the newspaper about [the court's order in Melendres], is it reasonable to think you would have seen it?
Arpaio: Yes. In fact, I would presume everyone would see it.
New Times, the Arizona Republic, and other outlets reported on the court's order. Plus, Arpaio has an entire public-information office dedicated to keeping him informed.
It seems unlikely that Casey would have called the brass addressed in his December 23, 2011 e-mail, and not phoned Arpaio, too.
Yet Arpaio claims that he only learned of the order "several months" after Snow issued it.
Like a Mafia don of old, Arpaio orchestrates his office so that if he's questioned under oath, he can claim the proverbial buck stops way before it gets to him.
This tactic hasn't worked so well during the contempt proceedings, with Arpaio's former lawyer and many of his minions indicating that the sheriff was firmly in control of his organization.
Sergeant Travis Anglin, Captain Steve Bailey, and Lieutenant Kim Seagraves all have related how Arpaio reacted angrily to challenges to his authority.
Deputy Chief Jack MacIntyre told Vogel that he "explained the order to Sheriff Arpaio in January 2012" during one of a Monday staff meeting.
The way MacIntyre tells it, Arpaio didn't like what he had to say.
"[The sheriff] said, `Does that mean we can't do other operations?'" MacIntyre recalled for Vogel. "And I said the preliminary injunction says you cannot detain or arrest anyone based on [illegal] presence in this country alone."
MacIntyre says he said the same thing twice about the order, to drive home the point.
But after that, MacIntyre, who is an attorney, copped the waiter's excuse of "not my table" and did not follow up as he should have, according to Vogel.
Though the preliminary injunction may not have fallen "under his name on the [MCSO's] organizational chart," according to Vogel, MacIntyre still was a chief, and at his rank, should have made sure the MCSO was abiding by the court's order.
Vogel's report dinged MacIntyre, and other MCSO brass, such as Sheridan and Deputy Chief David Trombi, among others.
Sheridan told an incredulous Vogel that, though he received Casey's initial e-mail about the order and was present at meetings where it was discussed, the first he'd heard of the court's 2011 order was on March 27, 2014, when he was deposed in a related lawsuit, United States v. Maricopa County, the DOJ's civil rights lawsuit against Arpaio.
The chief deputy admits to having read Snow's May 2013 ruling in Melendres, in which the judge found the MCSO guilty of racial profiling. That order discusses the court's 2011 preliminary injunction, making it permanent.
Asked why he didn't pick up on that when he read the order, Sheridan said, "Maybe it didn't ring a bell."
He was oblivious to the Ninth U.S. Circuit Court of Appeals' upholding the preliminary injunction in September 2012. (The Ninth later upheld Snow's 2013 decision, as well.) He said he never read the e-mails sent to him about the 2011 order and claims Casey never discussed it with him.
MCSO officers lower on the office food chain seemed to have gotten the message, however. Human Smuggling Unit commander Lieutenant Joe Sousa ordered HSU Sergeant Brett Palmer to begin developing training scenarios based on the new order. Palmer did this, but the training apparently never took place.
Palmer says, about 30 days following the December 23, 2011 injunction, Arpaio ordered him to hold some recent detainees until the sheriff could arrive with the media in tow.
But Palmer says the detainees could not be held on state charges, and he informed the sheriff that continuing to hold them was in violation of the court's 2011 order. The two men argued. Arpaio ultimately relented.
The sergeant then turned over the detainees to the U.S. Border Patrol, as ICE had refused to take them.
Palmer's account was backed up by HSU Sergeant Michael Trowbridge, who thinks the detainees in question were minors.
"The sheriff said, hold those kids until I can get down there with the media," Trowbridge told Vogel.
Trowbridge also remembered Palmer's invoking the court's 2011 order against Arpaio.
Arpaio said he did not recall the incident, but he didn't deny it had happened, either.
The sheriff said, "If I did do this," it was done "to send a message" that ICE would not accept the detainees.
The incident demonstrates another instance where Arpaio was informed of the court's order and yet was eager to ignore it.
In his report, Vogel says the MCSO failed to follow the 2011 order "because the executive staff did not give it the necessary attention."
Vogel testified that he had suggested drawing up an administrative charge against Arpaio but was told by the MCSO that this would not happen.
Instead, no one received punishment for the violation of the judge's order. Deputy Chief Mike Olson, Sheridan's underling, was picked to make the final decision.
And Olson reversed all of the earlier findings against the MCSO higher-ups.
Vogel said he was "shocked" that no one at the MCSO was held accountable.
It's evident from his report and from the transcript of his interrogation of Arpaio that Vogel did not want to let the MCSO or Arpaio off the hook.
This, despite the fact that he had been recommended by Sheridan to do this investigation and others for the MCSO.
Vogel also was the investigator whom Casey picked to look into comments allegedly made by Snow's wife in 2012 to the effect that Snow hated Arpaio and wanted to drive him from office.
Vogel's inquiry resulted in the matter's getting shelved, as it was determined that the allegation was unusable and unreliable.
When Vogel's involvement in the investigation of Snow's wife was uncovered, it seemed this would conflict him off the other investigations he was doing on the MCSO's behalf.
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In response, the court's monitor expressed confidence in Vogel's other investigations, like this one involving the preliminary injunction, and Vogel remained on the case.
Given what he produced, part of which is published with this article, Warshaw's faith in Vogel's abilities seems to have been well-placed.
Note: The Arpaio trial is recessed until Tuesday, October 27.