Joe Arpaio Nailed by Judge's Questions on Defiance of Court

Whenever federal Judge G. Murray Snow questions Sheriff Joe Arpaio during the sheriff's ongoing contempt trial, all kinds of muscles tighten at the defense table. 

And for good reason. Snow knows the case better than anyone. He also remembers in detail what people say in his court, and he most certainly remembers what he has ordered them to do.

On Thursday, with Arpaio on the stand and with both defense and plaintiffs' attorneys having completed their questioning of the sheriff, Snow brought up Arpaio's April 23 testimony in his court.

That's when Snow asked him about the Seattle operation for the first time and Arpaio, reluctantly, like a naughty boy before his belt-in-hand pa, copped to hiring a confidential informant named Dennis Montgomery to inquire into a conspiracy supposedly involving the judge himself.

Arpaio would have us believe that Montgomery and the two detectives and one civilian he ordered to Seattle to babysit the alleged computer guru were investigating the illegal electronic harvesting of bank records from American citizens by the U.S. government, 150,000 of whom Arpaio and Chief Deputy Jerry Sheridan claim were in Maricopa County.

The evidence — including a "smoking gun" fax from Montgomery to Arpaio in November 2013, a memo typed by Arpaio, the testimony of Arpaio's former attorney Tim Casey, and the testimony and depositions of MCSO detectives — says otherwise.

Arpaio and his attorneys may think this lame cover story involving the 150,000 "victims" (one of whom was Snow) gives Arpaio plausible deniability.

But increasingly, that tall tale is giving Arpaio and Sheridan implausible deniability.
Indeed, it's expected that today one of the Seattle investigators, Sergeant Travis Anglin, will be sworn in. Anglin was one of the few MCSO deputies with the huevos to challenge Arpaio directly on the Seattle investigation. He was removed from it as a result.

Look for Anglin's testimony to rock the courthouse, if he takes the stand as planned.

But back to Snow, who reminded Arpaio about April 23, when he ordered Arpaio "two or three times" to gather and preserve all records and data relating to the Seattle investigation for collection by the monitor.

Snow asked the sheriff: "What did you do to implement my orders?"

The hemming and hawing began and never really let up. 

"I don't know who we gave it to," replied Arpaio.

The sheriff said he "may have" talked to his lawyers about it, specifically, Michele Iafrate, who has been a back-bencher at this trial of late, ceding the lead defense spot to attorney John Masterson of Jones, Skelton, Hochuli. 

Who other than Iafrate, wondered Snow?

Um, um, um.

Did he talk to Sheridan?

"I may have," Arpaio wavered. "I thought everybody knew about that order."

You know, like, by osmosis or telepathy.
Did Arpaio know about the MCSO's having 50 hard drives of data from Montgomery, which Montgomery supposedly acquired during his time as a subcontractor for the CIA?

After all, the sheriff did know that his investigators had taken the hard drives to D.C. to show to a former judge with the Foreign Intelligence Service Act court, and then brought them back to Phoenix, right?

"Probably I did," said Arpaio, softly. "I don't know."

Those 50 hard drives had been sitting in the MCSO's property and evidence facility, hidden under a "found property" report submitted by Detective Brian Mackiewicz, one of the Seattle investigators. The court's monitor learned of the hard drives in July, and Snow ordered the U.S. Marshals to seize them.

Arpaio insisted he "wanted [Snow's] order carried out," but he conceded that he "did not write any memos" or anything official.

So he just "assumed" others would act, asked Snow?

"I think they all knew," Arpaio again said of his minions. 

Snow then nailed down some of the timeline of the Seattle investigation, establishing that the most damning documents, such as a flow chart of the bogus conspiracy, were all known to Arpaio, as early as November 2013 and into 2014.

The flow chart depicts a paranoid conspiracy against Arpaio, with the U.S. Department of Justice and former U.S. Attorney General Eric Holder at the center — literally, in red — with multifarious tendrils, some involving Covington and Burling, the law firm partnered with the ACLU in the underlying civil rights case, Melendres v. Arpaio.

The flow chart also claims that Jones, Skelton's computer firewall had been breached by the DOJ, as had the MCSO's and the County Attorney's. 

It mentions Snow several times, once allegedly ordering a DOJ wiretap on the MCSO in 2009, not long after he took over as judge in Melendres. (Which, of course, never happened.)

Arpaio claimed to have been "shocked" by the flow chart and "didn't give much credibility to the source."

The sheriff said he believed that around the time he saw the flow chart was when Sheridan ordered detectives in Seattle not to investigate Snow.

Yet, Snow said, "You knew that Montgomery had been investigating me" by April 2015, when Arpaio testified about the Seattle investigation.
Arpaio denied the judge's accusation.

"I didn't think we were investigating you," the sheriff told Snow. "You just came up in a flow chart. I don't call that an investigation."

Next up was MCSO Lieutenant Joe Sousa, former head of the notorious Human Smuggling Unit.

Sousa essentially passed the buck up the food chain, pointing at his superiors for failure to abide by Snow's December 2011 preliminary injunction, ordering the MCSO not to enforce federal civil immigration law.

The lieutenant said he had been the subject of an internal investigation into the MCSO's failure to follow Snow's 2011 order. Initially, he faced 40 hours of suspension, which is considered "major discipline."

But Sousa skated after he appealed to the deputy chief overseeing the decision, Mike Olson, pointing out that his MCSO overlords were more responsible than he was for dropping the ball.

Olson agreed with Sousa, telling the lieutenant: "Your bosses let you down."

Olson also was the officer appointed by Arpaio to review the findings in the case of Olson's superior, Chief Deputy Sheridan. Despite his statement to Sousa, Olson let Sheridan off the hook as well, and Sheridan dodged discipline..
Actually, no one was found responsible for the failure to implement Snow's preliminary injunction. 

Regarding Casey's testimony last week in the contempt trial, and the lawyer's statement that he had developed a shorthand to explain the injunction to MCSO deputies, called "arrest or release," Sousa said Casey never told him about AOR.

The first he'd heard of it was in Snow's court, when Casey testified, Sousa claimed, indignantly.

Earlier Thursday, Arpaio also played blame-the-lawyer, when he said he "may have told" Casey about his "backup plan" to turn over aliens to the U.S. Border Patrol, if U.S. Immigration and Customs Enforcement refused to take them.

What did Casey say about Arpaio's scheme, asked plaintiffs' attorney Stanley Young?

"I didn't get a yes or no," Arpaio said.

Sousa was still on the stand by day's end. As mentioned,, Anglin probably will be heard from this morning.

Outside the courthouse, I asked Masterson if Jones, Skelton was representing Cold Case Posse commander Mike Zullo civilly, since the defense argued recently that a plaintiffs' subpoena against Zullo had been too broad. 

Masterson indicated that, yes, Jones, Skelton was representing Zullo —  but only in the sense that Zullo, as a volunteer posse-man, was following Arpaio's direction, and therefore, under the sheriff's authority.

For live Tweets during breaks in the contempt hearings, follow @StephenLemons or search #ArpaioContempt on Twitter.
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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons