Sheriff Joe Arpaio's Cold Case Posse commander Mike Zullo has erupted in a fit of fury and frustration directed at Arpaio's attorneys in the sheriff's ongoing contempt trial before federal Judge G. Murray Snow.
In a filing Zullo recently made to the court pro se (on his own behalf), the man who in 2012 partnered with Arpaio on an investigation of President Obama's birth certificate, blasted lawyers with the firm of Jones, Skelton, Hochuli and asked for 30 days to find a lawyer to represent him at the expense of Maricopa County.
Zullo claimed that Arpaio's lawyers "have just informed me that they have never and are not representing me, despite having said so in the past and [misleading] me in this regard."
He continued that he needed time to work with the county, which he wants to pay for counsel "who is independent and will do the right thing," unlike the Jones, Skelton attorneys, whom he claims, "have violated rules of ethics" and "failed to take actions necessary" for his defense.
"Plain and simple," writes Zullo, "these lawyers have violated my constitutional rights."
Contacted via phone by New Times, Zullo declined all comment on the matter.
The motion for an extension of time follows a week or more of confusion over who represents Zullo.
On October 23, Zullo showed up alone to an appointed deposition in the case, refusing to answer any questions from plaintiffs' attorneys until he can obtain counsel.
Plaintiffs lawyer Stanley Young informed the court this week that Zullo apparently believed that Arpaio's attorneys, John Masterson and Joe Popolizio of Jones, Skelton, would be representing him, until two days before the deposition, when Zullo learned otherwise.
Zullo's motion was mentioned in court Wednesday by Popolizio, who said he had received something from Zullo, which Zullo intended to lodge with the court.
But Popolizio declined to describe the document, stating that he didn't want to be accused of representing Zullo.
Snow had given the posse man until today to file a motion for a protective order with the court over documents that have been withheld from the plaintiffs.
Popolizio recently turned over a trove of Zullo's documents to the plaintiffs, but withheld some, citing Zullo's claim of his Fifth Amendment right against self-incrimination, as well as Fourth Amendment and due process concerns.
Snow was skeptical of Zullo's Fifth Amendment claim, telling lawyers that, though he was willing to hear Zullo out on the matter, the Fifth Amendment "really doesn't apply to documentary materials."
On Thursday, as lawyers wound up testimony for the week, and attempted to schedule the few remaining witnesses, Young told Snow that he had received Zullo's motion, describing it briefly for the court.
But Snow noted that the motion was not yet on the court's docket.
"I haven't got a motion, so I'm not ruling on anything," he told attorneys for the plaintiffs and the defense.
Zullo's filing appeared on the court docket later that day, stamped and dated for October 28, Wednesday. This is not unusual. Sometimes there is a delay of a day or so until documents are placed on the docket.
Young told the court that he had received a log of the withheld documents from Popolizio, which included "87 items," some of them audio and video files.
"Our position is we should get them at the earliest opportunity," said Young.
Zullo is the last witness for the plaintiffs, and a crucial one, because he was one of three investigators assigned by Arpaio to work with confidential informant Dennis Montgomery in what's become known as the Seattle operation.
That operation lasted from late 2013 and continued in one form or another into early 2015. Montgomery was paid more than $120,000 by the MCSO, and Sheridan has testified that the entire operation cost at least $250,000, though some estimates are as high as $1 million.
Arpaio and Sheridan have contended that the pricey probe was looking into the theft of banking information by the CIA of 150,000 Maricopa County residents. They also thought their phones had been tapped by the feds, and were investigating that as part of the inquiry..
But the plaintiffs contend that Arpaio actually was investigating a purported anti-Joe conspiracy involving Snow, the U.S. Department of Justice and various other individuals and entities.
The plaintiffs have offered a plethora of evidence backing their contention, including timelines and flow charts of the conspiracy created by Montgomery, an alleged computer guru and former CIA subcontractor.
Sheridan and Arpaio insist they were duped by Montgomery, and that ultimately what they got from the mysterious Seattle figure was "junk."
An assessment of Montgomery's work product commissioned by the MCSO from two ex-employees of the National Security Agency referred to Montgomery as a "complete and total fraud."
Interestingly, Zullo's rant against Jones, Skelton may have some merit.
Previously, Snow himself has expressed befuddlement over whether or not the Jones, Skelton crew represented Zullo.
In fact, in late September, Arpaio's attorneys filed a motion to partially quash a plaintiffs' subpoena seeking the documents in question from Zullo.
And on October 8, when New Times asked Masterson if Jones, Skelton represented Zullo, the attorney grudgingly admitted that the firm sort-of represented Zullo, in the sense that Zullo, a volunteer posse-man, was following Arpaio's direction, and therefore, under the sheriff's authority.
According to county documents, the MCSO posse is covered by Maricopa County's self-insurance policy known as risk management.
Also, the Seattle operation's case manager, Detective Brian Mackiewicz, testified on Wednesday that Zullo was under his authority while they both were in Seattle, babysitting Montgomery, as Montgomery cranked out reports for the MCSO.
With the deposition and eventual testimony of Zullo up in the air, the court recessed midday Thursday, with the understanding that there would be no court at least until Tuesday of next week, if then.
The defense has a couple of witnesses it wishes to call, including Sheridan, who has been absent from court due to back problems, which defense attorneys say have left the chief deputy bedridden.
Oral arguments in the case are scheduled for November 10, and Snow has expressed his desire to wrap up the trial, but a precise end to testimony remains, for the moment, elusive.
Update 1:50 p.m.: Judge Snow has issued a one line order regarding the Zullo motion, instructing the parties that, "if any party wishes to respond, the Court requires an expedited response by the end of the business day today."
Update 3:19 p.m.: Maricopa County has responded to Zullo's filing. Here's an excerpt:
"For the record, the County notes that Mr. Zullo’s motion at several points makes reference to “counsel for the County,” when the context suggests he is, in fact, referring to the counsel for Sheriff Arpaio. To the extent relevant to the Court’s consideration of Mr. Zullo’s motion, undersigned counsel advises the Court that no attorney who has appeared on behalf of the County in this action has ever made any representation to him that was intended to convey, or could have fairly been construed as conveying, a suggestion that counsel for the County were representing him, or could do so in any event."
"Further, a major thrust of Mr. Zullo’s motion appears to be to have the Court grant him time `to make arrangements with Maricopa County to pay for [him] to retain counsel in this civil case . . . .' Zullo Motion at 1. Based on information presently available to the County and current County policy, the County does not consider Mr. Zullo to be eligible to have counsel provided for him in this matter at County expense. While the County respects Mr. Zullo’s desire to ensure that his constitutional rights receive adequate protection and does not oppose a brief extension of time to permit him to secure legal counsel if he deems it prudent to do so, any portion of such extension that is premised on the prospect of the County’s agreeing to pay the fees of his counsel appears unwarranted."
Update 4:24 p.m.: Fields Mosely, a spokesman for Maricopa County, has reminded me that though the posse is covered by the county's risk management (a form of self-insurance), Melendres is not a risk management case. Indeed, as I've reported previously, all expenses related to Melendres are being paid for out of the county's general fund. (Which is one reason why the county's property taxes went up this year.)
"As you know, the county is paying the legal bills unless the attorney is involved because of potential criminal charges," Mosely told me via e-mail. "I have been trying to find out if Mike Zullo has requested an attorney or been assigned any sort of legal counsel by the County Attorney’s Office. I have not been able to reach anyone this afternoon who could answer that question."
Update 5:07 p.m.: Snow denies Zullo's motion for a 30-day extension, but notes that he may have valid 5th Amendment claims. Here's an excerpt:
"The Court denies the motion. These hearings, as Mr. Zullo is well aware, have been resumed for over a month and a half. Mr. Zullo determined he wished to obtain separate counsel no later than October 20. In light of the ongoing hearing, the Court gave him ten days in which to do so. The Court declines to extend the hearing by thirty additional days so that Mr. Zullo can attempt to negotiate with Maricopa County to pay for a separate attorney."
"Nevertheless, in his motion to continue, Mr. Zullo cites to United States v. Hubbell, 530 U.S. 27 (2000), to assert that his Fifth Amendment rights might be infringed by the compelled production of the documents at issue. It seems to the Court that in light of the criminal issues that have been raised, Mr. Zullo may raise a credible case that the production of documents in his possession might implicate his Fifth Amendment protection against being “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Court has been informed that the United States is disinclined to request the Court to grant use immunity. Therefore, the Court directs the parties to treat Mr. Zullo’s request for an extension, and the legal authorities it contains, as a Motion for a Protective Order."
Update 7:14 p.m.: Apparently, Zullo filed a pro se protective order today (Friday), but it has yet to appear on the court's docket. A source has sent me a copy, so I'm adding it here. Snow told the parties to treat Zullo's request for an extension as if it were a motion for a protective order, in any case.
Below's an excerpt. I would argue that Zullo is as entitled to representation paid for by the county as Arpaio. Arpaio set this Rube Goldberg-like operation into motion. And the voters of Maricopa County continue to elect the guy, so they should pick up the tab, until they wake up and boot Arpaio from office.
"Having just been informed the firm and attorneys for Jones, Skelton & Hochuli now take the position of never having and are not representing me, despite their having said so in the past thereby misleading me in this regard, and are now in possession of documentation. erroneously obtained from me and therefore have no legal authority to possess it.
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"Furthermore, under these circumstances attorney Joseph J. Popolizio and attorneys for Jones, Skelton & Hochuli, P.L.C. have no legal authority to release any information obtained by me under such false pretenses."
Update Saturday, 10/31, noon: Please see recent post on ACLU response to Zullo.