Joe Arpaio's Boat Torpedoed in Testimony by MCSO Captain

Sheriff Joe Arpaio's attorney, John Masterson, pulled a page from legendary University of North Carolina basketball coach Dean Smith Wednesday, doing the legal version of Smith's legendary four-corners maneuver and running out the clock on the plaintiffs in the sheriff's ongoing contempt trial.

As ACLU attorney Cecillia Wang sat tightly wound, ready to spring at her prey, MCSO Captain Steve Bailey, Masterson leisurely asked Bailey to recount nearly every aspect of his career, save for any paper routes he may have had as a kid. This, while Bailey was on the stand in federal court before Judge G. Murray Snow. 

 Wang is an expert closer. Many a witness has been hammered into submission by her after veering from earlier statements during "redirect," when the opposing side gets a shot to even the score with whomever is testifying.

Under her questioning, Bailey's testimony in the latter half of the day was more damaging to Arpaio than that of MCSO Detective Brian Mackiewicz, who was on in the morning.

A former head of the MCSO's Special Investigations Division and, after that, of the Professional Standards Bureau, Bailey offered a stinging assessment of the Seattle operation, explaining how he refused to sign off on payments to Arpaio's confidential informant, Dennis Montgomery, because he thought it was an improper use of state RICO funds. 

The soft-spoken captain, who resembles a younger version of Nevada Bunny Ranch owner Dennis Hof, also dug a deep hole for Arpaio attorney Michele Iafrate, who has been a back-bencher at this trial ever since Masterson took over the lead role in September.

During initial questioning by Wang, Bailey described how — despite orders from Snow to cooperate with the court's monitor and to turn over all confiscated IDs — Bailey acted on "advice of counsel" and intentionally misled members of the monitor's team during a July 20 meeting.

While still head of PSB, Bailey and his boss, Chief Deputy Jerry Sheridan, had been made aware of 1,500 IDs that suddenly had turned up in the possession of a Sergeant Knapp.

An internal affairs investigation was started, but Sheridan paused that until he could get Iafrate to tell him if the IDs somehow were not subject to Snow's earlier orders.
At a gathering of MCSO staff before the monitor's visit, referred to as a "rehearsal meeting," the 1,500 IDs were set on a table in a huge, clear plastic bag, where it was apparent that some of them were from members of the "plaintiff class" in the civil rights case Melendres v. Arpaio; i.e., Latino drivers.

Iafrate instructed Bailey and Sheridan that they were "not to disclose" the existence of the IDs to the monitor while she "researched" the matter for Sheridan.

A few days later, in a meeting between monitor staff and MCSO personnel, Iafrate and Bailey were sitting next to each other when one of the monitors asked Bailey if there were "any other pending IAs regarding IDs."

Bailey turned to Iafrate, who "looked at me and said no," an answer he repeated, though he was well aware of Snow's orders on the subject.

The captain said his disingenuous reply was "based on the advice of counsel." Given it to do over, "I would have answered the same."

Had Iafrate advised her client — a sworn police officer — to lie to the court's monitor and to disobey a judge's order? Sure seemed that way.

Interestingly, Iafrate was not in the courtroom as Bailey testified.

When Masterson got his chance at redirect, the mustachioed thin-man asked Bailey about his "no" answer to the monitors.

Technically, Bailey asserted, his answer was not untrue, because Sheridan had told him to halt the investigation, albeit temporarily.

Therefore, there were no pending cases involving IDs, unless (as most people would think) a paused case counts as pending.

From that point on, you could see that Wang was itching for Masterson to end his questioning so she could get at Bailey and beat him (metaphorically) into submission. 

But she would have to wait, as Masterson petered on for the remainder of the court's time on Wednesday. 

Earlier, under Wang's prodding, Bailey joined the ranks of those who had expressed serious misgivings about the Seattle investigation, such as former Arpaio attorney Tim Casey, Sergeant Travis Anglin, and Lieutenant Kim Seagraves.

Bailey said he determined that Montgomery was "not credible" as soon as he found out about the investigation. As head of special investigations, Bailey was tasked with approving payments to Montgomery from state RICO funds, which he thought was improper. 

Eventually, he refused to sign off on the cash payments to Montgomery and other expenses related to Seattle. Sheridan ordered him to send the requests for approval of CI funds to MCSO headquarters, where, as we know from MCSO documents, others okay-ed them, such as Sheridan and MCSO Deputy Chief Scott Freeman.

Bailey said Anglin's procurement card, or P-card, a kind of county credit card, was opened up for making purchases other than gasoline, for which Bailey said P-cards normally are used.

At a January 2014 meeting where Montgomery's claims were discussed, Arpaio showed Bailey a Montgomery-crafted flow chart of a bogus, anti-Arpaio conspiracy involving Judge Snow, the U.S. Department of Justice, and others. 

Bailey said he looked it over and slid it back to Arpaio, telling him there was nothing to it.

"You don't know," Arpaio admonished.

"I do know," Bailey said he replied.

The captain says several attorneys were present at the meeting, and there was "a general sense that [Montgomery] wasn't credible."

But one person was all for the Seattle adventure: the MCSO's jefe, Arpaio. 

Arpaio told them he wanted to follow up on Montgomery's claims. 

Initially, Mackiewicz worked the Seattle operation with Zullo. But Bailey said Sheridan complained that Mackiewicz needed supervision, in part because "his overtime was out of control."

Currently, Mackiewicz is under criminal and administrative investigation by the MCSO and the Arizona Attorney General's Office. Allegations against him involve padding his OT while on the Seattle caper and concern Montgomery's building a computer for him.

Despite having been coached by his attorney on the possibility of invoking his 5th Amendment right against self-incrimination, Mackiewicz didn't need to do it, though at one point, he came close.

When questions from his interrogator, plaintiffs' attorney Michelle Morin, veered into the allegations against him, he read a prepared statement to the effect that he had been given a notice of investigation by the MCSO and told "not to discuss" anything to do with it. 

Mackiewicz's lawyer rose to point out that the MCSO might discipline her client if he talked on this point.

But Snow ordered Mackiewicz to testify and to take it up with him if the MCSO attempted to discipline him.

Ironically, Mackiewicz spoke to New Times about the allegations against him, answering some questions, and offering a vulgar assessment of Judge Snow's motives.

But none of this came up under his questioning by Morin, who asked Mackiewicz if Arpaio wanted to know if an ex-girlfriend of Mackiewicz's had been "the snitch," feeding information to the media.

Mackiewicz admitted that Arpaio "wondered who was leaking information to the media" but that this was routine because leaks "could destroy [an] investigation in the long run."

Morin spent most of her time asking Mackiewicz just enough about certain documents to enter them into evidence. She abruptly ended her direct examination of Mackiewicz at 10:05 a.m.

Though plaintiffs' attorneys later avoided reporters' questions about this truncated questioning of a key witness, it may have been necessitated by the fact Mackiewicz's partner on the Seattle probe, Mike Zullo, has yet to be deposed.

It would make sense that the plaintiffs did not want to tip their entire hand to Zullo on the court record before getting him under oath. 

As has been reported, Zullo showed up to a scheduled deposition on October 23 but refused to answer questions until he could get a lawyer.

Whether or not he has counsel, he is likely to be deposed next week, as Snow authorized the plaintiffs to reschedule the deposition. 

As for Zullo's contention that some of the documents he has provided through discovery may be shielded by Fifth and Fourth Amendment claims, Snow seemed skeptical that any such arguments could succeed. 

At one point, Snow stated that he had researched the subject and that the "Fifth Amendment really doesn't apply to documentary materials." 

If Zullo files for a protective order by Friday on the disputed documents, which are in the possession of Arpaio attorney Joe Popolizio, Snow said it won't take him long to rule. 

During a discussion of the matter, Popolizio said he believed Zullo was going to file something with the court soon, but he didn't want to be more detailed, as he asserts that at this time his firm, Jones, Skelton, Hochuli, does not represent Zullo.

Following Morin's initial questioning, Mackiewicz spent another hour and a half on the stand, answering questions from Popolizio, then Morin again, and finally Judge Snow.

For the most part, Mackiewicz's testimony Wednesday morning supported the party line, developed by Arpaio and Sheridan, that they were really investigating the CIA's theft of banking information from 150,000 Maricopa County residents, instead of an anti-Arpaio plot involving Judge Snow.

Still, Mackiewicz admitted that Zullo had a direct line to Arpaio and talked to the sheriff more than he did.

He conceded that Zullo had conversations with Arpaio that he was not aware of, even though he outranked the volunteer posse man. 

Mackiewicz said he had been admonished by Sheridan at least three times not to investigate Judge Snow or President Obama's birth certificate, but Mackiewicz said he never conveyed any such order to Dennis Montgomery. 

Montgomery "frequently" mentioned Snow's name, said Mackiewicz, and produced a timeline and a flowchart of the conspiracy.

Mackiewicz  offered another version of an incident in November 2013, where Montgomery, Zullo, and Mackiewicz were looking up Judge Snow's name online and in Montgomery's database of information, which the CI allegedly had acquired while working for the CIA. 

Mackiewicz said Montgomery offered them a demonstration of what was in his database by searching for various names in it. 

"Mike [Zullo] said, `What's the judge's name in the [Melendres] lawsuit?'" remembered Mackiewicz. 

Then Montgomery "got on the Internet" where they found Snow's name and entered it into the database.

Snow's name "came up," Mackiewicz told the court, but "that was as far as it went," at least as far as Mackiewicz was concerned. Or so he says.

Mackiewicz admitted that Montgomery fed information to the MCSO, suggesting that Sheridan and Arpaio's cell phones were being wiretapped by federal authorities, but he claimed he was not asked to look into the issue.

This seemed to contradict his accounts of traveling to Washington, DC on three occasions, once with Montgomery, to seek the advice of federal Judge Royce Lamberth, formerly the head of the U.S. Foreign Intelligence Surveillance Court.

Snow asked about these meetings with Lamberth, which Mackiewicz says were set up by "birther" attorney Larry Klayman.

Some of the fictitious wiretap numbers cited in Montgomery's timelines and flowcharts alleged that Snow had issued orders for at least some of the wiretaps. Snow wanted to know if these had been presented to Lamberth along with the others.

Mackiewicz admitted that they had. He also claimed that Lamberth "didn't say anything about them" when the judge examined a piece of paper with the purported wiretap numbers on it.

"[Lamberth] looked at the numbers, like that's kind of interesting, and gave the sheet back," said Mackiewicz.

This contradicts testimony from Sheridan, who told the court that Lamberth said the wiretap numbers looked legit and that this information gave Montgomery some credibility with the MCSO.

Sheridan was not at the Lamberth meetings, and his knowledge of them came from Mackiewicz.

Amazingly, despite an assessment commissioned by the MCSO in late 2014 from ex-employees of the National Security Agency, which declared Montgomery to be a "complete and total fraud," Mackiewicz still buys some of Montgomery's spiel. 

"I still think to this day there's a little bit of credibility to what Montgomery was saying," he told Snow.

Which is not a bright commentary on the caliber of MCSO detectives.

Testimony continues this morning with Bailey still on redirect by Masterson, then Wang will get another crack at him.

The ACLU may call a couple of more witnesses related to documents they want in evidence, or not, if the defense agrees to let the docs in without a fight.

There will be no court Friday. The plaintiffs still want to depose Zullo, but there may be no value to having him testify if he simply takes the Fifth throughout.

The defense has two witnesses it wants to call, one of whom is Sheridan. But Sheridan was not in court Wednesday, supposedly because of an ailing back. Which could further delay things, depending on how long he is out.

Otherwise, testimony could be finished by next week sometime. 

Currently, oral arguments are scheduled for November 10 in the case. 

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