Joe Arpaio's Cold Case Posse Commander Takes the Fifth, Again and Again

Someone call Guinness Book of World Records: Sheriff Joe Arpaio's Cold Case Posse commander Mike Zullo may have a claim.

In federal court Tuesday, during what likely is the last week of testimony in Arpaio's civil contempt trial before U.S. District Court Judge G. Murray Snow,  Zullo invoked his Fifth Amendment right against self-incrimination 40 times in 15 minutes, answering question after question from plaintiffs attorney Stanley Young with some version of "I'm taking the Fifth, sir." 

Those 15 minutes came right before Snow recessed for the day at 5 p.m. Though Young and Zullo were just getting started.

See, on November 9, Zullo took the Fifth a whopping 347 times (or thereabouts) in nearly four hours of testimony as Young peppered him with inquiries about the MCSO's so-called Seattle investigation and the confidential informant at the heart of it, Dennis Montgomery.

Both in court and during his deposition, Zullo was not represented by an attorney, and this is one reason he claims he cannot answer any questions.

He also fears the possibility of being prosecuted by federal authorities.

Zullo will be back Thursday for more questioning. Outside the courthouse, he practically took the Fifth again, telling reporters, "This is about due process," not "criminality [or] innocence."

But while the right against self-incrimination is a cherished constitutional protection, it's a truism that invoking it makes a defendant look like he has something to hide. 
Which no doubt explains why Zullo appeared so uncomfortable on Tuesday, as Young asked dozens of questions concerning whether Arpaio had instructed Zullo to dig up information on Snow, whether Zullo had recorded meetings with Arpaio and others (which we now know he did), whether Zullo asked Montgomery to map out telephone calls involving Judge Snow, and so on.

One of the more interesting exchanges Tuesday occurred at the start of Young's interrogation of Zullo, when Young asked Zullo whether he had discussed taking the Fifth with Arpaio's lawyers.

Arpaio's lead attorney, John Masterson, rose to object, conceding that he and his co-counsels "have had conversations with this witness" but that "those discussions are protected" by attorney-client privilege.

Snow pressed Masterson on whether or not his firm — Jones, Skelton, Hochuli — represents Zullo, an issue that has been raised several times, with either Masterson or fellow defense attorney Joe Popolizio seeming to hedge in their answers.

"I'm not going to let you play fish or fowl," Snow told Masterson, ordering him to chose.

"We do not represent the witness," answered Masterson, "but we can have [protected] discussions with him."

Snow wasn't buying and overruled the objection.

Zullo said he had talked to "both Popolizio and Masterson" about taking the Fifth "months back and just a couple of days before the deposition."

(Ironically, this was one of the few times on Tuesday that Zullo did not take the Fifth.)

Previously, Zullo has stated that he believes Popolizio and Masterson represented him until two days before his first scheduled deposition, on October 23, which was cut short because Zullo said he no longer had counsel.
Since then, Maricopa County has rejected a request from Zullo, asking that it pay for his civil representation at Arpaio's contempt trial.

Young followed up with a doozy.

"Did Popolizio or Masterson ask you to invoke the Fifth?" Young wondered. 

Zullo took the Fifth on that query as well.

Masterson piped in that he did not believe there was anything incriminating about Zullo's possible answer. 

Snow then ordered Zullo to answer, but before Zullo could do so, Young withdrew the query, and continued asking Zullo questions about Montgomery and the Seattle investigation.

"Did Arpaio ask you for updates [on the Seattle investigation]"? Snow asked.

"Taking the Fifth, sir," replied Zullo.
Zullo's November 9 Deposition
Zullo's November 9 Deposition

Did Zullo get Montgomery to fax Arpaio a timeline purporting to detail an anti-Arpaio conspiracy involving Snow as one of the conspirators?

Again, Zullo took the Fifth. 

Did Zullo give Arpaio and Sheridan's cell phone numbers to Montgomery, for inclusion in timelines to be sent to Arpaio?

Did Zullo ever discuss former U.S. Senator from Arizona Jon Kyl with Arpaio?

Was the information about alleged wiretaps of Arpaio's phones given to federal Judge Royce Lamberth in Washington, DC?

Was Zullo worried about having given Lamberth false information during meetings with the jurist, arranged by Montgomery's attorney, Larry Klayman?

Zullo, looking increasingly annoyed, took the Fifth on them all.

Since Zullo invoked the Fifth on most questions posed to him during his November 9 deposition (and continues to do so in court), the plaintiffs have filed a motion asking that Snow draw adverse inferences from Zullo's refusals, and admit a slew of contested exhibits, which include e-mails, photos, and five audio recordings of meetings taken by Zullo, which feature the voices of Arpaio and others.

Portions of two of those recordings were played by Young in court during his cross-examination of MCSO Captain Russ Skinner, formerly the commander of the agency's court compliance division.

Skinner's testimony took up most of Tuesday, and largely consisted of his responding to Popolizio's softball questions on how much the MCSO has done to comply with Snow's orders in the underlying civil rights case, Melendres v. Arpaio

Which had all the allure of watching the proverbial Sherwin-Williams dry. But reporters covering the trial perked up when Young attempted to get a couple of Zullo's audio recordings into evidence, by having Skinner, who was not a party to the recordings, try to recognize Arpaio's voice.
Plaintiffs Motion for Adverse Inferences
Plaintiffs Motion for Adverse Inferences

According to the transcript of  Zullo's November 9 deposition — which is attached to the plaintiffs' latest motion and contains references to the recordings in question —  the first audio file played Tuesday was of an October 2013 meeting with Zullo and Arpaio present, along with former billionaire Timothy Blixseth, the man who put Montgomery and the MCSO together.

An unidentified male voice can be heard saying something about "the fruit of the poison tree," and a gravelly voice that sounded like Arpaio's states something about prosecutors not having "the balls" to take certain cases.

Skinner identified Arpaio's distinctive voice. So Young moved for the audio file's admission.

But Masterson objected, and Snow sustained the objection. 

(During Zullo's deposition, Young described part of this same recording, where Blixseth supposedly is telling Sheriff Arpaio and others that Montgomery had hacked into "something having to do with" former U.S. Attorney General Eric Holder's and ex-Assistant Attorney General Lanny Breuer.)

Young asked Skinner about another recording supposedly made by Zullo. A portion of the audio was played.

An unidentified male voice can be heard saying "Dennis Montgomery made this," and "he's a very genius computer guy."
List of Exhibits Used During Zullo's November 9 Deposition
List of Exhibits Used During Zullo's November 9 Deposition

The voice describes how Montgomery and "a partner" were "working for the CIA," and had decoded secret messages in "Al Jazeera broadcasts."

"But it was all bullshit," says a voice.

This recording also was not entered into evidence. 

The full transcript of the November 9 deposition makes for a tantalizing read. The implications of Young's questions and of Zullo's occasional lapses from invoking the Fifth set the mind racing with speculation.

Take the following exchange, where Young asks Zullo about yet another audio file, after playing part of it.
Young: Mr. Zullo, you asked Mr. Montgomery a question about what could you do if you wanted to destroy the life of someone — someone with the information that Mr. Montgomery had. Did you have anyone in particular in mind —

Zullo: Oh, God.

Young: — when you asked that question?

Zullo: Not — I'm taking the Fifth.

Young: Well, the same question about your question to Mr. Montgomery about financially destroying someone. Did you have anyone in particular in mind when you asked that question?

Zullo: Taking the Fifth. Mr. Young, that recording should scare the hell out of you, because it scared the hell out of me.

Young: And what was it that scared the hell —

Zullo: I'm not going to —

Young:. — out of you?

Zullo: You're a smart guy. People with that capability. You're — you're a smart guy.

Young: Well, you thought that you might be able to employ that capability against Judge Snow; correct?

Zullo:  I'm taking the Fifth.
Though Arpaio and his Chief Deputy Jerry Sheridan maintain that the costly, year-plus long Seattle probe was all about investigating the theft of banking info from 150,000 Maricopa County residents by the CIA, there is a mountain of evidence to suggest that Arpaio was out to conflict or just retaliate against Judge Snow, whose 2013 ruling against the MCSO, finding the agency guilty of racial profiling, placed Arpaio in a box from which he cannot escape.

And if Snow rules that the exhibits Zullo refuses to testify about can be admitted into evidence, that mountain promises to grow to McKinley-esque proportions. 

After Zullo completes his testimony, Sheridan is expected to be called to the stand by the defense, assuming his back ailments will allow him. If Sheridan cannot testify, the defense may call a replacement witness.

There is no court Wednesday because of the holiday. The trial resumes Thursday at 9 a.m. 
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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons