By John Dickerson
Michelle Iafrate -- who bills taxpayers $150 an hour to represent Sheriff Joe Arpaio -- is taking her time in New Times lawsuit to secure video of a jail inmate's suspicious death.
Iafrate's reply to the suit on Tuesday came on the eve of a 20-day deadline. It answers so few allegations from the newspaper's complaint -- and raises so many new questions -- that the video Arpaio wants to hide is almost sure to stay out of the public eye until well after election day.
The crucial record in the lawsuit is video footage of the final minutes in jail of inmate Juan Mendoza Farias (shown healthy above left in his booking photo and later dead in his morgue shot). Farias was beaten and suffocated, one medical examiner said, during a violent altercation involving 11 jail guards, just moments before he died last December. He was in good health when he entered the jail, just days earlier.
Arpaio's staff has been denying access to the video of Farias' death since July, when New Times first requested the footage. And, as reported on this blog earlier, Arpaio's staff is also denying the footage to Farias' surviving widow -- who has been asking to see it since December and has now filed notice of her intention to sue the Sheriff's Office for $6 million.
Iafrate's reply, on behalf of Arpaio, was terse. She acknowledged the public records request and the numerous replies New Times received from two different departments at the MCSO: public information and legal liaison.
Instead of focusing on the video footage or on allegations in the complaint, though, Iafrate attempted to change the topic altogether by saying the July records request was not "appropriate" under state law. As such, she implies, the meat of the complaint is null and void. In other words, she's tossing out a red herring to muck up the legal process.
“Defendants deny that the public records request was an appropriate request and therefore, deny the remaining allegations in paragraph 4 of Plaintiffs’ Complaint,” Iafrate wrote -- three months after the request was submitted.
She's referring to language in Arizona law that can require those requesting public records to state if they will use the records for "commercial" purposes. News-gathering is not a commercial purpose under state law, so many reporters and many government agencies don't mention if the use will be commercial, or not. It's a given that reporters use records for news.
It's such a given that Arpaio spokesman, Captain Paul Chagolla (in a series of unfriendly, name-calling emails) acknowledged the legitimacy of the request.
The sheriff's legal liaison did not question the legitimacy of the request either. In fact, that department confirmed the legitimacy of the request by giving both a written reply and producing a booking photo.
Three months after the request was submitted -- and after multiple emails, phone calls, and now a lawsuit over the video -- Iafrate is stating that it wasn't a technically accurate request in the first place.
Iafrate first hinted at this line of argument in an October 17 letter to New Times attorney Steve Suskin: "Your client is a seasoned reporter familiar with the public records request statutes. However, he failed to provide all the necessary information."
Suskin replied, "You have already expressly acknowledged in your letter that Mr. Dickerson is a reporter employed by New Times. As such, he obviously made this request in that capacity for a non-commercial purpose. Given the history between these parties, both you and your client are well aware of these facts and have never raised this issue prior to your letter regarding this request, nor have you asserted such an issue regarding literally hundreds of prior requests from New Times.
"Your claim that the Defendant, Joseph M. Arpaio, lacks 'necessary information' to proceed with Mr. Dickerson's July 25, 2008 public records request is not grounded in the law or fact nor is it even consistent with how MCSO has responded to this or other previous requests. As a result, I can only interpret your letter to be a thinly veiled attempt to further delay and obfuscate your client's mandatory duty to follow the Arizona Public Records Law."
Iafrate's next letter, sent two days before her legal filing, appears compliant. But it also skirts the issue of the video altogether.
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"Your letter states that the information requested is for a non-commercial purpose," she writes. "Thank you for answering my inquiry. With this in mind, on today's date I requested the documents from the Maricopa County Sheriff's Office. The investigation is quite lengthy (more than 11 binders) therefore it will take time to review for redaction."
Friendly as that sounds, she's skirting the major point -- which is that the Sheriff's Office is legally required to release the video. Why does she need to sift through all those binders when what New Times wants is the video of the suspicious beating of Farias? Could it be that Arpaio's detention officers' actions will make the sheriff look all the more like he's running a Third World-style gulag?
As far as Arpaio's political purposes go, he seems to be getting his money's worth on the $150 an hour Iafrate charges. Too bad it's not his money that he's spending.