A private investigator hired by the Maricopa County Sheriff's Office to report on the agency's defiance of a federal judge's order concluded that Sheriff Joe Arpaio "failed in his responsibility" to have proper control over his agency.
Don Vogel, a former Mesa Police Department detective, testified Wednesday in Arpaio's ongoing contempt trial. The PI said he found evidence to show that Arpaio had been aware of U.S. District Court Judge G. Murray Snow's December 2011 preliminary injunction early on, ordering the MCSO not to enforce federal civil immigration law.
Arpaio and Chief Deputy Jerry Sheridan already have admitted to civil contempt of Snow's court in the landmark racial-profiling case Melendres v. Arpaio, but they still face the possibility of a criminal contempt charge if Snow believes their disobedience was willful.
The results of Vogel's independent investigation added weight to the argument that Arpaio's actions were intentional.
Asked at one point what factors pointed to possible criminal contempt by Arpaio, Vogel referred to several issues covered in the report he produced for the MCSO.
Chief among these were the billing records for former Arpaio attorney Tim Casey, whose court-compelled testimony has been damaging to the sheriff.
Casey recently testified that he first informed Arpaio of the injunction the day the court issued it, December 23, 2011. Though Casey did not bill anything on that date related to his telling Arpaio and his underlings about the order, he did make related billings on several occasions thereafter, such as on December 26, 2011.
"Continued analysis of the Court's Order," reads the December 26, 2011 billing entry.
The notation also states "confer with J. Arpaio" and goes on to mention Casey's discussing the order with other MCSO bigwigs.
Then there was Vogel's interview with Deputy Chief Jack MacIntyre, who told the detective that he discussed the order with Arpaio in
According to Vogel's report, MacIntyre informed the sheriff that the preliminary injunction "absolutely prohibited any detention of individuals based on [illegal] presence in this country alone."
MacIntyre told Vogel that when Arpaio acted incredulous in response, the deputy chief felt the need to repeat himself "slowly and [to] enunciate" so there was "no question" what was in Snow's order.
Additionally, Vogel said news of the injunction had been reported in the local media, to which Arpaio and his public-information officer paid close attention.
"People knew about it," said Vogel of the order.
Yet Arpaio told Vogel that he hadn't heard about the order until "months later."
However, Vogel cited a 2012 incident where Arpaio ordered Human Smuggling Unit Sergeant Brett Palmer to continue holding a couple of undocumented aliens until Arpaio could show up with media in tow.
Palmer testified about the incident during the April round of hearings in Arpaio's contempt trial, describing how he argued with Arpaio, who was on a speakerphone, telling the sheriff that a command to hold the aliens was "an unlawful order" and in violation of the December 2011 injunction because there was no reason to hold the individuals under state law.
Arpaio relented, according to Palmer, and the aliens were turned over to the U.S. Border Patrol, as U.S. Immigration and Customs Enforcement previously had refused to take them. (Ironically, turning over the aliens to Border Patrol also was in violation of Snow's order.)
Significantly, Palmer had confronted Arpaio based on Snow's injunction, explaining to Arpaio that the sheriff's order to hold people on suspicion of illegal presence alone was contrary to Snow's ruling.
Vogel testified that he interviewed Arpaio about the Palmer call, but the sheriff "wasn't denying" Palmer's account. Rather, Arpaio offered a "rationalization" for holding the detainees to obtain "media coverage."
Arpaio told Vogel that this was in the context of "political problems" caused by ICE's not taking suspected illegal aliens from the MCSO.
"If I did do this," Arpaio stated in his interview with Vogel, "it was to send a message."
Both to ICE and to the public, Arpaio told Vogel.
Aafter he concluded this and other investigations, Vogel said, he turned them over to the MCSO, where Deputy Chief Mike Olson was tasked with determining their final outcome.
The veteran detective said he suggested that instead of Olson's having to pass judgment on his superiors, an "outside board" should be appointed to make decisions on administrative guilt and punishment.
Vogel said he mentioned this to Arpaio's attorney, Michele Iafrate, who said she would get back to him on the idea but never did.
Vogel worked with Olson to come up with administrative charging documents for subjects of the investigation. These included: MacIntyre, Lieutenant Joe Sousa, Executive Chief Brian Sands, and Sheridan.
There was one missing. Vogel wanted to know if the MCSO would be doing an administrative charging document on Arpaio.
"Chief Olson told me there would be no charging document on the sheriff," Vogel testified.
Ultimately, no one received major discipline in the matter, despite Vogel's insisting in his testimony that "there was a factual basis for every [administrative] charge."
Vogel was visibly angry during points in his testimony, such as when he recalled how he was not able to get requested metadata from Maricopa County on e-mails related to the permanent injunction, or when he related how the defense refused to cough up Casey's billing records in a timely manner.
Vogel, who had a short span of time in which to complete the investigation, had asked for the billing records soon after his appointment by the MCSO but instead got the runaround.
Eventually, he was forced to appeal directly to County Attorney Bill Montgomery, through whom he retained counsel (at county expense) to do a FOIA request for Casey's billing records.
Alas, not in time to grill Arpaio on them during Vogel's interview with the sheriff.
The MCSO's delay-and-deny tactics affected other matters looked into by Vogel, such as a case involving a missing $300, a spin-off investigation resulting from the arrest and subsequent suicide of former MCSO Deputy Ramon "Charley" Armendariz.
In the case of the missing $300, the detective said he was "shocked" there had been no discipline meted out.
You may recall Vogel's name, since Casey hired Vogel in October 2013 to investigate a statement allegedly made by Snow's wife in 2012 to the effect that Snow despised the sheriff and wanted him out of office.
The defense used the investigation of Snow's wife in its futile attempt to have Snow booted from the case. Since then, neither side has raised the issue.
Vogel's testimony on Wednesday interrupted that of Captain Steve Bailey, ex-head of the MCSO's Professional Standards Bureau, who testified both before and after Vogel. Plaintiffs' attorneys said they had to put Vogel on the stand Wednesday because of scheduling conflicts.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Phoenix New Times's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Phoenix's stories with no paywalls.
Support Our Journalism
The day ended with Bailey still on the stand, knee-deep in what reporters covering the trial have dubbed "IA hell," wherein the plaintiffs walk MCSO employees, under oath, through the minutiae of internal affairs investigations sometimes going line by line of a particular IA report.
Court has recessed for a week and will resume October 27-30, when the plaintiffs will finish their case. (Bailey is scheduled to resume his testimony October 28.) The defense will then receive November 2 and 3 to put on its case.
Oral arguments in the contempt trial are tentatively set for November 10. After which, Snow will issue findings of fact and take up the matter of a possible referral of criminal contempt for Arpaio, Sheridan, and perhaps one or more of the three other former and current MCSO commanders still on the hook for civil contempt.
Snow could refer any criminal-contempt allegation to a special prosecutor or to the U.S. Attorney's Office, and a new judge would be assigned to it. Though Snow would remain responsible for imposing civil remedies on Arpaio, his subordinates, and the MCSO as a whole.