Maricopa County Manager David Smith (left) with his attorney Michael Black, outside the federal courthouse in Phoenix
Maricopa County Manager David Smith (left) with his attorney Michael Black, outside the federal courthouse in Phoenix

Joe Arpaio Grand Jury Probe Begins, One Witness' Lawyer Expects Investigation to Last "Six Months"

There was a chill, and dare I say it, a thrill in the air for some, on this winter Wednesday morning, the first day of a federal grand jury looking into criminal abuses of power by Sheriff Joe Arpaio.

The grand jury spent almost all day questioning three witnesses at the Sandra Day O'Connor Federal Courthouse: Maricopa County Manager David Smith, County Financial Manager Sandi Wilson, and Sheriff Joe's chief financial officer Loretta Barkell.

Wilson was the first witness, emerging after about a couple of hours only to describe it as a "difficult morning." Smith was next at bat, but was only questioned for about an hour, as far as I could tell. When he emerged from 401 West Washington a little after noon, he was rushed by a gaggle of local reporters and TV crews, but deferred to his lawyer Michael Black, who said he expected Smith to be called back in a few weeks.

At one point, Black opined that he anticipated the grand jury to go on for "six months." That's not a bad guess. The federal source who tipped me off in December that the U.S. Attorney's office was preparing to move on allegations of abuse of power by the sheriff's office told me recently that the probe would continue on "for months," as Arpaio's top brass and others are called to testify.

Later, Smith issued a short statement to the press explaining his comments to the grand jury:

"Today's grand jury appearance was a welcome opportunity to tell our story on behalf of County employees. Dozens and dozens of County employees, and some County vendors, have been targeted by Sheriff Arpaio and Maricopa County Attorney Andrew Thomas with retaliatory criminal investigations without cause, and disruption of their working lives without justification.

"Sandi Wilson and I expect to return to the grand jury to give even more detailed testimony in three or four weeks about the many abuses of power by Sheriff Arpaio and his office that were generally described to the grand jury today. We look forward to that next opportunity in the interests of justice."

The MCSO's Loretta Barkell arrived a little before 1:30 p.m., and was similarly dogged by reporters, but would only say, "No comment," to each question. However, when I asked if she planned to "take the Fifth," I did notice that she cracked a smile. After her grand jury appearance, she snuck out some other way, so as to avoid the journos on hand.

Her attorney Tom Crowe came out around 4 p.m. to tell us that Barkell had departed, but he gave us the following written statement as a consolation prize:

"Loretta is a dedicated professional who has served Maricopa County with distinction for almost 20 years. She has cooperated and will continue to cooperate fully and completely with [the] United States Attorney in conjunction with the investigation being conducted by that office. We respect and have confidence in the integrity and fairness of that process. Accordingly, we believe that any further public comment at this time would not be appropriate."

Federal grand jury testimony is secret, and generally remains so unless there's an indictment. After that, if a grand jury witness testifies at trial, the prosecutor may have to turn over the grand jury testimony of that witness to the defense under what's known as the Jencks Act. Other so-called Jencks material might have to be turned over as well.

Only witnesses are not proscribed from talking about their testimony in federal grand juries, and in fact, the U.S. Attorney's office suggested that Wilson and Smith could go public with their subpoenas to appear. This served the purpose of putting the public on notice and possibly encouraging other witnesses to come forward.

A witness does retain his or her Fifth Amendment right against self-incrimination, and could decline to testify on those grounds. On the other hand, a U.S. Attorney could still call a witness, even if the witness' lawyer had informed the federal prosecutor that the witness planned to take the Fifth.

Jack Chin, a prof at the University of Arizona's Rogers College of Law, explained that the target of an investigation would be notified by the U.S. Attorney's Office of that fact. Can targets be called to testify? Chin said it's possible.

"It varies," Chin told me. "I've called targets before, but you need to assume that they're going to plead the Fifth."

Chin explained that witnesses to the grand jury can become targets themselves, which must give the MCSO's top brass second thoughts as to whether or not they would cooperate with the grand jury. Apparently, Barkell did so today, and she's a significant player, the bookkeeper, so to speak. But what happens when the U.S. Attorney begins to move up the chain, to Deputy Chiefs Jack MacIntyre and Brian Sands or even Arpaio's rotund Cardinal Richelieu, Chief Deputy David Hendershott?

Well, then, all the king's horses, and all the king's men...

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