You'll recall that in November, I reported that MCSO deputies had admitted under oath to destroying documents requested by the plaintiffs in the big Melendres vs. Arpaio racial profiling lawsuit now in federal court.
In an excerpt of a deposition made public as part of a request for sanctions against the sheriff's office, MCSO Sgt. Manuel Madrid of the MCSO's notorious Human Smuggling Unit copped to shredding stat sheets submitted by deputies and posse members engaged in the sheriff's anti-immigrant sweeps. HSU honcho Lt. Joe Sousa also admitted in a sworn affidavit that these stat sheets were tossed, even though they had been officially requested by the plaintiffs' lawyers on more than one occasion.
Indeed, lawyers from the firm Steptoe & Johnson, lead counsel in the case, argued that the MCSO should have issued a litigation hold after the filing of the lawsuit in 2007. Arpaio's lawyer Timothy Casey disagrees with this, but he does agree in a response filed on December 11 that the MCSO should have preserved these stat sheets at least since July 21, 2008, when Steptoe attorney David Bodney issued "a broad document hold/preservation letter" and simultaneously sought the docs through a public records request.
The stat sheets are significant because the MCSO uses them to compile their final tallies. Bodney and his legal team want to verify the totals against what the stat sheets tell them. Also, deputies and posse members often scribble notes on these stat sheets, notes that could be revealing when racial profiling is involved. Casey argues that the plaintiffs don't need them, but that's not his call to make.
So who's to blame for the MCSO continuing to shred evidence at least up until November 1, 2009, well over a year after Bodney wrote the hold letter? Arpaio's law dog Casey claims it wasn't his fault, as he forwarded the letter via e-mail to three county functionaries*, informing them that they were to "make certain that the appropriate person at the MCSO knows to KEEP AND PRESERVE" all documents requested by Bodney. The all-caps were in the original e-mail, which "set the importance of the correspondence at `High.'" In his filing, Casey includes the e-mail, which was transmitted the same day he received the Bodney letter.
Casey fingers MCSO Deputy Chief Jack MacIntyre as the ultimate fall guy for the shredding.
"MCSO Chief McIntyre [sic] inadvertently and innocently did not forward the hold letter to others in the MCSO and the stat sheets were not kept," reads the Casey response at one point.
An affidavit from MacIntyre, Casey's "client contact for this litigation" is offered as an exhibit. In it, MacIntyre, who describes himself as "a 1980 graduate from Arizona State University's College of Law," takes the spear, averring that,
"[I]t appears likely that I did not forward [the Hold Letter] to the MCSO Legal Liaison Division or other MCSO personnel pursuant to my standard practice. I am uncertain how this happened, but believe that I must have simply, albeit regrettably, forgot to forward [it] to others at the MCSO in the press of attending to other matters, including my other law enforcement duties and professional activities."
MacIntyre sounds like the proverbial kid whose pup ate his math homework, except that MacIntyre has no dog to blame. His nonchalance at it his own boneheadedness is exasperating.
"I take very seriously," he offers in his affidavit, "and act in good-faith in regards to all requests for the production of MCSO documents in litigation and requests in litigation for the MCSO to preserve its documents. My apparent mistake in not forwarding [the hold request] to others within the MCSO was not deliberate, intentional, or in any way calculated to gain some strategic or tactical advantage at Plaintiff's expense..."
Oh, of course not, Jack. No one at the MCSO would ever think of such a thing, I'm sure.
What about the simultaneous public records request to the MCSO from the plaintiffs' lawyers asking for the same information? Why was that never fulfilled in compliance with Arizona's public records law? MacIntyre admits that he was aware of the public records request, but, hey, that's not his department.
Excuse me if I have a little trouble swallowing this massive toad, but MacIntyre is a lawyer, he works directly with the County Attorney's office, he's responsible for the operation of the Fourth Avenue Jail, the Madison Street Jail, the MCSO's central intake, and he's a long-time, high-level Arpaio apparatchik and advisor. If anyone should be aware of how to comply with a hold letter from an attorney, it'd be him.
So is the guy incompetent, or what?
That's not an idle question considering MacIntyre's recent testimony during a hearing in the matter of local civil rights activist Orlando Arenas, who was popped by the MCSO on a bogus trespassing charge as he left the vicinity of Tent City during Arpaio's now infamous "200 Mexican March" in February. You'll recall that's when Arpaio's men marched Mexican nationals to their own segregated section of Arpaio's vast incarceration complex.
Arenas was singled out for retaliation because of his activism, and to prove this Arenas' lawyer Christopher DuPont subpoenaed MCSO Deputy Lindsey Smith and another deputy, ordering them to report for depositions in the case. Neither did.
Both Smith and MacIntyre work in downtown Phoenix's Wells Fargo Building, where Arpaio keeps two floors of pricey, executive suites. When Smith received her subpoena, she approached MacIntyre as to what she should do about it. Smith told the court that she was "directed not to go."
MacIntyre contradicted this, claiming on the stand that, "I never advised anybody to ignore a court order." He also insisted that he didn't know how subpoenas were handled by the sheriff's office.
Ultimately, the judge threw out the case, as Smith and MacIntyre's bungling had nixed any chance of Arenas receiving a fair trial.
So either MacIntyre is inept in these two cases, or something else is at work. As to MacIntyre's veracity, you be the judge.
Steptoe & Johnson will be filing a reply to Casey's response next week, and then the judge will decide what sanctions to impose on the defense. I'll follow up once the plaintiffs' reply is in the public record.
*Clarification: In response to Emil's query below, I have clarified the above post to point out that it was three county employees who received Casey's e-mail: County Claims Adjuster Jean Bowman, County Attorney's Office Civil Division Chief Christopher Keller, and Deputy Chief MacIntyre. Sorry for any confusion.
The public records request letter was mailed and faxed to Paul Chagolla, who was then a Public Information Officer for the MCSO, and not a very good one, as most who had to deal with him know. Casey filed a copy of this letter with the court. It is stamped as having been "received" -- apparently by the MCSO -- on July 22, 2008.
Ed is also correct that there were several follow-ups by the plaintiffs' lawyers to the July 21, 2008 hold letter from Bodney. So it does strain one's understanding as to how the MCSO and its lawyers could have so badly fumbled, if that's what it was. A fumble.