Federal Judge G. Murray Snow has denied a motion from Sheriff Joe Arpaio's Cold Case Posse commander, Mike Zullo, for a protective order on 87 disputed items of evidence in Arpaio's ongoing contempt trial.
Snow instructed defense counsel to produce the documents, which are related to the MCSO's controversial Seattle investigation, to the plaintiffs. A log of the items shows they include photos, video and audio files, and other records.
The judge also shot down Zullo's renewed request for a delay in his being deposed by the plaintiffs, so he can hire a lawyer.
Yet, in explaining his decision, Snow had some kind words for the posse honcho, who has filed his motions pro se, and was representing himself in court, dressed casually, in a dark grayish shirt, without a tie.
"You've done a very fine job putting forth your legal argument," Snow said Friday, observing that Zullo had cited the correct case in his motion for a protective order, the U.S. Supreme Court decision, United States v. Hubbell.
Snow said the Supreme Court's 2000 Hubbell ruling states,, "Even the act of producing documents could be incriminating."
However, Snow said there were exceptions to Hubbell. Zullo already had surrendered the documents to Arpaio's attorneys, John Masterson and Joe Popolizio of Jones, Skelton, Hochuli, along with a number of other requested items.
The judge said there was "no self-incrimination aspect" to Jones, Skelton's complying with a plaintiffs' subpoena about the documents.
Also, because Zullo previously has made claims that he was "individually activated" by the MCSO to work on the Seattle probe, the documents he made in the course of the investigation "were created for the MCSO."
Therefore, Zullo "did not have a personal right to claim self-incrimination" concerning the documents, said Snow.
Zullo was one of three men assigned by Arpaio to the Seattle operation, which involved a paid confidential informant, Dennis Montgomery, and an investigation that concerned either the CIA's illegal harvesting of 150,000 Maricopa County residents or an anti-Arpaio conspiracy involving Snow and others, or both.
The other two investigators, MCSO detectives, already have testified. They and other witnesses have described Zullo's having direct access to Arpaio. Indeed, the sheriff has used Zullo on other missions, such as in 2012, when Zullo was the lead on Arpaio's investigation of President Barack Obama's birth certificate.
During the Seattle investigation, the MCSO covered Zullo's travel expenses, and he was paid a $71 per diem for his time in Seattle.
Regarding Zullo's request for a delay, Snow pointed out that Zullo was a witness, not a party to the case, even though he agreed that "the U.S. government may choose to prosecute you," as neither Snow nor the U.S. Attorney's Office was going to grant Zullo immunity to testify.
Snow also said Zullo knew on October 21, two days before he was to be deposed in the case, that attorneys Masterson and Popolizio were not going to represent him — so he had time to obtain an attorney.
Zullo has "relevant information that cuts one way or another," and so his deposition must go forward, Snow told him.
On October 23, Zullo had refused to testify, invoking his Fifth Amendment right against self-incrimination, because he said he did not have a lawyer and wanted one at Maricopa County's expense.
His do-over deposition is scheduled to take place today.
Snow advised Zullo that "simply because you don't have an attorney, doesn't mean you don't have constitutional rights."
Meaning Zullo could invoke his Fifth Amendment privilege again at the do-over.
Earlier, Zullo seemed a little nervous when he addressed Snow from the lectern on his motion for a protective order.
"Obviously, I'm not an attorney," he said, glancing back at plaintiffs' counsel Stanley Young and Dan Pochoda. "There's little chance I'm going to win against those guys."
But he firmed up as he read from a prepared statement (see above), which listed his causes for concern, from Snow's comments that the judge may be referring part of the contempt case against Arpaio and four of his current and former underlings to the U.S. Attorney to what Zullo referred to as a "threatening footnote" in a court document filed by the plaintiffs in the case, which suggests possible federal laws that may have been broken during the course of the Seattle investigation.
Zullo claimed that "this situation has been created at the hands of the ACLU and their attorneys" and that by listing the possible federal crimes involved, "they have in fact ensnared themselves and every other lawyer in this courtroom."
He also noted the recent news that Arpaio's former lawyer, Tim Casey, had submitted a bill to the county for more than $116,000 because Casey was ordered by Snow to testify against his former client and therefore had to get his own attorney.
"Casey is a lawyer and is able to defend himself," said Zullo. "I am not."
Zullo stated that he could not afford "the cost for this type of complex representation." He said he recently had approached the county directly, asking for civil representation, but had not heard back yet.
He also told Snow that his testimony "will not support the court's hypothesis" about the case.
After Zullo was finished, Richard Walker, the county's outside counsel, told the court that he had recently replied to Zullo, explaining why the county was not going to pay for his attorney.
Walker said it was because there is "no civil claim asserted against" the posse commander. Also, Jones, Skelton provides representation to employees and agents of the MCSO "for purposes of institutional interest — but not as individuals.
About Casey's bill, Walker said Casey's request for the county to pay for his ethics attorney had been denied by the County Attorney's Office and that Casey's recent letter to the Board of Supervisors was an appeal of that decision. (Indeed, that seems borne out by the letter itself, reproduced above.)
Plaintiffs attorney Young simply stated that the plaintiffs' arguments were in the replies that they had filed with the court. He added that the court should deny Zullo's motion because "he is a witness, not a party to this case."
If things didn't go his way in court, Zullo said, he would be forced to make a pro se appeal to the Ninth U.S. Circuit Court of Appeals for an emergency stay.
"I'm not a naive guy," he said at one point, suggesting that he was told by Jones, Skelton that his production of documents was "not voluntary."
But in his order, issued shortly after the hearing, Snow disagreed with Zullo's assessment.
"Here, Mr. Zullo is not being compelled to do anything," writes Snow. "Zullo drafted the documents at issue voluntarily, prior to the issuance of the subpoena, and he was not under compulsion when he delivered the documents to the attorneys at Jones, Skelton, & Hochuli. Those attorneys are now compelled to produce the documents; Zullo is not compelled to do so. As such, Zullo has no Fifth Amendment claim regarding the production of these documents."
Interestingly, Arpaio did not appear at Friday's proceeding.
After the hearing, Zullo declined to make comments on the record to reporters.
This week should wrap up the remaining testimony in Arpaio's contempt trial. Zullo is the plaintiffs' final witness. He is to be deposed today and may testify as early as Tuesday afternoon.
The defense intends to call two witnesses: Captain Russ Skinner of the MCSO's court compliance division, and Chief Deputy Jerry Sheridan, if Sheridan's current back problems allow him to be present.
Otherwise, the defense may call a replacement witness for Sheridan. Closing arguments in the case have not yet been scheduled.
Update November 9, 2015 3:20 p.m.: Below is a copy of Zullo's notice of appeal, dated today, November 9. It has not yet been filed on the court's docket.
Sources indicate that Zullo's deposition did take place today and that he did invoke his 5th Amendment privilege. I'm told he took it on most questions. Deposition lasted through noon, apparently.
Keep Phoenix New Times Free... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we would like to keep it that way. Offering our readers free access to incisive coverage of local news, food and culture. Producing stories on everything from political scandals to the hottest new bands, with gutsy reporting, stylish writing, and staffers who've won everything from the Society of Professional Journalists' Sigma Delta Chi feature-writing award to the Casey Medal for Meritorious Journalism. But with local journalism's existence under siege and advertising revenue setbacks having a larger impact, it is important now more than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" membership program, allowing us to keep covering Phoenix with no paywalls.