Note: Please see update on Friday's hearing below.
Sheriff Joe Arpaio's former lawyer Tim Casey doesn't want to tell what he knows about Arpaio's contemptuous conduct in the ACLU's big racial profiling case Melendres v. Arpaio, so he's invoking attorney-client privilege to avoid subpoenas and discovery requests in the case.
Casey, who has been Arpaio's mouthpiece on Melendres practically since the lawsuit was filed more than seven years ago, begged off the case in November of last year.
His attempts to dodge depositions and document-requests related to his former clients will be one subject of a hearing Friday at 2 p.m. in Phoenix before federal judge G. Murray Snow.
Indeed, Casey is in a unique position to explain aspects of the contempt alleged of Arpaio and four current and former Arpaio henchmen, including Chief Deputy Jack MacIntyre, ex-Executive Chief Brian Sands, Deputy Chief Jerry Sheridan, and Lieutenant Joe Sousa.
See, it was Casey who advised the alleged contemnors of Snow's December 2011 preliminary injunction, ordering the MCSO not to enforce civil immigration law.
The order was ignored by the MCSO, and as a result, an untold number of individuals were improperly stopped and detained by sheriff's deputies because those deputies were not advised of the judge's order.
It was not until November of last year that MCSO honchos admitted they never bothered to inform line troops or the MCSO's notorious Hispanic-hunting Human Smuggling Unit that they could no longer hold folks based on suspicion of being in the country unlawfully.
That admission came some 18 months after Snow made his preliminary injunction permanent in 2013, when Snow declared the MCSO guilty of racial profiling, and later ordered a series of reforms to be overseen by a court-appointed monitor.
According to court documents, Casey sent MacIntyre, Sands, Sheridan and Sousa an e-mail advising them of the court's 2011 preliminary injunction. Additionally, Arpaio was briefed on the matter.
As a result, Sands and the plaintiffs are seeking testimony and documents from Casey on this issue and others.
Though Arpaio and Sheridan recently admitted that they are in civil contempt of the federal court and have agreed that they need to be sanctioned, they have not admitted to willfully violating the court's orders, which would be a criminal act.
A possible referral by Snow of criminal contempt allegations remains on the table. And Snow has stated that a four day hearing in April will go forward as scheduled, unless the plaintiffs and the defendants come to some "global" settlement that involves direct punishment of Arpaio, such as a proposed $100,000 fine that Snow has said he'd like to see come out of Arpaio's pocket.
Sands, like Sousa and MacIntyre, are not on board with Arpaio and Sheridan's admission of guilt on civil contempt. So Sands' attorneys have made discovery requests on Casey as part of the former executive chief's defense.
Unlike the others, Sands has expressed his willingness to testify at the April hearing, and has waived any attorney-client privilege he may have from the time when Casey was representing both Arpaio and the MCSO.
But Casey has moved to have Sands' requests and similar requests from the ACLU quashed, arguing that to comply would violate attorney-client privilege and other legal niceties, such as the "work-product doctrine," whereby Casey need not divulge notes and preparatory documents.
Casey also cites local rules of civil procedure that protect an attorney's files from disclosure.
Arpaio and the MCSO's current lawyers oppose any attempt to get Casey to spill the beans. However, Casey is now in the uncomfortable role of being a witness to his clients' alleged (and in some cases admitted) misconduct.
Casey likely has information related to other contempt allegations, such at the MCSO's failure to inform the court and the plaintiffs that MCSO deputies were engaged in widespread video and audio recording of traffic stops.
Such material should have been turned over to the plaintiffs prior to the 2013 trial in Melendres, but the MCSO never divulged its existence.
Also, according to court filings, Casey should have direct knowledge of one of the most egregious examples of alleged contempt in Melendres, one which happened after Sands left the MCSO.
Following the suicide of MCSO deputy Ramon "Charley" Armendariz and the discovery of hundreds of hours of videotaped traffic stops in his possession (not to mention illicit drugs, unserved citations and the personal property of all of the people he shook down while on patrol with the HSU), the MCSO revealed to the court, in a closed hearing, that the practice of taping stops with audio and video devices was widespread.
Initially, Snow wanted to subpoena all of the extant video, but the MCSO counseled a "softer" approach, and so, under seal, with Sheridan, Casey and Arpaio present, Snow ordered that the MCSO work with his monitor Robert Warshaw, to quietly gather up the recordings, so deputies would not destroy any evidence of wrongdoing in their possession.
Instead, Sheridan and Arpaio ordered Deputy Chief David Trombi to send out an e-mail to MCSO commanders, giving them a heads up on the collection of recordings.
Here is Snow's recounting of the episode in an order he filed in November of last year:
At the May 14, 2014 hearing in which the MCSO presented the Court with the Armendariz material, the Court was concerned with how best to ensure the rapid and department-wide retrieval of all outstanding, relevant recordings made by officers that might still be in existence. The Court thus sealed the hearing and ordered that its substance was not to be shared with those outside the Courtroom. The Court further noted that MCSO was to immediately formulate and obtain the Monitor's approval of a plan designed to quietly retrieve such recordings from its officers and employees.Approximately two hours later, the Monitor then held a lengthy meeting with the higher officials of MCSO and members of the monitoring team in which an investigative course of action was agreed upon. Immediately after that meeting, however, Chief Deputy Jerry Sheridan informed the Monitor that between the hearing in the morning and the meeting with the Monitor in the early afternoon, he and Sheriff Joseph Arpaio had met with MCSO's lawyers. At some point, Chief David Trombi was called into the meeting and instructed to send an e-mail to all Departmental Commanders, including the supervisor who had been present during one of Armendariz's problematic stops, to advise them that they should collect all such recordings from their personnel.
This department-wide email compromised the plan arrived at by MCSO and the Monitor for collecting such recordings. Neither the Sheriff nor Chief Deputy Sheridan informed the Monitor during their meeting that MCSO had already subverted the plan at which they subsequently arrived. As a result, the hearings related to the Armendariz recordings were taken out from under seal, as there was no longer any reason to suppose that deputies would not be warned in advance that the MCSO was collecting such recordings. Following this, MCSO conducted a survey-approach of its present and past employees to collect any outstanding recordings.
During this same period, MCSO also uncovered and disclosed the existence of systematic recordings undertaken by HSU and recordings made at the apparent direction of other MCSO departments. There was also evidence that recordings were made during the relevant period and that are apparently no longer in existence. Apparently at least some of these recordings were requested by Plaintiffs in pre-trial discovery, but were not provided to Plaintiffs prior to trial.
According to a report by Warshaw to Judge Snow, present at this meeting where Trombi was summoned were at least three lawyers: Casey and MCAO attorneys Tom Liddy and Christine Stutz.
Warshaw states in his report that Sheridan at first said that the Trombi e-mail was sent without his knowledge, though later, he admitted to knowing all about it.
What exactly was going on here, if this meeting was as Warshaw described it in his report?
This is just one reason Casey should be compelled to comply with the requests of Sands and the plaintiffs in the case.
And it serves as an example of why the four day hearing in April is needed, despite Arpaio and Sheridan's admissions of guilt.
According to a spokesman for Maricopa County, the running legal tab in Melendres is $2.2 million. (Not all of this went to Casey, by the way.)
That does not include an award of $4.5 million in fees to the ACLU and other organizations offering legal representation to the plaintiffs.
Nor does it include the cost of the monitor, and the cost of implementing Snow's orders.
And it does not include all of the fees that will result from the contempt proceedings, such as a proposed $350,000 fund to be paid for by the county which will cover payouts to those detained improperly by the MCSO.
In actuality, $350,000 is just a starting number for that fund. It easily could balloon into the millions.
UPDATE 4 p.m.:
I attended today's 2 p.m. hearing in front of Snow. The ACLU's formally withdrawn its subpoena to depose Casey, for now.
As for the documents/e-mails requested by Sands, Snow ruled that since many of them were also sent to individuals without attorney-client privilege in this case, attorney-client privilege did not apply to those docs.
Other document requests remain in limbo for the moment.
Sands' attorney Dennis Wilenchik tells me that there's more Sands' legal team would like to have from Casey's files.
"We think what the judge did was appropriate," Wilenchik explained. "But we still need to deal with Casey's docs -- notes and time sheets they did not list as privileged but have not produced."
Meanwhile, there has been no settlement between the ACLU and the defendants, the ACLU continues to depose witnesses, and the schedule for the April 21-24 civil trial remains unchanged.
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