Lawyers for the plaintiffs in the big Melendres vs. Arpaio racial profiling lawsuit fired another salvo at the MCSO on Wednesday. In the latest bid for sanctions against the MCSO, attorneys from the firm of Steptoe & Johnson, lead counsel in the case, argued that the MCSO has persistently destroyed requested evidence, in spite of Arizona Public Records Law and the rules of discovery.
They also revealed that Sheriff Arpaio has a personal file on immigration that he has not turned over to the plaintiffs, and that MCSO Chief Deputy David Hendershott -- Arpaio's morbidly obese Cardinal Richelieu -- has done county business through a private AOL account, in what plaintiffs' lawyers characterize as an attempt to keep his communications from the prying eyes of the opposition.
Plaintiffs in the case, who have repeatedly sought e-mails of MCSO brass relating to Arpaio's anti-immigration sweeps, offered as an exhibit in their most recent filing an e-mail from lawyer Dennis Wilenchik dated 2007 to the e-mail address "email@example.com." A reverse e-mail search revealed that the address belongs to Hendershott.
"While defendants produced thousands of pages [in response to plaintiffs requests], many of which are totally irrelevant," reads the recent filing, "they produced very few e-mails. Hendershott's AOL account suggests that other, unsearched sources of e-mails may exist and further belies defendants' assertions that their response to the [plaintiffs' public records request] was `complete, thorough and exhaustive."'
This is not the first time that the issue of e-mails to and from the MCSO's upper echelon has been raised. In a blog post from February, my colleague Ray Stern chastised MCSO's kvetching about delays from Phoenix mayor Phil Gordon's office in producing e-mails sought by the MCSO. You see, the sheriff's office had stonewalled similar requests from New Times.
We asked Lisa Allen, the sheriff's director of communications, about [MCSO Deputy] Matteson's deletion of e-mails. She says he probably does it to reduce the overwhelming flood of e-mails he gets.
"I have never told any of my people to get rid of e-mails," she says.
She couldn't explain why a past request for her e-mails to and from news media members never turned up more than a page or two. But she did have a reason for why New Times has never received any requested e-mails from Arpaio or his top aide, Dave Hendershott: Neither men use e-mail.
Interestingly, in a day-long grilling of Arpaio by plaintiffs' lawyers that took place December 16, Arpaio claimed he only used his "40 year old Smith Corona typewriter" for correspondence, telling lawyer David Bodney, "I don't have computers or e-mails."
Though this may call to mind mafia dons' use of pay phones to avoid being tapped by the feds, it is somewhat believable in Arpaio's case, seeing that he is mainly a figurehead in the MCSO power structure, leaving control of day-to-day operations in Hendershott's pudgy paws.
If it's conceivable that Arpaio may not use e-mail, it seems highly unlikely that Hendershott, in running an organization as vast as the MCSO, with some 4,000 employees, and an annual budget of $270 million, could completely eschew the use of e-mails or cell phone texts. As the plaintiffs suggest, Hendershott's secret AOL account implies that Hendershott does indeed utilize e-mail, despite the MCSO's assertions to the contrary.
When Bodney asked if Arpaio had ever been told by his lawyers to preserve all docs that might be related to the lawsuit, Arpaio said no. Arpaio also stated that he's never instructed his secretary to retain such records. And Arpaio admitted that he has a file on illegal immigration not yet turned over to the plaintiffs.
These revelations follow the plaintiffs' recent motion for sanctions after a sergeant in Arpaio's infamous Human Smuggling Unit admitted in a deposition that he had been shredding individual "stat sheets". This, despite repeated requests from the plaintiffs' attorneys to preserve and produce all documents related to the MCSO's anti-immigrant sweeps. The shredding and destruction of documents continued at least until the beginning of November, though plaintiffs argue that a litigation hold should have been placed on such docs since 2007, when the lawsuit was first filed.
In July 2008, sweep-related docs were requested again by plaintiffs' lawyers and a separate public information request for all such documents was submitted. In MCSO lawyer Timothy Casey's response to plaintiffs' motion for sanctions, MCSO Deputy Chief Jack MacIntyre attempted to take the fall, explaining that he simply forgot to forward the hold letter to the appropriate parties.
MacIntyre's lame attempt to shoulder the blame doesn't let Arpaio's counsel Casey off the hook, mainly because lawyers from Steptoe & Johnson peppered Casey repeatedly to produce the requested files.
"Defendants' fault grew more egregious," states the latest Steptoe reply, "after plaintiffs served document requests in February 2009. Defendants produced a few stat sheets and e-mails in response, but kept shredding nearly all of the stat sheets and purging countless e-mails. The shredding continued even after the plaintiffs' counsel wrote a series of letters on September 10, September 30 and October 20, 2009 seeking production of missing stat sheets and e-mails. These letters were either not forwarded by defendants' counsel to MCSO or they were ignored by MCSO upon receipt.
"Indeed, Lt. [Joe] Sousa, Sgt. [Manuel] Madrid and Sgt. Brett Palmer were not asked to preserve individual stat sheets until November 2009. This severe lack of communication evidences the type of willfulness that warrants sanctions."
The few stat sheets available to the plaintiffs' lawyers offer evidence of their importance to their contention that Arpaio & Co. are engaged in a systemic practice of racial profiling. Stat sheets are turned in by individual deputies and posse members after their shifts in one of Arpaio's anti-immigrant sweeps. Higher-ups then produce master stat sheets based on these individual accounts, but "discrepancies between the [MCSO] database and other MCSO records show that not all sweep-related traffic stops are logged in the...database."
Lt. Sousa, head of the MCSO's notorious Human Smuggling Unit, which essentially runs the sweeps, admitted in his deposition that mere "contacts" between deputies and individuals do not result in a record if there's no citation or arrest. Sousa also admitted in his depo that he had purged some of his e-mails, and that these purged e-mails were not turned over to the MCSO's counsel.
More importantly, plaintiffs' lawyers note that the MCSO's supposed "no tolerance" policy during the sweeps was not strictly adhered to by deputies.
"Stat sheets identify deputies with low numbers of traffic stops," observe plaintiffs' attorneys, "information indicating that certain officers exercised substantial discretion deciding whom to pull over. For example, the stat sheets for a recent sweep show that Deputy Matthew Ratcliffe made 3 traffic stops in a 10 hour shift, but Deputy Charley Armendariz made 24 stops in a 12 hour shift. If Ratcliffe's 3 traffic stops all involved Latino drivers or passengers, this would be compelling evidence that he was not engaging in `zero tolerance.'"
The shredding and destruction of MCSO stat sheets and the possible hiding of MCSO e-mails irreparably harms the plaintiffs, who've asked that federal district court Judge G. Murray Snow, presiding judge in the case, impose sanctions against the MCSO. These could include legal fees, the do-over of depositions, and the assumption by the judge that the evidence destroyed would have been damaging to the MCSO.
Once G. Murray Snow issues a decision, I'll follow-up with a blog post. If you want to read the plaintiffs' reply in support of sanctions, you can do so, here.
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