Thanks to Jack Ryan and the Friends of the Fogbow, we have a juicy collections of transcripts from Melendres v. Arpaio for your reading displeasure.
The transcript of Day 3 in the Melendres v. Arpaio contempt hearing is now available, courtesy of the Friends of the Fogbow. It contains a somewhat confusing exchange between Judge G. Murray Snow and Sheriff Arpaio relating to the Cold Case Posse’s involvement with confidential informant Dennis Montgomery in Seattle, and in particular with money.
Q. And is zoo — did you say Zulu? Zullo. Is he a posse member?
Q. And did you pay funds from Maricopa County for Mr. Zullo to
go to the Washington area?
Q. And then I assume you paid Anglin and Mackiewicz their travel costs?
A. We don’t pay for Zullo, but —
Q. But you paid Mackiewicz and Anglin.
Q. And so Mr. Montgomery proposed to — who did he propose to at the MCSO that the DOJ was inappropriately — I assume it was of interest to you if they were wiretapping my phone, among others?
A. Yes. And mine, too.
Q. And yours, too. And so were you conducting this investigation?
Q. Who was in your department?
A. This is Zullo and I think Mackiewicz.
Q. What rank does Mackiewicz have?
A. He’s a detective.
Q. Who did he report to about this investigation?
A. I think he and Zullo worked together.
Q. And who did they report to?
A. And Jerry Sheridan.
Q. They reported to Deputy Chief Sheridan?
A. At one time, but let me just say that the information we’re — we’ve been getting is the informer’s not very viable.
Q. Well, I understand that, I think the article itself says, that you became aware after a considerable amount of time that the reporter was giving you junk. Is that fair to say?
Q. Or the informer was giving you junk?
Q. How much money did you spend on the informant?
A. I don’t recall.
Q. How much money did you spend on the investigation?
A. I don’t have the figures.
Q. Did you keep any of the materials that Mr. Montgomery has
A. I don’t have them.
Q. Who does?
A. I believe Zullo does.
Q. And is he subject to your control —
Q. — as a member of your posse?
THE COURT: I just wanted to reiterate some of the
things I said during my questioning of you to make sure
everybody was clear. I was told over lunch that posse funds
like Mr. Zullo — Mr. Zullo’s the head of one of your posses.
THE WITNESS: Yes.
THE COURT: Is it the Cold Case posse?
THE WITNESS: Yes.
THE COURT: I was told that you also have various sources of funding within the MCSO, like the Cold Case posse has its own funds. Is that possible?
THE WITNESS: No.
THE COURT: Okay. Do you know what the possible funding sources were for the investigations that were related to the Seattle operation? When I say "operation," I mean the one involving Mr. Montgomery and the investigations with Brian Mackiewicz and Mr. Anglin.
THE WITNESS: I’m not sure if it was our RICO, which is drugs seized — I mean moneys seized from drug peddlers, or our general funds.
THE COURT: Were there other possible funds that might be involved that fund various like, for example, the Cold Case posse?
THE WITNESS: They’re independent 501(c) —
THE COURT: 501(c)(3).
THE WITNESS: — and they raise their own money.
THE COURT: All right. And you don’t have any control over those funds?
THE WITNESS: No.
OK, you got that?
In court Friday, an attorney for the county said he would consult with the board as to whether they would join in the sheriff’s motion to recuse Judge G. Murray Snow because of questions he asked regarding investigations of Snow and Snow’s wife by the Sheriff’s Office.
Under Arizona law, the Sheriff’s Office is not a legal entity that can be sued—it’s the County that’s the legal entity (Arpaio individually is also a defendant). A closed-door executive session of the Maricopa County Board of Supervisors today was followed by a public vote to adopt whatever it was they talked about in secret—not disclosing what that was.
The Arizona Republic questioned the legality of the vote, citing the Arizona Open Records Law, that says:
…notices and agendas be provided which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided.
The County responded “… the judge has to know about it before it shows up in a blog.”
Hey what’s wrong with blogs? Judges can read blogs too. In any case the news cycle of this blog is shorter than that of the Arizona Republic and I have the story. The answer is tied up in what I said earlier about the County being on the hook in Melendres, rather than the Sheriff’s office.
The County was a party to the lawsuit, but then in 2009 Judge Snow dismissed them from it (ECF 194, 10/13/2009); however, the 9th Circuit Court of Appeals ordered that they be added back, in substitution for the Sheriff’s Office and remanded the case back to Judge Snow on April 15 of this year. The County is asking for reconsideration of that decision, so their non-response to the disqualification motion is explained in a brief filed today:
As the Court is aware, the County has advanced arguments to the United States Court of Appeals for the Ninth Circuit to the effect that that court’s decision issued April 15, 2015, ordering that the County be made a party litigant in this action was, in that respect, erroneous and should be reversed. See Doc. 1116. In light of those arguments, the Board has determined that it would not be appropriate for the County to take a position on the pending Motion for Recusal or Disqualification.
I was listening to “All Things Considered” (27 May 2015) on public radio this afternoon and they had a feature on the problem of terrorism, and specifically ISIS. Apart from the usual intelligent conversation, I noticed the reporter’s frequent use of the phrase, “the next president” in the context of what has to be done to combat terrorism. You can listen to that piece at NPR. Another piece was on Rick Santorum’s candidacy for president in 2016.
I guess Barack Obama is now yesterday’s news for everybody except the birthers and those who watch them.
All of that wouldn’t be connected with the purposes of this blog, except for a third story about an effort to enlist a broad coalition to come up with ideas to combat the recruitment of Islamic militants, particularly through the Internet, and countering terrorist propaganda. I was surprised that ISIS marketing was described as very professional—they even have their own video game where players can kill government troops in Iraq.
My point here is that if President Obama is scared silly about birthers, then why is it that his entire strategy for combatting birthers is releasing a couple of birth certificates, and making an occasional joke? Why aren’t academicians being enrolled to develop counter-birther strategies, professional marketing organizations being employed to build web sites and to deploy advertising campaigns, birther deprogramming projects created, and focus groups brainstorming the best way to derail the birther movement? Why aren’t slick anti-birther arguments being leaked to the media? Why is the only ongoing anti-birther activity a handful of nobody volunteers with no funding? It must not be a priority.
As you have read in these pages, Joe Arpaio through his attorney, has filed a motion to disqualify federal district judge G. Murray Snow, in the racial profiling case of Melendres v. Arpaio. The motion, “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow,” invokes two federal statutes: 28 USC § 455 and 28 USC § 144. You can read about those in my article, Sheriff Joe cries “uncle”!
Invoking § 144 is a problem. Here is the statute:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Note the highlighted portion: “A party may file only one such affidavit in any case.” The problem is that this not the first § 144 motion filed by Arpaio in this case. Let’s set the Wayback machine a thousand documents or so back in the Melendres docket to February 23, 2009, when the Melendres case was under a different judge, U.S. District Judge Mary Murguia. Arpaio filed a motion for recusal then:
Defendants Joseph M. Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455, and also pursuant to Rule 83.5, Local Rules for the United States District Court for the District of Arizona, respectfully submit this Motion for Recusal.
That’s why the current judge is someone without a Latino surname, G. Murray Snow. Filing TWICE under 28 USC § 144 appears to this writer to be a huge legal blunder.
It appears that this issue was not lost on Judge Snow, as we now learn, according to the Phoenix New Times reporting on the status conference:
However, he [Judge Snow] noted that the defendants in Melendres already had an earlier judge in the case, Mary Murguia, recuse herself for cause, and that the defendants may only be allowed to have one judge so removed per case.
At this point, the Judge hadn’t read the motion for recusal.
Arpaio is correct in an email solicitation as he writes:
Unlike a political campaign, THERE ARE NO LIMITS to how much you can give. Further, the contribution can come from any entity: business, trust, corporation, etc.
The solicitation was spammed1 to a broad mailing list of people who, I guess, have ever been associated with Republicans or conservatives—not just prior Arpaio contributors. Just in the past 2 years, Arpaio has spend around $3 million dollars in fundraising for his political campaign, so I guess he has access to some serious mailing lists.
Arpaio would make it seem like he has tremendous legal bills from just doing his job as sheriff. In fact, most of these tens of millions of dollars in legal defense costs are borne by Maricopa County. It is this recent contempt of court flap that the County isn’t paying for.
There’s a sucker born every minute.
- Controversy over Sheriff Arpaio’s fundraising letter (Fox 10 Phoenix)
1The emails came through Bluehornet, which is considered to be a spammer.