While I was busy in the morning bending fascia metal, and this evening feeding BBQ to Special Olympians, Mike Zullo was having his ass caught in a crack in the Melendres lawsuit.
Judge Snow denied Zullo’s motion for a protective order and instead ordered that Defense attorneys turn over all the remaining Zullo documents to Plaintiffs. Zullo himself is scheduled to be deposed on Monday, reports Arizona Public Radio Station KJZZ, and to testify later in the week, perhaps as early as Tuesday afternoon.
Read more:
- Joe Arpaio’s Cold Case Posse Investigator Mike Zullo Shot Down by Federal Judge – Phoenix New Times
- Posse member to testify in Arpaio contempt hearing – Arizona Republic
After the documents are given to the plaintiffs would the documents be available as part of the record or would they have to introduced as evidence before they could be viewed as part of the court record?
Mikey,
It’s all coming your way. All the attention that you’ve ever wanted will be yours to savor. But, have you considered that this next week may have an impact on the rest of your life? Will the judge ask you about your career as a police officer in Demarest? Will the judge ask about the CCP finances? Will he ask how long you knew Tim Blixseth before he set up the October 2013 meeting? Will the judge ask you how you support yourself working as an unpaid volunteer working 24/7/365? And what will the judge be asking about the 80 or so documents that will now be released to the plaintiffs by Arpaio’s attorneys? Will you claim the 5th on the witness stand? Will the judge order you to testify? Will you tell the truth? Mikey, you’ve got lots to think about this weekend.
Materials won’t be part of the record until/unless they are attached as exhibits to some pleading and/or are admitted into evidence.
What is the mechanism for public access to an “exhibit admitted into evidence”?
What I would dearly like to see is the index of all the documents Zullo turned over.
Zullo has been AARPaio’s special projects investigator. Being outside the MCSO, he is used to insulate the old man from legal processes. Now that he is caught, the boss has abandoned him just the way he jettisoned Andrew Thomas. AARPaio survives is the rule. Everybody else is just collateral damage. As I see it, every known case that Zullo has worked on for MCSO has been about fabricating evidence to aid some objective the boss has. Now, not a dime of support from Joe’s legal defense fund. Mike is a hot rock.
Snow’s ruling makes it seem that if a CCP contributor filed a suit against Zullo for damages, lots of records could be obtained. Including the Reed Hayes report, purportedly copyrighted by either Zullo or the CCP.
Assume that, for example, the Cantwell PDF is not attached as an exhibit or admitted into evidence. What happens to the plaintiff’s copy? Does it just stay with the case file in a box in their office? Can it be released to a reporter/journalist after the case is concluded?
Posted at Fogbow:
“I’m not a naive guy,” he [Zullo] said at one point…”
Shall we count the ways in which he is naive?
1. Believing Birthers as a source for truth…
2. Believing that he is a real cop…
3. Believing that he won’t be hung out to dry by Arpaio…
4. Believing in MI-6 protection for the CCP…
5. Believing Jerome Corsi…
6. Believing that he will come out of this mess unscathed…
7. Believing GIL and his advice…
8. Believing that his affidavit to the Alabama SC was read…
9. Believing in the Reverend Carl Gallups…
10. Believing that people believe him…
I am still not a lawyer — but I believe exhibits like all court filings appear on the docket. I don’t think they get a separate docket entry, but are part of whatever filing they support. Thus they can be gotten at in the same way as any other court filing — e.g. through PACER. And, like any other filing, the copy the public can see might be redacted or sealed.
I don’t recall if the index of items handed over in discovery is normally filed with the court.
Excuse me if I’m not up to par on this as I haven’t followed it in detail like many here may have .. But there are some questions I have perhaps answered easily here by someone:
1- If what Judge Snow said was true in the questioning line that Zullo ie. Was not compelled to produce documents to Sheriff’s attorneys the Court wanted and asked for;.. Was not compelled to testify;.. Thought he was under protection of Arpaios Attorneys;.. and was denied 5th Amendment Rights based on being an employee of MCSO; as well denied Representation by MCSO because he hasn’t been charged; – yet noticing Judge Snow’s line item statement the Justice Department could procure criminal charges..
Does [Montgomery’s Actions] add up to being the ‘Universe Shattering Evidence’ Zullo thought he was on to?
Do you suppose Zullo was mix-bagging Cases? In other words, was he feeding the Birthers through Gallup what was Montgomery’s Promises in a different Case? And in his own mind somehow connecting the dots of the LFBCertificate and Montgomery’s Promises of a list of worthless shit that was believed to be about Judge Snows grudge against Sheriff Joe?
Zullo noticed a list of charges in his testimony the Justice Department has that might be applied which was why he wanted his 5th Amendmnt.. Anyone seen that or know what it includes?
Has anyone got a clue to how much Sheriff Joe raised on the CCP BIRTHER ISSUE, and perhaps was funding these other mix bagged trick investigations with?
The Funding all go in one pot? Is that Judge Snows aim -giving way to Mail Fraud?
They have got to have all that info by now.. Yet.. No charges yet?
Zullo is the last witness being deposed and Judge Snow seemed to indicate its going to go one way or another. That would indicate Zullo’s testimony was pretty dog gone important to a Decision of attributions.
Exhibits (those just marked or those received into evidence) stay with the court. It is doubtful they will be scanned and available via PACER. They best method to view them (and have them copied) would be to visit the courthouse (or hire someone to do it).
As for the plaintiffs’ copies, they remain with plaintiffs’ counsel. Unless they are under seal or otherwise confidential, the plaintiffs could release them to the media, a private party, etc. So a polite inquiry to plaintiffs’ counsel may be fruitful.
Fifth Amendment protection related to the production of documents is limited. There does not seem to be anything in the Zullo documents that could be covered by that protection. (This is a complex topic.)
CRJ: “Does [Montgomery’s Actions] add up to being the ‘Universe Shattering Evidence’ Zullo thought he was on to?”
It looks that way. There may be something else, yet undisclosed. What has been disclosed is what Zullo describes as the “criminal investigation” apart from the birth certificate investigation. We really don’t know what, of anything Montgomery had to say about the birth certificate. So I will reiterate that we do not know what if any birth certificate material Montgomery was feeding Zullo.
The list of charges appeared in a footnote to one of the Plaintiff’s pleadings. It is the yellow highlighted portion of this document:
http://www.obamaconspiracy.org/wp-content/uploads/2015/10/excerpt.jpg
Various estimates exist on how much Sheriff Joe raised on the birther issue. His campaign manager said “millions of dollars.” The funding went into Sheriff Joe’s re-election campaign. We know nothing about fundraising by the Cold Case Posse.
I agree that Zullo’s testimony is important; however, Zullo said in court last week that his testimony will not be what plaintiffs want; he’s not the “smoking zullo.”
Thanks Bob & Doc
@Doc – Nice job on the BBQ for the special Olympians – That’s pretty cool.
How the mighty have fallen in battle!
Wonder if anything Zullo turns over to the court will be ‘universe-shattering”?
[Note: this is not the regular commenter named John at this blog. Doc]
Thanks, that answered my question.
Here’s a link to the ECF policy manual for the District of Arizona:
http://www.azd.uscourts.gov/sites/default/files/documents/adm%20manual.pdf
My reading of it is that electronic filing of exhibits is generally required. You can request permission to file exhibits on paper, but only when scanning is for some reason impossible or infeasible.
CRJ:
“Has anyone got a clue to how much Sheriff Joe raised on the CCP BIRTHER ISSUE, and perhaps was funding these other mix bagged trick investigations with? ”
That is a tough call, simply because Arpaio was pushing illegal immigration in his campaign mailings and Arpaio and Zullo were promoting the birth certificate investigation in the media. In 2012, according to information filed in the state of Arizona, Arpaio raised almost $8.5 million in campaign donations. It would be difficult to determine which issue caused supporters to donate to Arpaio.The Cold Case Posse has never publicized or reported to the IRS or the county what their take was in financial donations.
Given his efforts to keep the material under wraps I suspect the only shattered universe will be Mr. Zullo’s. Maybe Arpaio’s….but it’s already pretty beaten up.
Damn it! I actually fantasized that scenario a year or so ago and considered sending a few dollars, but then thought that my money was better spent on my own needs. I wish I had now. ARGH!
Employees get paid. Posse member is a volunteer position.
I wonder how many of those he believes in now.
Whether posse members are volunteer “employees” of the MCSO has been the subject of a good deal of discussion at the Fogbow. An MCSO 2012 training manual contains this statement:
I believe Brian Reilly indicated that when he was a Cold Case Posse member they were told in training they were considered as an employee.
I would have to go back and read Judge Snow’s order again but I don’t think that Zullo’s status as an employee or not would matter. He was a member of a group that produced the work product of the investigation for the MCSO. That’s why Zullo could not claim personal ownership and assert Fifth Amendment protection for the documents.
I would say that when posse members are engaged in MSCO-sanctioned/supervised activities that there is an agency relationship, but not an employer-employee relationship.
I agree. However, Zullo still has the right to take the Fifth at his deposition. It will be fascinating to see what he does.
True, Just because the MCSO says it is so doesn’t make it so. There is probably some advantage to the MCSO to have posse members think of themselves as MCSO employees whether they are or not by the strict letter of the law.
Yes, I agree on Zullo’s right to invoke the Fifth in his deposition.
bgansel9,
“Damn it! I actually fantasized that scenario a year or so ago and considered sending a few dollars, but then thought that my money was better spent on my own needs. I wish I had now. ARGH!”
I’ll bet many could be found who donated funds over at Orly Taitz’ site.
It looks like Mikey’s work product doesn’t belong to his posse after all.
I agree with RC here. just because MCSO say it is so doesn’t necessarily make it so, and I would suspect that the state risk management office would have issues with that claim since it would open them up to a huge range of liability issues. That being said, it doesn’t or shouldn’t deprive the Kommandant of his legal rights, but he’s going to have to be smart enough to know what they are, and I don’t see that happening. The county ISN’T paying for the Shurf’s lawyers so there is no reason to expect them to pay for Zullo’s one way or another. Basically I think he’s screwed, but how screwed may well depend on him.
Lemons got the money quote from Richard Walker, the county’s outside counsel:
Jones, Skelton provides representation to employees and agents of the MCSO “for purposes of institutional interest, but not as individuals.”
In other words, when an employee or agent of the county is sued while in the course of employment or while acting as an agent of the county, the county defends that person in a civil suit when it is in the interest of the county, not because the country is obligated to do so. In most cases it is in the interest of the county to defend an employee or agent because the liability of a county employee or agent usually is imputed to the county.
This suggests that the county has concluded that whatever bad things Zullo has done will not be imputed to the county. It will be fascinating to see how this plays out.
Maybe he has copyrighted it like the Reed Hayes report? 😉
Hey, we’re talking about Maricopa County…when Joe says it’s so, it’s so!
Except where it involves Joe’s $$$, then it’s every man for Joe!!!
I respectfully disagree. I believe the county is not paying for Zullo’s requested independent counsel because he has requested counsel to protect his 5th Amendment rights. The county is not paying for ANY witnesses’ independent criminal defense. They are not paying for Mackiewicz’s “criminal defense” attorney. They are not paying for Bailey’s “criminal defense” attorney. And they are not paying for Zullo’s “criminal defense” attorney. And I’m unaware of ANY kind of employer/company insurance coverage program that ever WOULD pay for such an attorney. Zullo is in fact being treated the same as other employees on this matter. (The reason that Seagraves, Tennyson, Olson, Palmer, and Trombi “only” needed the MCSO’s counsel is because they have not sought independent counsel (or sought criminal defense counsel.)
As for …
Again, I respectfully disagree. Zullo was NOT denied ANY 5th Amendment rights. And I’m not just splitting hairs. Zullo’s attempt to invoke the 5th as to documents was unsuccessful because the subpoena that compelled production wasn’t issued to him: It was issued to Jones Skelton. Therefore, under well-settled law (US v Fisher), Zullo was not being compelled to do anything. THAT is the court’s holding.
Alternatively, the Court held, essentially, that even if US v. Fisher wasn’t applicable, Zullo had no 5th A rights as to the documents because they were created under MCSO direction and for MSCO purposes and, as such, were entity docs rather than personal docs. And, again: under well-settled law, an individual cannot invoke 5th Amendment to avoid production of “entity” documents.
A person cannot be denied something that doesn’t exist to start with. Zullo was denied nothing. And the fact is that Zullo’s status as employee (or volunteer) had nothing to do with the Court’s primary holding – i.e., that the subpoena to compel the docs was issued to Jones Skelton so Zullo was not being compelled to do anything.
I don’t disagree with what you say, but I was referring to the county providing Zullo (or any other employee or agent of the county) with civil representation, not criminal representation.
For example, let’s say that there is a construction site accident and the general contractor is sued. The site foreman, an employee of the general contractor, is not a named party to the lawsuit but is subpoenaed to testify at a non-party deposition. The general contractor (or its insurance carrier) is under no obligation to provide legal counsel for the foreman at the deposition, but will do so because it is in the general contractor’s interests to do so. Counsel for the general contractor will prep the witness and advise him during the deposition, which is at least part of what Zullo has been asking for.
Of course, the situations are not entirely analogous because the foreman probably is not worried about criminal charges. But Maricopa County seems to be unconcerned about Zullo’s testimony or that his taking the Fifth will allow for negative inferences.
Oh, I suspect all the defendants in the case are concerned about what Zullo will eventually have to say but that still doesn’t mean the county is, or should be, obligated to provide him counsel to advise him on how to protect himself against the possibility of personal criminal charges.
Ricky – I agree w/ what you just said. But I don’t see the connection between that and the current situation. The county apparently WAS (through Jones Skelton) providing Zullo that same kind of civil “representation” on behalf of MCSO. Zullo – just like Mackiewicz, Bailey, Anglin, etc – gave Jones Skelton the Seattle Op docs contained in his personal files/email accounts. Jones Skelton was giving him “identical” representation (i.e., on behalf of MCSO)… right up until HE invoked potential criminal liability (by withholding docs) and (apparently, per later statements) made clear he wanted counsel to protect his 5th Amendment rights. IOW, Zullo was being treated exactly the same as the other MCSO witnesses – right up until **HE** lost it by asserting the need for criminal defense counsel.
Zullo has not been treated any differently than any of the other MCSO witnesses. When Bailey decided he needed criminal defense counsel, he got it. (at his own expense). When Mackiewicz decided he needed criminal defense counsel, he got it. (at his own expense) And – when Zullo decided he needed criminal defense counsel, it was up to him to get it. (at his own expense)
This situation has nothing to do with whether Maricopa County (or MSCO) think Zullo’s testimony (or lack thereof) will help or hurt the county/MCSO. This situation has to do with their general policies applied to Zullo in the same way they’re applied to everyone else. … and Zullo’s refusal to accept responsibility for his own actions.
imho, of course. 🙂
(Edited for clarity)
As a resident of Maricopa County, I’ve looked at the MCSO posse website and I find the word Volunteer written all over it:
“The Maricopa County Sheriff’s Office holds recruiting meetings for the volunteer Posse program once a month. These volunteer, non-compensated positions are made up of people from all walks of who that want to do law enforcement work as a way to give back to their community.” – http://www.mcsoposse.org/join-us.html
Also: both Phoenix New Times and KJZZ report that Zullo is a volunteer.
Do we know if Mackiewicz, Bailey, Sheridan, and Anglin had personal attorneys with them when they were deposed? Or were the attorneys from Jones Skelton advising them? From the excepts I have seen, it is clear that both Masterson and Walker were making objections to questions asked of Anglin. Masterson also was making objections during Sheridan’s testimony and during Bailey’s testimony.
That is what I mean when I speak of civil representation. Masterson was not technically representing Anglin, Sheridan, or Bailey, but he certainly was advocating on their behalf. Would he have done the same for Zullo, if Zullo had not taken the Fifth?
Without seeing the full transcripts (or at least the appearance pages, we cannot know that for sure, but I’m fairly certain that they were — except for Anglin – Anglin does not have independent/criminal defense counsel. .
Yes. Because the evidence being presented relates to claims against THEIR CLIENT(s) – MCSO and Arpaio (and, for Walker, Maricopa County). They have every right (and professional obligation) to make objections in order to protect their client’s interest. They weren’t objecting on behalf of the witnesses per se – they were objecting on behalf of their clients. So – Jones Skelton consistently objects on behalf of their clients (MCSO, Arpaio) and Walker consistently objects on behalf of HIS client (Maricopa County).
And, when a witness has independent counsel who needs to object in order to protect his interest, this happens too. See, e.g., Casey testimony. Casey testimony is a good one to look at actually, because you can see Casey’s attorney objecting to protect HER client; while Jones Skelton and Walker also object to protect their clients.
Can’t know until we see the transcript, but I’d be willing to bet YES: I’m fairly confident that the Jones Skelton attorney who appeared at the depo on MCSO/Arpaio’s behalf raised any and all objections necessary to protect his clients. I suspect Walker did so on behalf of the County … and Sheridan’s counsel may well have done so on behalf of Sheridan.
And, now we’ve seen the transcript and my prediction was accurate – at least with respect to Zullo’s deposition yesterday. ..
In the “Whistlerblower Chronicles” there is this,
9/06/2013 Dennis Montgomery gives interview to MCSO at home in Yarrow Point home
That is the same date as the Cantwell PDF and is before the date that Zullo said the MCSO first met Montgomery.
There is also this:
10/06/2014 Dennis Montgomery delivers Birth Certificate with jpeg, watermark, and patter matching output.
http://www.phoenixnewtimes.com/news/joe-arpaios-cloak-and-dagger-seattle-operation-files-released-7804727
great catch gorefan – thank you!!
I think you are right and this might be a typo – there was a meeting on 11/06/2013 in Seattle. And there doesn’t appear to be any other evidence (travel records, testimony, etc.) supporting a September 6th date.
So I see. I was under the impression that Zullo was asking for Maricopa County to provide him with a civil attorney to prep him and guide him through the deposition. Masterson was making objections yesterday.
Obviously the county was never going to provide Zullo with a criminal attorney. I wonder what Zullo has in the way of assets.
What I wonder is whether someone in the MCSO has suggested to Zullo that his taking the fifth on all questions is a much healthier option than not taking the fifth.
I wonder if Arpaio’s lawyers realize what all this 5th taking is doing their client’s case? Will Arpaio step in and ask his lapdog to speak?
This could be the lapdog executing a threatening, very public tantrum. If this was a cheap movie, the audience would think that a lot of criminal activity was engaged in by the police investigators AND Zoo Low, and his way of ANNOUNCING that he won’t go down alone while denied the official legal defense safety net, is to create this terrible publicity by being Our Pie Hole’s Fifth Wheel coming off.
It seems to me that Zullo’s refusal to speak may be far better for Arpaio than his singing like a canary.
Ah, but he’s not “refus[ing] to speak”: he’s repeatedly saying “I think we may have done something criminal, so I’m not gonna talk about it”. While there may be limits on what the judge can draw in the way of adverse inferences, there aren’t any for the public. And Zullo is making it look more and more like this was another vendetta, not “a real criminal investigation that didn’t pan out”.