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Stay in Melendres

Here’s the telegraphic version of today’s status conference in Melendres v. Arpaio:

Motion to disqualify judge Snow by criminal attorney for Arpaio. Judge issues stay of proceedings until motion has been reviewed by parties and judge.  Snow reserves right for clarification from defense. Snow may add oral argument. Hearing dates in June to be maintained. Arpaio criminal defense attorney objects to entire inquiry by Judge Snow and the unbridled authority of the court appointed monitors.

 
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Arpaio cries “uncle”!

imageDefendants Joe Arpaio and Jerry Sheridan (not pictured right) have taken the extreme step of filing a “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow.”

Under statute, case law, and judicial canons, the perception of judicial bias  and the appearance of impropriety, punctuated by the material witness status of the presiding judge’s spouse, mandate the recusal and disqualification of the Honorable G. Murray Snow.

Do tell.

I suppose that I have some sympathy for the recusal argument, given that Arpaio’s investigation of the judge and his family has entered the case record. I don’t buy some of the arguments for actual bias—when they follow the Orly Taitz model for proving judicial bias: the judge ruled against me. Federal law requires disqualification when a judge’s impartiality “might reasonably be questioned.” It does not require proof of actual bias. Here are some things to consider:

  1. Significant judicial resources have already been invested in the Melendres case.
  2. The 9th Circuit Court of Appeals has already rejected a motion for the recusal of Judge Snow on similar allegations.
  3. It is unlikely that Judge Snow’s wife will be a material witness in the case.

The Supreme Court said in Liteky v. United States:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.

Further, actions by a party that might create animus on the part of a judge (like investigating their wife) do not created grounds for disqualification. The Third Circuit said that the courts should not “encourage tactics designed to force recusal.”1

One matter that is raised late in the motion regarding what the judge’s wife said:

Moreover, regardless of the irrelevance of the Grissom and Montgomery investigations to the issue of whether the admitted contempt of the Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his wife as a witness and her uncontradicted statement into the contempt proceeding. Whether a sitting judge is admittedly biased toward a defendant in his Court and will do anything to ensure he is not re-elected is – without question – a conflict that creates grounds for recusal.

It might have constituted grounds for recusal when Defendants became aware of it in August of 2013, but all of the circuit courts agree that such motions for recusal must be made “at the earliest moment after knowledge of the facts demonstrated the bias for such disqualification.”2 In particular the 9th Circuit requires “reasonable promptness after the ground for such a motion is ascertained.”3 Evidence of bias is not something that a party can keep in reserve until he feels he needs it.

My preceding comments refer to disqualification under 28 U.S. Code § 455, which requires recusal based on the appearance of bias. Arpaio’s attorneys have filed both under § 455 and § 144, the latter dealing with actual bias. A challenge under § 144 is rather a nuclear option. It can be done only once in a case, and it requires an affidavit by the party and a certificate of good faith from counsel that the judge is biased, and results in automatic transfer of the case to another judge. However, filings under § 144 must be timely:

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.

I am not seeing how this motion is timely. Further, the affidavit, must allege facts sufficient to lead a reasonable person to believe that the judge is biased, and the discussion of § 455 applies and the deficiencies of the Arpaio motion already discussed are relevant.

In any case, I’m not qualified to judge the merits of the Arpaio filing, so I’ll wait and see what happens.

Legal citations in this article found in the Federal Judicial Center paper listed below.

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1United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994)

2Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)

3Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)

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Carl Gallups makes clear association between “earth shattering information” and confidential informant Montgomery

imageAn extremely interesting and revealing audio clip from the Freedom Friday with Carl Gallups show today has been posted on YouTube. In the clip, Gallups talks specifically about an ABC 15 news story, titled “Sheriff Joe Arpaio’s investigation was intended to discredit, judge says.”

Gallups says in no uncertain terms that the “earth shattering” information that he and Zullo were talking about is specifically the information provided Arpaio by the confidential informant, Dennis Montgomery, information that Sheriff Arpaio agreed in testimony last month was “junk.”

Here’s the transcript of what Gallups said:

Carl Gallups Freedom Friday May 15, 2015

I’m gonna keep my promise. Listen folks: Write some of this stuff down, listen to this, go back and get the podcast if you can’t write it if you’re driving. I told you I’d give you a quick Sheriff Arpaio/Zullo investigation update, and here’s the deal—here you’re gonna have to listen.

If you’re intelligent, and 99.8% of our folks that listen to this show are very intelligent. The ones that don’t fit that category are usually the Obamabots who are listening to every little word that drops off my mouth so that can twist it, pervert it, and jack it around all over the Internet. They are not so intelligent. … They help to keep me honest as well. But the rest of you are gonna have to kind of listen carefully, kind of read in between the lines [1:00]. But here’s the deal: I haven’t had time to post this yet because all this kind of came to me before we went on the air, but just go to Google and you can put in these words, “sheriff joe arpaio investigation was intended to discredit judge says.” That’s the headline with an article right out ABC 15 Arizona. “Sheriff Arpaio’s investigation was intended to discredit, a judge says.” Continue Reading →

107

Arpaio contempt case: evidence turning bad for him

imageThe exposure of the Cold Case Posse’s so-called deep, dark turn, provides some sense of Sheriff Joe’s misdeeds coming around to bite him. For me, the Dennis Montgomery sideshow was nothing more than one con man conning another; however, media reports coming out of Thursday’s status conference in Melendres v. Arpaio put it in a more troubling light for Sheriff Joe.

The Houston Chronicle has one of those reports, titled “Judge: Sheriff’s investigation was intended to discredit him.” This report is based on comments from Judge G. Murray Snow in court last Thursday, and those comments came after reading seized MSCO documents passed on to him by the court-appointed monitor who is pouring over the material. Judge Snow called the investigations focus, that he was in collusion with the Department of Justice against Arpaio, a “bogus conspiracy theory.”

In testimony last April, Arpaio put a very different spin on things, saying that the Montgomery investigation was triggered by reports of the CIA hacking bank accounts and tapping phones; any involvement the investigation had with Judge G. Murray Snow was incidental—just part of emails involving several judges. The Chronicle writes:

The judge said the documents show that Dennis Montgomery, a computer consultant who has done work for the U.S. military and worked as a confidential informant in Arpaio’s secret investigation, told the sheriff’s office he could help them figure out what Snow and the Justice Department had been talking about.

Public radio station KJZZ said:

U.S. District Judge Murray Snow said documents he reviewed suggest the sheriff’s office hired a paid confidential informant to expose an alleged conspiracy between the judge and the U.S. Department of Justice to collude against Arpaio.

This is more in the steady drip of articles that spell bad news for the embattled Arizona Sheriff and indicates a very negative turn for Sheriff Joe.

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Melendres status conference today: Judge could rule on Montgomery intervention

Update: Motion to Intervene denied. See notes at end.

According to Obama Conspiracy Theories sources, confirmed by an article at KJZZ, there is a status conference in the Arpaio lawsuit this morning in Phoenix before judge G. Murray Snow at 9:30 AM PDT. (Read that article for the full story, including comments to KJZZ by attorney Larry Klayman.)

The topic of confidential informant Dennis Montgomery has come front and center in the contempt proceedings against Sheriff Arpaio and other top MCSO officials. Montgomery filed an emergency petition with the 9th Circuit Court of Appeals to stop Judge Snow’s probe into information provided by Montgomery to the Sheriff’s Office—a petition summarily dismissed on May 12. Pending is a motion for intervention before Judge Snow in Phoenix, demanding the return of materials that the court received from the MCSO originally from Montgomery. Again Montgomery, through his attorney Larry Klayman, is also demanding that parts of the testimony of Sheriff Arpaio and Chief Deputy Sheridan gave at a contempt hearing list April be stricken (as untrue) and that Judge Snow remove himself from the case. A ruling on the motion from Montgomery to intervene may come today.

This writer sees no likelihood that the motion to intervene will be granted or if granted that any of the things requested by Montgomery will be ordered.

Why is this important?

  • The Dennis Montgomery debacle is evidence that Joe Arpaio is gullible, and calls into question his judgment when evaluating evidence and sources, the same judgment skills he applied to Obama birth certificate claims and that ultimately led Arpaio to believe there was probable cause that Obama’s birth certificate was forged.
  • It could lead to more questioning relating to the Cold Case Posse, and possible revelations about money paid to Mike Zullo by the Department
  • Information detailing the Montgomery investigation could come to light that defines what the Cold Case Posse was actually doing, while allowing birthers to assume that they were pursuing Obama.

Kudos to Jude Joffe-Block, reporter with KJZZ, who has written several excellent stories on this latest turn in the Melendres case. Her article digs deeper into a concern that I expressed, that of the legality of Montgomery having and disclosing classified material. This from the article:

“Unless the Sheriff’s Office was engaged in a law enforcement operation for which that information was part or relevant, it is unlawful for a public official to receive or possess classified information,” [William Banks, the director of the Institute for National Security and Counterterrorism at Syracuse University] said. “Just as it is unlawful for the so-called consultant, Mr Montgomery, to have in his possession classified information, much less to have taken it himself.”

Status conference notes:

Judge Snow denied Mosley /Klayman / Freedom Watch Application because of conflicts (Klayman and Mosley representing Arpaio in another matter). Montgomery may move for reconsideration through a different attorney.

All Montgomery data dump materials and Seattle materials will continue to be reviewed by Court Monitors. Mosley was invited to participate in Status Conference today telephonically but did not call into the court.

A letter was sent to the CIA by defense counsel Iafrate. She received phone and email communication from the DOJ who said they don’t represent the CIA. Judge Snow said that a review of the documents will continue and the CIA can contact him or the court if they have concerns about the Montgomery alleged CIA information.

Meanwhile, Stephen Lemons tweets:

@RealSheriffJoe believed goofy plot proffered by Seattle CI Dennis Monthomery, spent dough on that instead of complying with court

@RealSheriffJoe hearing, Snow drops bombshell, says Seattle investigation was meant to develop conspiracy theory involving Snow, DOJ, etc

55

Crazy in Arizona

Let me start off with a fully-confirmed fact: Maricopa County Sheriff’s Deputy Brian Mackiewicz was one of three people sent by Joe Arpaio to supervise confidential informant Dennis Montgomery in Seattle.

Then let us move from fully-confirmed to credibly reported. Brian Mackiewicz was called on the carpet for photographing corpse genitalia at the morgue and he took the wine country tour while on the county payroll babysitting Montgomery. You can read that in Stephen Lemon’s article at the Phoenix New Times.

Now for some unconfirmed speculation. This message appeared in comments at the Phoenix New Times web site:

Recurring rumor around the County that ex-commander Bob Rampey [sic] is working with the Feds on reopening the abuse of power case. Apparently he knows where all the ‘bodies are buried’, They attempted to silence him using their usual tactics of illegal search warrants and trumped up charges. Apparently they didn’t know that he recorded every interaction and even has shit on Montgomery. Crap is swirling in the toilet bowl around the county corridors.

Rampy was involved in an unsuccessful attempt to get access to 2 years of MCSO emails associated with the Melendres case. Maybe there’s a body there.

Rampy himself came under scrutiny from the Phoenix New Times back in 2011.

The trunk of the Maricopa County Sheriff’s clown car is now open and all sorts of crazy stuff is coming out. As for me, I’m now following @stephenlemons on Twitter.

Apparently, there is another status conference in the Melendres case tomorrow (May 14). I hope to have a report on that.

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