Such is the warning that should accompany the following documents, made public by the ACLU Friday, regarding Cold Case Posse Commander Mike Zullo and his involvement in the MCSO’s so-called Seattle operation.
The exhibits are attached to the plaintiffs’ latest filing in Arpaio’s contempt trial: a response to Zullo’s recent motion seeking a 30-day extension so he can locate counsel, supposedly at the expense of Maricopa County.
Though the county has indicated that it is unwilling to pay.
Judge G. Murray Snow denied Zullo’s request for an extension on Friday, after inviting the parties to submit responses. But Snow also wrote that he will consider Zullo’s initial filing as a motion for a protective order. (This anticipated Zullo’s follow-up pro se motion, posted to a previous blog item.)
Zullo claims that he believed he was being represented by Arpaio’s civil attorneys, Joe Popolizio and John Masterson of Jones, Skelton, Hochuli, but two days before he was to be deposed by the plaintiffs, he learned that the firm was not representing him.
The issue of whether Jones, Skelton was representing Zullo has been muddy. In late September, Jones, Skelton attorneys moved to partially quash a subpoena issued by the plaintiffs, seeking documents in Zullo’s possession.
Zullo turned over many of the requested documents to Jones, Skelton, but Popolizio withheld 87 items, supposedly at Zullo’s request.
Based on an October 6 hearing, even Snow thought at that time that Popolizio represented Zullo. Similarly, Masterson had indicated to New Times that Jones, Skelton represented Zullo because Zullo was doing Arpaio’s bidding in the Seattle probe, operating on the sheriff’s commands.
As one of the three men Arpaio dispatched to Seattle to work with the MCAO’s paid confidential informant Dennis Montgomery, Zullo has intimate knowledge of what went on in Seattle. The transcript of Zullo’s truncated deposition is both fascinating and unsatisfying.
In it, plaintiffs’ attorney Stanley Young tries asking Zullo the following:
“I’ll tell you that there was a status conference on October 6 where Joe Popolizio told the Court and the rest of us that he was representing you, at least in some capacity.Is — was that correct? Has he ever — has the Jones, Skelton firm ever represented you?”
But Zullo would not answer any questions, save to indicate that he is concerned about the possible threat of criminal prosecution, as mentioned in a court filing by the plaintiffs.
Of this passage, Zullo told Young,
“I’m sympathetic to the Court’s calendar, but quite frankly, the Court’s calendar doesn’t trump my constitutional rights. That document is bothering me since the day I saw it.”
Zullo went on to invoke his right against self-incrimination as enshrined in the Fifth Amendment to the U.S. Constitution.
“I can’t cooperate under this, so I guess for all intents and purposes, I’m invoking the Fifth because I’m not going to subject myself to questioning with this kind of intention, already in the mind-set of a judge.”
Neither Jones, Skelton, nor the county, nor the plaintiffs are sympathetic to Zullo’s plight. The ACLU’s response, which appeared on the court docket after Snow’s order had been filed, practically drips with derision.
ACLU attorney Cecillia Wang writes:
Mr. Zullo had ample time to obtain independent counsel, regardless of financing. He states that he has been thinking about potential criminal charges since June of this year. See Ex. A, Zullo 10/23/15 Deposition Tr.1 at 19:3-12 (discussing Ex. C, Dep. Ex. 2934). He has known since at least September 25, 2015 of the need for his deposition and documents in his possession. See Dkt. 1415 (attaching document subpoena). He has known since at least October 21, 2015 that, if he desired representation for purposes of his testimony as a third party witness, he would need to seek it independently of Sheriff Arpaio and MCSO.
Wang also scoffs at Zullo’s attempt to withhold documents based on a Fifth Amendment privilege. Zullo was operating under the MCSO’s authority while he was part of the Seattle investigation, she observes, and the MCSO “paid Mr. Zullo’s expenses for travel for the Seattle investigation,” in addition to paying Montgomery more than $120,000.
“Therefore,” writes Wang., “any correspondence or documents Mr. Zullo has relating to the Seattle investigation, including emails and documents provided by the confidential informant Mr.Montgomery, are in his possession only in his capacity as a representative and agent of MCSO.”
Wang offers several exhibits to back up various parts of her filing.
These include: a list of some of the cash payments to Montgomery, as well as Popolizio’s log of records withheld from the ACLU, and an e-mail string between Zullo and Montgomery from May 2015, with Montgomery, alias “David Webb,” kvetching about how the sheriff and Sheridan knifed him in the back during their April testimony in the contempt trial.
“Arpaio and Sheridan said the data was bogus,” complained the alleged computer guru. “That hurt me, they then implied I was slow playing [sic] the work. They never even mentioned the fact I had a stroke.”
Interestingly, Zullo doesn’t seem to buy Montgomery’s stroke line.
“Stroke yes,” replies Zullo. “You got within a week of completion and stopped. You explain having a stroke getting within a week and then all of a sudden what it’s the stroke again. Come on Dennis just got to get real with this when you don’t finish things that hurt your credibility.”
Another document of note is Zullo’s response to a records request, a memo from Zullo to MCSO Captain Russ Skinner. Zullo states that he was involved in the Seattle operation, not as the head of the Cold Case Posse, but as an individual posse guy.
Zullo tells Skinner that,
The Cold Case Posse had NO involvement with the MCSO “Seattle Operation” nor did it provide any support on any level. My participation was that of an “individual activation” separate from the branch known as The Cold Case Posse, as prescribed under the general MCSO Posse Program guidelines GJ-27. This activations was not a posse branch activation, therefor no member of the Cold Case Posse or the Cold Case Posse organization was authorized to assist in this matter on any level. No Cold Case Posse activities were conducted in this matter to date. I have no such records.
However Zullo was “activated,” there is no doubt that the record shows he was working on behalf of the sheriff, and performing functions for the MCSO during a secret operation directed by Arpaio and his top brass.
More recently, Jones, Skelton was doing legal work on Zullo’s behalf. So who made the decision to cast Zullo into the outer darkness, letting him fend for himself?
Was it Arpaio, County Attorney Bill Montgomery, or Masterson and Popolizio?
And why? Could it be that the defense does not want Zullo to testify?
Sure seems that way.
Note: Arpaio’s contempt trial is recessed at least till Tuesday of next week, though the recess may go longer depending on when Zullo’s deposition is taken and other factors.
Posted with Permission. Phoenix New Times.