Published with permission from Phoenix New Times.
Ruling late Friday afternoon, federal Judge G. Murray Snow crushed Sheriff Joe Arpaio’s attempt to have the jurist recuse himself from contempt proceedings in the ACLU’s big civil rights case Melendres v. Arpaio.
In a 40-page decision, Snow declared that the defense motion, submitted on behalf of the sheriff and his Chief Deputy Jerry Sheridan, did not meet the “substantial burden of overcoming the presumption that a district court is free from bias.”
As a result, Snow lifted his stay of the contempt proceedings, issued May 22, the day the recusal motion was filed by Arpaio’s criminal attorney Mel McDonald.
Lifting the stay allows plaintiffs’ discovery to resume, and allows Snow’s court-appointed monitor Robert Warshaw to reassert his authority over the MCSO’s internal investigations and anything else that might affect the court’s dictates in Melendres.
Additionally, the judge scheduled a status conference for July 20, to discuss, among other things, “the second phase of the civil contempt hearings,” and a request by the U.S. Department of Justice to access documents provided to the MCSO by a confidential informant named Dennis Montgomery.
As I noted when the recusal motion was made, this move was little more than a delaying tactic, one that bought Arpaio and Sheridan a few weeks respite from the incessant hammering and unending revelations of possible criminal conduct on their part.
Both Arpaio and Sheridan have admitted to civil contempt of Snow’s orders in Melendres, which were meant to halt the widespread racial profiling of Latinos that Arpaio’s office was found guilty of in 2013.
However, Arpaio and his chief underling are still on the hook for possible criminal contempt charges.
Three other former and current MCSO officials are under scrutiny by Snow, but they did not join Arpaio and Sheridan’s motion for recusal and are unlikely to face criminal sanction.
The recusal motion argued that Snow’s inquiry into two MCSO investigations, each first revealed by this reporter, demonstrated the judge’s bias.
One involved Montgomery, an alleged computer guru that the sheriff’s office hired to flesh out a cockamamie conspiracy theory involving the U.S. Department of Justice, former U.S. Attorney General Eric Holder and Snow himself, among others.
The investigation began in September of 2013, involved direct payments to Montgomery and an untold amount of public funds spent on flights to and from Seattle for two MCSO detectives and the head of the MCSO’s Cold Case Posse, Mike Zullo.
Arpaio and Sheridan confirmed the existence of the investigation under oath, agreeing with the judge’s characterization of the material produced by Montgomery as “junk.”
Snow concludes that e-mails recently unsealed by him show the MCSO “knew by at least November 2014 that the CIA database of documents from which Montgomery was supposedly providing this information was fraudulent.”
Yet the agency “continued to press Montgomery for work-product until the day before the hearings began.”
Because Arpaio and Sheridan may have hired Montgomery “at least partly in an attempt to discredit this Court by linking it to a speculative conspiracy.”
That “speculative conspiracy” reached the outer limits of absurdity, as Snow describes in the following excerpt:
According to Movants, Montgomery represented to MCSO that he was in possession of a large number of documents he had obtained while employed by the United States Central Intelligence Agency that the CIA had harvested from American citizens. (Tr. 1000:2–18.) Sheriff Arpaio characterized Mr. Montgomery’s investigation as pertaining to whether “someone” had infiltrated Movants’ phone lines and the phones and e-mail accounts of various local attorneys and judges connected to Defendants, including this Court. (Tr.649:14–50:6, 652:11–53:8.) Chief Deputy Sheridan reiterated that Mr. Montgomery had made allegations that the “CIA hacked into individual bank accounts” of county residents, (Tr. 960:11–13, 1004:9–11), and that he, Sheriff Arpaio, and the two law firms representing Defendants in a related lawsuit brought against the MCSO by the Department of Justice had been the subject of a secret wiretap by the government. (Tr. 999:16–1000:6.)
Some of these documents have been filed by Plaintiffs in their Response to this Motion. (Doc. 1150, Aff. of Cecilia Wang, Exs. B–F (available at Doc. 1153).) Although the body of documents produced has not yet been reviewed in full, and the Monitor has made document requests of the County that remain pending, at least some of the materials do—falsely—assert the existence of telephone calls between this Court and agents of the DOJ, including Eric Holder, Lanny Breuer, and one of this Court’s former law clerks, dating back to before this case was assigned to the Court. They also appear to imply that this Court authorized a wiretap on MCSO.
Among other problems apparent from the face of the Montgomery materials, the telephone number attributed to the Court in documents that purported to prove phone calls with the Department of Justice, (Doc. 1150, Aff. of Cecilia Wang, Ex. B (available at Doc. 1153)), is similar to, but has never been, the Court’s telephone number. “[R]umor, speculation . . . and similar non-factual matters” that are advocated by no one do not suffice to establish actual bias. Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005).
Incredulous as such fantasies may seem, all that mattered to the MCSO was its causing a conflict for the court.
For example, in the e-mails published Friday, Zullo and MCSO detective Brian Mackiewicz incessantly pester Montgomery and Montgomery’s lawyer Larry Klayman to cough up the goods on Snow, despite their assessment that Montgomery is unreliable.
The second basis for the recusal claim seems almost picayune by comparison.
It involves comments allegedly made by Judge Snow’s wife in a Mexican restaurant in 2012 during a casual conversation with a woman named Karen Grissom.
Snow’s wife supposedly told Grissom that Snow despised Arpaio and wanted him out of office.
The MCSO and Arpaio’s then-attorney Tim Casey discounted the remarks, following a private detective’s inquiry into Snow’s wife’s statements.
Sheridan sat on the results of the probe. But Sheriff Arpaio, during his testimony before Snow, revealed the investigation of Snow’s wife to the judge.
Only later did the defendants decide to use the material in seeking Snow’s recusal.
“[The] movants are responsible for creating the circumstances that they now offer as grounds for their Motion,” Snow writes, adding, “The Ninth Circuit is clear that a party cannot effect recusal of a trial judge by its own actions.”
Snow continues, stating that,
“[Arpaio and Sheridan] instigated the Montgomery matter and have controlled the investigation and the limited disclosures to date concerning its subject, scope, outcome, and relevance to [the contempt hearings]. By bringing the Motion, Movants stalled additional discovery into the Montgomery materials from occurring. This kind of…strategic manipulation is what [the law] (and its timeliness requirement) explicitly does not allow.”
As for the emails to and from Mackiewicz, Klayman, Zullo and Montgomery, they seem simultaneously pathetic and comic.
Montgomery bemoans his persistent lack of funds, his various illnesses, being evicted from his Seattle home, and his handlers’ inability to understand the intricacies of computer programming.
He complains of MCSO flunkies giving him “mixed signals,” on the one hand, telling him “not to produce information on Judge SNOW,” while on the other, attacking him “for not producing information on Judge SNOW.”
In a note addressed to Montgomery, dated December 2014, Zullo sums up the MCSO’s predicament.
To answer the question, where we go from here, really is dependent upon you. A year-long investigation and tens of thousands of dollars invested, we have absolutely nothing to show for it.
The 50 some odd drives we had in our possession shockingly turned out to contain nothing of any significance on any level whether Federal or pertaining to the Sheriff’s Office. There was absolutely nothing of use on those drives.
Overwhelming content of meaningless information does absolutely nothing to further your cause and obviously puts the Sheriff’s office in a very precarious situation.
Dennis I think the bottom line is if you have the information this is the time to provide. We have an extremely short window of opportunity to work in and the choice is yours. All you have to do is produce what you said you were going to produce in exchange for the dollars you received.
But I have to stress to you the time is of the essence. We have been instructed to write up our final report and be ready to hand it over to a different agency. I really don’t want to see it come to that but again the choice is yours
By this time, the MCSO was nearly 16 months into its massive Seattle snipe hunt, with an unknown amount of RICO funds, man hours and overtime wasted.
Zullo mentions a $10,000 payment to Montgomery in a different e-mail, “from a charitable organization for a service and software that I have yet to receive in any worthwhile or usable configuration.”
Mackiewicz states in an e-mail to Montgomery that, “We have given you approximately $120,000 dollars plus in exchange for information.”
Considering that Zullo, Mackiewicz and MCSO Sergeant Travis Anglin were, for a while, given a blank check in dealing with Montgomery, the $1 million price tag estimated by one of my sources seems quite plausible.
There is a lot we still do not know.
Klayman, for instance, was involved with Montgomery much earlier than suspected.
I have been told that Klayman was representing Montgomery during visits to Washington, D.C., where they and Mackiewicz reputedly met with a federal judge once on the United States Foreign Intelligence Surveillance Court.
The unsealed material also includes bizarre timelines and complicated flow charts labeled, “Arpaio brief.”
Also, in one e-mail, Montgomery makes mention of Mackiewicz’s “NSA advisors.”
All in all, enough for a plethora of paranoid fantasies.
And yet, we all know, there is much more to come, revelation-wise, with no end in sight.
At least, not until the sheriff resigns, is indicted or both.