Sheriff Joe Arpaio’s former mouthpiece, Tim Casey, sang like an Irish tenor in federal court Tuesday, rolling on his onetime client and implicating him in criminal contempt of the court’s orders.
But Snow ruled that certain matters of importance to the hearings were not covered by the otherwise sacrosanct blanket of confidentiality between lawyer and client.
And on those issues, Casey’s testimony painted a picture of a hard-headed sheriff indifferent to advice of counsel and determined to do it his way or no way.
One such issue concerned Judge Snow’s December 2011 preliminary injunction, which ordered the MCSO not to enforce federal civil immigration law.
Under the order, the MCSO could neither detain nor turn over illegal aliens to federal agencies, such as U.S. Immigration and Customs Enforcement.
Casey said he developed a shorthand to explain the injunction to Arpaio: “arrest or release,” meaning the MCSO could either choose to arrest illegal aliens on state charges or release them.
The MCSO could not hold these individuals or surrender them to ICE custody.
Casey testified that he believes he first spoke to Arpaio the day the injunction was issued.
He also alerted the sheriff and other MCSO officials to the injunction in meetings, phone calls, and e-mails.
The attorney said he especially wanted to make sure that Arpaio’s notorious Human Smuggling Unit immediately was informed of the injunction, as the HSU was the “tip of the spear” when it came to immigration enforcement.
To this end, Casey said he e-mailed then-Executive Chief Brian Sands, Chief Deputy Jerry Sheridan, Deputy Chief Jack MacIntyre, and HSU commander Lieutenant Joe Sousa, telling them of the order.
All four men, along with Arpaio, stand accused of civil contempt.
Only Arpaio and Sheridan face likely criminal contempt allegations, which involve willful disobedience of the court.
Casey said he discussed with Arpaio his options as far as appealing the order. The MCSO subsequently did this but lost at the Ninth U.S. Circuit Court of Appeals.
The attorney said he believed Sands and others were taking steps to make sure HSU members and regular patrol deputies received the news.
He also thought Arpaio understood the arrest or release concept, even if the sheriff didn’t like losing.
“My impression was that Sheriff Arpaio knew what was going on with HSU at all times,” Casey stated during questioning by ACLU attorney Cecillia Wang.
However, at the 2012 trial in Melendres v. Arpaio that summer, Casey and his co-counsel, Deputy County Attorney Tom Liddy, thought there had been a violation of the preliminary injunction, based on the testimony.
They discussed the issue with Sands to make sure “it never happened again.”
In September 2012, the Ninth Circuit upheld Snow’s preliminary injunction.
Then in October 2012, the plaintiffs’ attorneys in Melendres sent Casey a letter complaining about possible violations of the court’s order.
The correspondence from ACLU attorney Andre Segura included a recent MCSO press release, which announced that the MCSO had taken custody of some illegal aliens, though there were no state charges that applied.
Pursuant to its policies of prioritizing criminal aliens for removal, ICE would not take the aliens from the MCSO.
Arpaio was quoted as crowing that “consistent with MCSO policy over the past six years,” the MCSO followed its “backup plan to take these illegal aliens to the U.S. Border Patrol.”
The sheriff already had mentioned to the media that he had a secret backup plan to deal with ICE’s not taking illegal immigrants off his hands.
At the time, Arpaio was running for re-election against Democrat Paul Penzone, a tough race that Arpaio won by his lowest margin of victory ever.
Casey told the court he later learned that Arpaio had issued the press release “solely for election reasons,” and to score publicity.
The lawyer testified that he had a “heated discussion” about the “backup plan” during a meeting with Arpaio.
Before the meeting, Casey told Sands that if it did not go well, he would quit.
Sands promised to do likewise, if necessary.
Arpaio didn’t like Casey’s advice, telling Casey that “he was the sheriff, and he made the decisions.”
But Arpaio finally relented, promising that it would never happen again.
In May 2013, Snow ruled against the MCSO in Melendres, finding the agency guilty of racial profiling and making permanent the court’s 2011 preliminary injunction.
But as late as March 2014, Casey realized that some MCSO brass were unaware of the preliminary injunction.
As a result, the MCSO had continued to violate the judge’s order, despite what Casey claimed were his best efforts.
He testified that he told Arpaio on three separate occasions that the MCSO could not detain illegal aliens without state charges.
Because of this and because Sheridan and then-Deputy Chief David Trombi publicly had disparaged and mis-characterized the order, he recommended that everyone above sergeant read Snow’s 2011 and 2013 orders in Melendres.
He also advised Arpaio to read Snow’s orders in Melendres so as to “mitigate” Arpaio’s guilt, should he be accused of contempt.
Casey said his decision to withdraw as counsel in late 2014 was “very indirectly…because of resistance” from Arpaio.
“Resistance to what?” Wang asked Casey.
“Being told what to do,” Casey replied.
On the issue of the Seattle investigation, Casey’s testimony was damning.
As he discussed in his recent deposition, Casey recalled a meeting at the Sheriff’s Office in late 2013/early 2014 with Arpaio, Masterson, Masterson’s co-counsel Joe Popolizio, Liddy, and others, where two MCSO employees called in from Seattle, describing the information the MCSO’s confidential informant Dennis Montgomery was offering the MCSO.
Did they describe a conspiracy, Casey was asked?
“That’s what was being reported,” Casey answered. “That there was some collusion by the court [with the U.S. Department of Justice] that had some adverse effect on Arpaio.”
Casey said he remembered seeing documents illustrating the conspiracy, a timeline, and a flow chart.
The latter was at the meeting in question, and had Snow’s name on it.
Arpaio was “enthusiastic” about the conspiracy talk, Casey said, and told those present that the conspiracy “needed to be looked into.”
MCSO employees calling in from Seattle described how Montgomery was data-mining material he supposedly had acquired from the NSA or CIA.
Casey said he and other attorneys present thought that this might be illegal.
If not illegal, it was still “hogwash” in Casey’s view. And Montgomery was “someone to be avoided.”
But Arpaio found it credible and added a tidbit to the mix as the meeting broke up.
Arpaio observed that former U.S. Senator from Arizona Jon Kyl was currently employed by Covington and Burling, some of whose lawyers are partnered with the ACLU as representing the plaintiffs inMelendres.
“And Kyl got the judge his job,” Arpaio said.
Meaning, Kyl helped Snow in 2008 while Kyl was senator and Snow was nominated to the bench by President George W. Bush.
Apparently, this also was part of the fake anti-Arpaio conspiracy, which the sheriff was ginning up to use against Snow and the DOJ.
Those not new to the county will recall that during the MCSO’s 2008-2010 war with the Board of Supervisors, Arpaio and then-County Attorney Andrew Thomas concocted an ill-defined conspiracy theory involving the superior court’s new court tower.
Thomas and Arpaio used this non-existent conspiracy to harass, conflict, and sometimes criminally charge their enemies.
That conspiracy became the basis of a bogus RICO suit by Arpaio and Thomas, aimed at a horde of judges, politicians, and county officials who had opposed their rule in one way or another.
Pseudo-conspiracies have been a useful tool for Arpaio.
For instance, the sheriff’s much-ridiculed investigation of President Obama’s birth certificate netted him campaign contributions from birthers nationwide.
Arpaio even bragged about the birth certificate probes’ ability to net cash in a telling moment during the 2014 documentary The Joe Show.
The Seattle conspiracy was born from the birther investigation. It involves many of the same players, such as Cold Case Posse commander Mike Zullo and Detective Brian Mackiewicz.
Before Casey took the stand in the afternoon, Sheridan was questioned by Snow, who asked him about several issues, such as the Seattle probe and the MCSO’s internal investigation’s process.
Regarding Montgomery, Sheridan said he believed the CI was “a computer genius” as well as “a very good con man.”
Also, Sheridan admitted that the MCSO paid for Zullo and Mackiewicz to take Montgomery to D.C. to meet with onetime Foreign Intelligence Surveillance Court Judge Royce Lamberth regarding Montgomery’s claims.
He could not recall who set up the meeting with Lamberth.
When Snow asked if it had been attorney Larry Klayman, Sheridan conceded this was possible.
(Note: In e-mails published in a plaintiffs’ court filing, Klayman reminds Mackiewicz that he was the one who was the MCSO’s contact to Lamberth.)
Sheridan continued to maintain that the subject of the Seattle probe was 150,000 bank accounts from county residents that Montgomery produced, supposedly harvested by the CIA.
In which case, the target of the MCSO investigation would have been the federal government.
Sheridan conceded that two ex-NSA employees hired by the MCSO to analyze Montgomery’s data had labeled Montgomery a “fraud.”
And he made an embarrassing admission: He had not been honest with the court in his April appearance before Snow.
At that time, under questioning by Snow, he testified that he had seen no evidence of supposed collusion between Snow and other parties in an alleged conspiracy.
But that same day, during the lunch break in the testimony, Sheridan went back to MCSO headquarters, where he was contacted by Deputy Chief Bill Knight.
Knight was, per Snow’s order, gathering documents related to the Seattle investigation.
Knight showed him the flow chart of the conspiracy, created by Montgomery.
At first, Sheridan said he never had seen it before.
Later, he recalled having seen a different version of it previously.
After lunch that day, under examination by Snow, Sheridan said nothing about what he’d just seen.
At Tuesday’s hearing, Snow reminded him: “You said you hadn’t seen anything indicating I was involved” in an anti-Arpaio conspiracy.
Softly, his face flushed bright scarlet, Sheridan agreed he had not.
Which leads observers to believe that either Sheridan is stupid or a liar.
Casey still was on the stand as of day’s end Tuesday and will be back this morning.
After Casey, Deputy Chief Jack MacIntyre and former Executive Chief Brian Sands are supposed to be called..
Arpaio is scheduled to follow.
But given the pace of testimony, it seems unlikely Arpaio will testify until Thursday.
Posted with permission from Phoenix New Times.