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8/9/2019 Melendres # 1017 | 2015-04-21 Transcript Melendres, Et Al., V. Arpaio, Et Al., Evidentiary Hearing Day 1 - 01
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus OrtegaMelendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))
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)
)
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CV 07-2513-PHX-GMS
Phoenix, Arizona
April 21, 2015
9 o'clock a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing)
Court Reporter: Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 2
A P P E A R A N C E S
For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNION
FOUNDATIONImmigrants' Rights Project39 Drumm Street
San Francisco, California 94111(415) 343-0775
Stanley Young, Esq.
COVINGTON & BURLING, L.L.P.
333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065(650) 632-4700
Daniel J. Pochoda, Esq.Joshua D. Bendor, Esq.
AMERICAN CIVIL LIBERTIESFOUNDATION OF ARIZONA
3707 N. 7th St., Suite 235Phoenix, Arizona 85014
(602) 650-1854
Andre I. Segura, Esq.AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project125 Broad Street, 17th Floor
New York, New York 10004(212) 549-2676
For the Defendant Arpaio: Thomas P. LiddySenior Litigation Counsel
Douglas A. SchwabMARICOPA COUNTY ATTORNEY'S OFFICE
Civil Services Division
222 N. Central Avenue, Suite 1100Phoenix, Arizona 85004
(602) 506-8066
A. Melvin McDonald, Esq.
JONES, SKELTON & HOCHULI, P.L.C.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
(602) 263-1700
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CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 3
A P P E A R A N C E S
For the Defendants: Michele M. Iafrate, Esq.IAFRATE & ASSOCIATES
649 N. 2nd AvenuePhoenix, Arizona 85003(602) 234-9775
For the Defendant Maricopa County:
Richard K. Walker, Esq.
WALKER & PESKIND, P.L.L.C.
16100 N. 71st StreetSuite 140Scottsdale, Arizona 85254
(480) 483-6336
For Chief Deputy Sheridan: Lee D. Stein, Esq.
MITCHELL STEIN CAREYOne Renaissance Square
2 North Central AvenueSuite 1900
Phoenix, Arizona 85004
(602) 358-0290
For Executive Chief Brian Sands:
Greg S. Como, Esq.LEWIS BRISBOIS BISGAARD
& SMITH, L.L.P.Phoenix Plaza Tower II
2929 N. Central Avenue
Suite 1700Phoenix, Arizona 85012-2761
(602) 385-1040
For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.
DICKINSON WRIGHT, P.L.L.C.Attorneys at Law
1850 N. Central Avenue, Suite 1400Phoenix, Arizona 85004
(602) 285-5000
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CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 4
A P P E A R A N C E S
For Lieutenant Joseph Sousa:
David S. Eisenberg, Esq.DAVID EISENBERG, P.L.C.2702 N. 3rd Street
Suite 4003Phoenix, Arizona 85004(602) 237-5076
For Sergeant Brett Palmer: Christopher T. Rapp, Esq.
RYAN, RAPP & UNDERWOOD, P.L.C.3200 N. Central AvenueSuite 1600
Phoenix, Arizona 85012(602) 280-1000
ALSO PRESENT: Chief Robert WarshawDeputy Chief John Girvin
Deputy Chief Raul Martinez
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I N D E X
Witness: Page
DAVID TROMBI
Direct Examination by Mr. Pochoda 47Cross-Examination by Ms. Iafrate 93Cross-Examination by Mr. Como 130
Redirect Examination by Mr. Pochoda 137Examination by the Court 140Further Redirect Examination by Mr. Pochoda 149
Recross-Examination by Ms. Iafrate 152
BRETT PALMER
Direct Examination by Ms. Wang 155
Cross-Examination by Ms. Iafrate 216Cross-Examination by Mr. Como 232Redirect Examination by Ms. Wang 245
Examination by the Court 251Recross-Examination by Ms. Iafrate 253
BRIAN SANDS
Direct Examination by Mr. Young 254
E X H I B I T S
No. Description Admitted
38 E-mail to 27 recipients from Chief Trombi re 59
"Past Video Recordings" dated 5/14/2014
67 Dkt 494 Preliminary Injunction Order dated 260
12/23/2011
100 Dkt 881, Order dated 2/12/2015 198
103 The Briefing Board, Number 13-40 dated 182
5/28/2013 (Melendres Compliance 000070)
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CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 6
E X H I B I T S
No. Description Admitted
118 MCSO Memorandum to Trombi from Jakowinicz re 67
"Deputy Armendariz #1764" re complaints dated2/21/2013 (MELC003737)
119 MCSO Memorandum to Jakowinicz from Trombi re 85meeting with Armendariz dated 3/5/2013(MELC003736)
136 Structural chart of the MCSO divisions (2007) 97
(MEL049519 - MEL049524)
151 Emails re "Video Collection" dated 2/19/2014 49
(MELC134397 - MELC134406)
154 MCSO Memorandums regarding Video Recordings 110
155 Letter to Mr. Warshaw from Gerard Sheridan re 113
meeting that occurred 5/14/2014 dated5/14/2014 (MELC134487 - MELC134488)
156 Redacted E-mail chain re "Scenarios for review 133based on judge's order" (MELCl14918 -MELCl14922; MELCl14949 - MELCl14954)
176 MCSO Memorandum from Palmer re "Video/Audio" 192Dated 5/19/2014 (MELC098107 - MELC098109)
185 E-mail Chain from J. Sousa to T. Casey et al. 131
Re "Scenarios for Review Based on Judge's
Order" dated 1/24/2012 (MELCl14950-MELCl14954)
187 E-mail from T. Casey to B. Sands et al. Re 256"Melendres Order on Summary Judgment" dated
12/23/2011 (MELC165670 - MELC165672)
189 E-mail Chain from T. Casey to L. Thomas et al. 189
Re "Scenarios For Review Based on Judge'sOrder" dated 1/24/2012 (MELC165690 - MELC165695)
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P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case 07-2513, Manuel de
Jesus Ortega Melendres, et al., versus Joseph M. Arpaio, et al.
This is the time set for an evidentiary hearing.
Counsel, please announce your appearance for the
record.
MS. WANG: Good morning, Your Honor. Cecillia Wang of
the ACLU for the plaintiffs.
THE COURT: Good morning, Ms. Wang.
MR. YOUNG: Good morning, Your Honor. Stanley Young,
Covington & Burling, for the plaintiffs.
THE COURT: Mr. Young.
MR. SEGURA: Good morning. Andre Segura of the ACLU
for the plaintiffs.
MR. BENDOR: Josh Bendor, ACLU of Arizona, for
plaintiffs.
THE COURT: Good morning.
MR. POCHODA: Dan Pochoda, ACLU of Arizona, for
plaintiffs.
THE COURT: Good morning.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio. With me at the table is
Carrie Seahorn. Also representing Sheriff Arpaio is Tom Liddy
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and Douglas Schwab with the Maricopa County Attorney's Office.
THE COURT: Good morning.
MR. BIRNBAUM: Good morning, Your Honor. Gary
Birnbaum appearing specially for Deputy Chief John MacIntyre.
Your Honor, with the Court's permission, I have
another engagement this afternoon. An associate named Mitesh
Patel will be sitting in this chair for me.
THE COURT: You have that permission, Mr. Birnbaum.
MR. McDONALD: Mel McDonald, special counsel for Joe
Arpaio.
MR. WALKER: Good morning, Your Honor. Richard Walker
appearing on behalf of Maricopa County, or more precisely that
portion of the Maricopa County Government embodied by the Board
of Supervisors, the County Manager, and the appointed officials
serving under it.
THE COURT: All right. Good morning.
MR. STEIN: Good morning, Your Honor. Lee Stein
appearing specially for Chief Deputy Sheridan.
THE COURT: Good morning.
MR. COMO: Good morning, Your Honor. Greg Como
appearing on behalf of Brian Sands.
THE COURT: Good morning.
MR. EISENBERG: Good morning, Your Honor. David
Eisenberg, special appearance on behalf of Lieutenant Joseph
Sousa.
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THE COURT: Good morning.
And -- oh.
MR. RAPP: Sorry, Judge. Good morning. Christopher
Rapp on behalf of Sergeant Brett Palmer.
THE COURT: All right. Good morning.
Anyone else?
I don't know whether Sergeant Palmer is here. I do
see Lieutenant Sousa. I don't see Chief MacIntyre, and I
presume that is pursuant to my authorization for him to waive
his presence had he chose to do so.
MR. BIRNBAUM: That is correct, Your Honor. He will
be here Thursday.
THE COURT: All right.
MR. BIRNBAUM: Thursday and Friday.
THE COURT: All right. We have a few matters to take
care of that we discussed yesterday, and when we discussed them
yesterday telephonically I indicated I would put them on the
record today and resolve them.
Preliminarily, they relate to the Court of Appeals'
opinion that came down last week, and it involves some
preliminary questions that I think we arrived at least at some
resolution of yesterday and wish to resolve, and then there was
a discovery dispute raised yesterday that needs to be resolved
on the record before we begin.
Mr. Walker, as you know, the Court of Appeals directed
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CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 10
that Maricopa County should be added as a party, added as a
party to replace the Maricopa County Sheriff's Office, which
they deemed to be not a jural entity. Without prejudicing
Maricopa County's right to seek reconsideration for or from the
Ninth Circuit to appeal it to an en banc panel or to the United
States Supreme Court, it is my understanding that you do not
object to Maricopa County at this point being named as a party
in this lawsuit.
Is that correct?
MR. WALKER: That is correct, Your Honor.
THE COURT: All right. And so I'm going to order that
Maricopa County is now a party to this lawsuit and is a named
party.
Mr. Walker, when I refer to "Maricopa County," I'm
referring to you. All right? And your clients.
There may be some confusion, Mr. Liddy, Ms. Iafrate,
between MCSO and Maricopa County, but I do recognize that, even
though the mandate has not yet issued from the Ninth Circuit
that the Maricopa County Sheriff's Office per se is not a jural
entity, according to their current ruling. And while it still
is some sort of entity, I won't be -- if I talk about MCSO, I
won't be intending to refer to it as a party.
MR. LIDDY: Your Honor, may I be heard on a related
point?
THE COURT: Yes.
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MR. LIDDY: Your Honor, I am the practice group leader
for civil litigation, the civil division for --
THE COURT: Can you slow down a little bit?
MR. LIDDY: Yes, sir.
I'm the practice group leader for civil litigation in
Maricopa County.
THE COURT: Yes.
MR. LIDDY: And as such I provide legal advice for
Maricopa County on a wide swath of issues. The Ninth Circuit
action here has put me in a precarious position, and I am in
the process right now of analyzing whether or not there's a
substantial risk that either of my clients will be materially
affected by my representing the sheriff in this order to show
cause proceeding or in the litigation in general.
And I would beg the Court's indulgence to give me a
little more time to seek counsel from ethics counsel and go
through these issues, but I may be at a point in the future
applying to this Court to withdraw as counsel of record for
Sheriff Arpaio in this proceeding.
THE COURT: Well, I appreciate that clarification.
Let me ask you, do you want to leave counsel table now so that
there isn't any imputation of impropriety against you or any
harm to your clients if, in fact, you determine that you need
to withdraw from this action?
MR. LIDDY: I think that's the $64,000 question, Your
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Honor, and I can only speak for myself and not for the County
Attorney, but as the ethical canons go directly to the attorney
and not my superiors, my answer is yes, Your Honor, I would
feel more comfortable if I left the table now.
THE COURT: All right. I'm going to allow you to do
that while you work out your -- your ethical questions. And
I'll advise you, Mr. Liddy, that if you want to return to
counsel table during the course of this or other proceedings
you can let me know.
But I would appreciate, of course, and I don't want to
rush it because I realize it requires some thought, I would
appreciate, to the extent you can come to a resolution of
whether or not you need to withdraw, that you do so, but I will
ask you until you come to that conclusion that you not
participate in this matter. Is that all right?
MR. LIDDY: That's all right. Understood, Your Honor.
THE COURT: All right. Thank you.
That does raise another point with the Ninth Circuit's
opinion. It said because there is a functional -- in many
cases there is a functional equivalence between a suit brought
against Sheriff Arpaio in his official capacity and a suit
against Maricopa County as the jural entity, I could consider
dismissing Sheriff Arpaio in his official capacity. And while
I will still consider doing that, I'm not going to do it today
because I want to give the parties an opportunity to address it
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and I want to also consider the ramifications as it may relate
to this and other proceedings. But I'm not preventing any
party from raising any consideration about it. Sheriff Arpaio
was also sued in his individual capacity, and that does not --
that is not being changed.
Further, the Ninth Circuit, while it sustained, I
think, the great majority of everything that was appealed, it
did indicate that as it pertained to that part of my
supplementary injunctive relief that related to the monitor's
oversight of internal investigations, I had to indicate in that
supplemental injunction that the authority extends only to
matters that are related to this lawsuit.
Again, I will do that. I'll follow the Ninth
Circuit's direction, but I do want to allow the parties to be
heard on the scope, if any, of necessary changes to the
supplementary injunction in light of the Ninth Circuit's order.
But I also want to make a record now so that all
parties understand that the Ninth Circuit is bound by the facts
that existed at the time that the notice of appeal was filed,
and so other facts were not considered by the Ninth Circuit in
its appeal.
This case has been far from static. There have been a
great number of developments since the notice of appeal in this
case was filed. Among them was the disclosure last May by the
Maricopa County Sheriff's Office and the defendants in this
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matter relating to what was discovered in Deputy Armendariz's
home, a cache of different items -- identifications, drugs,
other things -- that touched off investigations in this matter
and demonstrated the existence of evidence that was requested
by the plaintiffs prior to the underlying lawsuit but were
never provided, or at least the possibility that there existed
such evidence. That included audio recordings,
video recordings, a great number and variety of items seized
during traffic stops of members of the plaintiff class. It
also revealed -- further investigation has revealed complaints
about MCSO deputies, including Deputy Armendariz, that may or
may not have been adequately resolved.
It also revealed poor and perhaps illegal supervision
of those deputies in their functions.
May 14th we had a hearing here, part of which was
under seal. It was subsequently taken out from under seal in
which I advised -- and this is only going to be a rough
characterization. Chief Deputy, if you disagree, if you
disagree, Ms. Iafrate -- I know you weren't there yet -- if you
disagree with my characterization, I invite you to seek to
correct me.
I advised Chief Deputy Sheridan at the time, who
brought forth these allegations and their concerning nature,
that it might be wise for Maricopa County to turn over the
investigation of these matters to another law enforcement
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discovery sanctions for material that was never provided by the
defendants to the plaintiffs in this matter.
And so I will be interested in the extent and nature
of that material and how it may have affected the underlying
case or plaintiffs' presentation of the underlying case and
issues related to the underlying case. And, of course, since
the MCSO is doing that investigation, the adequacy of their
investigation is very much at issue and I will so rule on any
evidentiary objection that comes up, and you can preserve, I
understand, Ms. Iafrate, any objections you have to that to the
Ninth Circuit. But we will proceed under the understanding
that the adequacy of MCSO's investigation is pertinent and
fundamental to this matter.
To that end, when I scheduled this hearing some months
ago I got an estimate from you, Ms. Iafrate, I got a
commitment, I think, from you as to when those investigations
would end. You will recall that I empowered my monitor to do
some independent investigations, which he did, and then stopped
in deference to the MCSO's self-investigation. There are a
number of those. I think you've identified in court 20 of them
that are completed but there are approximately 31 more that my
monitor has never been informed were completed, and there are
two very important ones that relate to the MCSO's
self-investigation of some of its command staff, including the
individual persons here that have been noticed for contempt,
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and those investigations, while -- well, let me just say this:
While I believe Detective Vogel, who is an outside source that
MCSO contracted with to conduct those investigations, has
completed his investigation, the MCSO directed Detective Vogel
that his ability to find policy violations and impose -- and
recommend and impose discipline was not within his purview.
So while his reports have been completed and I have
been provided with them, it is my understanding that there has
been no completion of that investigation.
That's correct, isn't it, Ms. Iafrate?
MS. IAFRATE: That is correct, Your Honor. The two of
the four investigations that were assigned to Mr. Vogel are now
with the Maricopa County Sheriff's Office to finish and to
impose discipline.
THE COURT: All right.
What about the other approximately 31 open
investigations that have not been completed on this matter that
relate to the initial Armendariz and/or Cisco Perez matters and
that sprang from that or from the monitor's initial
investigations?
MS. IAFRATE: The Internal Affairs group continues to
work with monitor Kiyler to push those through as quickly as
possible, Your Honor.
THE COURT: Well, I appreciate that, but I will tell
you that I've been consulting with the monitor and with monitor
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Kiyler and they have not been informed as to the status of
those investigations despite repeated requests. I'll also say
that during the pendency of this hearing the monitor team is in
town. They're doing their normal audit. Yesterday, in trying
to prepare for us -- well, let me get to the bottom line.
I scheduled some time ago with you, based on the
possibility that I hoped would not be necessary, the
continuation of this contempt hearing on June 16, 17, 18, 19.
Because the monitor has had no chance to evaluate your internal
investigations and because we know not where they stand, a
large number of them, and because I need to know what his view
is of those investigations, and I think, in fairness, you have
an opportunity to respond to that adequacy, we're going to hold
the hearings on June 16, 17, 18, 19 as it relates to the
adequacy of the investigations and as it relates to the
discovery that you haven't yet provided even though there were
months -- you had months-long notice, and any -- and we're
going to proceed today, but anybody -- I'm going to make it
clear. Anybody who's called and testifies in these hearings,
and Ms. Wang has informed me that she can go forward and has
plenty to fill these four days, is subject to recall, because
these matters have not yet been provided, subject to recall in
that June hearing, and if we still don't have documents in that
June hearing, or if we still don't have matters that I think
are relevant, then I'm going to take appropriate action at that
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time.
What that comes back to is, I've asked the monitors to
be prompt about evaluating the investigation when it is
complete, not just the 542 and 543 investigations, but the 31
other investigations, both as to their adequacy as to things
that were and were not investigated and other matters.
They tried yesterday to request documents to help them
prepare for the adequacy of that investigation. They were
informed by MCSO, even though there was an attorney there when
they made the request who could have reviewed the documents,
and I think one of the things they were asking for was a menu
of internal investigations that have been done, they were
informed by MCSO that no one, including the attorney, could
authorize the release of those documents until you approved.
I understand that you're very busy personally, but
I -- as I think we've discussed very early on when you came
into this matter, while I want the attorneys to be able to
review the documents so that there aren't inadvertent
disclosures, I don't want to delay my monitor or anybody else,
any other party in this investigation.
So I would request you to consider if there are not
people in the Maricopa County Sheriff's Office, even if not
Mr. Liddy or others, that can be authorized to review those
documents and to provide them to the monitors or list an
objection while they are here in their audit performance so
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that we can proceed if we have to and be ready to go in the
June matter, even if we have -- I just don't want to let this
go on any further.
Is there any problem with that?
MS. IAFRATE: No, Your Honor. I believed that what --
and I received this information secondhand. I believed that
what they wanted to do was Bates stamp the documents before
they were delivered, because there have been some inadvertent
disclosures. That was my request.
THE COURT: All that makes sense, and again, I'm not
trying to deprive an attorney from the opportunity to review
that to protect those things, but I don't -- you're very busy
and you're going to be here for the next four days. I don't
want to delay the monitor's document production, but without
depriving you of the opportunity to do appropriate review, so
it sounds like we can proceed on that basis.
MS. IAFRATE: Yes.
THE COURT: Now, the other reason that we are going to
potentially have to continue this hearing -- again, we'll have
it this week, but we're going to have it again in June -- is
because yesterday Ms. Wang raised to me, and if you want me to
go through the whole chronology that we went through yesterday,
I will, but she raised with me the issue that when I -- I
entered an order in February for the MCSO to provide certain
documents. Mr. Young, earlier this month, indicated that some
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of those documents had not yet been provided, and you and he
had a telephonic conference with me when I ordered the
production, the clear and methodical production of certain
documents that had not yet been provided, and I ordered a
process for you to go through.
At that time, approximately, as I understand it, you
made a request to the, I don't know, the data storage section
of the MCSO to give you a database search, and what you got
back was not responsive to the request that you had made.
Is that -- I see you shaking your head. Am I stating
it wrong?
MS. IAFRATE: You are, Your Honor. This is where it
gets confusing between Maricopa County and Maricopa County
Sheriff's Office.
THE COURT: Okay. Did you make the request to MCSO?
Did I say Maricopa County?
MS. IAFRATE: Well, I made the request to MCSO and
Maricopa County.
THE COURT: Okay.
MS. IAFRATE: So they're two separate requests that
were made.
THE COURT: Okay. And that was right after that
initial telephonic conference that you and I had with Mr. Young
earlier this month?
MS. IAFRATE: Yes.
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THE COURT: Okay. And as we had learned earlier in
this matter, MCSO -- Maricopa County apparently has a separate
database of documents that contains all of MCSO's electronic
documents.
MS. IAFRATE: Certain -- certain documents, yes, Your
Honor.
THE COURT: Okay.
Anyway, your response, either from Maricopa County or
Maricopa County Sheriff's Office, was not responsive to what
you had requested. And then you took it upon yourself to do an
individual computer review with the named contemnors and
certain other relevant parties, and you did that on April 10th,
and you made that avowal to the plaintiffs, and I think, as I
recall, didn't have a whole lot of other documents to turn
over. Didn't have any.
Then certain other discovery disputes were resolved
and certain depositions were reopened, and when they were
reopened there was the mention of other documents that were
clearly related that had not yet been produced. You went back
and produced one of those documents that was authored by
Lieutenant Sousa, and one of the persons whose deposition was
reopened was Lieutenant Jakowinicz.
So Lieutenant Jakowinicz's deposition had to be opened
for a -- reopened for a second time because he had been a
recipient of the Sousa document.
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And then after the second reopening of detective --
Lieutenant Jakowinicz's documents, he provided you with 15 more
documents. You reviewed those. As to seven, you've asserted a
privilege, the plaintiffs assert some sort of inadequacy of
privilege as to some but not all of those documents. And you
did produce one document.
Plaintiffs have informed me that that one document
indicates that there are yet other documents in the same e-mail
string that have never been provided and about which they are
curious, and at this point, in light of the pendency of this
hearing, they've requested that the monitor oversee document
production in this case.
You entered the objection, reasonable, I think, that
you don't want the document -- you don't want the monitor
reviewing attorney-client-privileged documents.
So what I indicated I was inclined to do was require
the monitor to come up with a systematic measure -- oh, I'm
sorry. Before I get to that, Mr. Walker indicated in the
conference yesterday that while you did make a follow-up
request to him after the problem with the Jakowinicz documents
came clear, he only received that for the first time on Sunday,
and Maricopa County is glad to do a database search but they
can't give you everything by this week.
You're shaking your head again.
MS. IAFRATE: Well, Your Honor, I made the request to
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Maricopa County before Mr. Walker was even a thought in this
case.
THE COURT: I got that. Mr. Walker didn't become
aware of it until Sunday.
MS. IAFRATE: Right.
THE COURT: Okay. And he's glad to make sure that
that happens but he can't guarantee that it will happen by the
end of this week.
Is that correct, Mr. Walker?
MR. WALKER: Yes, that's correct, Your Honor.
THE COURT: All right.
So my inclination is to have the monitor review any
plan for a database search, to have the monitor take account of
the documents that that database search reveals but without
reviewing those documents allow you to review them so that you
can make assertions as to attorney-client privilege that may
apply to any of those documents, and then he can spot check the
other documents to make sure -- the other documents, for
example, the ones that you deem nonresponsive, he can just spot
check them if he wants to to make sure they're nonresponsive.
The other documents will be turned over to plaintiff and then
we will resolve any privilege disputes as it pertains to the
privilege log.
That is what I indicated my inclination was. Do you
have any objection to proceeding in that fashion?
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MS. IAFRATE: No, Your Honor. Will the magistrate be
the one determining the disputes regarding privilege, or will
it be you?
THE COURT: Well, it will be me unless it requires
somebody to look at the content of the document, and if it
does, I think even though it's not required for reasons of
prudence, as we've said before, we've got Judge Boyle here, and
I really didn't have to use Judge Boyle in the first place but
I think he graciously volunteered, and I can understand why the
defendants wouldn't want me to look at documents that may be
subject to the attorney-client privilege. So unless Ms. Wang
has some objection, my inclination would be to refer all such
documents back to Magistrate Judge Boyle.
MS. WANG: Your Honor, we would not have any objection
to that referral to Judge Boyle. We would like to have input
as the monitor team comes up with a plan for the review of the
documents. We have some ideas for how that might be expedited.
THE COURT: Yeah.
Actually, I did express it that way, but I don't mean
to suggest that you shouldn't try to resolve this yourself.
But when you do resolve it I'm going to ask you, or get as
close to resolution as can, I'm going to ask you to submit it
to the monitor, make sure that he can approve that method for
document production and database searching, both the Maricopa
County database and the Maricopa County Sheriff's Office
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database.
MS. WANG: To be clear, Your Honor, I think we've come
to the end of the road in terms of attempting to work this out
with the defendants. We do request that the monitor impose a
plan for review of the documents.
THE COURT: All right. Well, I will allow you, as I
will allow Chief Sands and the other defendants, to have access
to the monitor to make whatever recommendations you want.
MS. WANG: Thank you, Your Honor.
THE COURT: All right.
Yes?
MR. WALKER: Your Honor, I just wanted to advise the
Court after our conference call yesterday I asked paralegals at
my office to check to see what we have in electronic form that
would be readily available for search. And we do have, as I
recall, PST files, e-mail files, for all the individuals for
whom a request has been made by the plaintiffs but only for
part of the period that they requested.
Having gone through this before in another action, I
know that if we want to have access to e-mails for a portion of
the period for which we do not already have PST files, we will
have to restore PST files from the disaster recovery tapes, and
that is both an expensive and time-consuming process.
THE COURT: Well, I appreciate that. As you say, we
have been through this before in this very action, and while I
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don't intend to impose costs that plaintiffs agree are not
necessary and that I don't think are necessary, even if
plaintiffs don't agree, I may well require such costs to be
incurred to the extent that we can't cull those documents from
the MCSO database.
But again, I will leave the details of that for the
moment up to the monitor, and I would direct both parties --
all parties to have access to the monitor if you want sooner
rather than later, because we're not going to wait until June
before we start raising issues about discovery disputes.
I'm just going to remind everybody, if you've got a
cell phone in here, you should turn it off, and if the marshals
see you using your cell phone you'll be escorted out of the
building. I have granted to the monitors who are here the
ability to use a cell phone but that's simply because, as I've
indicated, their whole team is here doing one of their periodic
audit reviews and they have to have some contact with them.
All right. Have we resolved everything related to the
discovery dispute yesterday?
MS. IAFRATE: I believe so.
MS. WANG: I believe so, Your Honor.
We do have some other logistical issues that we wanted
to raise with the Court.
THE COURT: All right. Let's get them taken care of.
MS. WANG: Okay.
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First, Your Honor, is that plaintiffs request that
witnesses be excluded during the testimony of others.
Second, Your Honor, we do have a question about the
time keeping. We have only four days and a number of witnesses
with both parties and Chief Sands engaging in questioning. So
we just wanted to ask logistically how to handle the issue of
keeping track of time so that we conclude everything by Friday.
THE COURT: Well, do you want me to give you an
assignment of time? Because I didn't -- I did not really do
that.
MS. WANG: No, I don't think we would like an
assignment of time.
THE COURT: All right. You can -- I believe that we
discussed yesterday the idea that, in order to be efficient, if
a witness is going to be called in your case and Ms. Iafrate
intends to call her in her case or Chief Sands intends to call
that witness in his case, I'm just going to allow, if you all
agree, and I think it makes great sense, to do that witness
once.
I'll allow you, for example, if it's your witness, to
do direct. Then I'll allow the other parties to do cross.
Then I'll allow you to do -- and in their cross I will allow
them a great deal of liberality to raise new matters. Then
your redirect I'll also allow you a great deal of liberality to
cross as to the matters that they raised for the first time.
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And then on their redirect I will hold them to issues really
that were -- that are implicated by your redirect.
MS. WANG: Understood, Your Honor.
THE COURT: Do you have any other suggestions for
being efficient as we move through these witnesses and
evidence?
MS. WANG: No, Your Honor. I think we can play it by
ear. If it looks like we're running behind schedule we'll
consult and try to keep us on track as we go along.
THE COURT: I really don't think we need to spend a
whole lot of time on a lot of matters. I believe that some
matters have been stipulated to, and if they haven't been I
would suggest that you take a minute at lunch or after the end
of the hearing today to see if you can arrive at stipulations
that will clear out a bunch of unnecessary testimony, because I
don't need it.
That doesn't mean that I'm not willing to listen to
the facts and circumstances that surround the contempt, and I
think the contempt has been admitted to by some but not all of
the parties.
It doesn't mean either that I'm not interested in the
discovery aspect of this case, even to the extent it goes
beyond contempt, as to what you weren't provided and what
difference that would have made to your case in chief is going
to be a matter of some interest to me in terms of coming up
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with appropriate remedies in this case.
But it does seem to me that even though, you know, the
public might be interested, and I certainly don't want to
deprive the public of an opportunity to be informed,
stipulations can serve that purpose if there is no reason other
than the facts to be set forth.
So I encourage you to explore that with the parties to
see if we can arrive at stipulations.
MS. WANG: We have made some efforts so far, Your
Honor, which have not been successful.
THE COURT: Well, if they haven't been successful then
I'll point out that fortunately, in addition to the four days
this week, we've now got four days that have opened up in June.
And as I said yesterday, I'm not going to go through
and spend all the time that I spent last time and find out that
evidence was not provided. And so if we have to call witnesses
back five, six, seven or eight times, we will get all the
evidence and we will hear the testimony and we're going to
finish with this case. That is my intent.
It seems to me that we are better off -- again, I
don't want to be inefficient, but it seems to me we're better
off finishing this case now than dragging it off -- dragging it
out forever and finding new evidence and other matters that are
going to require the reopening again of these things.
Ms. Iafrate, did you want to be heard on that?
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MS. IAFRATE: Yes, Your Honor.
I would request that you do submit an allocation of
time for each party. We do have witnesses also. My fear is
that by the time we get to Friday we will be out of time. With
at least some guidance of how much time each party would have,
it concerns me that we won't get to Sheriff Arpaio's witnesses.
THE COURT: Well, I'll tell you what, Ms. Iafrate.
What we will do, then -- because I'll -- you see if you have
other dates between now and June that you can hold open. If
you're concerned, we'll give you the time you need and I'll
find another date even between now and June when we can have
more testimony. But you will have the opportunity to present
your witnesses. I will just -- even if it isn't immediately in
this section, there's going to be supplemental hearings.
You'll have the time to present your witnesses and I will hear
them, but I do want to do that efficiently.
I'm not in any position right at the moment to give
time allocations but I would be glad to discuss that with the
parties. If you want to discuss it we can talk about it. But
especially it is difficult when I'm allowing what I think is an
efficient procedure -- well, I guess I could do that. I'll
just charge you the time that you're up and asking questions.
So I will keep track of it beginning right now. I
will give you your running totals, and then if I decide I'm
going to assert a total, your running total will go against
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your total time.
All right?
MS. IAFRATE: Thank you, Your Honor.
THE COURT: Ms. Como, anything on that?
MR. COMO: Your Honor, the only --
THE COURT: What we're going to need to do, we're
going to need to have you speak into a microphone always,
Mr. Como. So maybe we need to, after you come back after the
break, realign yourself so that you're in front of a
microphone, but as it is now, would you please come over to the
podium?
MR. COMO: Sure.
Your Honor, I understand about having Mr. Sands, for
example, testify on direct following the cross by the
plaintiffs, and I have no problem with that for efficiency
purposes. However, I simply want to be clear that we would
want to reserve our right to recall him in the event that other
evidence comes out from other witnesses after he testifies.
THE COURT: All right. You can make that appropriate
motion at that time. I'm not going to require anyone who I
have individually noticed as being a party to contempt to leave
the courtroom, but every other person who has been called as a
witness will need to leave the courtroom because we are
invoking the rule of exclusion and you'll have to wait outside
subject to call.
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So if you have been notified that you are a witness in
this matter and you have not been individually noticed as
somebody who is subject to contempt, you must leave the
courtroom at this time and wait in the waiting area. There are
waiting rooms right behind the courtroom.
(Witnesses are excused from the courtroom.)
MR. WALKER: Your Honor, may I be heard on the
County's participation in this matter?
THE COURT: You may.
MR. WALKER: Would you like me to come to the podium?
THE COURT: Sure.
MR. WALKER: First of all, Your Honor, as I indicated
in the conference call we had yesterday, the Maricopa County
Board of Supervisors is not at all interested in causing
unnecessary disruption or unnecessarily prolonging this matter.
To the contrary, they'd very much like to see it brought to a
just and expeditious conclusion without the imposition of undue
financial burdens on the Maricopa County taxpayers.
That said, as we discussed yesterday, I was retained
to become involved in this case last Friday, and neither I, nor
anyone from my firm, participated in any of the discovery that
was run up to this proceeding.
And for that reason, and also because I think that the
outcome of the issues that we are probably going to raise with
the Court of Appeals with regard to ordering the County to
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participate as a party, could actually affect the course of
these proceedings in some ways that at this point are difficult
to fathom.
We'd respectfully request a brief delay in the
proceedings, one, to permit us to get those issues before the
Court of Appeals; and two, to give me and my firm a reasonable
opportunity to prepare.
You've already indicated both in the telephone
conference yesterday and here today what your inclination is in
that regard and I respect that, but for the record, I'd still
request the delay.
THE COURT: All right. I do think -- I can't fathom,
as I thought through it, I mean, Ms. Iafrate is representing
the defendants in this action. The question really related to
jural entity that was briefed before the Court of Appeals, and
they indicated that they're only moving in Maricopa County
because Maricopa County Sheriff's Office is not a jural entity.
Unless you can tell me why you believe that
Ms. Iafrate is incapable of representing any liability
interests that may arise from the defendants that she is
representing, we're going to proceed.
MR. WALKER: Well, Your Honor, I have nothing but the
greatest respect for Ms. Iafrate and in her capabilities, but
the interests of the sheriff and the Maricopa County Sheriff's
Office and the portion of the county government that I
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represent are not necessarily entirely coincident.
My understanding --
THE COURT: I do realize that, Mr. Walker, and I think
I've been very careful to try and keep Maricopa County
government well aware of what's happening here. They have had
representatives here at virtually every proceeding or I've
invited them to be here.
Further, as I told you on the phone yesterday,
Maricopa County was a party to this action. After Judge
Murguia made her determination that Maricopa County Sheriff's
Office was a jural entity, Maricopa County asked to be
dismissed from this action. I agreed -- and by then I was in
charge of this case and I agreed, based on the stipulation of
the parties, to dismiss Maricopa County from this action only
on the stipulation that if we ever needed them, they would be
reintroduced into this action and the action could proceed.
As I indicated yesterday on the phone, and you may
have told Ms. Gilbride, but, Ms. Gilbride, if we didn't tell
you I'm telling you now what I stated on the phone yesterday,
that at a previous proceeding when Ms. Gilbride -- I questioned
Ms. Gilbride about the nature of her appeal about Maricopa
County Sheriff's Office not being a jural entity and if there
was any reason why, as far as she was concerned, we needed to
insert Maricopa County as a party at that point, and I believe
other representatives of the County were here, and my
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recollection is they are on the record saying we could proceed
and they didn't need to be a party because they were just
trying to make a resolution of the issue once and for all at
the Ninth Circuit as well as at the Court of Appeals whether or
not Maricopa County, or Maricopa County Sheriff's Office, was
an entity capable of being sued.
Now, have I mischaracterized that, Ms. Gilbride?
MS. GILBRIDE: No, that's correct, Your Honor.
THE COURT: All right.
So as I indicated to you yesterday, I believe we had
County folks here said we could proceed. There has been a
tremendous amount of expense and effort. I can't really see
that the County's interests aren't being fully and completely
represented by Ms. Iafrate in a representation of the
defendants here. I think that is the effect of what the Court
of Appeals opinion has said.
I do recognize your right and your concern about
representing the separate interests of your client, but I don't
think that any of the facts here are going to change, and you
can certainly represent them as vigorously as you can, and as
is apparent at this point, we are going to have further
proceedings in this matter and I will consider any interests
that you have to be heard on points related to the County that
you couldn't have previously raised before these hearings come
to a close.
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MR. WALKER: I understand, Your Honor, and I respect
your position. I'd just like to state for the record that the
County has been brought back in as a party. It was unexpected.
It was not sought by the County or any of the parties. And
I've been in the case just long enough to be able to begin to
recognize what questions need to be asked, not to be in a
position, really, to provide definitive answers.
THE COURT: Well --
MR. WALKER: Quite frankly, I think the Ninth Circuit
has thrown us all a bit of a curve ball here, and I just think
that it -- it would make sense in terms of efficiency and
orderliness for us to give the Ninth Circuit an opportunity to
reconsider its position before we move forward with anything
substantive.
And in that regard, I'd say, although it's not
entirely clear what the Court intended, at this point I think I
have to operate on the assumption, and I believe the Court has
to operate on the assumption, that the Ninth Circuit intended
for Maricopa County to become a party for all purposes and with
all the rights of a full-fledged party.
And if we had been a party while this discovery was
going on and it somehow had been scheduled behind our backs and
conducted without our knowing about it and participating in it,
I'm sure Your Honor would be receptive to the notion that that
wasn't fair and it put my client at an unfair disadvantage.
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THE COURT: Do you wish to be heard on this, Mr. Como?
MR. COMO: No, Your Honor.
THE COURT: Ms. Iafrate?
MS. IAFRATE: Yes, Your Honor.
This wasn't quite how I envisioned today going.
Someone from my team has left the table, which is news to me
today. I hear the concerns of Maricopa County. I'm concerned
that there could be some conflict that somehow affects me. I'm
prepared to defend the clients that I'm here to defend.
However, based on what I hear from Mr. Liddy and Mr. Walker, I
am concerned regarding these issues that the Ninth Circuit has
thrust upon us.
THE COURT: And so?
MS. IAFRATE: And so I've made my record.
THE COURT: You haven't made any motion at all. What
is your motion? What is your position with respect to it?
MS. IAFRATE: Well, I would support Mr. Walker's
request that we have ethics counsel figure out whether we are
in synced with Maricopa County or there is some potential for
conflict so that the attorneys that are here representing the
individual clients are not walking into an ethical quagmire
without assistance from ethics counsel.
THE COURT: Have you -- you've not considered your
ethical responsibilities prior to today in light of the Ninth
Circuit's decision?
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MS. IAFRATE: Yes, I did, Your Honor.
THE COURT: And have you sought ethics counsel?
MS. IAFRATE: No, I have not, Your Honor.
THE COURT: Um-hum.
MS. IAFRATE: I have been discussing it with Maricopa
County.
THE COURT: On what basis do you believe that you may
be ethically constrained?
MS. IAFRATE: Because I represent Maricopa County in
issues and I represent Sheriff Arpaio in issues, and what I'm
hearing today is that potentially their issues in this
courtroom may not align.
THE COURT: Do you have any reason to believe that
their issues don't align -- that the factual issues don't
align?
MS. IAFRATE: Yes.
THE COURT: And what is that basis?
MS. IAFRATE: Based on Mr. Liddy asking to be removed
from the table and conversations that I've had with Maricopa
County, including Bill Montgomery and Mr. Fall.
THE COURT: Ms. Wang?
MS. WANG: Your Honor, plaintiffs oppose the County's
motion to stay these proceedings. Essentially, under the Ninth
Circuit's opinion, the County has now stepped into the shoes of
MCSO as a party. MCSO has been represented throughout these
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proceedings and the County is simply stepping in. The County
has chosen to retain new counsel.
But for all purposes of this contempt hearing where
the fact issues have to do with what the individual contemnors
did and with what the agency did, we don't believe that there
are any issues that require a stay.
In effect, the entity that's responsible has changed
from MCSO to the County, but the issues are the same, and
plaintiffs are ready to proceed and believe that a stay would
prejudice our interests in seeing the civil contempt proceeding
go forward, particularly, Your Honor, since we know that we are
going to be continuing witness examinations in June. There
will be plenty of time, to the extent Mr. Walker wants to get
up to speed and raise issues, particularly having to do with
remedies, at a later point before the Court makes any decision.
THE COURT: All right. I am going to say that I have
read, I think, carefully, a couple of times, the Ninth
Circuit's opinion, which I believe is based essentially on the
opinion of the Arizona Court of Appeals, and I think it makes
clear that all it is talking about is the nominally appropriate
party, and that all it is dealing with here is putting in place
the nominally appropriate party, that it makes no factual
difference.
Ms. Iafrate, if you could tell me some basis on which
I thought that you were really compromising yourself ethically
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from what you have always been doing, I would not compel you to
proceed with this hearing. But it does seem to me that because
of matters that I have just reviewed, we are going to have to
have multiple supplement -- multiple, several different
schedulings of this hearing.
Mr. Walker, I'm going to, as I said, allow you to do
any makeup you need to do, but it seems to me, based on the
positions taken in this court when I heard from Maricopa County
as opposed to Maricopa County Sheriff's Office, they may be
trying to make some argument that Maricopa County as an entity
is not financially liable for the contempt of Sheriff Arpaio
and the Maricopa County Sheriff's Office.
But that seems to me to be a legal argument, not a
factual argument. It doesn't seem to me that it -- because you
are separately represented here now, to the extent you want to
establish such a thing, I'll allow you to take depositions or
do whatever you feel like you need to do prior to the end of
this hearing, which will be continued for several months.
Ms. Iafrate, I'm sympathetic to you. If you can come
up with some sort of reason why you really think, in light of
the Ninth Circuit's opinion, that you really have some sort of
conflict, then I'll -- then I'll vacate the hearing. But this
has gone on for too long and I do believe it would be quite
prejudicial to the interests of the plaintiff -- plaintiff
class in light of the extensive time I have given and in light
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of, in fairness, my reading of the Ninth Circuit's opinion,
which is that this only has to do with naming the correct party
and doesn't have to do with a difference of rights as it
relates to that party at all. We're going to proceed with this
hearing.
So I appreciate your position, Mr. Walker. As I've
indicated, the hearing is only beginning today and I'll let you
make up whatever you have to make up to make sure that the
County's interests are represented.
MR. WALKER: Thank you, Your Honor.
In light of your ruling, may I have a continuing
objection so that --
THE COURT: You may have a continuing objection.
MR. WALKER: Thank you.
THE COURT: Ms. Iafrate, you may also have a
continuing objection.
MS. IAFRATE: Thank you, Your Honor.
THE COURT: Okay. Anything else that we need to
raise?
MR. McDONALD: Your Honor, just one question, if I
could. I'm trying to define what role the special limited
counsel have in this case, whether we participate, whether we
cross-examine, or whether our issues don't come until the end
of the case when the other issues come up.
THE COURT: Well, let me just say this, Mr. McDonald.
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I'm not going to allow you generally to participate, but it
does seem to me that you do have a role that may go during the
course of this hearing. Again, you will have an appropriate
role at the end.
But it also seems to me that if, for example, and I'm
not trying to forecast anything, if you have Fifth Amendment
concerns, I'm going to allow you to be heard on those in this
hearing. To the extent that you are representing your client
in this hearing as it may relate to any later hearing for
criminal contempt or other criminal liability, I'm certainly
going to allow you to represent his interests in that limited
respect.
Does that help clarify your question?
MR. McDONALD: I'm sorry. It would not -- for
example, hypothetically, if the sheriff were on the witness
stand and I felt there were areas that I wanted to bring out,
this would not be the time to do that?
THE COURT: That's correct. Unless and until it
relates to your concern about, for example, I offer as an
example a Fifth Amendment assertion or anything else that --
and I'm not saying that the sheriff will make that, but it
seems to me in light of the fact that I have raised the
possibility that the appropriate remedy might be criminal, he
certainly -- you certainly have an interest in representing him
in that respect and I will allow you to be heard --
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MR. McDONALD: Thank you.
THE COURT: -- as it relates to those matters.
And the same goes, Mr. Birnbaum, all the rest of you
who entered special appearances. Mr. Stein, the same goes to
you. I'm not going to generally allow you to participate in
this hearing, but to the extent that it relates to any
invocation of Fifth Amendment or other rights that you believe
your client -- that relate to criminal proceedings or
criminal -- or criminal matters, or -- and I don't mean to be
pejorative in that -- matters in which you believe their rights
need to be protected as against any sort of a future criminal
contempt hearing, I will allow you to be heard.
Anything else that needs to be clarified?
MR. COMO: Your Honor, I would like to have some
guidance from the Court as to the scope of the next four days
in terms of whether we're really just looking at whether these
individuals should be held in contempt or whether we're also
looking at potential civil remedies.
THE COURT: We're definitely looking at potential
civil remedies.
MR. COMO: Within these four days.
THE COURT: Yes.
MR. COMO: Okay. That's all.
THE COURT: Within the next four days and within
anything else that we schedule in the interim or thereafter.
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culture that we are attempting to fix with the monitor's
assistance so that we can remedy these deficiencies that were
not on purpose. They were not willful. They were -- they were
negligent areas that need to be fixed. And Sheriff Arpaio and
Chief Deputy Sheridan as well as the others at Maricopa County
Sheriff's Office are committed to fix these deficiencies and
move forward.
THE COURT: Thank you.
Mr. Como?
MR. COMO: Your Honor, on behalf of former
Chief Sands, I'd just like to say that we're ready to proceed,
that he's volunteered -- that he's cooperated completely, and
that we will put on evidence to show that he took reasonable
steps to comply with your December 23, 2011, order.
THE COURT: All right. Thank you.
Ms. Wang, first witness.
MS. WANG: Your Honor, plaintiffs call David Trombi.
THE CLERK: State your whole name for the record and
spell your last name.
THE WITNESS: David Trombi. T-r-o-m-b-i.
THE CLERK: Raise your right hand.
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DAVID TROMBI,
called as a witness herein, having been duly sworn, was
examined and testified as follows:
DIRECT EXAMINATION
BY MR. POCHODA:
Q. Good morning, Mr. Trombi. What is your present position at
the MCSO?
A. I am the chief of enforcement.
Q. Is that called "chief deputy" for my --
A. No, sir. There's only one chief deputy.
Q. Is it deputy chief?
A. It isn't, it's chief. So you have deputy chiefs, then you
have what they term executive chiefs, and then you have the one
and only chief deputy.
Q. And your domain is operations command, is that correct?
A. Sworn operations, yes.
Q. And that's basically the patrol function within MCSO, is
that fair to say?
A. Patrol, all of the investigations, everything on the sworn
side of the house, if you will.
Q. Pretty much everything in MCSO other than custody and
detention, is that right?
A. And administration, yes.
Q. I'm going to start by talking about your role beginning in
early 2014 in gathering of video cameras and the resulting
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tapes at the MCSO beginning of February of 2014.
What position were you in in February of 2014?
A. I believe then I was chief of Patrol.
Q. That's not the position you are in now.
A. Correct. I'm sorry. It is not.
Q. And then the Human Smuggling Unit was one of those that
reported to you in that position as chief of Patrol?
A. During that time I'm not sure that that unit was still
together.
Q. Prior, before it was disbanded, did the Human Smuggling
Unit report to you when you were Chief of Patrol?
A. I was one of the supervisors, yes.
Q. Well, you were the direct supervisor in line from the Human
Smuggling Unit. I will use the term "HSU" for that in the
future. The lieutenants and the commanders of HSU reported
directly to you, is that correct?
A. They could report to me directly, yes.
Q. Sometimes they could skip you and report directly to
Mr. Sands, is that -- is that right?
A. Yes, sir.
Q. But you were their immediate supervisory level over the
HSU.
A. Yes.
Q. Now, let me show you -- I'd like to put up Exhibit 151.
This has been admitted and stipulated to, so --
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THE COURT: Guess what? Nothing is admitted till I
admit it, and I haven't admitted anything.
MR. POCHODA: That's why I quickly changed, Your
Honor. It has been stipulated by the parties for admission.
Do we publish it first, then to you and the witness,
Judge?
THE COURT: Yes.
Do you have any objections to the admission of
Exhibit 151, Ms. Iafrate?
MS. IAFRATE: No, Your Honor.
THE COURT: Mr. Como?
MR. COMO: No, Your Honor.
THE COURT: If you want to put together a list of
stipulated exhibits at the break, I'll admit them. All right?
Exhibit 151 is admitted.
(Exhibit No. 151 is admitted into evidence.)
MR. POCHODA: Could we publish to everybody, Your
Honor?
THE COURT: It can be published.
BY MR. POCHODA.
Q. Can you see that, Chief Trombi?
A. Yes, sir, I can.
Q. And this exhibit has a number of pages. At the bottom of
each of the page is an e-mail from yourself, is that correct?
A. Yes, sir, that's correct.
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Q. And that was sent to various others at the MCSO, right?
A. Yes, sir.
Q. And you were seeking a count of, as it states here, how
many deputies are presently using recording devices, is that
correct?
A. Yes.
Q. You were not seeking the number of deputies that at any
time in the past had used a recording device, were you?
A. I didn't specify so.
Q. And you were asked to send out this request for information
by Chief Sheridan, is that right?
A. Yes, sir.
Q. And you were informed by Chief Sheridan that it was needed
by Chief Freeman in order to fulfill the information for a
grant that he was seeking, is that right?
MS. IAFRATE: Objection, Your Honor, leading.
MR. POCHODA: Your Honor, it is my understanding that
as we did at trial, that for adverse witnesses we could ask
leading questions.
THE COURT: All right. I'm going to allow some leeway
when it's an MCSO witness.
You are currently with MCSO, as I understand your
testimony.
THE WITNESS: Yes, sir, that's correct.
THE COURT: I'm going to allow some leading. You
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Trombi - Direct, CR07-2513, Melendres v. Arpaio, 4/21/15 51
may -- you may do so.
MR. POCHODA: Thank you.
THE WITNESS: And I apologize, sir. If you could
repeat the question.
MR. POCHODA: Yes.
BY MR. POCHODA.
Q. You were informed at that time when requested by
Chief Sheridan that the information in the e-mail in
Exhibit 151 was needed by Chief Freeman, is that right?
A. No, sir.
Q. What were you told that information was required for?
A. There had been a conversation in a common area on the 5th
floor of the Sheriff's Office headquarters where a governor's
Office of Highway Safety grant for body cameras, specifically
for our Lake Patrol deputies who were the ones that typically
enforce DUI enforcement, was going to be given to us, and there
was a realization at that point that we didn't have a policy to
address the usage and distributions of those items. So for
that reason, Chief Deputy Sheridan asked me to begin inquiring
as to what we currently had out there is the reason he asked.
Q. So at that point in time, in February of 2014, there was
no one place where one could look to see the total number of
video cams that deputies at MCSO were using, is that fair to
say?
A. Yes, sir, that's fair to say.
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