Melendres v. Arpaio #1467 Oct 13 2015 TRANSCRIPT - DAY 13 Evidentiary Hearing

8/20/2019 Melendres v. Arpaio #1467 Oct 13 2015 TRANSCRIPT - DAY 13 Evidentiary Hearing

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Melendres v. Arpaio, 10/13/15 Evidentiary Hearing 2964

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street

San Francisco, California 94111

American Civil Liberties Union Foundation

Immigrants' Rights Project

By: Andre Segura, Esq.

125 Broad Street, 18th FloorNew York, New York 10004

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Stanley Young, Esq.

By: Michelle L. Morin, Esq.

333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

For the Defendant Maricopa County:

Walker & Peskind, PLLCBy: Richard K. Walker, Esq.

By: Charles W. Jirauch, Esq.SGA Corporate Center

16100 N. 7th Street, Suite 140


For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:

Iafrate & Associates

By: Michele M. Iafrate, Esq.649 N. 2nd Avenue


Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.

2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012


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A P P E A R A N C E S

For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PC

By: Marilyn D. Cage, Esq.P.O. Box 20527Phoenix, Arizona 85036

For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division

By: Paul Killebrew, Esq.

950 Pennsylvania Avenue NW, 5th Floor

Washington, D.C. 20530

For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLPBy: Greg S. Como, Esq.2929 N. Central Avenue, Suite 1700


For Brian Mackiewicz:Sitton Nash

By: Alexandra Mijares Nash, Esq.

301 W. Warner Road, Suite 133Tempe, Arizona 85284

Also present:

Sheriff Joseph M. ArpaioExecutive Chief Brian Sands

Chief Deputy Gerard SheridanLieutenant Joseph Sousa


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I N D E X

Witness: Page

DAVID TENNYSON

Direct Examination Continued by Mr. Segura 2969Cross-Examination by Mr. Masterson 2997Redirect Examination by Mr. Segura 3104

Examination by the Court 3118

STEVE BAILY

Direct Examination by Ms. Wang 3141

E X H I B I T S

No. Description Admitted

2001 MCSO Memorandum from Commander Shaw to Captain 3169

Skinner dated 8/5/2015 re July 21, 2015 SiteVisit Request and MCSO Policy GC-17 dated9/5/2014 Employee Disciplinary Procedure

(MELC416241-MELC416261)

2760 Memorandum to Steve Bailey from Stephen Fax 3194

Re: Timeline for Ramon Charley Armendarizdated 8/1/2014 (MELC011630-MELC011647)

2843 E-mail from David Tennyson to Dave Zebro Re: 2983Report Request dated 4/27/2015 (MELC1397053)

2893 Interview of Mary Ann McKessey with David 2970

Tennyson re Case # 2015-0034 dated 3/27/2015

(MELC186200-MELC186266)

2894 Audio of conversation between Brian Mackiewicz 2977and David Tennyson (MELC672936)


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P R O C E E D I N G S

THE COURT: Thank you. Please be seated.

I did note that the parties have filed -- I guess we

ought to let the parties announce first. I'm sorry.

MS. WANG: Good morning, Your Honor. Cecillia Wang

and Andre Segura of the ACLU for plaintiffs.

MR. YOUNG: Good morning, Your Honor. Stanley Young

and Michelle Morin of Covington & Burling for plaintiffs.

MR. POCHODA: Good morning. Stan Pochoda of the ACLU

of Arizona for plaintiffs.

MR. KILLEBREW: Good morning. Paul Killebrew for the

United States.

THE COURT: Good morning.

MR. MASTERSON: Good morning, Judge. John Masterson,

Joe Popolizio for Sheriff Arpaio and the individual contemnors,

and with us is Holly McGee.


MR. WALKER: Good morning, Your Honor. Richard Walker

on behalf of Maricopa County.


MR. McDONALD: Good morning, Your Honor. Mel McDonald

making a special appearance for Sheriff Joe Arpaio.


MR. COMO: Good morning, Your Honor. Greg Como of


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Lewis, Brisbois, Bisgaard & Smith representing Chief Sands.


MS. CAGE: Good morning, Your Honor. Marilyn Cage of

Broening, Oberg, Woods & Wilson for nonparties Christina Stutz

and Tom Liddy.


MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and the unnamed alleged

contemnors.


MS. MIJARES NASH: Good morning, Your Honor.

Alexandra Mijares Nash making a special appearance for

Detective Brian Mackiewicz.


All right. I did notice that I finally got the

final -- or the sort of joint pretrial statement put together

this morning. I didn't really have a chance to read through

it, so I figured I'll try and read through it during break and

then maybe address it right after lunch. Unless there's

anything else to take up, we can resume, I believe, with the

testimony of Sergeant Tennyson.

Is there anything any party needs to raise?

All right. Sergeant Tennyson, then I'll remind you

you're still under oath. Even though we've had a long weekend,

you're still under oath.


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Tennyson - DX Segura, 10/13/15 Evidentiary Hearing 2969

THE WITNESS: Thank you.

DAVID TENNYSON,

recalled as a witness herein, having been previously duly

sworn, was examined and testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. SEGURA:

Q. Good morning, Sergeant.

A. Good morning.

Q. So on Friday we were discussing an interview that you

conducted of Ms. McKessy with Dave Zebro, correct?

A. That's correct.

Q. And that interview -- do you recall the date of that

interview?

A. I do not recall the exact date. I'm thinking it was toward

the end of July, August, I'm not sure.

Q. Of 2014?

A. '14, yes.

Q. Could you take a look at Exhibit 2893, which is not in

evidence.

And is this the transcription of the interview that

you and Dave Zebro conducted with Ms. McKessy?

A. Yes, it is.

MR. SEGURA: Your Honor, I move for the admission of

Exhibit 2893.

MR. MASTERSON: Objection, hearsay.


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THE COURT: Overruled. The exhibit is admitted.

(Exhibit No. 2893 is admitted into evidence.)

BY MR. SEGURA:

Q. And there's a date at the top of -- on the top margin of

this exhibit. Do you see where it says March 27th, 2015?

A. I do.

Q. That's not correct, right?

A. That's not the correct date of the interview.

Q. Okay. And there's also a case number, 15-34. Is that the

case number assigned to this case?

A. I'm not certain if it's assigned to the -- this was a

criminal IA case, so that was the number given. I assume it

must have been assigned to the case, yes.

Q. Okay. Could you turn to page number 14 of the transcript.

The page numbers are at the top.

MR. SEGURA: Your Honor, may we publish this?

THE COURT: You may.

BY MR. SEGURA:

Q. Do you see at the bottom of page 14 where Ms. McKessy is

discussing how she was demoted because she did not divulge her

relationship with Mr. Mackiewicz?

A. I do.

Q. Okay. And at the very bottom, do you see where she says

she was demoted, and that Bill Montgomery, referring to the

county attorney, referred it over to MCSO?


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Do you see that?

A. I do.

Q. And she was -- if you flip to the next page, she was

asking -- she was referring to a conversation she had with

Mr. Mackiewicz about what would happen to him for failing to

disclose this relationship, is that correct?

A. Yes.

Q. Okay. And if you go to the next page, page 15, line 639,

do you see where Ms. McKessy states that Mr. Mackiewicz's

reaction was: "He's, like, '(Jerry) told me not to worry

about. They're gonna take care of it"?

Do you see that?

A. I do.

Q. Did you look into this issue as to whether Mr. Mackiewicz

should have revealed his relationship with Ms. McKessy?

A. No, I didn't.

Q. Do you know if there's a policy of having a relationship

with a county attorney, with an MCSO employee having a

relationship with a county attorney?

A. I'm a criminal investigator. That would be an

administrative issue, so those people would have looked into

that. The administrative side would have looked into something

that referred to policy.

Q. Okay. Did you refer it to the administrative side?

A. There was a report written, and these transcripts all go to


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the administrative side.

Q. And you're not aware if any investigation was conducted as

to this issue, correct?

A. I'm not.

Q. Turn to page 36 of the transcript.

Do you recall that during Ms. McKessy's interview she

referenced a Cathy Woods Enriquez?

A. I do.

Q. And who is she?

A. Cathy, from what I recall, I think she works for Phoenix

PD. But she's assigned to ACTIC, which is a -- I think it's

like a joint division that does background investigations and

things like that, criminal investigation.

Q. Okay. And Ms. McKessy on this page, and I believe on the

next page, is discussing some concerns she had about whether

Mackiewicz had obtained her text messages, is that correct?

A. I'm not sure exactly if she was talking about text

messages. I recall her talking about receiving a -- or seeing

at one point a list of texts or e-mails, something to that

effect, yes.

Q. Text messages that Ms. McKessy had sent?

A. I'm not sure. I'm not sure exactly what the nature of the

text messages were.

Q. So if you go to line 1586, do you see where Ms. McKessy

says: "Um, it was an email from (Cathy Woods-Enriquez), who's


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a detective over in Phoenix and the way -- it's hard to

describe, but basically -- you know, I told you, I think

between August 10th and August 11th was my final F' you text to

(Brian)."

And then she continues: "(Cathy Woods) sent him like

a transcript of those texts by email. So it was like from

(Cathy Woods) to (Cathy Woods) -- like she sent it to herself,

a copy of it."

Do you see that?

A. I do.

Q. Is that referencing text messages that Ms. McKessy believes

were from her?

MR. MASTERSON: Objection, foundation.

THE COURT: Sustained.

BY MR. SEGURA:

Q. Is it your understanding that Ms. McKessy was referencing

text messages that she had sent? That Ms. Woods had?

A. You know, I'm not certain. I do recall her telling myself

and Detective Zebro that she had -- she had purchased a -- I

call them a throwaway phone. Basically, it's a -- one of those

pay-per-minute phones, and that he was -- she was sending texts

to who she believed was his girlfriends or his lady friends, I

guess you could say. And she was doing so because she didn't

want him to know it was him -- or her, rather.

Cathy, I know -- I don't know her personally, but I


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don't recall how Cathy got the -- according to Mary Ann, how

Cathy actually got the texts. I do know that Dave Zebro did

bring up at one point, and it was a good point, that if -- and

I think McKessy even agreed -- that if Mackiewicz was

receiving, or Mackiewicz' girlfriends were receiving texts

regarding information that would only be known to him, we

suggested that maybe he was concerned about that, not knowing

who it was coming from. I do recall that.

Q. And were you -- were you not concerned that

Detective Mackiewicz may have utilized Ms. Woods to access text

messages from Ms. McKessy's phone?

MR. MASTERSON: Objection, relevance.

THE COURT: What's the relevance?

MR. SEGURA: Your Honor, this goes to the sufficiency

of the criminal investigation as to the allegations against

Mr. Montgomery. In this transcript, Ms. McKessy describes --

she describes --

THE COURT: All right. I'll allow this question, but

I'm not going to allow you to go very far with it.

MR. SEGURA: Okay.

THE WITNESS: The way I recall it was those text

messages from McKessy, according to McKessy, would not have

been known by Brian to be from her, if you understand what I'm

trying to say.

My understanding was, and I think she even talked


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about it, was that could have been a reason why he was looking

into those text messages. That's my recollection.

BY MR. SEGURA:

Q. Did you ever look into this issue of text messages, and

whether they had been improperly accessed?

A. No, I did not.

Q. So after this interview with Ms. McKessy you called

Mr. Mackiewicz on Monday and he came into the office, and last

Friday we discussed how he met with you, Captain Bailey, and

Dave Zebro, is that correct?

A. Yes, that's correct.

Q. And after that you had a follow-up conversation with

Mr. Mackiewicz, correct, over the phone, that you recorded?

A. Yes. There was a phone call that I'm thinking it came in a

day later, maybe two days later, that I did record.

MR. SEGURA: Okay. Your Honor, I'd like to play

portions of that audio file and move for its admission. Could

we play the first 10 seconds? I don't have a -- I'm not aware

of a transcript that was produced.

THE COURT: Any objection?

MR. MASTERSON: Object, foundation and hearsay.

THE COURT: Well, I don't know how we lay foundation

unless we play the file.

MR. MASTERSON: Judge, I'm also going to object on the

basis of relevance. I mean, it seems that what they're trying


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to do is impeach a witness who hasn't even testified yet by

using a criminal investigation for which he has not been found

guilty of anything. And it's highly --

THE COURT: Well, again, I'm not going to ask for

speaking objections.

MR. MASTERSON: 403. Relevance.

THE COURT: Okay. I don't know --

MR. MASTERSON: And hearsay.

THE COURT: As to the admission -- as to the playing

of this exhibit? I'm just asking if you're going to object to

the playing of this exhibit. It seems to me necessary to lay a

foundation.

MR. MASTERSON: Well, I have not heard it, so I don't

even know what it is.

THE COURT: You can play it, and then you can give me

any objections you have.

MR. SEGURA: Thank you, Your Honor.

Mr. Klein, will you play the first 10 seconds of

Exhibit 2894.

(Audio clip played.)

BY MR. SEGURA:

Q. Is this the audio recording of -- the beginning of the

audio recording of your conversation with Mr. Mackiewicz --

A. Yes.

Q. -- following your meeting with Captain Bailey?


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A. Yes, it is.


Exhibit 2894.

MR. MASTERSON: Objection, hearsay, relevance, 403.

THE COURT: Are you offering this for the truth of the

matters asserted, or what are you offering it for?

MR. SEGURA: I'm offering it for the adequacy of this

investigation of the MCSO employee who was primarily involved

in the Montgomery investigation.

THE COURT: What's it going to tell me that goes to

the adequacy that doesn't rely on the truth of the matter

asserted, or how does it otherwise overcome the hearsay

objection?

MR. SEGURA: This goes to the propriety of having a

conversation with the principal in the investigation and

having -- disclosing information or not properly investigating

the principal.

THE COURT: All right. Well, I'll allow it. The

objection is overruled.


MR. MASTERSON: Excuse me, Judge. I didn't catch, is

there a number for this one? I did not hear that.

MR. SEGURA: Exhibit 2894.

THE COURT: 2894?

MR. SEGURA: Yes.


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MR. MASTERSON: Thank you.

BY MR. SEGURA:

Q. So you said that you had this conversation after the

meeting with Captain Bailey and Mr. Mackiewicz in the office?

A. That's correct.

Q. Okay. And Mr. Mackiewicz called you, is that correct?

A. That's correct.

Q. Okay. And you weren't calling him to actually investigate

this case, were you?

A. He called me.

Q. You were having -- were you having this discussion as part

of your investigation?

A. Yes and no.

Q. What do you mean by no?

A. I recorded it for a reason. At that point, there was no

probable cause in my mind to think that a crime had been

committed. My thinking was is that any time that he called me

or I called him, it would probably be wise just to audiotape

it.

Q. You were calling him more as a friend, weren't you?

A. He called me.

Q. And when you were discussing this with him, it was from

friend to friend?

A. Yeah. I'm not going to deny he's a -- he's a friend of

mine, but he's also a colleague, and he called me, and as -- if


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you listen to the rest of that tape, you'll see that he did the

majority of the speaking, talking.

Q. Okay.

MR. SEGURA: Could we play the clip, 2894E.

(Audio clip played.)

BY MR. SEGURA:

Q. You didn't believe there was any merit to Ms. McKessy's

allegations, did you?

A. I could not identify a crime based on the interview that I

had with Ms. McKessy two or three days prior, no.

Q. Could you turn to Exhibit 2016, which is admitted into

evidence.

And this is a -- Exhibit 2016 is a memo that a

Jennifer Johnson wrote to you on March 17th, 2015, is that

correct?

A. That's correct.

Q. And who is Ms. Johnson?

A. She is an analyst with MCSO. At the time she was working

with PSB.

Q. And you asked her to draft this memorandum, correct?

A. I did.

Q. You provided her with the information to draft this

memorandum?

A. Yes, she had audio/video of the interview with McKessy, as

well as transcripts.


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Q. And this memorandum was produced about seven months after

you interviewed Ms. McKessy, is that correct?

A. Yes, it was.

Q. Okay. This case had been shelved, right?

A. So to speak.

Q. You wanted to close it out?

A. I think I said Friday I don't think any case is ever

closed, but we follow the evidence, and if the evidence runs

dry there's not much more we can do.

Q. Prior to drafting this memo you hadn't actually

investigated this case, had you?

A. Yes.

Q. You had followed up with Ms. McKessy to get the documents?

A. No. Ms. McKessy agreed during our first meeting that she

would try to rekindle her relationship with Christine,

Mackiewicz's girlfriend, who she claimed had all the

information, this third party from Christine. Ms. McKessy is

an attorney and a former bureau chief, so professional

courtesy, we gave her the time and the opportunity to do that.

Q. But you didn't follow up with her, correct?

A. No.

Q. So on the second page, the last paragraph, do you see where

it says: "Based on the information provided, the actions

described by Ms. McKessy, do not rise to a criminal level"?

Do you see that?


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A. I do.

Q. And that was your opinion, correct, not that of

Ms. Johnson?

A. Yes, that's my opinion.

Q. Okay. But that's not accurate, correct?

A. Well, I'm not sure what you mean.

Q. Ms. McKessy had made allegations that could rise to a

criminal level, correct?

A. Based on the information that she provided us at that

particular time, I did not see that a crime had been committed,

no. There was no evidence at that time.

Q. And how about the misuse of overtime? You didn't believe

that could be a crime?

A. Misuse of overtime can be a crime. However, in order to

prove that, we would need more in the way of evidence.

Q. During the seven months between the time that you

interviewed Ms. McKessy and Ms. Johnson drafted this memo, you

don't recall any of your supervisors asking for an update on

this investigation, do you?

A. The only one I can recall asking for a memorandum was

Lieutenant Seagraves.

Q. And was that around the time of this memo?

A. Yes.

Q. So prior to that, you don't recall anyone asking you,

What's going on with this case?


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A. I don't recall.

Q. Okay. You at some point had attempted to speak to the

sheriff about the allegations of overtime misuse, is that

correct?

A. I did at one point. I suggested that the -- in order to

further the investigation, I would need to speak with the

sheriff, thought it was pertinent.

Q. And Ms. Johnson did not include those efforts in her

memorandum, correct?

A. Pardon me?

Q. Ms. Johnson did not include your efforts to reach out to

the sheriff in this memorandum?

A. I don't believe so.

Q. Is that because it happened after this memorandum?

A. I don't recall when that happened.

Q. Do you know why she did not include it?

A. I recall being busy with other cases, obviously, and

Jennifer Johnson offered her assistance. And I gave her what I

had regarding this case, and it was the audio/video CD of the

McKessy interview and the transcript. So I don't recall giving

her that specific information, no.

Q. Okay. Would you turn to Exhibit 2843, which is not in

evidence. This is a -- this is an e-mail that you sent to Dave

Zebro regarding your attempts to obtain information from the

sheriff regarding the parameters of Mr. Mackiewicz's


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employment, is that correct?

A. Yes, that's correct.


Exhibit 2843.

MR. MASTERSON: Objection, relevance, 403.

THE COURT: Overruled. Exhibit 2843 is admitted.


BY MR. SEGURA:

Q. There is a date handwritten. Do you see that?

A. I do.

Q. That's April 27th, 2015?

A. Yes.

Q. Does that suggest that that's the date on which this e-mail

was sent? I notice there's no date at the top.

A. Yes. I looked for -- for e-mails regarding my request to

speak with the sheriff, and I noticed the same thing. There

was no date; I don't know why. But based on the computer time

stamp, on 4-27-15 it was sent.

Q. Okay. So would that suggest that your efforts to contact

the sheriff regarding this issue happened after the Johnson

memo that we were just discussing, after March of 2015?

A. I'm not certain.

Q. Okay. So you made requests to speak to the sheriff,

correct?

A. I discussed.


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Q. And those requests were denied?

A. Yes.

Q. Who denied those requests?

A. I recall discussing it with Kim Seagraves briefly, and she

said that that was not going to happen.

Q. Did she say why?

A. She didn't.

Q. Did you ask why?

A. No.

Q. And a request was also denied to speak to the sheriff by

Chief Deputy Sheridan, is that correct?

A. I'm sorry. Can you say that again?

Q. Chief Deputy Sheridan also didn't -- Chief Deputy Sheridan

also denied your request to speak to the sheriff about this

issue, correct?

A. I don't recall that.

Q. You had a meeting in which you discussed whether you could

contact the sheriff regarding this issue, is that correct?

With Captain Bailey, Lieutenant Seagraves, and Chief Deputy

Sheridan?

A. I recall being in a meeting. I don't recall discussing --

I don't recall discussing that with anyone at the meeting, that

meeting, speaking with the sheriff.

Q. Do you recall if anyone discussed whether the sheriff could

be asked questions regarding the parameters of Mr. Mackiewicz's


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employment?

A. I don't recall it being specifically discussed.

Q. Was that issue discussed generally?

A. I can't say. I don't want to -- I can't say accurately.

Generally -- I don't know.

Q. Did you have a conversation regarding whether you could

speak to the sheriff in which counsel was present?

A. I did not, no.

Q. Do you know if anyone did?

A. I recall it being discussed. I didn't discuss it, and I

can't tell -- I don't know who discussed it.

Q. Okay. Do you recall anyone other than Lieutenant Seagraves

indicating to you that you could not speak to the sheriff

regarding the overtime allegations?

A. I recall Seagraves, but I can't accurately, no, I don't

recall that.

Q. Okay. In this e-mail that you sent to Dave Zebro, you were

documenting your attempts to contact the sheriff regarding this

issue, correct?

A. Yes.

Q. Could you turn to to Exhibit 2842, which is in evidence.

A. 2842?

Q. Yes.

A. I don't see it.

MR. SEGURA: We're going to hand you a copy.


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THE CLERK: (Handing).

THE WITNESS: Thank you.

BY MR. SEGURA:

Q. So this is a transcript of a telephone interview that you

had with Mr. Mackiewicz in August of this year, is that

correct?

A. Yes.

Q. Okay. And you were aware that there was still an open

criminal investigation as to Mr. Mackiewicz, is that correct?

A. I knew the investigation had -- had been taken from me and

given to two other criminal detectives. As far as the status

goes, I can't be certain whether it was active or not.

Q. Did you check the status prior to calling Mr. Mackiewicz?

A. No.

Q. You didn't have any concerns with the possibility that

there was an open criminal investigation?

A. No. I was just returning a telephone call, a text.

Q. Okay. But you discussed the case with Mr. Mackiewicz,

correct? The status of it?

A. I don't recall if I discussed the status of the case. I do

recall discussing with him the fact that I had been interviewed

earlier by the Monitor Team.

Q. Okay. Could you turn to page 5 of 12 of the transcript.

See at the top paragraph that starts, "This whole

Seattle case"?


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A. I do.

Q. Okay. So it says: "This whole Seattle case it was what it

was. You know, um, I believe that and, and I'm just gonna you

know, obviously, I'm gonna speak frank with you 'cause I can

trust you."

And then Mr. Mackiewicz says: "But you know when,

when I got back and I sat in your when I sat in Bailey's office

and you, you, Bailey and Zebro were there, I was under the

impression because of not, not because of how it was handled

but, um, it was what it was. You, you were, obviously, the

Sheriff wanted to find out who the snitch was."

Do you see that?

A. I do.

Q. So he's referencing a conversation -- the conversation that

you had with Captain Bailey and Dave Zebro the Monday after you

interviewed Ms. McKessy?

A. Yes.

Q. And you discussed -- he was referencing that during that

meeting, it was discussed that the sheriff wanted to know who

the snitch was?

A. That's what he said. I don't recall that, and to this day

I'm not exactly sure what he means by that.

Q. Do you know who he was referring to by "the snitch"?

A. You know, he -- he may have mentioned a name, but I can't

recall right now.


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Q. Okay. The next line says: "We didn't know if it was

McKessy or not, blah, blah, blah."

During that meeting with Captain Bailey, was it

discussed whether Ms. McKessy was a snitch?

A. I don't recall that that was discussed.

Q. Do you recall during that meeting if there was any

discussion as to who may have leaked the Seattle or Dennis

Montgomery investigation?

A. I don't recall that being discussed, not much about the

Seattle case at all, if any.

Q. You didn't follow up with Mr. Mackiewicz about what he was

referring to in terms of a snitch, did you?

A. No. Honestly, I was relieved after returning his call. I

had been accused by the Monitor Team of interviewing Mary Ann

McKessy and then directly going to Brian Mackiewicz and

providing him with all the information within the interview.

And as I spoke with the monitors for approximately nine hours,

I could not, in my mind, think of why I would have done that,

especially why I would have done it and audiotaped it.

So when I got the opportunity to return a phone call

with Brian Mackiewicz, my sole purpose was to -- to figure out,

I'm getting old now, so I forget things maybe, but I was -- my

sole purpose was to figure out why I would have audiotaped that

conversation. And in the back of my head, knowing that it was

for a reason, and the monitors were quite angry with me because


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they truly believed that I had somehow circumvented this thing

some way and gave Brian information.

So honestly, I didn't hear -- I heard every third word

of this conversation, but when he started to tell me about a

meeting that we had had, about an airplane that he had been on

and I called him, it brought back my memory. And then I

knew -- which I knew in my heart of hearts I would have never

interviewed McKessy and called Brian. I was just thrilled that

he was able to provide me with enough information so I could

make that recollection.

Q. So he says in this transcript that "You, you were,

obviously, the Sheriff wanted to find out who the snitch was,"

correct?

A. In this transcript he does.

Q. And he's -- it's your understanding that he's referencing

what was discussed during this meeting with Captain Bailey,

correct?

A. You know, he is, and I don't recall those specifics being

discussed. I'm not saying they didn't -- he didn't, but I

don't -- I don't recall that.

Q. Your purpose in this -- in making this call was to just

exonerate yourself, would you say that?

A. Absolutely. The monitors suggested I had purposely

interviewed Mary Ann McKessy and immediately confided in Brian

Mackiewicz and gave him all the information regarding that


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interview. I knew I did not, but I could not, for the life of

me, remember why that second phone call was placed, the one

which I had audiotaped. I couldn't figure it out. So yes, I

was excited to finally figure out what that was about.

Q. And you were excited because you were able to confirm that

those discussions with Mr. Mackiewicz about McKessy's

allegations had already been discussed with Captain Bailey

during that meeting?

A. Yes. Brian came to Captain Bailey's office and he -- he

spoke at length. I mean, he -- he knew everything that

basically McKessy had already provided us with based on the

conversation he had with his girlfriend, Christine.

Q. And you discussed -- those allegations had already been

discussed in the meeting with Captain Bailey, correct?

A. The specific allegations, I don't know. To me, we kind of

sat back and listened to him. It appeared as though he had --

he had already been aware of all this, so...

Q. And he continues in this paragraph that -- he mentioned

that you investigated the case, and that you had closed it out?

A. Yes, he did.

Q. Okay. And then he says: "You go ahead and close it out

and next thing you know, I'm gettin' a call from Jerry."

Do you see that?

A. I do.

Q. It's your understanding he's referring to Chief Deputy


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Sheridan?

A. Yes.

Q. He says, "You go ahead and close it out and next thing you

know, I'm gettin' a call from Jerry saying hey, you know what?

Don't worry about it but we gotta open it back up again. And

we're giving it to Sparman because you know we just wanna make

sure that everything looks transparent."

Do you see that?

A. I do.

Q. Is it your understanding that he was suggesting that the

investigation was reopened after you had closed it it out just

so that it could look like something was done?

A. I do not know. I'll say again, I may sound selfish, but I

had three -- two monitors from the federal courts suggesting I

had interfered with a criminal investigation. I don't know

what he told Jerry Sheridan, you could ask him, but I -- I

didn't really pay much attention. And I think I even made that

statement to my lieutenant when I -- after finishing our

conversation on the phone.

Q. It wasn't your understanding that he was suggesting that

they were making it out to look like a real investigation?

MR. MASTERSON: Objection, argumentative.

THE COURT: I'm going to sustain the objection.

BY MR. SEGURA:

Q. You don't recall having any reaction to what Mr. Mackiewicz


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said here?

A. No. I'm not sure what -- no.

MR. SEGURA: Your Honor, may I have a moment?

THE COURT: You may.

(Pause in proceedings.)

BY MR. SEGURA:

Q. During your conversation with Mr. Mackiewicz and

Captain Bailey that occurred at the office, you mentioned that

Mr. Mackiewicz appeared to know a lot of the allegations, is

that correct?

A. He did.

Q. And you confirmed that Ms. McKessy had made those

allegations, correct?

A. I'm sorry. Can you say that one more time?

Q. Sure. During that conversation you confirmed that

Ms. McKessy had, in fact, made the allegations that

Mr. Mackiewicz appeared to know about?

A. Word for word, no. I do recall him -- let me back up.

Because the information that McKessy had relayed to

myself and Dave Zebro was a third party, it came from,

according to McKessy, Christine, who was allegedly Brian's

current girlfriend, it just -- I don't know, it made sense. He

was able to -- he knew. He knew what was going on. He knew

about the investigation. He had confronted Christine. So he

was aware of everything that I could -- not "everything," but


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it was quite obvious that he knew what was going down. He --

he knew.

Q. And so you in this meeting, you and Captain Bailey and Dave

Zebro informed him that Ms. McKessy had, in fact, come in for

an interview and had made those allegations?

A. Yes. I mean, McKessy's name did come up, and I -- I do

recall that. I'm not sure under what circumstance we -- I or

something Captain Bailey said that, but -- I can't be specific

as to why her name came up or why that was divulged, but he did

know; he knew everything.

Q. But it was divulged that Ms. McKessy had been interviewed,

correct?

A. Yes, I believe so, yes, it was.

Q. And the overall allegations that Ms. McKessy had made?

A. I'm sure some of the allegations were discussed although

I'm not exactly sure what specifics were.

Q. Okay. Can you turn to page 7 of 12 of the transcript.

If you look at the bottom, do you see where

Mr. Mackiewicz is discussing a meeting that Christine Webster

had with Stacy Sheridan?

Do you see that?

A. I do.

Q. He's also referring to a meeting that Miss Webster had with

Chief Deputy Sheridan, is that correct?

A. Yes.


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Q. Okay. And Christine Webster, that is -- that was

Mr. Mackiewicz's girlfriend at the time?

A. I believe so, yes.

Q. And if you go to the bottom of that page, do you see where

Mackiewicz recounts Chief Deputy Sheridan telling Christine,

"you know we believe Brian," continuing on to the next page,

"You know what whatever if Brian was cheating on you then, you

know that's your business. That's your personal business. But

as far as work goes, this is a nonissue"?

A. Yes, I do.

Q. You believe that Mr. Mackiewicz was saying this because

he's friends with Chief Deputy Sheridan, correct?

A. I don't know why he was saying it. It was -- to me it

wasn't relevant. The cheating wasn't a violation of state law.

Q. It wasn't relevant that Mr. Mackiewicz was suggesting that

Chief Deputy Sheridan simply believed him, and that the

allegations Ms. McKessy made was a nonissue, were a nonissue?

A. About cheating, again, to me it was not relevant.

Q. Turn to page 409 of your deposition, second deposition

transcript. Should be the smaller one.

It should be towards the end.

Okay. On line, page 409, do you see where I ask: "Do

you know what Mackiewicz was referring to when he says, 'you

know we believe Brian'?"

Do you see that?


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A. I do.

Q. And your answer was: "I mean, it is what it is. It says

this. I don't know. They're friends. I don't know."

Do you see that?

A. I do.

Q. Was that testimony accurate when you gave it during your

deposition?

A. Oh, yes. I'm not denying that they were friends. I'm sure

they are.

Q. You believe that Chief Deputy Sheridan was telling

Mr. Mackiewicz this because they're friends?

A. I don't know.

MR. MASTERSON: Objection, foundation.

THE COURT: He asked for his belief. Overruled.

THE WITNESS: I don't know.

BY MR. SEGURA:

Q. Does this strike you as too familiar a conversation to have

with someone you've investigated criminally as to these

allegations?

A. No, I don't think so.

Q. How about to someone who's still being investigated

criminally?

A. No, I don't.

Q. Looking back now, you wouldn't have done anything

differently with respect to the -- with respect to your


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investigation of Miss McKessy's allegations, correct?

A. As an investigator, I can look back the last 15 years and I

probably would have done something different with every single

case I've investigated. That's the benefit of hindsight.

As far as the McKessy case, I don't believe there was

enough evidence to support a crime had been committed at the

time, so no, I wouldn't have.

Q. Okay. If you were serious about these allegations, you

would have done more to investigate them?

A. If I had been provided with viable evidence, usable

evidence, yes, more would have been done.

Q. When you first were assigned to the criminal IA back in

2009, you didn't receive any training on how to conduct

criminal internal investigations, is that correct?

A. Specific to criminal internal investigations, any courses

that were named criminal internal investigations? No.

Q. Or how to con -- courses about how to conduct internal

criminal investigations?

A. By name, no.

Q. How about otherwise?

A. I've received several -- I've gone through several training

courses, investigative courses, interrogation courses,

detective certification courses --

Q. And are those general training courses on criminal

investigations?


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Tennyson - CX Masterson, 10/13/15 Evidentiary Hearing 2997

A. They are.

Q. And none of those relate specifically to internal

investigations, correct?

A. Not to criminal internal, that's correct.

Q. Okay. And when you returned to PSB in 2014, you also

didn't receive any training on criminal internal

investigations, correct?

A. Criminal internal? Correct.

MR. SEGURA: No further questions.

THE COURT: Cross-examination.

CROSS-EXAMINATION

BY MR. MASTERSON:

Q. Good morning, Sergeant Tennyson.

A. Good morning.

Q. Where are you currently assigned at the Maricopa County

Sheriff's Office?

A. The Bureau of Internal Oversight.

Q. What is that?

A. Basically, my position, it's a new position, is to review

the county attorney turndowns, the reports that are turned

down, specifically looking for probable cause and elements of

the crime, be certain that if an arrest was made, those exist.

Q. What else do you do with the Bureau of -- what is it?

Internal Oversight?

A. Yes, sir.


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I also review a sampling of the departmental reports

on a monthly basis for the same purpose: to make sure that

we're in compliance with not only Melendres, but to be certain

that the elements of the crime and the probable cause, should

an arrest have been made, is present.

Q. Okay, you just mentioned Melendres. I want to ask you a

little bit more about that. What is it about the job you

currently do with MCSO that has something -- that is something

related to the Melendres case? This case we're in today.

A. Well, certainly the arrest procedures that are documented

in the reports. Making sure that they're in compliance not

only with the law, but with Melendres, obviously, and to make

sure that there's -- traffic stops are in compliance with the

new policies and procedures that are set forth. Just a bunch

of checks and balances to make sure everything's on -- on a

good level, I guess.

Q. Is part of your job to see that MCSO is complying with

Melendres court orders?

A. Yes, sir.

Q. How do you go about doing that?

A. We are -- and again, I'm new to the BIO unit, but we are

given certain instructions. Again, one of those would be to

review a sampling of departmental reports that is provided to

us by the monitors, ensure that they have the correct dates,

the numbers are correct as far as the matching IR numbers,


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signatures are in place. The memorialization of the IR by the

sergeant is done in a timely manner within the guidelines set

forth. Again, just a bunch of checks and balances to make sure

that we're in compliance.

Q. You mentioned training. Does the BIO have something to do

with training of other deputies? Or were you talking about

auditing training?

A. We do receive auditing training, yes, and that's an ongoing

training. It's part of the BIO unit, I guess, standards. We

all go through a certain audit training or audit school, I

guess you would say.

Q. Do you have anything to do with ensuring that the deputy

sheriffs in MCSO as a whole are in compliance with Melendres

court orders or in compliance with general training that

they're -- that's mandatory at MCSO?

A. I do not specifically, but BIO does. They keep track of

that as well, ensure that all the deputies are up to date with

their training and within the guidelines set forth by the

Court, yes.

Q. Just not something you do personally.

A. No, sir.

Q. Okay. Let's back up a little. I just want to go through,

how did you first become employed with Maricopa County

Sheriff's Office?

A. I became employed in 2000, I believe. I went through the


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detention academy. I worked at the Towers jail for roughly two

years, and when the hiring freeze was lifted I went to the

deputy academy and became sworn. I believe that was 2000- -- I

think it was 2002 or 2003. I'd have to check.

Q. Okay. Tell me a little bit about --

THE COURT: I'm going to interrupt.

THE WITNESS: Sorry.

THE COURT: I know you're trying to make sure

everybody hears you, and I appreciate that, but you need to

back off that microphone just a little bit.

THE WITNESS: Sorry, Judge.

THE COURT: You said you went to the deputy academy in

2003?

THE WITNESS: Yes, sir.

THE COURT: And then what did you say after that? And

then I'll let Mr. Masterson ask his next question, because I

didn't catch the end of what your last answer was.

THE WITNESS: I think I just said I believe I went

through the deputy academy in 2002 or 2003, I'm not sure.

THE COURT: Okay. Thank you.

BY MR. MASTERSON:

Q. Okay. And did you become a sworn law enforcement officer

after the academy?

A. Yes, sir.

Q. And what was your first assignment after that?


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A. My first assignment was District 2 patrol.

Q. Where's District 2?

A. Be on the west side. The substation's located, I believe,

on cross streets of Van Buren and Dysart.

Q. Do you have a -- well, when you first start as a deputy

sheriff, tell me what happens. I mean, do you just go right

out on the street and start enforcing the law? Do you drive

around by yourself? How does that work?

A. When you graduate the academy you are assigned a certain

spot within the -- within the Maricopa County, within the

sheriff's patrol districts. I actually did my training, field

training, in District 4, which would have been up near Cave

Creek/Carefree. I don't recall how many weeks that is. It's

several weeks of training where you sit with another -- you

ride with another deputy, and then eventually you drive and

he's your passenger, and you do basic patrol functions.

Q. Is the other deputy that you ride with, is that the FTO?

A. Yes.

Q. And that stands for?

A. Field training officer.

Q. You don't recall how many weeks that was?

A. I want to say it's like 16 weeks, I'm -- it's several

weeks, but I'm not certain.

Q. Okay. When you became a deputy sheriff, do you have

requirements for mandatory training you have to undergo to


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in being a District 2 detective?

A. We just do general investigations? burglaries, shoplifts,

assaults, ag assaults. Did a lot of follow-up work for the

patrol deputies that initially respond to a call, take the

initial report, and then it will be given to my sergeant, which

would be the detective-sergeant, and if there's follow-up that

needs to be done, then district detectives will do it.

Q. Would you investigate homicides, or is that an entirely

different division?

A. We do respond to a dead body, or something similar, but

that would be the homicide division would take care of that.

Q. Would you investigate -- back when you were a detective in

District 2 would you investigate burglaries?

A. Yes.

Q. Robberies?

A. Yes.

Q. Sexual assault?

A. Yes. But depending on the complexity, it would eventually

be turned over to the Sex Crimes Unit.

Q. Okay. After -- well, how long were you a detective with

District 2?

A. A little over a year.

Q. What happened after that?

A. I was asked to take a position with the Organized Crime

Division.


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Q. What does that mean? What's the Organized Crime Division?

A. The Organized Crime Division was -- let's see. We were

located on the 18th floor of the Wells Fargo building at the

time, and we did some of the investigations to include some of

the -- the county supervisors. It was a unit of maybe five or

six people, seven people, and we got direction from former

Chief David Hendershott.

Q. And how long were you in the Organized Crime Division, I

guess I'll call it?

A. One year.

Q. And then where'd you go after that?

A. I was moved to the criminal Internal Affairs division.

Q. So are we -- I don't know if I added it up right. Are we

somewhere around 2008?

A. Yes. 2008-2009, possibly.

Q. Okay. And what did you do with criminal Internal Affairs?

A. I was a criminal detective investigator.

Q. Was it called Internal Affairs at that point?

A. At that time it was.

Q. Is that now called PSB, or Professional Standards Bureau?

A. It is.

Q. Okay. How long were you with criminal Internal Affairs?

A. As a detective, I remained with criminal IA until I was

promoted, I believe it was January of '14.

Q. Now, I think you discussed this a little bit with


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Mr. Segura, but tell me how this works.

Is there a separate -- I might not use the right

terminology, but there's a separate division within IA at the

time for criminal investigations as opposed to administrative

investigations?

A. Yes, there are two separate -- well, two divisions within

one division. The administrative investigators investigate

policy violations, things of that nature. The criminal side

investigates criminal matters involving employees of the

county, to include detention staff, sworn deputies, and may in

some cases even county employees.

Q. Let's talk about back in 2008. Did you say 2008-2009, or

just you don't know, somewhere in there?

A. It was around 2009, yes.

Q. All right. Let me establish this and then I'll ask you

the next question: How long were you with criminal IA this

first go-round?

A. I want to say almost six years, a little over six years, I

think.

Q. So -- okay. Now I'm really confused. So if you started in

2008 it went all the way to 2014?

A. Yeah, I -- it was -- I want to say it was between '8 and '9

that I started with criminal IA, and I remained there until

'14, January '14.

Q. All right. So, anyway, let's get back to when you were in


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criminal Internal Affairs, and there's also an administrative

side, do you -- are there detectives on the administrative

side, or who's on the administrative side?

A. There are detectives, but there are also detention staff as

well. Detention staff will do administrative investigations as

well.

Q. For other detention officers?

A. Actually, no. They do both. They'll do sworn and

detention.

Q. What about on the criminal side? What's the staffing

there? Is it all detectives, or how is that -- or are there

detention officers there, too?

A. When I was there first, it was myself, another detective,

and a sergeant. The sergeant would report directly to the

captain, who is in charge of both criminal and administrative.

We did have a few detention officers that were employed by us,

the criminal side, but they did intel work within the jails, so

they assisted us within the jails.

Q. Well, just so I understand, tell me a little bit about how

you would have detention officers working with you in the jails

when you're in criminal investigations, Internal Affairs.

A. Many of the allegations against our officers --

specifically, detention staff -- come from the jails. These

guys would do follow-up, they would pull video, they would

identify folks by face, by name, and just basically assist us


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within the jails. Because as sworn, we don't spend nearly as

much time as detention staff does, so they have more of a

familiarity with the procedures, processes, paperwork, that

sort of thing.

Q. Now, with respect to the law enforcement officers that were

in criminal IA, did you say it was you, another detective, and

then a supervisor?

A. A sergeant, yes.

Q. A sergeant. So you're not a sergeant at this point.

A. No.

Q. Prior to becoming a detective, did you receive any training

in criminal investigations?

A. Yes.

Q. Tell me, I know it was a long time ago, but tell me as much

as you can remember.

A. I know I had received general investigative training.

There was interrogation classes, search warrant writing

classes, interview classes. There were several -- several

courses that I'd gone through over the course of time that I've

been there leading up to.

Q. When you take these classes, do you -- do you go somewhere?

Are they on your computer? How does that work?

A. When I was taking the classes, they actually were either

held within the office, one of the locations within the office

training division, or on some occasions that would be provided


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or put on by outside entities where I would travel to those

places.

Q. Okay. Do you recall how many times you would have had to

travel for a training class?

A. I've been to Las Vegas a few times, few times in Mesa,

Phoenix, several locations; I'm not exactly sure how many.

Q. Do you recall the particulars of any of those -- I'm going

to call them seminars -- training seminars or training classes

you went to?

A. I do. There were some interrogation classes, I believe,

that we traveled for. Officer-involved shooting. I think that

was one of the courses that was put on in Vegas. I'm not

certainly exactly what they were, though.

Q. Did you receive training in officer-involved shootings?

A. Yes. I do recall attending a class.

Q. Was that something Internal Affairs would investigate back

when you were in Internal Affairs? And I'm going all the way

back to 2008, 2009, somewhere in there.

A. Well, it would depend on the set of circumstances. I mean,

you know, if it were an internal issue where I hadn't

experienced it yet but maybe a deputy was engaged in gunfire

with another deputy, I guess it could come up. Yeah, it's part

of our -- part of our general curriculum as far as training

goes, sure.

Q. Did you continue to receive that sort of training the


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entire time you were at IA back from 2008 or 2009 on up for the

whatever period of time, five or six years that you described?

A. Yes, that I re -- that I recall, yes. I mean, I can't be

specific as to the dates and time or the nature of the

training, but, you know, time willing, and manpower being

available, yes, we would -- we would regularly, you know,

attend training courses, sure, whenever we could.

Q. Do you still do that?

A. I do.

Q. Now, I think I understand that at some point you went to

general investigations, is that accurate?

A. That is accurate.

Q. First off, when?

A. I believe we -- I got -- I got promoted in January, and I

believe it was then I went to general investigations and I was

assigned to -- as a sergeant to the jail crimes division.

Q. You said January. 2015?

A. No, I think it was '14, 2014. I'm coming up on two years,

so --

Q. Okay. So you were promoted in January of -- January of

2014.

A. Yes.

Q. And you went to general investigations. And I'm sorry, I

didn't hear what you were assigned to then.

A. I was assigned to the jail crimes.


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Q. Jail crimes?

A. Jail Crimes Division, yes.

Q. What exactly is that?

A. The Jail Crimes Division is made up of four or five

detectives and myself included, and we would investigate crimes

that occurred within the jail, inmate on inmate, that sort of

thing.

Q. How about crimes allegedly committed by detention officers?

A. If we would discover that, then generally that would be

provided to the criminal IA.

Q. Okay. So that went from general investigations back to

where you previously were.

A. If it were an officer involved in an allegation where he

was said to have committed a crime against another employee or

a detention officer, yes, it would go to criminal IA.

Q. When you were in general investigations and assigned to

jail crimes, I mean, is part of your typical duties to

interview people?

A. Yes.

Q. Am I taking to understand that it would be inmates mostly

you'd interview, or would you also interview detention officers

in an investigation in jail crimes?

A. Well, as a sergeant I didn't do as many of the interviews,

but we would -- we would interview both, other detention

officers as witnesses or leads, and also inmates, obviously,


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'cause they were involved in the altercation or whatever --

whatever the allegation was.

Q. So since you were a sergeant, you wouldn't be personally

involved in as many interviews? Is that what you're telling

me?

A. Not as many as a detective, but I did involve myself in

many of the -- many of the investigations.

Q. Okay. Which reminds me, you were a detective with Internal

Affairs your first go-round with Internal Affairs, correct?

A. Yes, I was a detective first go-round, yes.

Q. Did you conduct interviews as a detective?

A. Yes.

Q. And did you tell me you went to training or classes or

seminars on conducting interviews?

A. Yes. There were classes, I mean, there were interrogation

classes; investigative classes; classes that referred to

evidence, and all sorts of classes.

Q. Okay. I mean, this is kind of a dumb question, but do --

do you -- I mean, we all watch TV and we see Columbo and those

guys doing their interrogations, and I've seen the -- what is

she, a deputy chief on TV, and she always gets these guys to

confess.

Do you guys all have your own kind of, This is my

style. This is how I do it. Or is what we're seeing on TV --

I know a lot of it's fiction, but is there some truth to it?


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Do people do things differently? Do you do things differently

than other detectives?

A. Yes, I think everybody does interviews a little

differently, they have their own styles.

Q. I mean, I've seen the guys banging the tables, and then

I've seen the guys kind of cozy up to the suspect. Tell me how

that works. I mean, what do you do when you're interviewing a

suspect, or maybe just a witness?

A. Well, me personally, I think the more information you gain

from either a witness, a lead, or a susp

Documents

Melendres v. Arpaio #1467 Oct 13 2015 TRANSCRIPT - DAY 13 Evidentiary Hearing