melendres # 1041 | apr 24 2015 sealed transcript
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SEALED PROCEEDINGS, Melendres v. Arpaio, 4/24/15 1020
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.
Hyun S. Byun, 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 LIBERTIES
FOUNDATION OF ARIZONA3707 N. 7th St., Suite 235
Phoenix, Arizona 85014
(602) 650-1854
Andre I. Segura, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATIONImmigrants' Rights Project
125 Broad Street, 17th FloorNew York, New York 10004
(212) 549-2676
For the Defendants: Michele M. Iafrate, Esq.
IAFRATE & ASSOCIATES649 N. 2nd Avenue
Phoenix, Arizona 85003
(602) 234-9775
For the Defendant Maricopa County:
Richard K. Walker, Esq.
WALKER & PESKIND, P.L.L.C.16100 N. 71st StreetSuite 140
Scottsdale, Arizona 85254(480) 483-6336
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P R O C E E D I N G S
MS. CLARK: Thank you, Your Honor.
Judge Snow, as you're aware, Tim Casey is under this
Court's order to assist in the transition of this case to
Ms. Iafrate and to cooperate, essentially, in regard to the
fact that he had been charged with the duty of making sure that
his client, Sheriff Arpaio and judge -- excuse me, the MCSO,
comply with this Court's order. And in that regard you'd asked
him to assist Ms. Iafrate in a continuing way in this case, and
that order is still in effect.
Mr. Casey has provided Michele Iafrate with a complete
copy of his client file in this case. Tim Casey and I are
aware of Sheriff Arpaio's testimony yesterday regarding the
Grissom matter. Tim Casey is aware of his obligations as an
officer of the court to be candid with this tribunal and to
cooperate with the Court, while at the same time remaining in
absolute and strict compliance with his ethical obligations to
his former clients, Sheriff Joe Arpaio, as well as the MCSO.
There is a letter in the file that he provided to
Ms. Iafrate from Tim Casey concerning Sheriff Arpaio. Excuse
me, a letter from Tim Casey to Sheriff Arpaio. Chief MacIntyre
was copied on that letter, as was counsel for MCSO in this
matter, Mr. Liddy.
Based on this Court's ruling regarding communications
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Mr. Casey had with Arpaio which were copied to Chief MacIntyre,
we believe that privilege may be waived as it concerns this
letter, not only because of that ruling you have made as to
Chief MacIntyre, but also as well by the testimony of Sheriff
Arpaio yesterday.
Tim Casey takes the position that this document needs
to be provided to the Court and/or to the monitor. There are
two reasons why he believes this is so. One involves his
ethical obligations under Ethical Rule 3.3 concerning candor to
the tribunal. He's familiar with Ethics Opinion 05-05
interpreting Ethical Rule 3.3, and that opinion makes it very
clear that the duty of confidentiality -- excuse me, the duty
of candor to the tribunal survives termination of the
representation.
The other reason he believes that this document must
be provided is that he believes it falls within the documents
this Court has ordered be provided to the monitor regarding the
Grissom matter.
Yesterday I wrote a letter to Ms. Iafrate and
Mr. Liddy. I e-mailed it to them last night. Ms. Iafrate
acknowledged receipt of it. It raised the issue that Tim Casey
takes the position I have just described. It also states it's
our position that Ms. Iafrate, as well as Mr. Liddy, have the
obligation under ethical 3 -- rule 3.3 to correct the testimony
of Sheriff Arpaio yesterday. We believe that that remedial
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measures required under 3.3 include providing a copy of the
letter to the Court.
What I'm suggesting at a minimum -- and by the way, I
have asked in those -- excuse me, I need to backtrack because I
sent a second letter today reiterating that point, and I was
advised by Mr. Liddy that I should copy -- last night I was
advised by Mr. Liddy that I should copy Mr. McDonald on that
letter, which I did.
I approached them today, asked them if they had read
the letter and asked them if they would be taking -- "they"
meaning Mr. Liddy and Ms. Iafrate and Mr. McDonald -- remedial
measures as required by 3.3. I have not as yet been assured
that they will.
What I'm suggesting at a minimum is that this letter
be provided to the Court in a sealed envelope, and in keeping
with some of the procedures I've heard in court in the past
from Your Honor, that this manner -- that this envelope be
provided to a magistrate assigned by the Court to review it and
determine two issues.
Number one, whether privilege has in fact been waived
or applies concerning this letter at this point in time, and,
in addition, number two, whether it falls indeed within the
scope of materials required to be provided to the monitor
pursuant to your orders yesterday. That's the record I'm
making, Your Honor.
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THE COURT: Thank you.
MR. LIDDY: Your Honor, may I be heard?
THE COURT: You may.
MR. LIDDY: Your Honor, yesterday when I heard the
par- -- a portion of the testimony of my client, Sheriff Arpaio
under the Court's examination, I, too, felt that a portion of
that needed to be corrected. I conveyed that to co-counsel.
When I left the courtroom this afternoon I conferred with my
ethics counsel, who agreed with me that I, too, under 3.3, had
an obligation to correct the record.
I came here prepared to do that. Under my opinion,
Ms. Iafrate, in her examination of Jerry Sheridan, cleaned up
the portion of Sheriff Arpaio's testimony for which I was
concerned. I now believe that the record, specifically the
Court's question of whether or not there was an investigation
of your wife and whether or not Tim Casey hired an investigator
to investigate your wife, which I understand the sheriff left
that impression -- did with me -- it's my opinion that it's not
accurate, and that was made clear in the testimony of
Chief Sheridan today under examination by Ms. Iafrate.
THE COURT: How does Mr. Sheridan's testimony clarify
what chief -- what Sheriff Arpaio testified to?
MR. LIDDY: Your Honor, I think that's a fair
question. And I would agree, if it's your implication that the
best way and proper way to correct the testimony would be to
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have Sheriff Arpaio take the stand again and give him the
opportunity to correct the testimony. If that's what the
sher- -- excuse me, if that's what the Court means, I would
agree with the Court.
THE COURT: Ms. Iafrate.
MS. IAFRATE: Your Honor, it was an answer by Sheriff
Arpaio that I believed I could correct with Chief Deputy
Sheridan explaining --
THE COURT: I don't believe that.
MS. IAFRATE: That was my intention. It was discussed
yesterday.
THE COURT: No, no. I believe that's your intention.
I do believe that's your intention. I'm not sure that Chief
Deputy Sheridan's testimony can clarify testimony from Sheriff
Arpaio. I think he's going to have to clarify that himself, or
you and Mr. Liddy and/or Ms. Clark, representing Mr. Casey, are
going to have to clarify it.
MS. IAFRATE: Well, Your Honor, I think that you
explored the discrepancies between the testimony of Sheriff
Arpaio and Chief Deputy Sheridan after I finished my
examination of Chief Deputy Sheridan and you saw that there was
discrepancies. Each individual testified as to what they
believed to be true. Chief Deputy Sheridan was more articulate
and more on point regarding the individual examinations.
THE COURT: Ms. Clark, do you have copies of the
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letter in question?
MS. CLARK: Yes, Your Honor, I do.
THE COURT: Okay. I'm going to ask you to retain
those, and --
MS. CLARK: Judge, I provided them via e-mail to
Ms. Iafrate and Mr. Liddy last night.
MS. IAFRATE: That's incorrect. I did not receive a
copy of it until this morning.
MS. CLARK: I'm sorry. I inadvertently forgot to
attach it to the e-mail forwarding them my letter, which I then
corrected this morning before court.
In addition, that letter is part of the client file
Mr. Casey has provided to Ms. Iafrate before she became
counsel.
THE COURT: All right. Well, I will tell you what my
inclination is, and we can deal with this -- well, here's my --
I guess we don't have time for inclinations.
If Sheriff Arpaio made a misstatement, then Sheriff
Arpaio is going to have to correct it or his attorneys will
have to correct it. And I guess that what we will have to do
is provide the letter to Magistrate Judge Boyle, who is the
magistrate judge drawn in this matter, and he can inform me, if
he believes that the correction is sufficient, that the letter
need not be disclosed.
Does that meet with your ethi- -- with your view of
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your ethical responsibilities, Ms. Clark?
MS. CLARK: It's Mr. Casey's ethical obligations --
THE COURT: Yes, I'm sorry.
MS. CLARK: -- and I believe that that does.
THE COURT: Any last words from you, Mr. Liddy, on
this?
MR. LIDDY: Yes, Your Honor. I believe there are two
letters that are probative.
THE COURT: Oh.
MR. LIDDY: One from Mr. Casey to the investigator,
which would shed light on the facts of Mr. Casey's retention of
the investigator; and the second, the letter that has been
referred to by Ms. Clark that is an attorney-client letter, if
I've got the right one, from Mr. Casey to Mr. Sheridan --
excuse me, to Sheriff Arpaio, which lays out the results of the
interview and Mr. Casey's thought processes about it and why he
proceeded the way he did.
THE COURT: Do you disagree with that, Ms. Clark?
MS. CLARK: I'm not exactly sure which the second
letter is that he's mentioning.
THE COURT: All right. Well, here's what we'll do.
You give the first letter. You give the second letter. And we
can let -- I will give instructions to Magistrate Judge Boyle
how I view it before -- well, before you give the second
letter, why don't you identify it to Ms. Clark and to all other
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parties, just what it is.
MS. WANG: Your Honor, may plaintiffs be heard on
this?
THE COURT: You may.
MS. WANG: Your Honor, it's clear from Ms. Clark's
presentation that the letter that she's referring to and the
letter -- the second letter that Mr. Liddy is referring to
would tend to impeach Sheriff Arpaio's testimony, and we would
therefore ask to have a copy of both letters.
MR. McDONALD: Judge, can I be heard on this just for
one moment?
THE COURT: Yes.
MR. McDONALD: What happened, Your Honor yesterday
handed the sheriff a document that we hadn't prepared for, he
hadn't looked at. And you asked -- directed the question: Did
you investigate a member of my family?
There was engagement letters that addressed -- that
Mr. -- it's how you try to define it. And Chief Sheridan
covered it today. They went and interviewed the lady, but the
only reason they were interviewing the lady is because of the
accusations she'd made about your wife.
And so the alarm or the flags that everybody's sending
you up the pole is, Oho, Mr. -- the sheriff misstated because
he's talking about investigating your wife when they're really
interviewing the lady that made it. But the reason that they
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interviewed the lady that did the Facebook was because it
applied to your wife.
So I think this whole thing is an absolute mountain
over a minute molehill. It's his perception of it when they're
out there looking. He wasn't doing the investigation, but in
fact it is that simple that he -- when you were asking very
pointedly, "Has my family ever been investigated?" they're
questioning this lady that made the information to their
office, and it was about your wife.
So that is his understanding of it, but to now have
these hearings and waiving attorney-client privilege, I think
that what he said and what Chief Sheridan clarified --
THE COURT: Well, I take it you don't want me looking
at the letter.
MR. McDONALD: I honestly haven't seen the letters
yet. They were handed to me. But since I was late getting
back and I've been involved in the proceeding, I haven't
studied the letters.
THE COURT: Well, we're not going to -- here's the
deal. We're not going to resume testimony on this till June.
So we probably need to take this up when everybody's had a
chance to think about it, to review it if you have a right to
review it. And that would be you, Ms. Iafrate, not
Mr. McDonald, although you can consult with him on that, and
you can show it to him since -- if you choose to.
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MR. McDONALD: I've just been handed copies, I
think --
THE COURT: Okay. So you've already got it.
And then I'll decide how to proceed. But likely, what
I'm going to do is I will consult with Magistrate Judge Boyle.
He will determine whether, A, anything needs to be done to
correct the record; B, if it does need to be done, what needs
to be done; C, if plaintiffs are entitled to copies, and it
seems to me like those are the relevant questions.
MS. CLARK: I believe also a relevant question is
whether if there is no privilege, or even if there is
privilege, it comes within the documents that you have ordered
to be provided to the monitor.
THE COURT: Well, I think I made clear, though, that
Ms. Iafrate has a right to review those documents for
privilege.
MS. CLARK: I had asked Ms. Iafrate to either agree to
disclose the letter or to produce a privilege log for the
Court.
THE COURT: Well, do you want to review it and see if
you think it's privileged?
MS. IAFRATE: Of course, Your Honor.
THE COURT: All right. And if it's not privileged, it
seems to me then this is -- this truly is a tempest in a
teapot. You can provide the letter and on we'll go, determine
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whether or not there needs to be any corrective statement and
the monitor will have the access to the document.
If you determine that this is privileged, then we can
take up this matter. And if you have any questions on it,
let's tee it up so that we can address it on May 8th.
All right?
MS. CLARK: Judge, just so I'm clear, I've heard
discussion about a deposition of Mr. Casey, and I'm assuming
that that would be put off until after May 8th so there would
be a ruling?
THE COURT: Oh, yes.
MS. CLARK: Okay.
THE COURT: May 8th is the earliest date I'm going to
rule on whether or not Mr. Casey and/or Mr. Liddy will be
giving depositions.
MS. CLARK: Thank you for that.
THE COURT: Okay.
MR. LIDDY: Your Honor, I just want to make perfectly
clear for the record that it is my perception that the sheriff
made a mistake when he answered the question in a way that I
believe is not accurate, and that I in no way am implying to
this Court that the sheriff intentionally answered that
question in a way that I deem to be inaccurate.
THE COURT: I understand that, and I'm not going to --
you know, I don't have any intention of making a bigger matter
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out of this than it is. I also don't have any intention of
making a smaller matter out of it than it is.
MS. CLARK: Judge, if I may be heard on that.
THE COURT: Yes.
MS. CLARK: Mr. Liddy informed me -- in the presence
of Mr. Casey, who heard it, too -- that it was his opinion that
the testimony was false, although he believed that it was not
intentionally false. That's what he told me yesterday, and
it's also what he told me -- he, Mr. Liddy -- at the start of
court today. I've been informed that he also made a very
similar statement to Mr. McDonald. Mr. McDonald informed me of
that.
THE COURT: All right. But we're not really here
dealing with the credibility of Mr. Liddy.
MS. CLARK: No.
THE COURT: And so --
MS. CLARK: But it does guide the remedial measures
duties.
MR. LIDDY: Your Honor, the credibility of Mr. Liddy
is important on the record, and I came before this Court
moments ago to say that when I heard the testimony, I believed
it needed to be corrected. It was not accurate.
THE COURT: Okay. Aren't you glad it's the weekend.
Anything else that we need to raise?
MS. IAFRATE: No, Your Honor.
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MS. WANG: No, Your Honor. Thank you.
MR. WALKER: No, Your Honor.
MR. McDONALD: Judge, one last question. Could we
move that hearing on the 8th up earlier? I notice that I had a
10:30 hearing. If we could go at 9:00 instead of 10:00, if
your schedule would accommodate.
THE COURT: Does anybody object to 9 o'clock on the
8th as opposed to 10 o'clock?
MS. WANG: Yeah, that's fine, Your Honor.
THE COURT: 9 o'clock.
(Proceedings recessed at 5:55 p.m.)
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SEALED PROCEEDINGS, Melendres v. Arpaio, 4/24/15 1035
C E R T I F I C A T E
I, GARY MOLL, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
a full, true, and accurate transcript of all of that portion of
the proceedings contained herein, had in the above-entitled
cause on the date specified therein, and that said transcript
was prepared under my direction and control.
DATED at Phoenix, Arizona, this 27th day of April,
2015.
s/Gary Moll
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