Did Judge Snow Just Tip the Government’s Hand on Arpaio, Zullo?

“THE U.S. GOVERNMENT MAY CHOOSE TO PROSECUTE YOU”

by Sharon Rondeau

(Nov. 7, 2015) — According to Phoenix New Times writer Stephen Lemons, who was present in the courtroom on Friday while U.S. District Court Judge G. Murray Snow held oral argument in the civil case of Melendres, et al v. Arpaio, et al as to whether or not to grant Mike Zullo’s request for a protective order, Snow told Zullo that “the U.S. government may choose to prosecute you.”

Lemons’s article, published late Friday night, related points during the hearing when Zullo addressed the court pro se, Snow’s responses and ultimate rulings denying Zullo’s motions, and Zullo’s implying that he “would be forced to make a pro se appeal to the Ninth U.S. Circuit Court of Appeals for an emergency stay.”

Zullo is considered a witness in the civil contempt trial of Maricopa County Sheriff Joseph M. Arpaio, who in March admitted that he had not ceased immigration patrols as ordered by Snow in December 2013. Arpaio apologized and offered to pay $100,000 out of his personal funds to the plaintiffs.  Snow refused the offer and chose to take the civil contempt charge to trial, beginning hearings in April.

Arpaio is a six-term sheriff of Maricopa County. His approach toward the problem of illegal aliens in the county jails has been the subject of much controversy over the years.

Zullo is the only individual subpoenaed to testify in the contempt hearings who was not granted an attorney funded by the county.

Plaintiffs in the eight-year-long case are represented by the ACLU and Covington & Burling.

On April 23, while Arpaio was on the stand, Snow unexpectedly referred to a Phoenix New Times article dated June 4, 2014 which claimed that a confidential informant to the Maricopa County Sheriff’s Office, Dennis Montgomery, was seeking to gather evidence that the U.S. Department of Justice and Snow had colluded to produce an unfavorable outcome for Arpaio relative to Melendres.  Arpaio responded to Snow that he assigned Zullo and two detectives to oversee Montgomery’s work in Seattle, WA for approximately 18 months.

Snow then ordered the collection by the court of all of Montgomery’s work product, mentioning the Justice Department several times during the hearing as a party Montgomery might have been probing.

In May, Montgomery attempted to intervene in the case to withhold his work from scrutiny but was denied.  However, the Justice Department was granted a motion to intervene shortly thereafter.

Montgomery provided his documentation to Zullo, who, after being subpoenaed by the plaintiffs’ attorneys, turned it over in its entirety to Arpaio’s attorneys at the firm Jones, Skelton & Hochuli.  Until approximately two weeks ago, Zullo and the court were led to believe that the JSH attorneys were also representing Zullo by virtue of Arpaio’s assigning him to the “Seattle operation” under the auspices of the MCSO.

During Friday’s hearing, Snow claimed that Zullo knew on October 21 that Arpaio’s attorneys had taken the position that he is not their client and therefore had time to retain counsel before a scheduled deposition on October 23.

Lemons has previously referred to Zullo as Arpaio’s “birther buddy,” “posse pal,” and “ex-used-car salesman” but in the latest piece described him only as “posse commander,” a reference to Zullo’s lead role in the Maricopa County Cold Case Posse‘s investigation of the authenticity of Obama’s long-form birth certificate and Selective Service registration form.

That investigation concluded that both “documents” are “computer-generated forgeries,” which Lemons did not include in his article.  In 2012, Arpaio and Zullo gave two joint press conferences culminating in a plea to Congress and the media to investigate their findings which never occurred.

On October 28, Zullo filed with the court a Motion for Extension of Time to Retain Counsel, citing his Fifth Amendment right against self-incrimination and other constitutional rights.  On October 30, Snow denied the request for more time, determined Zullo’s motion should be interpreted as a Motion for Protective Order and scheduled oral argument on Zullo’s invocation of Fifth Amendment rights for November 6.

On November 2, Zullo filed a “Notice of Appeals and Request to Stay” in which he claimed that Snow had shown bias against Arpaio and him and that Snow had not resolved an issue relating to comments his wife was reported to have made, attributed to him, which disparaged Arpaio as Snow presided over the Melendres case.

Arpaio’s attorneys asked that Snow recuse himself when the comments came to light, but Snow refused.

The media erroneously reported that after the constituent to whom the comments were made informed Arpaio through a private Facebook message, Arpaio launched an investigation of Snow and/or his wife when the probe, launched by one of his attorneys, utilized a private investigator to determined the veracity of the constituent.

Although on Friday Snow denied Zullo’s request for a protective order, he reportedly told Zullo that “Simply because you don’t have an attorney, doesn’t mean you don’t have constitutional rights.”  However, in his written opinion, Snow said that “the Fifth Amendment does not apply” to Zullo in the case because he is not being compelled to produce anything, as the documentation has already been provided to JSH.

Snow contended that Zullo provided the documentation to JSH attorneys “voluntarily,” although he was under subpoena at the time.

Zullo is scheduled to appear at a deposition on Monday morning, although at the October 23 session, he refused to answer questions without an attorney present representing his interests.

Arpaio was investigated criminally by the U.S. Department of Justice in a probe for abuse of power which quietly ended in no charges being filed in August 2012.  Arpaio claimed the investigation was “politically-motivated.”

Snow happened to be chosen by “random draw” in a 2010 civil case brought by the Justice Department against Arpaio claiming lack of cooperation in turning over documents which was settled out of court.

On May 10, 2012, Justice filed a civil rights lawsuit against Arpaio which has largely been settled out of court.

At approximately the same time as the issuance of Snow’s December 2011 preliminary injunction against Arpaio’s office in Melendres, Thomas Perez, then of the U.S. Justice Department, accused Arpaio of civil rights violations and threatened a lawsuit.  “Within two hours of Perez’s announcement, Department of Homeland Security Secretary Janet Napolitano announced that the federal government would remove the sheriff’s authority to conduct immigration screenings in the jails,” USA reported on December 16, 2011.

Arpaio has claimed that his county jails are overrun with illegal aliens whose incarceration and processing cost taxpayers millions of dollars each year. On November 20, 2014, after Obama announced his intention to allow millions of illegals to remain in the country under certain conditions, Arpaio filed a lawsuit claiming further harm to Maricopa County and its residents should the executive actions be implemented.

Arpaio’s attorney in that case, Larry Klayman, reported on Friday night that the case has been appealed to the U.S. Supreme Court.  Klayman has also suggested that Obama himself is an illegal alien who should be deported based on his lack of documentation.

Lemons has previously supported a recall effort of Arpaio, calling his supporters “slavish, nativist, redneck.”