AND “TRAMPLING OF HIS RIGHTS”
by Sharon Rondeau
(Dec. 5, 2015) — On Wednesday afternoon, Atty. Larry Klayman, founder of Judicial Watch and Freedom Watch, filed a Motion to Expedite Appeal in the case of Melendres et al v. Arpaio et al with the Ninth Circuit Court of Appeals on behalf of “Appellant-Movant” Michael Zullo.
Maricopa County, AZ; Maricopa County Sheriff Joseph M. Arpaio, and four of Arpaio’s deputies are named defendants in the civil rights case which was first lodged in December 2007 by Latinos who claimed they were the victims of racial profiling during traffic stops and immigration sweeps.
In April, U.S. District Court Judge G. Murray Snow convened civil contempt hearings after Arpaio admitted to having violated the judge’s December 2013 injunction barring activity specifically in search of illegal aliens as well as having failed to turn over video-recordings and other items collected during traffic stops and patrols.
This fall, Zullo forcibly became a “key witness” in the case as a result of his having served as an uncompensated investigator, delegated by Arpaio, to oversee the work of confidential informant Dennis Montgomery over approximately a year. Montgomery was hired by the MCSO after claiming to possess data indicating that the bank account and other personal information of more than 150,000 Maricopa County residents, including Snow, had been breached and collected by a government entity.
Montgomery’s work product was provided to Arpaio and Zullo and subpoenaed by the court after Snow made a decision to pursue whether or not a claim made by an article in the Phoenix New Times on June 4, 2014 which alleged that Montgomery was investigating Snow and the U.S. Department of Justice were true. After the April hearings concluded, Arpaio and Zullo were ordered to turn over recordings, emails, hard drives and other documentation to the court, plaintiffs’ attorneys, and the monitor Snow had appointed to the MCSO to ensure its compliance with his orders in Melendres.
The Phoenix New Times has cast Zullo and Arpaio in a negative light in virtually all of its reporting. Its main source of information in Melendres is ACLU attorney Cecillia Wang. In one of her filings, Wang included the June 4, 2014 article in its entirety as an exhibit.
In court in April, Snow used the word “collusion” when demanding to know whether or not he or the Justice Department was investigated by Montgomery and Arpaio.
Some of the recordings were played during the week of November 9, although Zullo said that they were not complete.
Having unexpectedly learned in late October that Arpaio’s attorneys’ representation did not extend to him, Zullo requested that 87 exhibits he had turned over to those attorneys be withheld from public scrutiny.
During two depositions in October and November, respectively, Zullo invoked his Fifth Amendment right against being compelled to testify without legal counsel and to avoid self-incrimination in response to aggressive questioning from plaintiffs’ attorney Stanley Young concerning Montgomery’s work.
(a) The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” The word “witness” limits the relevant category of compelled incriminating communications to those that are “testimonial.” In addition, a person such as respondent may be required to produce specific documents containing incriminating assertions of fact or belief because the creation of those documents was not “compelled” within the meaning of the privilege. See Fisher v. United States, 425 U.S. 391. However, the act of producing subpoenaed documents may have a compelled testimonial aspect. That act, as well as a custodian’s compelled testimony about whether he has produced everything demanded, may certainly communicate information about the documents’ existence, custody, and authenticity. It is also well settled that compelled testimony communicating information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory.
Last month, continuing on a pro se basis, Zullo filed a motion with the Ninth Circuit appealing Snow’s refusal to grant him more time to retain counsel, a hearing for which is scheduled for February. Klayman, who now represents Zullo, is asking the court to expedite the hearing.
Even while complimenting Zullo on his citation of Hubbell, Snow denied all three of Zullo’s motions. Then, in an astonishing admission, while at the same time denying Zullo’s request for 15 more days to retain counsel prior to testimony, Snow in the next breath informed Zullo, “the U.S. government may choose to prosecute you,” putting Zullo in the untenable position of being compelled by court order to testify as a witness in a so-called civil matter, however doing so under direct threat of some type of criminal federal prosecution that may or may not be based on his own testimony. This treatment put Zullo in the position to exercise his Fifth Amendment protection.
Before testifying, Snow told Zullo that “the U.S. government may choose to prosecute you.”
Maricopa County declined to cover the cost of counsel for Zullo for an unknown reason. On November 4, Snow told Zullo during a telephonic conference that if he wished to be represented by an attorney for questioning, “you’re going to have to pay for it yourself.”
In the three motions he filed pro se between late October and early November, Zullo claimed that his Fourth, Fifth, Sixth Amendment and due process rights were violated by what he viewed as the criminalizing of Montgomery’s work by the plaintiffs’ attorneys as evidenced by an exhibit to a motion containing a footnote which stated:
The ACLU, which represents the plaintiffs, in the past has touted the necessity of upholding the Fourth, Fifth, Sixth Amendment and due process rights of all persons with in the U.S., including “immigrants,” but it asserted in one of its motions that Zullo should not require counsel, urging Snow to deny Zullo’s request for an extension of time to retain an attorney.
Zullo invoked his Fifth Amendment right during the deposition on November 9 and again in a public hearing the following day. Local media immediately began counting the number of times Zullo cited the Fifth Amendment.
On November 11, Courthouse News erroneously reported that Montgomery was a “private investigator,” not a confidential informant. On November 10, the AP incorrectly reported that “Zullo was called to testify at contempt hearings called over Arpaio’s disobedience of Snow’s orders.”
On the morning of November 12, at one point following a peppering of questions from plaintiffs’ attorneys, Zullo turned to the judge and asked, “What is this, a star chamber?”
A star chamber is defined as:
Following a lunch break on November 12 and the reconvening of court, plaintiffs’ attorneys rested. Zullo was then questioned briefly by Arpaio’s defense attorneys, wherein Zullo decided to answer a few questions. After Arpaio’s attorneys finished, plaintiffs’ attorney Stan Young again questioned Zullo. Without any warning, and much to the surprise of Young, Zullo begin to testify, catching Young completely off-guard. According to a courtroom source, Zullo’s emotional-filled testimony set the record straight, and when it was over, it was clear that neither Zullo nor Arpaio had launched any investigation into Snow. Local media, as would be expected, characterized Zullo’s impassioned responses as “unhinged” and “an impassioned tale.”
Klayman’s brief to the Ninth Circuit begins:
On pages 4 and 5, Klayman wrote:
On Thursday, Zullo told The Post & Email that he did not have a copy of the transcript after a commenter at BirtherReport.com claimed to have read all “250+ pages.”
The full motion can be read here: 15-17269 KLAYMAN ZULLO MOTION 12-02-15