Posted by Micheal Bryan
Sheriff Arpaio responded to the DOJ's Civil Rights Division by the deadline set by AAG Thomas Perez, but he did so in a rather unusually passive aggressive fashion (see his attorney's letter [pdf link]: he's made his own discovery demands (106 of them!) and set his own deadline. He seems to be acting like the DOJ's investigation is under investigation.
He did not respond personally, but through a letter signed by his attorneys at Jones, Skelton & Hochuli, P.L.C., Popolizio and Jones, hereinafter, 'the mouthpiece'. The letter contained two "Exhibits" and was all on the attorneys' letterhead.
My overall impression of the document is that is ultimately a rather detailed and aggressive discovery demand for every bit of evidence on which the DOJ based the conclusions laid out in their letter of investigative findings. Considering there is currently no litigation pending, it's a very unusual response. What makes it even more odd is that all of the evidence that Sheriff Joe's mouthpieces demand was originally produced by the MSCO itself in response to the DOJ's lawsuit seeking disclosure for its investigation.
Nearly everything Sheriff Joe demands was disclosed by him to the DOJ, and thus are presumably his own records. Did he not keep copies? Is he just too lazy to review his own records? Does he want the DOJ to draw him a road map to defending against a lawsuit against his office?
Those items Joe wants the DOJ to produce that did not come from his office strike me, quite frankly, as demands for attorney work product and consultations with experts which, even if litigation were pending, would not be discoverable. Essentially, Sheriff Joe wants the DOJ to give him every scrap of evidence they might use against him, and the entire paper trail of their investigation of his office.
To say that the DOJ will not assent to his demands is putting it mildly. This response is more of a propaganda tool than a response. Joe's propaganda spin will go like this:
"I wanted to cooperate. I provided everything they ever asked for. All I wanted to know was what evidence they based their conclusions on, and they won't say. Their investigation is just a secretive political hit job. How can I possibly help put my office in compliance when they won't even tell me how they determined my office was violating the law? All I want is some help understanding why they think there are violations occurring, and they have just proven they are just out to get me. I offer to help them, and they just filed suit. Blah, blah, blah..."
Let's start with the cover letter.
First, there is the bald-faced lie with which it begins. The mouthpiece claims Joe has made "good faith voluntary efforts" to achieve compliance with the DOJ's investigation. Bullshit. He stonewalled the investigation and it required a federal lawsuit to get him to allow DOJ investigators access to MSCO records, facilities and personnel. The mouthpiece alleges that 'the dispute' between them over the 'scope' of the investigation 'was ancient history': if you call a year ancient, perhaps...
It just gets worse from there. The mouthpiece alleges the MSCO and Joe stand ready to cooperate "regardless of this political gamesmanship, the undisclosed broken promise, and the misleading portrayal of this matter in the media..." You are seeing a press release, not a response to serious allegations of systemic civil rights violations.
The mouthpiece then claims that Joe wants a "constructive dialogue" but "will not cower at the threat of litigation, either." Further, such a "constructive dialogue" can only occur "if the DOJ provides the underlying facts and information for its findings." Why? Because "only with all of the underlying facts and information relevant to the DOJ's conclusions in hand... can we truly evaluate these findings, determine their merit and make any neccessary changes and adjustments to the MSCO..."
Did you get that? Joe wants to judge whether he thinks the DOJ's investigation has merit. He's so stuck in authoritarian law-enforcer mode that he does not seem to realize that he's being accused of being the lawbreaker.
Imagine if the next perp that MSCO picks up wants to investigate how MSCO came to accuse him before he'll accept that he's under investigation? The perp wants the names and addresses of all his victims and the individual cops who picked him up. He wants every internal email or memo regarding his case. Discovery by an accused is one thing, but what Sheriff Joe is proposing is outrageous.
His mouthpiece goes on "if the DOJ's stance is to conceal the facts underlying its findings unless forced to reveal them in litigation, that stance is absurd, counterproductive, unfortunate, and contrary to it guidelines." What, did you run out of adjectives, mouthpiece?
What is actually absurd is the list of 106 civil discovery demands contained in 'Exhibit 2'. It is entitled "Requests for Facts and Information" and repeats the baldfaced lie about "the complete cooperation of the MSCO you have enjoyed", then asserts that "the DOJ is obligated to make every effort to secure the voluntary compliance of the MSCO which, at this juncture, depends on the DOJ's mere provision of the factual detail behind its findings."
Merely respond to these 106 extensive demands we are making. Oh, is that all?
The letter proceeds step-by-step to demand definitions, documentation, and all factual and procedural background for every factual assertion in the DOJ's finding letter.
Now, call me crazy, but I think Joe knows exactly what the DOJ based its findings on. The mouthpiece outlines in great detail in 'Exhibit 1' exactly what the MSCO provided the DOJ: 230 interviews (145 inmates, 85 staff, more with Joe and command staff), 86,398 pages of documentation, 931 Gigs of records and documents, 165 boxes of documents, etc. Could it be that the DOJ used all that information to make its findings? Imagine that...
So what does Joe demand as his price of cooperation? Let's take a look at a few sample 'requests'.
"1. Please provide a complete copy of the recent statistical study that the DOJ commissioned regarding MCSO traffic stop activities on Maricopa County roadways which purportedly concludes that Latino drivers are four to nine times more likely to be stopped than similarly situated non-Latino drivers."
Seems like a reasonable sort of request. No big thing. Just show us the goods and we'll judge whether the report is reliable. Right. Now the accused gets to judge whether the evidence against him is good enough. But wait there's more...
In 'request' 2, we get this:
"2. ... Please also provide the identity, files,reports, notes, writings, relevant to the conclusions of each law enforcement expert consultant who concluded that these HSU stops were in violation of the Fourth Amendment. The curriculum vitae of each expert is also requested."
Now, I'm not a civil litigator, but I'm pretty sure that such material (except the c.v.s) would not be discoverable. What Joe and his mouthpiece are demanding here are the means by which to investigate and attempt to undermine, discredit, or intimidate those experts. The part about notes and writings is especially disturbing; those materials are work for hire in anticipation of litigation and thus absolutely non-discoverable work product.
Joe wants the DOJ to strip naked before he'll consent to even talk to them.
Even odder, Joe wants the work product of every expert the DOJ ever consulted in their investigation (see 'request' 22), whether their advice contributed to the DOJ's findings or not. That's so not going to happen.
Now, that's all pretty disturbing, but check this out:
"3. Please describe, with particularity, each "individual account" regarding MCSO deputies stopping Latinos on the basis of their appearance. In doing so, please identify the individual by providing a name and contact information so that we may conduct our own interviews. We would also request any statements provided to the DOJ, either recorded or written, which memorialized these individual accounts and any factual information regardingthese alleged discriminatory stops including, but not limited to, the date and time of each stop."
OK, now this is getting bizarre. Joe wants the names and contact information of the victims of MSCO racial profiling, so they can 'conduct their own interviews'? This is like a rapist wanting to inview his own victim. It's absurd. The MSCO is asking for the exact tools they need to further intimidate and attempt to undermine the victims of their own civil rights violations.
That may seem bad, but they are just getting started.
They want the same particularized victim information for people who reported the police misconduct underlying every allegation the DOJ makes. This includes immigration detainees, prisoners in MSCO's own jails, even citizens who reported MSCO retaliation against individuals who criticize police practices! He wants that information for victims of retaliatory detention, arrest without cause, and unfounded civil lawsuits! He wants the DOJ to identify and lay bare to retaliation the very people his office is accused of victimizing!
This has the danger of retaliation and initimidation written all over it!
Joe and his mouthpiece actually think the DOJ is going to identify whistleblowers, some of whom are in Joe's own custody, in his own jails, or under his own command, for him to 'investigate' their allegations? He's clearly insane.
Or just full of shit.
This is not a request for any sort of reasonable information sharing or discovery, it is an excuse not to cooperate and give himself a legitimate sounding excuse for his continued non-cooperation. "They won't tell me what I did wrong! Wah, wah, wah."
This skein of utterly non-responsive clap-trap and out-right lies, in combination with Joe's recent announcement that he will seek reelection signals just one thing: Joe's hunkering down.
The DOJ will get no cooperation. Voluntary compliance is not going to happen. Joe knows he's going down, and he's digging in for a protracted propaganda and legal war, and he'll do anything, including going after whistleblowers in his own office, in his own jails, and among the public he was entrusted to keep safe and instead victimized, to continue running things the way he likes.