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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus OrtegaMelendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))))))))))
CV 07-2513-PHX-GMS
Phoenix, ArizonaApril 22, 20158:36 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Evidentiary Hearing Day 2, pages 286-511)
Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 287
A P P E A R A N C E S
For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNIONFOUNDATIONImmigrants' Rights Project39 Drumm StreetSan 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 LIBERTIESFOUNDATION OF ARIZONA3707 N. 7th St., Suite 235Phoenix, Arizona 85014(602) 650-1854
Andre I. Segura, Esq.AMERICAN CIVIL LIBERTIES UNION
FOUNDATIONImmigrants' Rights Project125 Broad Street, 17th FloorNew York, New York 10004(212) 549-2676
For the Defendants: Michele M. Iafrate, Esq.IAFRATE & ASSOCIATES649 N. 2nd AvenuePhoenix, Arizona 85003(602) 234-9775
For the Defendant Maricopa County:
Richard K. Walker, Esq.WALKER & PESKIND, P.L.L.C.16100 N. 71st StreetSuite 140Scottsdale, Arizona 85254(480) 483-6336
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 288
A P P E A R A N C E S
For the Defendant Arpaio: A. Melvin McDonald, Esq.JONES, SKELTON & HOCHULI, P.L.C.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012(602) 263-1700
For Chief Deputy Sheridan: Lee D. Stein, Esq.MITCHELL STEIN CAREYOne Renaissance Square2 North Central AvenueSuite 1900Phoenix, Arizona 85004(602) 358-0290
For Executive Chief Sands: Greg S. Como, Esq.LEWIS BRISBOIS BISGAARD& SMITH, L.L.P.Phoenix Plaza Tower II2929 N. Central AvenueSuite 1700Phoenix, Arizona 85012-2761(602) 385-1040
For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.DICKINSON WRIGHT, P.L.L.C.
Attorneys at Law1850 N. Central Avenue, Suite 1400Phoenix, Arizona 85004(602) 285-5000
For Lieutenant Sousa: David S. Eisenberg, Esq.DAVID EISENBERG, P.L.C.2702 N. 3rd StreetSuite 4003Phoenix, Arizona 85004(602) 237-5076
ALSO PRESENT: Chief Robert WarshawChief John GirvinChief Raul Martinez
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 289
I N D E X
Witness: Page
BRIAN SANDS
Cross-Examination by Mr. Como 320Cross-Examination by Ms. Iafrate 336Redirect Examination by Mr. Young 348Recross-Examination by Mr. Como 352Cross-Examination by Mr. Walker 353Recross-Examination by Ms. Iafrate 354
BRIAN JAMES JAKOWINICZ
Direct Examination by Mr. Segura 361Cross-Examination by Ms. Iafrate 398
Cross-Examination by Mr. Walker 412Cross-Examination by Mr. Como 417Redirect Examination by Mr. Segura 420Examination by the Court 423
MICHAEL TROWBRIDGE
Direct Examination by Mr. Segura 428Cross-Examination by Ms. Iafrate 449Cross-Examination by Mr. Como 459Redirect Examination by Mr. Segura 460Recross-Examination by Ms. Iafrate 463
EMILY DOAN
Direct Examination by Mr. Byun 464Cross-Examination by Ms. Iafrate 468
JOSEPH M. ARPAIO
Direct Examination by Mr. Young 473
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 290
E X H I B I T S
No. Description Admitted
1 Dkt 838-1 - Declaration of John ("Jack") 295MacIntyre - Ex. A to Partial Joinder dated1/8/2015
29 Dkt 806 - Defendant Joseph M. Arpaio and 295Maricopa County Sheriff's Office's Motion forDetermination of Counsel dated 12/1/2014
34 Melendres v. Arpaio Defendants' Privilege Log 295
35 Defendants Joseph M. Arpaio and Maricopa County 295Sheriff's Office's Response to Plaintiffs'
Amended First Set of Interrogatories toDefendants Regarding Contempt dated 3/13/2015
36 E-mail from Larry Farnsworth / Deputy Chief 295Trombi to All Sworn commanders re "FW:Video/Audio Recordings ResponsesCV-07-2513-PHX-GMS" dated 5/17/2014(MELC004554 - MELC004562)
37 Sealed portion of status conference transcript 295from proceedings pages 35-104 dated 5/14/2014
42 MCSO Memorandum to Steve Bailey from Dave 295Munley re Weekly Status Report dated 6/13/2014(MELC004993 - MELC004998)
43 MCSO Memorandum to Brian Jakowinicz from Glen 295Powe re Traffic Stop Videos dated 6/6/2014(MELC104078 - MELC104079)
44 MCSO Memorandum to Steve Bailey from Brian 295Jakowinicz re Video/Audio dated 5/29/2014(MELC004762 - MELC004766)
45 Spreadsheet showing MCSO personnel issued 295recording devices (MELCOl1650)
47 E-mail to Jerry Sheridan from Joe Sousa re 295"your request" dated 9/4/2008(Melendres MCSO 095936)
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E X H I B I T S
No. Description Admitted
49 E-mail to Brian Sands and Frank Munnell from 295Jerry Sheridan re "FH Letter" dated 12/1/2009(Melendres MCSO 069074 - Melendres MCSO 069075)
51 MCSO News Release, First Time: ICE Refuses to 360Accept Illegal Aliens from Sheriffs DeputiesDuring Human Smuggling Operation dated 9/21/2012
52 MCSO News Release, Sheriffs Deputies Execute 360Search Warrant at Construction Company dated9/27/2012
53 Dkt 842 - Defendants Joseph M. Arpaio and 360Maricopa County Sheriffs Office's MemorandumPursuant to Court's December 4, 2014 Orderdated 1/8/2015
54 Illegal Immigration Operation Stat/Worksheet 360DR 10-060510 (MEL064120-121)
56 Incident Report, IR 12-171046 dated 9/21/2012 360
59 MCSO News Release, First Time: ICE Refuses to 360Accept Illegal Aliens from Sheriffs Deputies
During Human Smuggling Operation dated 9/21/2012
71 Dkt 948 - Expedited Motion to Vacate Hearing 475and Request for Entry of Judgment dated3/17/2015
72 Dkt 880 - Order to Show Cause dated 2/12/2015 476
75 MCSO News Release, Sheriffs Office Stops 28 496More Illegal Aliens Involved in Human Smuggling dated 12/30/2011
76 MCSO News Release, Sheriff Arpaio Continues 360Fight Against Illegal Immigration, Six MoreIllegal Aliens Arrested by Human Smuggling Detectives dated 2/9/2012
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 292
E X H I B I T S
No. Description Admitted
77 MCSO News Release, Sheriffs Deputies Discover 360Two Young Children Being Smuggled into theCountry by Human Smugglers, Children Knew No One in the Vehicle
82 MCSO News Release, 2nd Time ICE Refuses to 360Accept Illegal Alien From Sheriffs DeputiesSince September dated 10/9/2012
90 MCSO News Release, Seven Booked on Human 360Smuggling Charges by HSU Detectives in theMaricopa County Sheriffs Office dated 4/17/2013
93 MCSO Press Releases for 2013 360
94 MCSO Press Releases for 2011 from Internet 360Archive
95 MCSO Press Releases for 2012 from Internet 360Archive
96 MCSO Press Releases 2013, from Internet Archive 360
97 MCSO Press Releases year 2011 from Internet 360
Archive
98 MCSO Press Releases year 2012 from Internet 360Archive
99 MCSO Press Releases year 2013 from Internet 360Archive
100 Dkt 881, Order dated 2/12/2015 360
115 E-mail chain from Sousa re "FW: Updated stats" 360and attaching "Criminal Employments stats03-28-12.doc; 03-28-12.doc" dated 3/28/2012(MELC114928 - MELC11493l)
133 MCSO Memorandum from Trowbridge to Jakowinicz 394re Armendariz dated 2/13/2013(MELC003738 - MELC003739)
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 293
E X H I B I T S
No. Description Admitted
164 MCSO Memorandum from Sousa re "Video/Audio" 360dated 5/19/2014 MELC098120 - MELC098121)
165 Spreadsheet of video-recorded traffic stops 360(excerpted to only Sousa)
166 MCSO Memorandum from Sousa re "Missing 360Scorpion Micro Video Body Camera" dated5/21/2014 (MELC098123)
167 MCSO Memorandum from Madrid to Sousa re "Audio/ 360Video Recordings Response, SWAT Division"
dated 6/5/2014 (MELC098092 - MELC098093202B Video Clip 2 of Univision Interview published 501March 1, 2012
202C Video Clip 3 of Univision Interview published 505March 1, 2012
207 Spreadsheet re MCSO Master Incident Report Log 383from 2011, Brian Jakowinicz Depo Exhibit 181
208 Spreadsheet re MCSO Master Incident Report Log 386from 2012, Brian Jakowinicz Depo Exhibit 182
209 Spreadsheet re MCSO Master Incident Report Log 388from 2013, Brian Jakowinicz Depo Exhibit 183
214 Spreadsheet re Video Log of Discs from MCSO 466
215 Spreadsheet re Incident Reports 486
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 294
P R O C E E D I N G S
THE COURT: Please be seated.
Have the parties stipulated to exhibits that we can
admit to make matters run more smoothly?
MR. YOUNG: Your Honor, we've been talking --
THE COURT: And by "parties," I hope that we're
remembering Mr. Walker and Mr. Como.
MR. YOUNG: Yes. Yes. And I can report on our
progress, and I'll report on the stages of our discussion.
Ms. Iafrate and plaintiffs agreed on a set of exhibits.
Mr. Walker and Mr. Como joined the discussion, and I think that
we have a list which all of us have agreed on.
THE COURT: All right.
MR. YOUNG: I believe that various of us are still
considering others, so we may have more stipulations. But as I
understand it, subject to correction by folks on the other side
here, I believe we've all stipulated to the introduction of the
following: Exhibits 1, 29, 34, 35, 36, 37, maybe 38, 42, 43,
44, 45, 47, and 49.
THE COURT: Okay. Do we have a stipulation as to 38?
MR. COMO: I have 38 as already being in evidence,
Your Honor.
THE COURT: It apparently is already in evidence.
MR. YOUNG: That solves that problem, then.
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 295
THE COURT: All right. So does any party disagree
with the exhibits as they've been read by Mr. Young?
MR. COMO: I do not, Your Honor.
MR. WALKER: And neither do I, Your Honor.
MS. IAFRATE: No, Your Honor.
THE COURT: All right. So Exhibits 1 -- Nick, I'll
read these so you can get them down, and tell me if I need to
slow down -- 1, 29, 34, 35, 36, 37, 42, 43, 44, 45, 47, and 49
are admitted.
(Exhibits 1, 29, 34-37, 42-45, 47, and 49 admitted.)
THE COURT: All right. If you can arrive at other
stipulations, let me know, and we'll handle them in like
manner, and that way we can expedite matters.
I've also received from the parties their joint list,
so today --
Were you able to read last night, as I had hoped, the
deposition of Lieutenant Sousa, Ms. Iafrate?
MS. IAFRATE: I did the best I could, Your Honor.
THE COURT: Well, were you able to read the
deposition?
MS. IAFRATE: Not all of it, Your Honor, but I'm
prepared.
THE COURT: You are prepared.
MS. IAFRATE: I am.
THE COURT: All right. So we will have -- I assume
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 296
we'll finish with Chief Sands this morning, and then we will go
Sousa -- and I assume that we're just going to proceed as
you've indicated. If you call them in your case in chief and
they were going to be your witnesses anyway, Ms. Iafrate, we'll
just go as we've gone with kind of the double-back procedure.
We haven't seemed to have a lot of problem with that.
Is that acceptable to you?
MS. IAFRATE: That is, with the -- I would just like
to put on the record also, Your Honor, that
Lieutenant Jakowinicz was not a witness that I was prepared,
and I explained that to plaintiffs yesterday.
However, I am prepared to proceed today. He was not a
witness that I defended in depositions, and he was not assigned
to me for this evidentiary hearing, but I am ready to proceed.
THE COURT: All right. Thank you.
So we will go -- how long do we anticipate with
Mr. Sousa?
MS. WANG: Your Honor, we have time estimates for all
of our witnesses I can give you now. For Lieutenant Sousa for
our direct --
THE COURT: Yes.
MS. WANG: -- I would estimate one and a half hours.
THE COURT: All right.
MS. WANG: For Lieutenant Jakowinicz, I'd estimate one
hour; for Sergeant Trowbridge, 45 minutes.
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 297
Emily Doan, Your Honor, is a witness for plaintiffs
who will go through some pretrial discovery matters. We have
proposed a stipulation to the other parties that would obviate
the need for her to testify at all, and they're considering
that now.
THE COURT: All right.
MS. WANG: If we don't reach a stipulation, that will
only take 15 minutes, I think.
For Sheriff Arpaio, we estimate three hours on direct,
and for Chief Sheridan, one and a half hours.
THE COURT: Okay. Then in addition I take it the
defendants were going to call MacIntyre, Jones, Tiffany Shaw,
Steve Bailey, and Steve Fax?
MS. IAFRATE: I discussed with plaintiffs' counsel
that depending on what plaintiffs do in their case in chief,
some of those will likely be either eliminated or deferred.
THE COURT: All right. So it looks to me, by best
guess -- well, let me ask you, Ms. Iafrate: Any estimates on
Sousa's cross?
MS. IAFRATE: An hour.
THE COURT: Jakowinicz, or Jakowinicz, sorry. I am so
sorry to Lieutenant Jakowinicz.
MS. IAFRATE: Jakowinicz.
THE COURT: Jakowinicz, with a V? I will get his name
right.
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 298
Lieutenant Jakowinicz, how long --
MS. IAFRATE: Half hour.
THE COURT: Trowbridge?
MS. IAFRATE: 15 minutes.
THE COURT: Doan, if there's no stipulation?
MS. IAFRATE: I don't know.
THE COURT: You know what her testimony's about,
apparently?
MS. IAFRATE: I do.
THE COURT: So is it going to be long?
MS. IAFRATE: No.
THE COURT: Sheriff Arpaio?
MS. IAFRATE: An hour and a half.
THE COURT: Deputy Chief Sheridan?
MS. IAFRATE: An hour and a half.
THE COURT: Mr. Walker, do you anticipate -- you
haven't questioned yet. Do you anticipate doing questioning?
You certainly have the right.
MR. WALKER: Thank you, Your Honor. If I have
questions for any of the witnesses, they will probably be very
few, and I would anticipate they would add no more to the
cross-examination than 10 to 15 minutes.
THE COURT: As the total, or in each case?
MR. WALKER: In each case. But there's some of these
witnesses I'm fairly sure I'll have no questions for.
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CV07-2513, Melendres v. Arpaio, 4/22/15 Evidentiary Hrg 299
THE COURT: All right. Thank you.
Mr. Como?
MR. COMO: Your Honor, obviously Brian Sands will be
testifying today on direct, and I anticipate that going
approximately 45 minutes.
THE COURT: All right.
MR. COMO: Lieutenant Sousa, I anticipate a half an
hour; Lieutenant Jakowinicz, a half an hour; Trowbridge, I
would estimate probably 15 minutes, at most; and Sheriff Arpaio
and Chief Sheridan, I would say half an hour or less for each
of those witnesses.
Presently, I would estimate about 15 minutes, but I
don't know, obviously, what their testimony's going to be,
so...
THE COURT: All right. Let me say that it seems to me
that the remain -- we can then finish going through Friday.
The one single wrinkle on the complication, and I don't know if
he -- I assume that he copied you on the e-mail to the Court,
which was Mr. McDonald's request because he's been asked to
speak at the funeral involving a tragic situation. Looks to me
like given your order, Sheriff Arpaio will be up to testify
tomorrow, so that should not interfere with Mr. McDonald's need
to attend the funeral.
Mr. McDonald, I think that what we can do is make sure
you're here for Sheriff Arpaio's testimony, which will be the
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most important aspect of that.
MR. McDONALD: Right. He and Chief Sheridan are the
two that are critical for me to be present at.
THE COURT: Well, I can't guaranty, of course, that
you'll be here for Chief Sheridan. But fortunately you work at
a large law firm and maybe you can have somebody cover. We'll
have you -- it looks to me, and we're all going to be sensitive
to the fact, you definitely need to be here when Sheriff
Arpaio's testifying, and we'll have you here. You may have to
have somebody cover for a little bit of Chief Sheridan, but
we'll try and accommodate that funeral request.
MR. McDONALD: Thank you, Judge.
THE COURT: Are there any other matters that would
be -- that should be taken up before we begin at 9 o'clock?
MR. COMO: I have one issue I'd like to raise, Your
Honor.
THE COURT: All right.
MR. COMO: This is an evidentiary motion; I'll style
it as a verbal motion in limine. I apologize that we didn't --
THE COURT: Can you get right to it, Mr. Como?
MR. COMO: Sure. The issue, Your Honor, concerns
evidence relating to the ongoing application of the LEAR policy
and the detention of individuals to be turned over to ICE and
Border Patrol after this Court's preliminary injunction ruling.
THE COURT: Right.
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MR. COMO: It's our position that evidence of that
should be excluded from this hearing based on relevance and 403
grounds. The Court made it very clear in its May 2013 ruling
that that LEAR policy was a violation of the preliminary
injunction. It's our position that the plaintiffs should have
brought the contempt claim, if they had one, at that time
rather than waiting a year and a half to do so.
THE COURT: Motion's overruled.
MR. COMO: I would like the opportunity to make a full
record on this, Your Honor.
THE COURT: You have.
MR. COMO: Well, then I'll have to object every time
one of those exhibits is offered. I'm trying to make a
record --
THE COURT: I'll give you a continuing objection.
MR. COMO: Thank you, Your Honor.
THE COURT: Yes, sir.
MR. SCHWAB: Your Honor, briefly, Doug Schwab on
behalf of the County Attorney's Office representing Sheriff
Arpaio.
THE COURT: All right.
MR. SCHWAB: Yesterday after the discussion of
conflicts I had concerns of my own. I addressed those with the
county attorney and I was referred to independent ethics
counsel, briefly last night and at more length this morning,
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and she is reaching and analyzing that issue right now.
THE COURT: Well, all right.
MR. SCHWAB: Just wanted to let the Court know.
THE COURT: Are you comfortable staying at counsel
table? As I said, I think it's pretty clear that -- I've
reread it again. I think the Ninth Circuit is only talking
about the appropriate party that -- in terms of name only, and
the difference, there is no difference in the representation.
Ms. Iafrate's doing a beautiful job. That doesn't mean that I
am going to dictate to Mr. Casey or to you whatever your
ethical obligations are. But we're proceeding.
MR. SCHWAB: I would think it best if I sat behind the
bar so I don't --
THE COURT: That's fine.
Mr. Como, I'm going to give you a chance, if you can
do it briefly, to state whatever you want to state to make your
full record.
MR. COMO: Thank you, Your Honor.
THE COURT: I would ask you to do it expeditiously.
MR. COMO: I think the only point that I didn't get
to, Your Honor, is the basis for the argument is a res judicata
argument. It's a principle of merger, which is that they had a
final judgment that there had been a violation of the
preliminary injunction, their claims at that time merged. They
should have brought the contempt claim at that time. Their
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failure to do so, I believe, bars them from doing it a year and
a half to two years later.
I'd be happy to submit a brief on this issue. I
simply wanted to do it because there are a lot of evidence,
exhibits that go to this issue, and I don't want to waive the
issue by allowing in all this testimony in evidence.
THE COURT: Yeah, you haven't waived it. I'm going to
give you a continuing objection. It does seem to me to be
highly relevant, and certainly, while I was aware at trial and
I became aware during some of the testimony and I noted it in
my May 13th order that there were violations of the preliminary
injunction, I'm not sure that even I was aware of the vast
scope of those violations. And I noted the violations in the
order, so I'm not sure where your res judicata argument would
come in. But again, I want you to be able to preserve it in
full, but I am denying your motion.
MR. COMO: Thank you for allowing me to make a record
on it, Your Honor.
THE COURT: You bet.
Mr. Walker.
MR. WALKER: For the record, Your Honor, I'd like to
note that the County joins Mr. Como's motion. I understand the
judge's ruling.
THE COURT: But he joined the County, if you didn't
hear it. I'm sorry, he joined Chief Sands in the motion.
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MR. McDONALD: Your Honor, could I just say one thing
about Mr. Liddy's withdrawal?
THE COURT: Sure.
MR. McDONALD: You'll notice in the paperwork that was
filed that Sheriff Arpaio did not sign on consenting the
withdrawal. It's my belief, and I think Your Honor one time
recognized it, Mr. Liddy is probably one of the most
knowledgeable people in the case. And even though I have great
respect for Michele Iafrate, I think to put the responsibility
of Mr. Liddy's witnesses on her shoulders with less than 24
hours' time to prepare is burdensome.
If there is a conflict, the sheriff would waive the
conflict, and we would ask the -- we think it could prejudice
Ms. Iafrate's ability to find out information and to bring out
information that Mr. Liddy may know that would help the Court
in its findings, and I would simply ask that the Court not
grant Mr. Liddy's request to withdraw.
THE COURT: I've just been handed that. Apparently
you did file it, Mr. Liddy. I haven't had a chance to read it.
Let me tell you where I'm coming from. And this is
not really about your request, Mr. Liddy, but I will read it,
and I read it -- but coming to work this morning I was a
witness to an automobile accident that looked like it might
have resulted in serious injuries. I had to get here 'cause I
told you I'd be here by 8:30 and I had to review some matters.
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I told the police I'd come back and fill out a witness
statement. I'm going to do that right now. It's very close to
here. I hopefully will be back, but I'm not probably going to
make 9 o'clock. I'll try to be back 9:05, 9:10.
On the way from talking to the police I'm going to
review your motion, Mr. Liddy, but let me just ask you: Is
there anything about your conflict that you perceive prevents
you in your desire to withdraw, that you perceive prevents you
from cooperating with Ms. Iafrate in terms of information that
she might seek that would assist her in this representation or
access to documents, or information that might be within your
knowledge and possession? And if your position is that there
is a conflict, then we're going to address that right now.
MR. LIDDY: Your Honor, the vast majority of the
information I have about this case I have no problem sharing
with Ms. Iafrate or Mr. Walker. However, I do have some
knowledge which I have received pursuant to my confidential
relationship with both the sheriff and the County that I can
share with neither.
THE COURT: All right. Let me ask you, would you feel
comfortable disclosing that to me at sidebar?
MR. LIDDY: No, Your Honor. I'm bound by the ethical
canons not to disclose that information.
THE COURT: Well --
MR. LIDDY: I could disclose the nature of it without
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disclosing --
THE COURT: Yeah, that's all I meant was the nature of
it. And I think as I recall the canons I could require you to
disclose it. You can disclose it upon court order. I don't
want to do that. I just want to -- let me ask you: Are you
comfortable disclosing the nature of the information in open
court?
MR. LIDDY: No, Your Honor, but I am comfortable
disclosing it at sidebar with the Court and with --
THE COURT: Other counsel.
MR. LIDDY: -- defense counsel, not with plaintiffs'
counsel.
THE COURT: Well, when you say defense counsel, we
also have Maricopa County and we have Chief Sands. Are you
comfortable disclosing it in front of Maricopa County and
Chief Sands? And I'm not really sure why we would exclude
plaintiffs' counsel in that instance.
MR. LIDDY: Caution would -- I'd feel comfortable
disclosing the nature of the information to the Court.
THE COURT: All right. Well, why don't you do that,
unless any party objects, and I'm going to try to evaluate
whether or not there's a reason then, in light of the
information, that I should -- and just to be frank, Mr. Liddy,
so you know what I'm doing, I would be -- I need to evaluate
that information in terms of evaluating your request to
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withdraw, and then I may need to evaluate it to see if I think
the parties need to know what it is in order to be heard on
your request to withdraw in a knowledgeable way.
MR. LIDDY: Understood, Your Honor.
THE COURT: All right. So why don't you approach
sidebar and I'll hear it.
MR. WALKER: I'd just like to note for the record the
County does not object to the disclosure so long as it is
confined to a description of the categorical nature of the
information with which Mr. Liddy is concerned.
THE COURT: When you say object to disclosure, you
mean the disclosure publicly?
MR. WALKER: No, the disclosure to the Court.
THE COURT: All right. Ms. Iafrate?
MS. IAFRATE: I would agree, Your Honor.
THE COURT: All right. Are you both -- are you both
apprised of the nature of this?
MS. IAFRATE: No, Your Honor.
THE COURT: All right. Well, then, I think we need to
have defense come.
MR. LIDDY: I'm comfortable with that, Your Honor.
THE COURT: All right.
(Bench conference on the record.)
(Page 307, line 24, through page 311, line 15, sealed
by court order.)
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(Bench conference concluded.)
THE COURT: All right. I've spoken with Mr. Liddy,
Ms. Iafrate and Mr. Walker. In the course of his duties,
Mr. Liddy has been actively involved in the preparation of this
case in terms of factual and legal preparation and legal
positions. I believe I am correctly stating his position to
say that he has no problem fully cooperating with Ms. Iafrate
and Mr. Walker and giving them access to everything he knows
regarding the facts and the legal preparation and the legal
memorandum in this case.
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He, however, has also, in his capacity within Maricopa
County, had occasion to consult with the board of supervisors
and received direction from them and County executive
management. He is restricted from discussing the advice he
received in that capacity with the sheriff, but that in no way
restricts him in his ability as it pertains -- or his
willingness as it pertains to the facts, the law, or anything
else with respect to this case.
Is that a correct statement of your position,
Mr. Liddy?
MR. LIDDY: Except that I would not categorize the
information I received in confidence from my client, the
County, as "direction."
THE COURT: Thank you.
MR. LIDDY: Nor did I receive advice from the board of
supervisors.
THE COURT: All right.
At sidebar Ms. Iafrate said she needs a day to absorb
from Mr. Liddy information pertaining to Mr. Sousa and who
else?
MS. IAFRATE: Lieutenant Jakowinicz.
THE COURT: Okay. I'm not going to give her a day,
but I am going to give you two hours, and we will resume at
11 o'clock with the deposition -- or with the testimony of
Chief Sands. Then we'll move into Sousa and Jakowinicz --
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Jakowinicz, as we've indicated. All right? So we will resume
court at 11 o'clock.
THE CLERK: All rise, please.
(Recess taken.)
THE CLERK: All rise, please. Court is now in
session.
THE COURT: Please be seated.
Mr. Liddy, will you please come forward. Take the
podium for a minute.
Mr. Liddy, I do want to state as you're coming forward
that you have been in this case a long time, and I do, as I've
indicated before, while I haven't always accepted your
positions, you've been an ardent advocate for the sheriff's
positions.
I am not going to immediately grant your motion. I
want to explain why. And want to acknowledge your right and
obligation to act as you see fit ethically, and I want to
outline why I'm not going to immediately grant your motion to
withdraw.
You have in your motion designated as the reason that
necessitates your withdrawal 1.7(a)(2). And I was able to look
at that during the little break we've had, and it is you're
obligated to withdraw if there is a significant risk that the
representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a
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former client, or a third person, or by a personal interest of
the lawyer, and I understand why that may pose a problem for
you.
I have stated several times that I think that the
position that the County has taken in various ways is an odd
one, and that's partly because we have an odd system of
government in Arizona that allows the sheriff to be
independently elected but the County in many ways financially
responsible for the sheriff's choices.
I do believe that the County has taken the position
and received an order from the court of appeals that MCSO is
not a jural entity, and that according to the court of appeals'
opinions, the proper party, being the County, should be
substituted in when that determination is made, and that's how
I determine what the Ninth Circuit did as substitute in the
County.
I understand by the presence of Mr. Walker here that
the County wants to take, perhaps, or preserve the right to
take, certain substantive or legal opinions that would be
separate, or that would argue that there is a separation that
would be inconsistent with the -- perhaps inconsistent in some
ways with the jural entity argument and all that stuff.
However, just before we went to break Mr. Walker said
the County was willing to waive any conflict with respect to
your ongoing representation, and the sheriff indicated that he
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was not going to sign off on your withdrawal. And it seems to
me, as I look at it, as you have outlined the conflict and the
reasons for your concern, I understand what you're telling me,
that the -- certain of your interactions with respect to the
Melendres case with the board of supervisors and County
management are things that you cannot now disclose to the
sheriff in light of the possibly differing opinions.
But you've also said there is no reason why you can't
advocate all of the facts and all of the law that pertains to
this case in favor of the sheriff. And so I'm not sure that
the sheriff doesn't have a valid basis, Ms. Iafrate, to argue
that 1.7(a)(2) just does not apply in this circumstance,
because there's not a significant risk that you're -- that
you're going to, in your representation, in any way impair the
sheriff's interests.
And Mr. Walker apparently doesn't believe you're going
to impair the County's interests. And you seem to me to be
quite attuned to your ethical obligations insofar as it
pertains to not disclosing confidential communications you've
had with the board of supervisors. And so if the sheriff wants
you to go forward on that basis, I think I'm going to have to
allow them to make that argument.
And as far as I'm concerned, if all the parties want
to stipulate, you can cross-examine and do the examination of
Lieutenant Sousa if you're comfortable with it; if you're not,
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I understand. If you're not, though, we've just given you the
two hours, and you'll also have the lunch break, which we're
going to take at 1 o'clock, to further deal -- or inform
Ms. Iafrate, consistent with your indication that you would
fully cooperate in that respect.
Do you understand what I'm saying?
MR. LIDDY: I do, Your Honor.
THE COURT: All right. Mr. Walker.
MR. WALKER: Your Honor, just to clarify, if I said
that I was --
THE COURT: Well, and let me say I may have misstated
what you said. I'm just stating what I recall --
MR. WALKER: Okay.
THE COURT: -- and so please clarify.
MR. WALKER: Yes. What I meant to say is that I had
no objection to Mr. Liddy participating to the extent of
assisting both the County and Ms. Iafrate with his knowledge of
the history of the case, and the issues, and the facts in the
case. I'm not authorized at this moment to waive a conflict in
a formal sense, and I would have to seek my client's permission
to do that.
THE COURT: I understand. And so I understand,
Mr. Liddy, while you may or may not -- I mean, it's up to you,
first, whether or not you feel like you can cross-examine or do
the examination of Lieutenant Sousa. But if you determine that
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you can, and none of the parties object, then I'm going to
allow you to do it.
If you determine that wisdom suggests that you not do
that, I completely understand. We've given you the opportunity
now to bring Ms. Iafrate up to speed; she's had the ability to
read the deposition. I'm just telling you that.
But we're in the middle now of the testimony of
Chief Sands, so you'll have a little bit of time to think about
it.
Did you have anything you wanted to say?
MR. LIDDY: Yes, Your Honor. I would like to clarify
one point that I never said that I would be -- that I was able
to advocate on behalf of the sheriff. I said I would be
unencumbered in meeting my ethical obligation to assist --
THE COURT: Okay.
MR. LIDDY: -- the sheriff in the transition, and I
can do that with factual knowledge that I have.
I also would like to place on the record that I am in
possession of confidential information which I may not share
with this Court that I received from --
THE COURT: Yeah, that's fine.
MR. LIDDY: -- client.
THE COURT: That's fine.
MR. LIDDY: I cannot get that information out of my
head, and I cannot advocate -- the substantial risk is a -- is
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real. It is in fact there, and I'm obligated to withdraw. I
have no discretion.
THE COURT: All right.
MR. LIDDY: And I have legal advice from ethics
counsel that so states.
THE COURT: All right. I respect that. Then we
will -- I'm going to require you to fully cooperate with
Ms. Iafrate, as you've indicated you will.
Do you have any problem with that?
MR. LIDDY: None whatsoever. It's my obligation and
my honor.
THE COURT: All right. Then we will proceed on that
basis. However, I'm still not going to grant your formal
motion to withdraw until the parties have had a chance to weigh
in on that.
MR. LIDDY: I appreciate that, Your Honor.
THE COURT: Thank you very much, Mr. Liddy.
I believe, Ms. Iafrate, we're at the cross-examination
of Chief Sands.
MR. YOUNG: Your Honor, a brief housekeeping matter to
actually add an attorney to the -- and introduce an attorney to
Your Honor. Hyun Byun, my colleague at Covington & Burling,
has joined us at counsel table.
THE COURT: Welcome.
Ms. Iafrate.
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MS. IAFRATE: Your Honor, just a couple housekeeping
matters. Before the break I was informed that the witnesses
are going to change order, so we're actually taking
Lieutenant Jakowinicz after Chief Sands. Lieutenant Jakowinicz
is another one that I was not prepared for, so Mr. Liddy and I
used the time during the break to prepare for
Lieutenant Jakowinicz rather than Lieutenant Sousa.
THE COURT: Thank you for that clarification.
Is that correct?
MS. WANG: That is correct, Your Honor.
Just by way of brief explanation, our late start this
morning, combined with Mr. McDonald's announcement that he'll
be absent Friday, led us to be concerned that we want to finish
with Sheriff Arpaio's testimony by the end of the day tomorrow.
So we proposed that we will simply move Lieutenant Sousa till
after Sheriff Arpaio to make sure that happens.
THE COURT: That's fine. Let me just clarify.
I do think it's very important that in light of
Mr. McDonald's personal circumstances we accommodate him how we
can, but even he has not asked not to be here all day on
Friday. He has acknowledged that there would be two -- an
hour, I think, before the lunch hour, an hour afterwards, maybe
two, that he would need to be gone.
I've indicated, I think, that for that brief time he
can have one of his associates doing the coverage. But I do
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think it's important that while Sheriff Arpaio's on the stand,
Mr. McDonald be here. So just for that clarification.
All right. We ready to proceed, then?
MS. IAFRATE: No, Your Honor. One more piece of
information.
We would request that Mr. Como handle the
cross-examination first and then I follow, because this is
Mr. Como's client.
THE COURT: I think that's fair. That's fair.
MR. COMO: Thank you, Your Honor.
THE COURT: Sure. Please, Mr. Como.
BRIAN SANDS,
recalled as a witness herein, having been previously duly
sworn, was examined and testified further as follows:
CROSS-EXAMINATION
BY MR. COMO:
Q. Chief Sands, you worked approximately 30 years at the
Sheriff's Office before you retired?
A. Just short of 30 years, yes.
Q. Was your retirement voluntary?
A. Yes.
Q. During your entire career at the Sheriff's Office were you
ever disciplined for any reason?
A. No.
Q. Since your retirement do you have -- did you go on to work
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at another job?
A. No, I did not.
Q. Is your primary source of income your pension from the
County?
A. Correct.
Q. Who presently lives with you?
A. My wife and my son.
Q. Before your -- your work with the County Sheriff's Office,
what did you do?
A. I served for eight years in the United States Army.
Q. Were you honorably discharged?
A. Yes, I was, yes.
Q. I'd like to go back in time to when you were the chief of
enforcement in 2011. What divisions reported to you at that
time?
A. I had three bureau commanders that reported to me. One was
primarily over patrol operations, the other one was primarily
over investigative operations, and the other one was in charge
of training per -- I'm sorry, not personnel, but records and ID
and civil and criminal warrants.
Q. Who was the person in charge of the training bureau, the
bureau that included training?
A. Well, it changed. After we reorganized, the person
directly -- the director over training primarily during my time
was Director Rollie Seebert.
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Q. And who did Rollie Seebert report to?
A. He reported at one time to Chief Trombi, and then later to
Chief Chagolla.
Q. Okay. You remember in early 2012 who -- who -- did you say
Detective Seibert, or what was his title?
A. Director.
Q. I'm sorry, Director Seibert.
Do you remember in early 2012 who Director Seebert was
reporting to?
A. Would have been Chief Trombi.
Q. How many sworn deputies worked under your ultimate command
back in 2011, 2012?
A. At that time it would have been just under 800.
Q. Is that all the sworn deputies at the Sheriff's Office?
A. Primarily, yes.
Q. Where was your office physically located?
A. My office was at the 19th floor of the Wells Fargo
building.
Q. Did the sworn deputies that you just mentioned, did they
actually work in your office?
A. Other than the command staff, no, they worked out in
various off-site locations.
Q. So, for example, the deputies in the Human Smuggling Unit,
they wouldn't be located in the same physical building as you?
A. No, sir. They were located primarily out on Durango.
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Q. Was your job primarily an office job?
A. For the most part, yes.
Q. How would you spend your -- most of your days?
A. Mainly in meetings.
Q. Okay. Were you going out on patrol and doing interdiction
and that type of thing?
A. No.
Q. I'd like to switch gears now and talk a little bit about
the training department. That was one of the departments that
was under you, correct?
A. Correct.
Q. Is that the right word for it, "department," or is there
some other word I should use?
A. Training division.
Q. Division. Okay.
And how many employees were in the training division
back in 2011-2012?
A. As I remember, it varied between 10 and 15.
Q. What was the function of the training division?
A. They were responsible for training throughout the office
for all members, including detention, and the academy training
also.
Q. When you say responsible for training, what types of
training are we talking about? Can you give us an overview?
A. It would vary from basic training involving the academy
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through any issues that might affect the day-to-day operations
of the Sheriff's Office, as in legislative enactments by the
state law, information that needed to go out about policy, that
type of thing.
Q. What about field training, firearms training, that type of
thing?
A. Yes, that was also included.
Q. Was the training of the posse included in that as well?
A. The approval and the management of the training was -- for
the posse did go through the training, but primarily the
enforcement support division did the actual training.
Q. How many -- oh. E learning programs, would those go
through the training division?
A. Yes.
Q. How many different types of training programs would the
training division put on in a year, just an approximate number?
A. Oh, it was probably, including the basic programs, well
over a hundred.
Q. Would you personally review all of those training materials
that were put together and final -- and made final by the
training division?
A. No, sir.
Q. Is there any way that you could have physically done that
and met all of your other duties?
A. No, there would be no way I could do that.
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Q. Describe for me -- we're going to talk about the specific
training materials that were being put together for the Court's
order in a moment, but I'd like you to describe the more
general process of how -- let's say there was a new law passed,
new criminal law passed. What would be the typical process of
how that information would be put out to the deputies and the
training materials put together for those deputies?
A. Typically, that would go through the policy people that
worked in the administrative division. And if updated training
was needed, they oftentimes would contact the staff that worked
for, at that time, Seebert to develop new training.
Q. Who would -- let's say again, using this generic new
statute, who would typically put together the initial training
materials, the substantive information?
A. Normally, the training staff would try to develop the needs
and the Best Management Practice to develop the training
itself, and then put out to the staff.
Q. Would you typically see the final product of these training
programs that are put together by the training staff?
A. Not typically, no.
Q. Okay. I assume that you had your own ongoing training
requirements?
A. Yes, for my POST certification I did.
Q. Is that typically one that you would see the final
product of the training materials?
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A. Typically, yes.
Q. There was some E learning that was mandatory, right?
A. Yes.
Q. Okay. So what would be your role in a typical training
program, if any, development of a typical training program?
A. Normally, I didn't have much involvement in that. However,
for instance, the training staff might develop some type of
need for firearms training that involves more tasking that can
be accomplished by the staff that's at the range, and so they
would reach out to other certified firearms instructors. And
oftentimes, because it is a bureaucracy, people aren't willing
to give up their staff. And so when it became a needs
requirement outside of that training unit's possession, they
would come to me and I would try to get them -- get them the
resources they needed.
Q. That sounds like a specific example that you're recalling.
A. Yes.
Q. So is it fair to say that you would get involved in these
putting together training materials or training programs only
when a need arose for you to assist in getting the resources
put together or some similar problem solved?
A. Typically, yes.
Q. Okay. All right. Let's turn now to the training program
that was -- was being put together in light of the Court's
preliminary injunction order, and I'd like --
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MR. COMO: Does the witness have Exhibit 189?
BY MR. COMO:
Q. If you could turn, please, to Exhibit 189, which is in
evidence. Do you recognize this e-mail chain?
A. Yes, I do.
Q. Let's go to the last page -- or, I'm sorry, the
next-to-the-last page of Exhibit 189, please.
Let's start with the e-mail at the bottom there from
Lieutenant Sousa to Brett Palmer dated January 11, 2012.
Are you with me?
A. Yes, sir.
Q. Do you have an independent memory of this e-mail?
I'm sorry, of receiving this e-mail back in January of
2012?
A. No, I don't.
Q. There's a number of people that are copied on the e-mail,
including yourself, Mr. Casey, and then Rollie Seebert. And
you indicated previously that he was the director of training
at that time?
A. Correct.
Q. Do those people that are on the cc list, do those all make
sense in terms of who would be typically involved in putting
together training materials on something of this nature?
A. Yes.
Q. And again, I'm not talking necessarily about any generic
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training, but something like this where we're dealing with a
court order.
A. Yes.
Q. Okay. Mr. -- Lieutenant Sousa's e-mail talks about -- is
directing Sergeant Palmer to put together some training
scenarios and that he should be discussing them with Tim Casey.
Do you see that?
A. Yes.
Q. Was that consistent with your understanding of how this
December order was going to be put out in terms of training?
In other words, that somebody in the HSU would work
with Mr. Casey to develop the materials?
A. The process typifies a training development.
Q. Lieutenant Sousa's e-mail, at the last line of it, talks
about E learning. And there's already been testimony about it.
That's an office-wide program, right?
A. It was at the time, yes.
Q. All right. Now, on examination yesterday you testified
that after your meeting with Sheriff Arpaio, he said that he
wanted to only have HSU deputies trained. That was your
understanding after the meeting, right?
A. Correct.
Q. This seems different, in that they're talking about
E learning and office-wide program. Do you have any idea of
why -- can you explain that, the difference?
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A. Well, it's obvious -- obvious to me that the communication
is going out to put this out to -- to all the deputies.
Q. Okay. Now, you testified yesterday that your -- that you
had spoken with Lieutenant Sousa about getting together with
Mr. Casey to put together the training, right?
A. Correct.
Q. Is this consistent -- is this e-mail consistent with --
with your memory of how that was going to happen, essentially
consistent with it?
A. Well, again, I don't have any independent recollection of
the -- the exact verbiage in here. It would be consistent with
that conversation, yeah.
Q. Okay.
Now, when you gave that testimony originally, I think
you were actually interviewed by a monitor back in December
2014 about these events, and your -- the testimony that you
gave yesterday about the conversations you had with the sheriff
and Lieutenant Sousa is essentially the same testimony that you
gave back to the monitor in December 2014, right?
A. Correct.
Q. Did you have the benefit of being able to refresh your
memory with these e-mails when you were interviewed by the
monitor?
A. No.
Q. Let's go now to the next e-mail. We have to flip all the
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way to the first page. And this is Sergeant Palmer's
scenarios, and he directs them to Lieutenant Sousa, and then
Mr. Casey and Michael Trowbridge are copied on that.
Do you see that? Goes on to the second page to see
the copies.
A. Oh, yes, I see.
Q. You were not copied on that e-mail, correct?
A. No.
Q. Is that typical, that you would not receive the actual
training materials at this stage in the process? The draft --
sort of the draft training materials that are being put
together?
A. I rarely saw any training as it developed in its written
form.
Q. Okay. So this isn't unusual in that sense, correct?
A. No.
Q. Again, this -- Sergeant Palmer's e-mail, we're not going to
go through the scenarios, but he does say in the first
paragraph that he's had the many conversations that he's had,
as well as taking into account the information from -- provided
to both of us from Tim Casey. Do you see that?
I'm sorry. It's on the top paragraph of the second
page of the e-mail before we start the actual discussion.
Do you see what I'm referring to?
A. I'm sorry. The question --
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Q. Do you see the language about him having conversations with
Lieutenant Sousa, as well as both of them having conversations
with Tim Casey about the order?
A. Yes, I do.
Q. Is that consistent with what you would expect
Sergeant Palmer to be doing at this stage in the process of
preparing these materials?
A. I would believe that, yes.
Q. Why would you expect him to be getting advice or review
from an attorney on something of this nature?
A. Largely because of the impact on the office and the -- the
need for a clear understanding for the staff about the order.
Q. Is it also because the order has legal issues and is a
legal ruling?
A. Oh, correctly, yes.
Q. The next thing on this -- and we're now on the first page
of Exhibit 189. The next e-mail in this chain is one from
Lieutenant Sousa to Mr. Casey dated January 24, 2012.
Do you see that one?
A. Yes.
Q. And you are copied on that one, correct?
A. Yes.
Q. And the other individuals that were copied on
Lieutenant Sousa's initial e-mail to -- to Sergeant Palmer are
on there as well, correct?
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A. Correct.
Q. In addition, Lieutenant Jakowinicz is on there.
Do you see that?
A. Yes.
Q. Do you know why Lieutenant Jakowinicz would have been on
there at that time? And if you don't know, that's fine.
A. I can only speculate that was at the time that he was being
transferred.
Q. All right. Well, he'll have an opportunity to tell us.
In this e-mail is it accurate to say that
Lieutenant Sousa's asking Mr. Casey to review the scenarios and
get back to him?
A. Yes.
Q. Is that what, again, what you would expect to have happen
with materials like this before they're put out to the
deputies?
A. Yes.
Q. Is this e-mail asking for any action on your part at this
time?
A. No.
Q. Do you recall ever receiving a response, being copied on
any response to Lieutenant Sousa's e-mail to Mr. Casey of
January 24, 2012?
A. No, sir.
Q. Let's turn now to Exhibit 156. This has also been admitted
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into evidence.
Do you have that in front of you, sir?
A. Yes, I do.
Q. Now, this is an e-mail from Lieutenant Sousa to
Sergeant Palmer on March 27, 2012.
You are not copied on this e-mail, correct?
A. Correct.
Q. According to this e-mail, Lieutenant Sousa was still
waiting to hear back from Mr. Casey on the training scenarios,
right?
A. Yes.
Q. And it was only after that that they anticipated having you
and sergeant -- sorry, Lieutenant Trombi review the training
scenarios after they received Mr. Casey's feedback, correct?
A. Correct.
Q. Again, did you ever hear back from Mr. Casey or any other
attorney about these training scenarios at this time frame?
A. I don't recall ever hearing back from him, no.
Q. Was Lieutenant Sousa generally good about following up on
things?
A. He was excellent.
Q. How would you describe his overall work performance and
work ethic?
A. He was very hard working, one of the best division
commanders that worked for -- for me and with me. He was a
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self-starter, and had experience in things like SWAT, so his
leadership skills were -- were very high.
Q. Did you find that when you gave him an assignment, or he
had an assignment, that -- that he needed a lot of prompting to
do it?
A. No.
Q. Did you find that you could rely on him to follow through
and finish assignments that were given to him?
A. Yes. He was a self-starter and basically drove his own
vehicle when it came to leadership.
Q. From the e-mails that we've been looking at, including
Exhibit 189, is it obvious to you that the task of preparing
the training materials and getting them ready was -- was
assigned to Lieutenant Sousa?
A. Yes, sir.
Q. And did you believe that Lieutenant Sousa would carry out
that task without any need for follow-up from you?
A. I would believe that, yes, sir.
Q. Did anyone ever come to you and say: Hey, we're having a
problem. Mr. Casey's not getting back to us about these
training scenarios?
A. No, I recall nothing like that.
Q. If anyone had come to you and presented that as a problem
or an issue, what would you have done, sir?
A. I would have brought the parties together to get the job
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done.
Q. Had you done that with respect to other issues that had
been brought to your attention in the past?
A. Oh, yes. Yes.
Q. Did you ever -- was it ever your intent to not comply with
the Court's preliminary injunction order?
A. No.
Q. Did you ever direct anyone not to put on those training
materials?
A. No, sir.
Q. Do you believe that it's important to comply with a court
order such as that?
A. Oh, very important.
Q. Do you know why the E learning program that was being put
together was not finished?
A. No, I do not.
Q. Back in that time frame of 2012, did anyone bring to your
attention the fact that it was not finished?
A. No.
Q. After tasking Lieutenant Sousa with that assignment, was it
your assumption that the materials had been prepared?
A. I would believe that he would finish the task, yes.
Q. Do you feel that you took reasonable steps to communicate
the Court's order to the appropriate people within the
Sheriff's Office?
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A. I do.
MR. COMO: Nothing further at this time. Thank you,
Chief.
THE COURT: Mr. Walker.
MR. WALKER: No questions, Your Honor.
THE COURT: Ms. Iafrate.
CROSS-EXAMINATION
BY MS. IAFRATE:
Q. Chief Sands, you were deposed on April 1, 2015, in this
case, correct?
A. Correct.
Q. And in fact, on direct examination plaintiffs' counsel
showed you some of your transcript, correct?
A. Yes.
Q. I want to go back to that and ask you a couple questions
regarding the portion that they read to you. Okay?
A. Yes.
Q. First of all, let me show you the front page. That appears
to be the page of your deposition, correct?
A. Yes.
Q. And then plaintiffs read to you starting at page 76,
starting at line 4 and said: "Okay. Did you ever discuss that
backup plan with the sheriff?"
And your answer was: "No. I discussed that with him
prior to the injunction."
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Correct?
A. Correct.
Q. So this wasn't a conversation about any sort of plan B
based on the injunction, correct?
A. That's correct.
Q. Then it goes on to say: "Okay." Then you expressed: "--
that I had a problem with the -- with the premise of detaining
somebody that long to turn them over to the Border Patrol,
unless we were in close proximity of the Border Patrol. But to
drive somebody halfway across the state, I had a problem with
the detention part."
So let me ask you this, Chief Sands: How far away was
Border Patrol from Phoenix?
A. Well, depending on -- excuse me -- where they were located
at the time, and that could mean going to a patrol unit itself.
At that time I -- I think that Casa Grande was the closest
location they normally were at, or down in the area south of
Gila Bend.
Q. So your estimated time to get to Casa Grande or Gila Bend
would be in minutes or hours from this location. Do you have
an understanding --
A. More like -- more like closer to hours than minutes.
Q. So your problem was if it was a lengthy period of time to
transport someone, that was your problem, correct?
A. Correct.
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Q. You now know that any detention longer than necessary
violates the preliminary injunction, whether it be short or
long, correct?
A. Correct.
Q. You didn't know that back when you received the preliminary
injunction, did you?
A. No, you're con -- you're confusing me. Ask me the question
again, please.
Q. Okay. You received the preliminary injunction from Tim
Casey, correct?
A. Correct.
Q. And in fact, you had a conversation with him on the phone
shortly thereafter it was generated, correct?
A. I had a conversation with him, yes.
Q. Was it a telephone conversation?
A. I can't remember exactly. I think it was.
Q. No one else was present for that --
A. No.
Q. -- conversation, correct?
A. Correct.
Q. And so based on your conversation with Tim Casey, you
didn't understand that any detention, whether short or long,
longer than necessary, violated the preliminary injunction at
that time, did you?
A. Right.
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Q. But now that you're here today, you understand that any
detention longer than necessary, or longer than the usual
traffic stop, violated the preliminary injunction, correct?
A. Correct.
Q. Was your conversation with Tim Casey the same day that the
preliminary injunction was generated?
A. I believe it was, but I'm not sure.
Q. On that day did you brief anyone regarding your
conversation with Tim Casey?
A. I can't recall doing that.
Q. There was some discussion on direct examination regarding a
conversation that you had with Jack MacIntyre at the copier.
Do you recall that?
A. Yes.
Q. So you had received the preliminary injunction from Tim
Casey, correct?
A. Correct.
Q. And tell me what was your interaction with Chief MacIntyre.
A. My interaction was a discussion about me receiving the
preliminary injunction.
Q. Did he talk to you about the substance?
A. I don't recall that, no.
Q. What was his role as far as the preliminary injunction is
concerned?
A. I'm really not quite sure.
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Q. Did you two discuss the preliminary injunction, other than
did you receive it?
A. Yes. I remember him asking me if the deputies knew about
it.
Q. How about the content of the preliminary injunction?
A. No, I don't believe we had a conversation about it.
Q. Was that his job, to brief you on the substance of the
preliminary injunction?
A. It might have been.
Q. Why do you say "it might have been"?
A. Outside of that, that particular item, I'm not sure if he
was told to come and brief me on it, or there were other issues
that he might come to me about and --
Q. As you sit here today, he never briefed you on the content
of the preliminary injunction, did he?
A. No.
Q. You don't know if Tim Casey briefed Chief Deputy Sheridan
on the preliminary injunction, do you?
A. I wasn't present, so I don't know that, no.
Q. I want to back up and I'm kind of jumping all around. When
you go third, you kind of have to pick up the pieces as you go,
so I apologize.
Let's go back to even before the preliminary
injunction when the Melendres case was filed.
Do you recall that?
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A. Yes.
Q. What was your title at that time?
A. I was -- I was a chief at that time, yes.
Q. And was human smug
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