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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))))))))))
No. CV 07-2513-PHX-GMS
Phoenix, ArizonaNovember 9, 20153:33 p.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Telephonic Conference)
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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A P P E A R A N C E S
For the Plaintiffs:Covington & Burling, LLPBy: Stanley Young, Esq.By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065
For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140
Phoenix, Arizona 85254
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Jones, Skelton & Hochuli, PLCBy: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530
U.S. Department of Justice - Civil Rights DivisionBy: Maureen Johnston, Esq.601 D. Street NW, #5011Washington, D.C. 20004
For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
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P R O C E E D I N G S
THE CLERK: This is civil case number 07-2513,
Melendres, et al., v. Arpaio, et al., on for telephonic
conference.
Counsel, please announce your appearances.
MR. YOUNG: Good afternoon, Your Honor. Stanley Young
and Michelle Morin, Covington & Burling, for plaintiffs.
MR. KILLEBREW: Good afternoon, Your Honor. Paul
Killebrew and Maureen Johnston for plaintiff intervenors United
States.
MR. MASTERSON: Good afternoon, Judge Snow. John
Masterson, Joe Popolizio for Sheriff Arpaio and the individual
alleged contemnors.
MR. WALKER: Good afternoon, Your Honor. Richard
Walker and Charles Jirauch for Maricopa County.
THE COURT: Do we have anybody representing Chief
Sands? Where's Mr. Murdy?
MR. YOUNG: Your Honor, I did include Mr. Murdy and
Mr. Dodd on the e-mail. I do know that they waived their
appearance at most of Mr. Zullo's deposition, which is the
primary topic of this call, so it may be that they've chosen
not to attend, and at least the issues as to Mr. Zullo I don't
think affect former Chief Sands.
THE COURT: Does anybody else want to be heard on
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that?
Well, can I have -- can I proceed without all the
parties, or a representation from one of the parties that they
don't have any interest in this subject matter?
MR. YOUNG: Your Honor, this is Stanley Young. I
don't think that the issue as to Mr. Zullo affects Chief Sands.
And I say I don't think because it does affect, possibly,
schedule. And there is actually another issue relating to the
County's proposed witness and an exhibit, which we may raise as
well, which I suppose might affect them, so I can't make a
blanket representation on that.
It might be that we can discuss something this
afternoon that could help us plan the next few days, but that
it might need to be reconfirmed tomorrow morning when Chief
Sands' lawyer is present.
THE COURT: Does anybody object if we proceed a little
bit to see whether I think we can do tentative discussions, in
light of the nonappearance of Mr. Murdy?
MR. JIRAUCH: Your Honor, this is Charles Jirauch.
The County does not have a position on this, but I would make
an observation. One of the issues that we will be discussing
is there are certain audiotapes that were presented at the
deposition of Mr. Zullo today, and then portions were played as
part of the deposition. For instance, there are references, I
believe, to two audiotapes that were in excess of an hour each,
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and only a few minutes were played.
I understand, from conversations we had after the
deposition, that the plaintiffs are going to request the Court
to allow the entire audiotapes to be put into the record based
upon the playing of just a few minutes of it. These are tapes
that were produced for the very first time last Friday from
Mr. Zullo.
The County has never seen them. I suspect Detective
or Captain Sands' attorneys had not, either. So it's hard to
say whether anything we do today will not have an impact on
him, because we don't know what's in the 57 minutes of each of
these tapes that weren't played, and that plaintiffs would like
to put into evidence. So we're all sort of shooting in the
dark here.
THE COURT: All right. Well, it sounds to me like --
do you want to explain that any further, Mr. Young, before I
decide whether I can hear anything about that in the absence of
Chief Sands' attorneys?
MR. YOUNG: Yes. Well, we did have CDs with the
entireties of those conversations, those recordings available.
I think by the time we got to that part of the deposition,
Mr. Dodd had left, and Mr. Murdy had left prior to that.
So it may be that you wouldn't be able to decide the
entire issue. We would, obviously, if we plan to introduce the
entireties of those recordings -- and I don't know that we've
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reached the final conclusion in that regard yet; there's still
some further work on that. It may well be that as to some of
them we would move the introduction of the entirety. If we did
that, I think we would play the entirety in court.
The reason we thought it -- or I thought it, anyway,
it might be helpful to have the conversation today is that it
would allow us to tell Mr. Zullo what we're going to do with
him tomorrow.
We did take a deposition. It lasted for about three
hours. Mr. Zullo, with one or two exceptions, which may or may
not have been inadvertent, took the Fifth Amendment with
respect to every question, and that included many questions
about documents; it included questions about five audio
recordings which were provided to us on Friday.
It would be plaintiffs' proposal that we could simply
introduce the deposition testimony, or portions of the
deposition testimony, in order to allow the Court to draw
inferences that would allow the e-mails and the recordings to
be put into evidence.
Those e-mails are to or from Mr. Zullo, mostly
involving Mr. Montgomery. I don't really think there's any
dispute as to the e-mail addresses or, frankly, to the
authenticity of the documents. I think if he were to answer
questions that Mr. Zullo, you know, would say that those
documents are authentic. The audio recordings are almost
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self-authenticating, and I think that Mr. Zullo's refusals to
answer based on Fifth Amendment would allow inferences that
would allow those documents also to get into evidence.
The transcript itself seems to me to be something that
would be admissible as prior testimony. And given the fact
that he's unavailable because of his invocation of the Fifth
Amendment, those would be -- that testimony -- those portions
of it that we would introduce would be admissible. Rule
32(a)(4)(E) also provides a basis for that.
And I suppose the purpose of the call would be to seek
the Court's guidance. I know the Court earlier stated that he
might not compel Mr. Zullo to answer each -- you know, to
invoke as to each and every question. We do have a long record
now of a number of questions that relate to documents that we
would want to introduce. There are other invocations of the
Fifth Amendment on other questions as to which I'm sure we'll
have a chance to argue later on as to inferences.
But our proposal would be to put those in to the Court
in order to get the documents and the audio introduced, and put
more of it in in order to provide the Court with those refusals
to answer as to matters other than documents and audio
recordings.
I did discuss this issue briefly with Mr. Masterson
earlier today, and also Mr. Jirauch, and it may well be that
they would want to have more of a chance to review the
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documents. I think Mr. Jirauch and the County may not have had
them -- well, they probably did not have them before today,
and -- some of them, anyway -- and as to Mr. Masterson, his
firm may have had them for longer than we have, but it may be
that they'll want a chance to review those, too.
So it may be that there's -- if there's room for a
stipulation, we may or may not be in a position to reach that
today, but I thought it would be helpful to get the Court's
guidance as to how it would proceed on the general issue of
whether the deposition transcript by itself would suffice, or
whether we should tell Mr. Zullo that he should appear in
person.
THE COURT: Well, it seems to me that that is an issue
about which I'm going to have to have all parties present if
the other --
Did somebody just join the call? Who just joined the
call?
MR. MURDY: Craig Murdy, Your Honor. Sorry I'm late.
THE COURT: All right. Mr. Murdy, you're here
representing Chief Sands?
MR. MURDY: Correct.
THE COURT: All right. Do you want to restate
everything, please, Mr. Young?
MR. YOUNG: Yes. Hi, Mr. Murdy.
So I think, Mr. Murdy, you were part of the deposition
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earlier today, and Mr. Dodd came in for a while as well,
that -- let me recap our proposal here.
With all but one or two exceptions, Mr. Zullo invoked
the Fifth Amendment and refused to answer questions. Many of
those questions related to documents as to which we believe
there should be really no genuine dispute as to their
authenticity or provenance.
There were also questions about five audio recordings,
some of which were played in part. Well, actually, as to each
one, I guess; all of them were played in part. I'm not sure --
I don't think we played any of them in its entirety.
But our proposal or thought as to all of those
documents and recordings is that Mr. Zullo's invocation of the
Fifth Amendment would suffice to provide inferences that would
allow those documents to be admitted in evidence in this
proceeding.
And we raise the issue now so that we can tell
Mr. Zullo whether we need him to come. He is prepared to
attend tomorrow afternoon, I think, after Captain Skinner's
testimony is completed. But I know the Court earlier indicated
that it might not require him to actually invoke the Fifth on
the stand as to each and every question. It's our belief for
plaintiffs that the deposition testimony, which we believe
could be admitted as an exception to the hearsay rule or under
a section of Rule 32, and that would suffice to get the
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documents in.
There are other questions that Mr. Zullo refused to
answer, invoking the Fifth Amendment, which would provide, we
believe, a basis for making inferences on other issues other
than the admission of exhibits. And we can argue about that
later, but obviously, for the purposes of this week, we need to
have, I guess, answers as to the documents and audio
recordings.
I think Mr. Jirauch raised an issue, Mr. Murdy, that
not all of the sound recordings were played in their entirety.
And as I expressed earlier, to the extent we move for the
admission of an entire recording, we would obviously play that
entire recording in court.
MR. MURDY: And is everybody else -- is everybody else
on the line, and what positions have they taken?
THE COURT: Was that Mr. Murdy? Because when you're
on the line, when you're appearing telephonically, you need to
identify yourself before you speak, please.
MR. MURDY: I'm sorry, Your Honor. That was Craig
Murdy on behalf of Chief Sands. I was just trying to find out
who else was on the line and what position they've taken so
far.
MR. JIRAUCH: Counsel for the County, Mr. Walker and
myself, Chuck Jirauch, are on the line. I made an earlier
observation but haven't taken a position yet. The County's
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position will be that Mr. Zullo will need to appear to testify
about these materials, and I can explain why to the Court at an
appropriate time.
THE COURT: All right. Go ahead, Mr. Jirauch.
MR. JIRAUCH: Your Honor, the problem with -- and I'm
going to speak principally to the audio recordings. I think
Mr. Young may have underspoke when he said that not all of the
recordings were presented during the deposition. In fact, I
would suspect that less than 5 percent of it was presented.
And in that recording it is impossible to determine
who's speaking. There are multiple parties present. No one
was advised that Mr. Zullo was taping the conversations. So
it's -- when asked who was speaking, he again took the Fifth
Amendment. The only thing that we've got that identifies who's
even present are Mr. Young asking questions on the assumption
that certain people are there, without testimony to support
that.
There are also concerns about the material having
privileged, confidential information. There are police
officers, law enforcement officers involved in some of the
conversations, so we don't know what's in the material that may
deal with law enforcement investigations that are ongoing.
There are questions we simply don't have answers to.
The County, like the plaintiffs, didn't get these
materials -- well, actually, we got them in the deposition.
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I've spoken to the people in our office. None of this, either
the written exhibits or the tape recordings, have been provided
to us. So all we've got is what was given to us during the
deposition.
We don't know if there are other tape recordings that
may be relevant to the various issues. It's not that the
County has a position, necessarily, on the propriety of this
material; we simply aren't in a position to know what's there.
I will observe, however, that it's clear that much of
the material, not all of it, is hearsay, maybe hearsay upon
hearsay; hearsay upon hearsay upon hearsay. People surmising
what people are saying with an inability to determine who's
even talking. The recordings are not the best.
So there are substantive issues that are significant,
particularly when you've got a witness who won't testify as to
the substance of it. So all we've got is Mr. Young's
observations as to what he thinks they relate to. And
candidly, much of the information on there is likely to be
irrelevant.
We simply don't have time to come to -- to review this
material and have conclusions as to what's proper and not. As
a consequence, we believe Mr. Zullo needs to come and be
prepared to testify about it.
And certainly, Mr. Young has not given us any legal
authority for the suggestion that this material is admissible
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questioning by the parties during trial.
So I guess that's about all I have to say. I mean, I
am -- I do have a concern that people are saying they don't
have the information that Mr. Zullo was talking about or the
documents Mr. Young provided to Mr. Zullo this morning.
I'm looking at an e-mail from Friday at 4:51 p.m. --
THE COURT: Do you know what? I can't -- you're
starting to fade, Mr. Masterson. I can't hear you.
MR. MASTERSON: I was looking at my screen.
I'm looking at an e-mail from Friday at 4:51 p.m.
where the parties were given all the documents that were sent
out to plaintiffs, so that should have all the Zullo documents
contained in that e-mail.
THE COURT: To plaintiffs and other parties or just to
plaintiffs, Mr. Masterson?
MR. MASTERSON: I see -- let's see here. Ms. Wang,
Mr. Young, Mr. Murdy, Ms. Iafrate, Mr. Walker, Mr. Jirauch,
Mr. Dodd, Mr. Killebrew, Ms. Coe, and Mr. Zullo.
THE COURT: All right. So it would appear that all
the documents were sent out on Friday afternoon to all parties.
MR. JIRAUCH: May I ask a question of John Masterson?
THE COURT: I'm sorry, what? As I've indicated now
several times, if you're going to speak up, you need to
identify who you are, please.
MR. JIRAUCH: I apologize, Your Honor. This is Chuck
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Jirauch. I was just going to ask John whether or not that
e-mail -- because I just went through my e-mails and I
apparently didn't get it -- whether that included the
audiotapes.
MR. MASTERSON: Yeah, I guess -- I don't really know
how this works, I will tell everybody up front that. This is
Masterson. I think they went into Dropbox, and the heading I'm
seeing is Zullo 005, Zullo 006, Zullo 007, and then there's a
link to each one of those, which I understand is a Dropbox that
contains all of that information.
THE COURT: Mr. Masterson, let me ask you another
question that is more related to scheduling than it is to the
substantive question of whether or not we're going to have to
have Mr. Zullo testify.
Is Chief Deputy Sheridan doing well enough that we
could have him begin testimony after the testimony of
Captain Skinner?
MR. MASTERSON: I can answer it this way. First off,
Chief Sheridan is doing quite well. And in fact, I've met with
him now and he is up and about and I discussed that with
Mr. Young this morning.
The answer to your question about testifying as soon
as Captain Skinner is done, the answer to that is no. And
unfortunately, he's going in tomorrow for -- under general
anesthesia one more time -- well, I don't know if one more
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time, but again for more injections.
But I've met with him, I've talked to him, he's up and
about now, so unless something goes wrong tomorrow, he's going
to be ready to testify.
THE COURT: Well, it seems to me, Mr. Young, that
while things may be clear to you, since you were present
throughout the deposition, things aren't clear enough to me to
determine that Mr. Zullo can be excused from attending the
trial.
It does seem to me that -- you know, I have indicated
before I don't want to have Mr. Zullo standing up here invoking
the Fifth as to every question if there's no purpose to it. If
you believe that an adverse inference can be drawn sufficient
to admit documentary evidence, that may be a different
question. But it will depend, of course, on the nature of the
question and whether or not an inference is fair under the
circumstances.
So I guess I'd have to see the question and determine
that hearsay was admissible. And to do that, we would have to
have the stipulation by all parties in order to convenience
Mr. Zullo, and it doesn't sound like we're going to get that.
So in answer to your question --
MR. YOUNG: This is Stanley Young, Your Honor. I
understand that. Things are clearer now, based on what I've
heard in this conference, than they were earlier today. So I
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think what we will do is tell Mr. Zullo that he should come to
court tomorrow and we will do that examination.
There are a couple of things that I should note. One,
a change in our time estimate for Mr. Zullo. Based on the
documents we received on Friday, I think we estimated two and a
half hours earlier; it might be closer to four hours at this
point for our direct examination, and the audio, actually, is
part of that.
The other thing I suppose I should say at this point
is that our belief is that Sheriff Arpaio is on some of those
audios. And it may well be that we would call him back, you
know. If there's really an objection as to voice
identification, at least as to those audio recordings, we would
certainly call him back, and we reserve the right to do that
based on subsequent discovery.
So we will plan to do that. I did tell Mr. Zullo we
would let him know, since I believe that after Captain Skinner
finished tomorrow that that might be the time, based on what
Chief Sheridan is doing tomorrow, so we will go ahead and do
that.
THE COURT: All right. Now, my advice would be, just
out of -- I guess it's more than my advice; it's an order. I
would order the parties to review the documents and determine
whether there's any that can be stipulated to, A; B, if there
are not any that can be stipulated to, absent whatever
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evidentiary and foundational basis that Mr. Young is going to
put forward, I would take a look, Mr. Young, to see -- to
provide me with authority, and Mr. Masterson, Mr. Jirauch,
Mr. Murdy, contrary authority to allowing inferences that would
admit evidence.
And then if that is met, whether or not there can be
stipulations. And if not, let us pare down the exhibits to
which -- or the exhibits or evidence that you believe may
require recalling witnesses so that we can focus on whether or
not there is a basis for such recall. And maybe if you can
work on that and simplify it prior to tomorrow, that would be
helpful to all of us. And if you can't simplify, you'll know
that you can't simplify, and away we'll go.
MR. JIRAUCH: Your Honor, Charles Jirauch. I have a
related issue that would, I think, save us all a lot of time
and a lot of heartache and argument in court, and that is if
plaintiffs could identify from each of the tape recordings by
the end of the day or first thing in the morning, so we have a
chance to look at what they intend to introduce.
We've now got over three hours of this material, and
there's no way that we could digest that sufficiently so that
we could make objections and protect the interest of our
clients if we don't know which parts they're going to offer
into evidence.
THE COURT: Well, it sounds to me like you've had the
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material as long as they have, Mr. Jirauch, is that correct?
MR. JIRAUCH: Well, Your Honor, I have to tell you,
I've looked at my e-mails and I didn't get that. Based upon my
review of it, it appears Mr. Walker may have. But we had no
idea what it was and we got it late Friday. And we don't have
a thousand people to work on it like the Covington firm does,
and we had no knowledge that they were going to use it.
MR. YOUNG: Your Honor, this is Stanley Young. Just
to fill the picture out -- and we'll do our best. I understand
Mr. Jirauch's request. And certainly if we can be more
specific as to the five recordings that we did play parts of at
the deposition, we will do that.
There were many, many more hours of audio and video
that we did not play at the deposition and which I currently
believe we will not attempt to introduce. So, you know,
Mr. Jirauch, there are many more than what we went over, and I
won't address the thousands of people comment.
THE COURT: Well, do your best, Mr. Young. I found
Mr. Jirauch -- you know, I don't mean to cut off his
suggestion, but to the extent he suggests that they didn't have
it, they're Maricopa County. That is the defendant in this
action. They clearly had it to the extent -- well, I don't
know. I don't know that there's a distinction between
Mr. Masterson having it and Mr. Jirauch having it. Maybe there
is in this case.
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But in any event, if you can try and specify the
exhibits that you're interested in, Mr. Young, that's what
Mr. Jirauch wants. In light of the fact that you're going to
have to start playing it tomorrow, it's not an unreasonable
request to the extent that you can get your arms around that
and communicate it to the parties.
MR. YOUNG: We will do our best, Your Honor.
I would note that, you know, most of the voices
involved are either Mr. Zullo or I believe Mr. Mackiewicz, or
the sheriff. There is one recording involving a witness who
will not be appearing, but I don't think there should be a
dispute over who that is, and that's Timothy Blixseth.
THE COURT: Well, I mean, to the extent that you don't
believe there's going to be a dispute, that's helpful now. But
if there is an actual dispute, there's going to be an actual
dispute, and it won't come in absent some sort of foundation or
inference sufficient to bring it in, so you better think about
those things.
MR. YOUNG: Understood, Your Honor. And that's why --
you know, it may be that we will -- and actually, I should add
to the list. We may recall Sheriff Arpaio, we may recall
Detective Mackiewicz, in order to lay that foundation and get
those recordings into evidence.
THE COURT: All right.
MR. JIRAUCH: Your Honor, Chuck Jirauch again. Two
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comments. First of all, as to the written exhibits, I suspect
that we'll be able to resolve that very easily this afternoon,
and I suspect that there won't be any major dispute as to the
vast majority of those, if any.
I would suggest that it may be a prudent thing to do
in this case with respect to the tape recordings, because of
the number of them, and the lack of notice on our part that
they were going to be used and now offered into evidence, that
if possible, we postpone Mr. Zullo until later in the week or
when we reconvene.
THE COURT: Well, that's why I was trying to get Chief
Deputy Sheridan in, but apparently we can't get Chief Deputy
Sheridan in.
Can we replace him with somebody else who will testify
similarly, Mr. Masterson?
MR. MASTERSON: Judge, this is John Masterson. And
I'm glad you brought that up, because I was going to bring this
up, which may be good news, but I don't want to -- I don't want
raise false hopes here.
Over the weekend I have thought long and hard. I've
examined testimony of Chief Sheridan from the April hearing,
from our hearing that we've been going through the last month
and a half, and I also looked at the transcripts regarding the
Court's statements on Chief Sheridan's testimony and am
considering not calling him.
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Now, I don't want to get everybody's hopes up because
I still may, but the -- I kind of reached a tentative decision
that whether I call him may well depend on what Mr. Zullo had
to say or what Mr. Zullo testifies about during -- well, if he
testifies.
So I'm not sure we would need to call a substitute
witness, or even call Chief Sheridan at this point, based upon
what I've read in the transcript of Chief Sheridan's prior
testimony, and then the Court's statements concerning Chief
Sheridan's proposed or upcoming testimony.
So I wanted to raise that so everyone knows that's
my -- that's my line of thought at this point.
THE COURT: All right. Well, I take it your answer
would be you don't know whether you're going to call anybody,
but you don't have any replacement testimony as a result of the
fact that you may not call anybody in the first place.
MR. MASTERSON: Well, here -- yeah. I mean, I wish I
could -- I wish I could make it more clear, Judge, but I really
can't. Depending upon the testimony of Mr. Zullo, or what
inferences the Court may rule are appropriate in the case, I
would call Chief Sheridan to testify based upon Zullo testimony
or inferences.
But at this point I don't see going forward with the
originally intended areas that I was originally intending to go
over with Chief Sheridan and have discussed with the Court,
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because I've gone through the testimony and I've gone through
the Court's statements concerning that, and I think we'd
have -- we may well have redundancy, which I want to avoid.
THE COURT: Okay.
MR. MASTERSON: So that's about as much as I can tell
you at this point.
THE COURT: Well, of course, I want to be reasonable
in dealing with your testimony, Mr. Masterson, but we're going
to approach a point pretty quickly where you're going to need
to make a decision one way or another. I'm sure you realize
that.
MR. MASTERSON: Oh, I understand that, Judge. I'm
just trying to -- I didn't want to spring any surprises. And
I'm hopeful that what we're doing here is shortening the
proceeding.
THE COURT: All right. Well, it doesn't sound like we
can accomplish much else here this afternoon. You parties may
get together and stipulate to exhibits, you may figure out what
you're not going to stipulate to and what your position's going
to be as a result, Mr. Young, but it sounds to me like we need
to do all of those things.
MR. YOUNG: We will work on that and we'll have some
further conversations about those issues among the parties.
I do want to make it clear that as to the sound
recordings, we may well need to call Detective Mackiewicz back
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have to do later this week.
THE COURT: All right. Any response, Mr. Walker or
Mr. Jirauch, that you want to make right at the moment?
MR. WALKER: Yes, Your Honor. This is Richard Walker.
The document is simply a compilation of costs that
have been incurred by the County in relation to this matter.
We intend to offer it solely for purposes of the Court's
consideration in connection with a devising of an appropriate
remedy, if the Court deems a remedy be necessary.
The information in the document is -- it is a
compilation, but it's derived from all -- all from sources that
are accessible to the public. And it just simply shows what,
as of the date the document was created, which was just a few
days ago, the cumulative costs that have been incurred have
been with the breakout for, you know, categories of costs.
THE COURT: Well, it does seem to me like that may not
be particularly relevant to whether or not anybody who has been
a victim of the violation of my preliminary injunction is
entitled to relief.
I don't want to make a -- I don't want to make a
definitive ruling without giving you more opportunity to think
about that, but -- and I appreciate that this matter has been
expensive to the County. But I'm not sure whether that -- how
that is relevant to whether or not I order relief for members
of the plaintiff class whose rights have been violated by a
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violation of the preliminary injunction.
Can you explain that to me, or do you want to wait a
day or two? I'll give you a day or two.
MR. WALKER: Well, actually, I can respond now, Your
Honor. The document would not be offered for purposes of
suggesting that any alleged victims of violations of the
preliminary injunction not be accorded relief. As a matter of
fact, the negotiations, as we mentioned previously, on a victim
compensation program continue, and I think we're continuing to
make progress. And I think there's a -- there's a very good
likelihood that what we're going to be in a position to do
before very long is present the Court with a program that is
largely agreed to between the County and the plaintiffs.
There may well be a few issues as to which we'll have
to get the Court to make a determination where we're not able
to reach closure. But I think in most of its at least
broad-brush respects, we're on track to present to the Court a
program that we think is a sensible program to provide an
avenue for relief for anyone who has been adversely affected by
violations of the preliminary injunction.
So this goes more to any potential injunctive relief
and costs associated with injunctive relief, not to a program
for compensation of alleged victims.
THE COURT: Well, I guess I don't know that it's
helpful now, and I understand that you're sequestering out the
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alleged victims, but in terms of the future injunctive relief,
how that relates to any argument, you'll have to make it at
that -- I mean, you'll have to tell me how that is relevant,
too. And I'll let you do that.
Are you saying in terms of costs of having monitors
assume responsibilities, or something like that? And if that's
the case, then how would you expect the plaintiffs to be in a
condition at this point to validate those costs?
MR. WALKER: Well, I think the additional expansion of
the role of the monitor and costs associated with that would be
part of it. I think the -- what we would like to be in a
position to argue is that given the costs that have been
shouldered so far by the taxpayers of Maricopa County, that it
is important for the Court to take that into account in
fashioning relief, again, with the exception of the victims'
compensation scheme, and in recognizing that to the extent that
there has been contemptuous conduct, there is a point at which
it seems unfair to burden the taxpayers of this county with yet
more additional costs in what Your Honor has correctly observed
has already been a very expensive case.
THE COURT: Well, I'm not going to rule on that right
now, either, but I'd suggest that you consider with specificity
what that is relevant to and why it is not unfair to introduce
it over the objection of plaintiffs if they haven't had a
sufficient opportunity to look into the matter, and I'm not
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sure that I am willing to postpone this matter even further to
provide them that opportunity.
That being said, I am aware, at least generally, I
don't think the plaintiffs will contest that it costs money to
have a monitor, and that Maricopa County has spent some money
in the lawsuit that is not inconsiderable. And I believe that
the monitor's billings, at least their amount, are public
record, so I can't understand -- I'm not sure that I would
object to you submitting those monthly bills as a matter of my
judicial notice.
And you might consider that, Mr. Young, that it seems
to me that even though there has been some protection of some
of the details of the monitor's billing, there hasn't been any
protection of the amount of the monitor's billing, and that is
a matter of public record.
So I don't know what else may be involved other than
the monitor's billing, but certainly the monitor's billing I'm
willing to consider and take judicial notice of, it seems to
me. So you might consider --
MR. YOUNG: Your Honor, this is Stanley Young. We
certainly don't have any argument with that.
The document that Mr. Walker has very recently given
us is different from that, though, and we don't know what's in
there. And in any case, I'm not sure it's even relevant for
the purpose Mr. Walker describes, since it's only about the
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past and does not have any information about what any
particular future change to the injunction might cost.
So both on fairness grounds, notice grounds,
foundation grounds, and relevance grounds, we would object to
that document and ask for its exclusion.
THE COURT: All right. Well, why don't you see if you
can come up with something you can agree with, and if not, I 'll
deal with it as it comes up.
Before I let everybody go, I just need to check with
my staff for one moment and make sure I don't have additional
matters to raise.
(Pause in proceedings.)
THE COURT: You know, Mr. Young, my court reporter's
just asking, basically, do you have transcripts prepared of the
recordings that you're going to try to admit into evidence?
MR. YOUNG: We do not as of the moment, Your Honor.
THE COURT: Okay. Is it your anticipation, then, that
he would be taking down the text of these recordings?
MR. YOUNG: Well, that would be ideal. I suppose that
if we -- and I suppose we could work with the other parties to
develop transcripts, or just do -- have them prepared ourself.
But they are sound recordings -- excuse me -- involving in some
cases multiple parties, three or four parties, and currently we
do not have transcripts.
THE COURT: All right. Well, think about that, and it
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may be, even when transcripts are prepared, ofttimes the --
even assuming it's admitted into evidence, it's the recording
that is the evidence and not the transcript. So we'll see
where we go from there, and you might consider how and if
you're going to present those matters, and we will take this
all up in the morning.
MR. YOUNG: We will do that, Your Honor. Thank you.
THE COURT: Thank you all. We'll see you in the
morning.
(Proceedings concluded at 4:18 p.m.)
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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 11th day of November,
2015.
s/Gary Moll
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