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Former Attorney’s Testimony May Be Damaging In Sheriff Joe Arpaio’s Contempt Case

A former lawyer for Maricopa County Sheriff Joe Arpaio gave testimony on Tuesday that could prove damaging for the sheriff in his contempt of court case.

Some of attorney Tim Casey’s statements seemed to contradict some of the sheriff’s own testimony and could be used to undermine Arpaio’s claim that he only unintentionally violated court orders in a racial profiling case.

Casey revealed under oath that he withdrew from the case last November due to the sheriff’s “resistance” to “being told what to do.” During Tuesday's hearing, Casey's own lawyer objected to many of the questions posed by plaintiffs' counsel. Casey only answered when U.S. District Court Judge Murray Snow indicated he had to.

Casey defended the sheriff for years in the underlying racial profiling case as well as several other suits. He was compelled to testify when Judge Snow ruled the sheriff and others had waived attorney-client privilege on certain topics in the contempt of court case. Arpaio and four others are facing contempt of court for violating Snow’s orders on three occasions.

Last April in the first round of contempt hearings, Arpaio invoked “advice of counsel” as a defense for violating the court’s 2011 pre-trial order to stop detaining immigrants just for being in the country illegally.

“I didn't have all the facts of that order,” Arpaio testified in April. “I delegated that to my counsel and relied on them to abide by this order.”

Casey’s billing records indicate he discussed the order with sheriff and command staff the day the order came out and followed up on many occasions. He said he explained to the sheriff’s staff that under the order, they could only either arrest immigrants on state criminal charges, or release them if there were no state criminal violations.

Casey testified he explained that meant the sheriff’s office had to abandon a third option of detaining immigrants and transporting them to federal agents for deportation. Casey testified he helped a sergeant develop training scenarios to educate deputies about the order and believed the office was in compliance.

Later, however, Casey became aware of several likely violations of the order. In the summer of 2012 during the trial in the racial profiling case, some testimony indicated deputies were violating the order. Casey said he discussed that immediately with sheriff’s staff.

A short time later, in the fall leading up to the sheriff's re-election race in November 2012, sheriff’s deputies began turning over unauthorized immigrants they couldn’t charge with crimes over to Border Patrol, which violated the court’s 2011 order.

Arpaio boasted about the practice in a September 2012 press release.

He explained the tactic as a “backup plan” since under the Obama administration, the U.S. Immigration and Customs Enforcement was refusing to collaborate with the sheriff’s office to deport non criminal immigrants.

“I expected that it would happen eventually, so I had a back up plan in place which was to take these illegal immigrants not accepted by ICE to the Border Patrol,” Sheriff Arpaio is quoted as saying in the press release.

Plaintiffs’ counsel raised the issue with Casey at the time and expressed concern the sheriff’s office was violating the 2011 order. Back then Casey insisted in a letter to plaintiffs counsel there had not been any violations of the order. But in court on Tuesday he revealed he had worried the tactic was likely inconsistent with the court order.

Casey wrote to the sheriff’s command team warning that the plaintiffs could use these violations against the sheriff in the upcoming election.

Casey said after a heated conversation Arpaio eventually agreed to stop turning over immigrants to Border Patrol. Casey said the sheriff seemed to believe he had the authority to continue using the tactic and argued that other law enforcement agencies were doing the same. Casey said he explained those other agencies weren’t under a court order.

He also testified that he learned the sheriff had issued the press release about these immigration enforcement efforts for political reasons due to the upcoming election.

Casey testified that both he and former Executive Chief Brian Sands threatened to quit unless Arpaio stopped.

Plaintiffs’ lawyer Cecillia Wang of the American Civil Liberties Union said the lawyer's account undermines the sheriff’s defense that the violations were accidental.

“I do not think anyone in this agency can credibly claim that they unintentionally violated the preliminary injunction,” Wang said after court.

Casey also testified that Arpaio not only knew a confidential informant the sheriff’s office had hired was trying to link the judge in a conspiracy with the Department of Justice, the sheriff was “enthusiastic” about the theory.

Casey’s testimony on the issue could be significant because when Snow asked Arpaio directly about the informant Dennis Montgomery’s investigation back in April, Arpaio denied Snow was a target of Montgomery’s probe.

Casey testified that he was at one meeting with other lawyers, Arpaio and some sheriff’s staff in which Montgomery came up. He said two MCSO employees in Seattle joined the meeting via conference call and said Montgomery was offering to investigate collusion against the sheriff by Snow, the Department of Justice and the plaintiffs’ law firm, Covington & Burling.

“One or both of the fellows on the phone were reporting that there was this collusion that had an adverse effect on Arpaio, and it could be proven if MCSO would go forward with this guy’s services,” Casey testified.

Casey said the theory sounded like “hogwash” and he believed the other lawyers in the room did, too, but he said his client had a different impression.

Casey said the sheriff wanted to look into the matter. He said the sheriff remarked at the end of the meeting that Jon Kyl, the former Arizona senator, had helped to get Snow his job on the bench and was affiliated with Covington & Burling.

In the last few days Sheridan testified that Montgomery tried to get the sheriff’s office interested in an investigation involving Snow as a strategy to get more money, but the sheriff’s office wasn’t interested and didn’t bite.

Wang said this round of hearings has exposed serious inconsistencies in Arpaio and Sheridan’s earlier testimony that seemed to deny any knowledge that Montgomery was investigating the judge.

“Sheriff Arpaio and Chief Sheridan’s testimony back in April that there was no investigation of a purported conspiracy involving the court just can’t hold any water at this point,” Wang said.

Updated  Sept 30, 2015 12:48 p.m.

Jude Joffe-Block was a senior field correspondent at KJZZ from 2010 to 2017.