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1 Daniel P. Struck, Bar #012377 Amy L. Nguyen, Bar #023383 2 Ashlee B. Fletcher, Bar #028874 STRUCK, WIENEKE, & LOVE, P.L.L.C. 3 3100 East Ray Road, Suite 300 Chandler, Arizona 85226 4 Telephone: (480) 420-1600 Fax: (480) 420-1699 5 [email protected] [email protected] 6 [email protected] Attorneys for Defendants Arpaio 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 Guadalupe M. Torres, surviving mother of NO. 2:14-cv-02337-GMS 10 Felix Martinez Torres, Jr., individually, and as Personal Representative of the Estate of Felix 11 Martinez Torres, Jr.,
12 Plaintiff,
13 v.
14 Sheriff Joe Arpaio and Ava Arpaio, husband and wife; Maricopa County, a public entity; DEFENDANTS’ MOTION FOR 15 Sherry Schwind and John Doe Schwind, wife RESTRAINING ORDER and husband; Patricia Lilly and John Doe 16 Lilly, wife and husband; Jennifer Travis and John Doe Travis, wife and husband; Paul 17 Gallagher and Jane Doe Gallagher, husband and wife; David Hesse and Jane Doe Hesse, 18 husband and wife; Monica Gaskins and John Doe Gaskins, wife and husband; SHC 19 Services, Inc., a Delaware corporation, doing business as Supplemental Health Care Services 20 Ltd.; Integrated Healthcare of Arizona, L.L.C., an Oregon limited liability company; John 21 Hendrix and Jane Doe Hendrix, husband and wife; Robert Wilson and Jane Doe Wilson, 22 husband and wife; Adrienne Derwin and John Doe Derwin, wife and husband; Bradley Proud 23 and Jane Doe Proud, husband and wife; Adrian Rodriguez and Jane Doe Rodriguez, husband 24 and wife; Moses Kalawa and Jane Doe Kalawa, husband and wife; Kenneth DeDamos 25 and Jane Doe DeDamos, husband and wife; Archie Moore and Jane Doe Moore, husband 26 and wife; and John and Jane Does I-V, 27 Defendants. 28
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1 Pursuant to L.R.Civ. 83.8(a) and (b), Defendants Joe Arpaio, Ava Arpaio, and 2 Maricopa County, respectfully request an Order restraining all parties and counsel in the 3 above-captioned matter from making or providing extrajudicial statements, comments, or 4 communications about the subject matter of this lawsuit directly or indirectly to the media. 5 This includes, but is not limited to, any information counsel conveys to a third party that 6 counsel authorizes, intends, or expects the third party to disseminate to the media. This 7 Motion is supported by the following Memorandum of Points and Authorities and 8 attached exhibits. 9 MEMORANDUM OF POINTS AND AUTHORITIES
10 I. INTRODUCTION
11 Plaintiff’s counsel frequently sues Sheriff Arpaio and the Maricopa County 12 Sheriff’s Office (“MCSO”). While this is certainly Plaintiff’s Counsel’s prerogative, the 13 manner in which counsel pursues those goals, can unnecessarily lead to potential 14 prejudice to Defendants in the event this matter proceeds to trial. Specifically, Plaintiff’s 15 Counsel is notorious for providing interviews – including misleading and false statements 16 – about his cases against Sheriff Arpaio and MCSO to the media, in an effort to try the 17 cases to the public and taint the potential jury pool. Plaintiff’s Counsel has done this 18 repeatedly and consistently in many cases. He speaks to the media early on in a case and 19 grants interviews – often multiple interviews – that are coincidentally “released” to the 20 public during critical times in the case, such as before trial, during trial and during jury 21 deliberations. 22 This conduct, if permitted to occur in this case, will cause significant prejudice to 23 Defendants by denying them their right to be tried before a fair and impartial jury. Given 24 the sensitive nature of the allegations underlying this lawsuit and the fact that Sheriff 25 Arpaio is a named defendant, it is likely there will be continued media coverage of this 26 case. However, exposing the potential jury pool to Plaintiff’s Counsel’s repeated, one- 27 sided and factually inaccurate media compositions will only further compound those 28 2
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1 difficulties and increase the risk that Defendants will be denied their right to a fair and 2 impartial trial. 3 II. PLAINTIFF’S COUNSEL’S MODUS OPERANDI 4 Since the late 90’s, Plaintiff’s Counsel has filed numerous lawsuits against 5 Maricopa County, MCSO, and Sheriff Arpaio. During the pendency of these cases, 6 Plaintiff’s Counsel routinely engages in media pandering specifically targeted at MCSO 7 employees and the Sheriff. 1 Plaintiff’s Counsel customarily provides on-camera 8 interviews for news broadcasts, in which he discusses allegations beyond what is 9 presented in the complaint, and provides misleading characterizations of the evidence and 10 issues – many of which, as presented below, contain reference to his “culture of cruelty” 11 maxim. Often times Plaintiff’s Counsel will provide these interviews and/or statements to 12 the press in the early stages of litigation, before a gag order has been issued, and then 13 schedule to publically air them later, most frequently on the eve of trial. For example, in 14 Braillard v. Arpaio, et al., CV2006-01548, and in response to a motion to gag him, 15 Plaintiff’s Counsel told the Court he would cease any further interaction with the media 16 and press going forward but could not control what was “already in the can.” (Exhibit 1) 17 In Wilson v. Maricopa County, et al., No. 2:04-cv-02873-PHX-DGC, confidential 18 information regarding a prior settlement with Maricopa County was released to the media 19 during jury deliberations. (Exhibit 2) Plaintiff’s Counsel also promotes these inaccurate 20 and unsupported characterizations through the internet and social networking, including 21 Youtube. 22 The following are just a few examples of Plaintiff’s Counsel’s past statements 23 regarding MCSO employees and Sheriff Arpaio, including inflammatory and false 24 allegations that MCSO murders detainees and destroys evidence to cover it up:
25 • “MCSO never accurately states the circumstances when they first come out with their spin,” Manning observed. “This is 26 right out of their Norberg-Agster-Crenshaw playbook. It’s 27 1 “Michael Manning, the lawyer who’s made a mint suing Sheriff Joe Arpaio. . .” 28 (Exhibit 3) 3
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1 always that the inmate started a ruckus and was combative and superhuman in a drug-induced strength.” (Exhibit 4) 2 • “The suits against [Sheriff Arpaio], for the most part, have 3 been completely meritful and you can see it has cost the county about 50 million dollars and that’s just the tip of the 4 iceberg in terms of the lawsuits. He has created in our jails a ‘culture of cruelty’.” 5 https://www.youtube.com/watch?v=GRWLkp4vrlY 6 • “In every case that I have had where all of the detention officers have been found liable for intentionally or grossly 7 negligently killing another human being what’s happened to those detention officers – they have never been investigated, 8 they have never been disciplined, and the topper is they all have been promoted, after being found liable for killing 9 another human being unnecessarily.” https://www.youtube.com/watch?v=GRWLkp4vrlY 10 • “It’s an astonishing culture that has been created by Joe 11 in these jails and he has done it for the sake of politics.” https://www.youtube.com/watch?v=GRWLkp4vrlY 12 • “He doesn’t care how many inmates perish under gruesome 13 circumstances.” https://www.youtube.com/watch?v=GRWLkp4vrlY 14 • “In every case I’ve had we have caught them destroying 15 evidence, creating evidence, backdating documents.” https://www.youtube.com/watch?v=GRWLkp4vrlY 16 • “The breadth of corruption and misuse of taxpayer dollars will 17 startle the people who read the final report.” https://www.youtube.com/watch?v=GRWLkp4vrlY 18 • “It is one of the most abysmal jail systems in the entire 19 country.” https://www.youtube.com/watch?v=nPpjM7Vd86Q 20 • “Conditions in our jails are unnecessarily inhumane, unnecessarily dangerous, and utterly unconstitutional.” 21 https://www.youtube.com/watch?v=nPpjM7Vd86Q 22 • “They have been taught that the more punishment you can put on an inmate the better off you will be and the more you will 23 move up in the department chain of command.” https://www.youtube.com/watch?v=nPpjM7Vd86Q 24 • “[MCSO] will cover up, they will hide, they will lie, they will 25 do whatever they can do to avoid the predictable consequences of this culture of cruelty.” 26 https://www.youtube.com/watch?v=nPpjM7Vd86Q 27 • “it confirms this was a fairly gratuitous manslaughter of Marty Atencio.” (Exhibit 5) 28 4
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1 • “They tried to make him clown for them and ultimately ganged upon him and killed him”; “They were playing with 2 him, It was a sport to them that night.” (Exhibit 5) 3 To provide a more recent example, Plaintiff’s Counsel provided multiple 4 interviews and comments to the media regarding the Atencio matter, another lawsuit he 2 5 currently has pending against MCSO and the Sheriff. Even before filing a notice of 6 claim in that lawsuit, Plaintiff’s counsel gave interviews and provided statements to the 7 media, espousing accusations about “MCSO falsehoods.” (Exhibit 4) He subsequently 8 questioned the legitimacy of MCSO’s actions based on his “prior experience with these 9 people.” (Exhibit 6, emphasis added). He told another news outlet that “[w]e talked to 10 police experts across the country and their reaction is this a (sic) horrendous episode of 11 very bad policing, very cruel policing.” (Exhibit 7) Plaintiff’s Counsel also used the 12 press to call for a “criminal investigation” into MCSO based upon the “gratuitous 13 manslaughter of Marty Atencio,” while also providing them with a copy of the autopsy 14 report. (Exhibit 5) Since the filing of the Atencio lawsuit, Plaintiff’s Counsel has 15 deliberately placed himself in the center of discussion with the media, including providing 16 statements that were used as part of an article noting that the lawsuit was “just one in a 17 long line of litigation against Arpaio’s department.” (Exhibit 8) And he has publicly 18 stated that MCSO personnel engaged in “the most grotesque violation of his rights that 19 one can imagine.” (Exhibit 9; http://www.azcentral.com/news/articles/20121023arizona- 20 inmate-death-lawsuit-family-atencio-brk.html ). 21 Significantly, although the Complaint in this matter was filed just over a month 22 ago, Plaintiff’s Counsel’s utilization of the press is on full display. The Complaint reads 23 more like a “hit” piece than a “short and plain statement of the claim showing that the 24 pleader is entitled to relief,” once again claiming that Defendants participated in a “culture 3 25 of cruelty” at MCSO. See Fed.R.Civ.P. 8(a)(2); (Doc. 1-1 at 8.) And there have already 26 2 See Atencio v. Arpaio, et al., No. 2:12-cv-02376-PHX-PGR. 27 3 Plaintiff’s counsel has been reprimanded for using pleadings as a means to push his agenda before. See Donahoe v. Arpaio et al., No. 2:10-cv-02756-PHX-NVW, Doc. 28 230 (in another case pursued by Plaintiff’s Counsel against the Sheriff, the court noted 5
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1 been numerous news reports regarding this lawsuit – many of which contain gratuitous 2 commentary provided by Plaintiff’s Counsel. (Exhibits 10 – 19). Indeed, just days ago, 3 Plaintiff’s Counsel gave a video interview for Channel 15. 4 http://www.abc15.com/news/local-news/investigations/video-haunting-parallels-in-mcso- 5 jail-deaths.4 As expected, Plaintiff’s Counsel accuses MCSO of destroying evidence and 6 lying. 5 Additionally, Plaintiff herself has already given two interviews regarding this 7 case. http://www.wfsb.com/story/23627034/inmate-found-dead-in-maricopa-county-jail; 8 http://www.wfsb.com/story/26776367/grieving-mother-talks-about-sons-death-in-jail. As 9 such, and as stated within, Defendants also request that this order apply to all parties – 10 Defendants included.
11 II. A RESTRAINING ORDER IS NECESSARY TO PRESERVE DEFENDANTS’ CONSTITUTIONAL RIGHT TO A FAIR TRIAL. 12 13 A civil defendant is entitled to a fair trial and an impartial jury. McDonough 14 Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553–54 (1984); Skaggs v. Otis Elevator 15 Co., 164 F.3d 511, 514 (10th Cir. 1998); see generally U.S. Const. amend. VII. “[L]egal 16 trials are not like elections, to be won through the use of the meeting-hall, the radio, and 17 the newspaper.” Sheppard v. Maxwell, 86 S. Ct. 1507, 1516 (1966) (quoting Bridges v. 18 California, 314 U.S. 252, 271 (1941)). The freedom of discussion “must not be allowed 19
20 that “[t]he pleading process is not an opportunity for the parties to pursue other objectives or indulge in general disparagement of other parties. . . Language that is irrelevant, 21 inflammatory, or included for an improper purpose will be stricken from future pleadings.”) 22 4 Sheriff Arpaio and the MCSO declined to provide an interview to Channel 15 with respect to this case. MCSO employees did respond to media requests shortly after 23 Mr. Torres’ death, but Defendants do not intend to engage the media with respect to this case while litigation is pending. 24 5 Undersigned Counsel has tried two cases with Plaintiff’s Counsel, Wilson 25 (Wilson v. Maricopa County, et al., No. 2:04-cv-02873-PHX-DGC) and Braillard (Braillard v. Arpaio, et al., CV2006-01548 ). In both cases, Plaintiffs alleged that MCSO 26 Defendants had intentionally destroyed evidence or had "altered" documents. These allegations were never supported by credible evidence and were either proven false or 27 explained. The Court did not issue a spoliation instruction or find that the "evidence" was destroyed with the intent of preventing Plaintiffs from utilizing the information at trial, in 28 either of the above referenced cases. 6
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1 to divert the trial from the ‘very purpose of a court system[:] to adjudicate controversies, 2 both criminal and civil, in the calmness and solemnity of the courtroom according to legal 3 procedures,’” including “the requirement that the jury’s verdict be based on evidence 4 received in open court, not from outside sources.” Sheppard, 86 S. Ct. at 1516 (quotation 5 omitted). 6 To safeguard this right, both the Supreme Court and the Ninth Circuit have 7 admonished trial participants from making interfering extrajudicial statements. See, e.g., 8 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071–72 (1991) (“It is unquestionable that 9 in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an 10 attorney has is extremely circumscribed. ... We expressly contemplated that the speech of 11 those participating before the courts could be limited.”); Nebraska Press Ass’n v. Stuart, 12 427 U.S. 539, 564 (1976) (“recommending that trial courts in appropriate cases limit what 13 the contending lawyers, the police, and witnesses may say to anyone”); Sheppard, 86 S. 14 Ct. at 1521 (“More specifically, the trial court might well have proscribed extrajudicial 15 statements by any lawyer, party, witness, or court official which divulged prejudicial 16 matters.”); (“The Supreme Court has held that speech otherwise entitled to full 17 constitutional protection may nonetheless be sanctioned if it obstructs or prejudices the 18 administration of justice.”); Standing Comm. on Discipline of U.S. Dist. Court for Cent. 19 Dist. of California v. Yagman, 55 F.3d 1430, 1442 (9th Cir. 1995); Levine v. U.S. Dist. Ct. 20 for Cent. Dist. of California, 764 F.2d 590, 595 (9th Cir. 1985) (“[I]t is appropriate to 21 impose greater restrictions on the free speech rights of trial participants than on the rights 22 of nonparticipants. The case for restraints on trial participants is especially strong with 23 respect to attorneys.”) (Internal citations omitted). 24 This District expressly prohibits such extrajudicial statements:
25 (a) Prohibition of Extrajudicial Statements. A lawyer or law firm associated with a civil action shall not during its 26 investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or 27 reference to public records, which a reasonable person would expect to be disseminated by means of public communication, 28 if there is a reasonable likelihood that such dissemination will 7
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1 interfere with a fair trial and which relates to: 2 (1) evidence regarding the occurrence or transaction involved; (2) the character, credibility, or criminal record of a party, 3 witness or prospective witness; (3) the performance or results of any examination or tests or 4 the refusal or failure of a party to submit to such; 5 (4) his or her opinion as to the merits of the claims or defenses of a party except as required by law or 6 administrative rules; or (5) any other matter reasonably likely to interfere with a fair 7 trial of the Action.
8 (b) Reference to Rule 57.2(f)[ 6], Local Rules of Criminal Procedure. In a widely publicized or sensational case, the 9 Court, on motion of either party or on its own motion, may issue a special order similar to that provided for by Rule 10 57.2(f), Local Rules of Criminal Procedure. 11 LRCiv 83.8. As do Arizona’s ethical rules:
12 A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an 13 extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public 14 communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the 15 matter. 16 Ariz.R.Sup.Ct. 42, Ethical Rule 3.6(a) (2003).7 See also Levine, 764 F.2d at 595 (“As 17 officers of the court, court personnel and attorneys have a fiduciary responsibility not to 18 engage in public debate that will redound to the detriment of the accused or that will 19 obstruct the fair administration of justice.”) (quoting Nebraska Press Ass’n, 427 U.S. at 20 601 n.27 (Brennan, J., concurring)). 21 Restraining orders are permitted and may become necessary because “[f]ew, if any, 22 interests under the Constitution are more fundamental than the right to a fair trial by 23 “impartial” jurors, and an outcome affected by extrajudicial statements would violate that 24
25 6 L.R.Crim. 57.2(f)(1) prohibits extrajudicial statements by trial participants that might divulge prejudicial matters not of public record in this case. 26 7 Comment 5 to Ethical Rule 3.6 explains that certain subjects, such as the expected 27 testimony of a witness or evidence the attorney reasonably knows will be inadmissible, are more likely than not to have a material prejudicial effect on a proceeding, particularly 28 when they relate to a civil matter triable to a jury. 8
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1 fundamental right.” Gentile, 501 U.S. at 1075. “Because lawyers have special access to 2 information through discovery and client communications, their extrajudicial statements 3 pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely 4 to be received as especially authoritative.” Id. at 1074. A court may regulate an 5 attorney’s speech if it “is substantially likely to have a materially prejudicial effect; it is 6 neutral as to points of view, applying equally to all attorneys participating in a pending 7 case; and it merely postpones the attorneys’ comments until after the trial. Gentile, 501 8 U.S. at 1076. This “substantial likelihood test” is aimed at preventing “(1) comments that 9 are likely to influence the actual outcome of the trial, and (2) comments that are likely to 10 prejudice the jury venire, even if an untainted panel can ultimately be found.” Id. at 1075. 11 Like the lawyer in Gentile, Plaintiff’s Counsel is an officer of the court with a 12 fiduciary duty to avoid obstructing justice. As discussed in detail above, Plaintiff’s 13 Counsel has previously and routinely made inflammatory and prejudicial statements about 14 MCSO, MCSO employees, and Sheriff Arpaio and disseminated this information to the 15 public. While Defendants have no objection to the media reporting facts obtained from 16 the court file or hearings in open court, with the advances in media technology and access 17 the internet has provided in recent years, Plaintiff’s Counsel has increasingly attempted to 18 use the media as a strategic tool in conducting a case, often resulting in the dissemination 19 of misleading information or inadmissible evidence. 20 Although the media will report what it will, parties to this litigation must refrain 21 from contributing and distributing prejudicial statements. Plaintiff’s Counsel has 22 previously insured that his remarks are widely disseminated through a multitude of 23 channels, from blogs to radio to the television news, and that such remarks will fall upon 24 the unsuspecting ears of a significant portion of the prospective jury pool. Such 25 promotion has the effect of disseminating prejudicial statements that carry a significant 26 likelihood of improperly influencing the jury pool. Prejudicial commentaries and the 27 distribution of inadmissible evidence provide misleading and prejudicial information to 28 citizens who could serve as potential jurors in this case, which jeopardizes Defendants’ 9
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1 due process right to a fair trial by an impartial jury. 2 Courts may regulate an attorney’s speech if it “is substantially likely to have a 3 materially prejudicial effect”. Gentile, 501 U.S. at 1076. Given Plaintiff’s Counsel’s 4 track record, it is likely he will further engage with the public and the media regarding this 5 case. Additionally, in accordance with Gentile, the requested regulation is neutral as to 6 points of view, applies equally to all attorneys participating in a pending case, and is 7 temporary as it merely postpones the attorneys’ comments until after the trial. Id. 8 Moreover, the restriction is aimed at comments that will likely influence the actual 9 outcome of the trial and comments that are likely to prejudice the jury venire – thereby 10 satisfying the substantial likelihood test. Id. at 1075. See United States v. Sutton, No. 11 CR05826TUCCKJBPV, 2007 WL 2572348, at *3 (D. Ariz. Sept. 4, 2007) (ordering that 12 counsel, parties, and their representatives, shall not make public statements regarding the 13 case until jury selection is complete; after finding that such comments would pose a 14 serious and imminent threat to an efficient and fair administration of justice by presenting 15 extrajudicial material to potential jurors). 16 Finally, although Plaintiff’s Counsel has an ethical obligation under the ethical 17 rules, an actual order from this Court is necessary to ensure Defendants have immediate 18 protection. Without an order, Defendants will be required to file a formal complaint if 19 they suspect ethical rules are being violated. A time consuming investigation will then 20 ensue – completion of which will be too late. The comments will have already been 21 disseminated and the jury pool already infected. A later finding that a violation of the 22 rules occurred cannot undo damage already done. 23 A restraining order is thus the only way to preempt the dissemination and resulting 24 prejudice. As such, Defendants respectfully request an Order from this Court restraining 25 all parties and all counsel from disseminating any extrajudicial statements, comments or 26 information concerning the subject matter of this lawsuit to anyone except to the Court, 27 counsel of record, the named parties, and court personnel. 28 10
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1 III. CONCLUSION
2 For these reasons, Defendants respectfully request the Court enter an Order 3 restraining all counsel, parties, and their representatives from making extrajudicial 4 statements, comments, or communications about the subject matter of this lawsuit directly 5 or indirectly to the media or in such a manner that the speaker intends such statements to 6 be disseminated by means of public communication. 7 DATED this 20th day of November, 2014 8 STRUCK, WIENEKE, & LOVE, P.L.L.C. 9 10 By /s/ Daniel P. Struck 11 Daniel P. Struck Amy L. Nguyen 12 Ashlee B. Fletcher Struck, Wieneke, & Love, P.L.L.C. 13 3100 East Ray Road, Suite 300 Chandler, Arizona 85226 14 Attorneys for Defendants Arpaio 15 O’CONNOR & CAMPBELL, P.C. 16 17 By /s/ Daniel J. O’Connor _ 18 Daniel J. O’Connor, Jr. Dan Campbell 19 Gary Popham 7955 South Priest Drive 20 Tempe, Arizona 85284
21 Attorneys for Defendants Maricopa County 22 23
24 25 26 27 28 11
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1 CERTIFICATE OF SERVICE th 2 I hereby certify that on November 20 , 2014, I electronically transmitted the 3 attached document to the Clerk’s Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
5 Michael C. Manning [email protected] Larry J. Wulkan [email protected] 6 Daniel J. O’Connor, Jr. [email protected] Dan Campbell [email protected] 7 Gary Popham [email protected] Dominique Barrett [email protected] 8 Heather A. Neal [email protected]
9 I hereby certify that on this same date, I served the attached document by U.S. 10 Mail, postage prepaid, on the following, who is not a registered participant of the 11 CM/ECF System: 12 N/A 13
14 /s/ Daniel P. Struck
15 16 17 18 19 20 21 22 23 24 25 26 27 28 12