Joe Arpaio, Paul Babeu and the Garrity Rule

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Babeu's probe of Hendy is compromised from jump

One misconception out there is that the inquiry into MCSO Deputy Chief Frank Munnell's memo by Pinal County Sheriff Paul Babeu could result in criminal charges being filed against those Sheriff Joe loyalists now suspended with pay: Chief Deputy David Hendershott, Director Larry Black, and Captain Joel Fox.

Though Munnell alleges criminal activity in his love letter to Joe, he makes it clear that he's asking for an "administrative investigation," as opposed to the criminal ones being done by the FBI and the Arizona Attorney General's Office.

An administrative investigation is just what Babeu is doing, not a criminal one, as his spokesperson Tim Gaffney confirmed to me yesterday. Even if Babeu -- oddly, both a rival and an ally of Arpaio's -- were so inclined, his interviews of Hendershott and other MCSO employees cannot become the plaything of prosecutors in the course of a trial.

Why? It's because of something called the Garrity Rule, the result of the 1967 U.S. Supreme Court decision Garrity vs. New Jersey, which held that if a police department orders an officer to cooperate with an internal investigation, the officer's statements cannot be used against him or her in criminal court.

So, essentially, if Babeu orders Hendershott and the others to answer questions as part of his probe, they will have immunity from prosecution for any statements made during their interviews. Hendy could sing his face blue to Babeu, knowing full well it can't come back to bite him. At least not in a way that will put him in the pokey.

The idea behind Garrity is that cops and public employees enjoy the same 5th Amendment right against self-incrimination as we all do. Their bosses can force them to talk upon threat of dismissal, and what they say could lead to termination or some other discipline, but that's about it. Garrity material cannot be used in a criminal trial.

The Fraternal Order of Police has a pretty good explanation of the Garrity Rule, here. (Look under "Hot Topics.") According to Gaffney, Hendershott, Black, Fox and Munnell have already received their Garrity warnings. Or at least Babeu has so ordered.

"My understanding from sitting with [Sheriff Babeu], is that he told [Acting Chief Deputy Jerry] Sheridan that he wanted them all admonished," Gaffney told me.

When I asked if the Pinal County Sheriff's Office had confirmed that Sheridan had done so, Gaffney replied by e-mail that, "Sheriff Babeu asked that it be done and we have not heard otherwise."

Because these individuals will enjoy de facto immunity from prosecution in the Babeu inquiry, they will not be Mirandized.

According to the law enforcement professionals I've spoken with, law enforcement agencies often conduct parallel investigations into alleged wrongdoing, both criminal and administrative, that do not overlap.

I wondered why Babeu was not doing a separate criminal investigation.

"Isn't the AG's office doing the criminal part of the investigation?" Gaffney replied.

Gaffney explained that the MCSO had asked Babeu to do an internal investigation, so that's what Babeu's doing. He also told me that Babeu planned to release his report to the public when the probe is concluded, including all Garrity material.

If Babeu develops information on lawbreaking apart from the Garrity stuff, he will forward it to the proper agency for review, Gaffney explained.

"Sheriff Babeu is all about transparency," claimed Gaffney. "He's said that at the conclusion of the investigation, he's going to forward his entire investigation to Sheriff Joe Arpaio, he's going to forward his recommendations. Then he's going to hold a press conference, and he will explain it publicly, what was alleged, what was determined, and what his recommendations are."

I'm not sure if "transparency" is the impression of the PCSO I got from my colleague Paul Rubin's cover story on the Louie Puroll matter, "Pinalcchio." But be that as it may, it will, ironically, be Arpaio who metes out punishment (if any) resulting from the Munnell memo.

Should Arpaio actually sack any of these men, according to the county, they will get to keep their pensions. (The county says Black and Hendy are already drawing theirs.) If criminal charges ever drop from the state AG or the federal grand jury looking into the MCSO, that could change, though. 

Interestingly, Garrity material can be used in civil cases. Tort titan Mike Manning told me that he has used Garrity material in the past to impeach or cross-examine witnesses in lawsuits.

And he said the knowledge that their Garrity statements will be made public may color what Hendershott, Black and Fox will say under the hot lamp, or what their lawyers will advise them to say under the hot lamp.

Manning found fault with the PCSO not doing a separate criminal investigation. Additionally, he argued that the PCSO does not have the resources to do the sort of probe that is required, unlike Munnell's first pick, the Arizona Department of Public Safety.

And Manning, who has scored huge settlements against Arpaio's office in the past, insists there's an inherent conflict in the way the inquiry is being conducted.

"What if they find evidence that Arpaio knew more than Munnell says he knew?" asked Manning. "They're going to make a report to Arpaio where there is at least circumstantial evidence that Arpaio knew a great deal about what Hendershott was doing.

"This whole thing just does not make sense," he continued. "This guy [Babeu] was a knucklehead for agreeing to do this, and to report to Arpaio."

That is, unless the ever-ambitious Babeu backstabs Arpaio and slips some incriminating evidence to the feds on the sly. But surely Babeu has his own skeletons, and Maricopa County's version of J. Edgar Hoover may have the keys to that closet.

In other words, the fix is in, for Babeu's investigation, anyway.

Clarification: I should note that with any rule, there are exceptions. A prosecutor could look at Garrity stuff, but would have to verify the facts within independently. And there are rare cases where Garrity info has been used in criminal proceedings. Please see the third part of the Fraternal Order of Police series on Garrity, here. Thanks to TommyC for all his expert comments on this.

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15 comments
Delores Smith
Delores Smith

OBAMA,Leave our ARIZONA Sheriffs alone and Gov. Brewer, or it's time for Americans to charge you with TREASON.  You are busy interfering with sovereign states & sovereign nations.  You were never a Community Organizer...you are a Nation Disorganizer.  Obama, you are pure evil!!Delores SmithDelores109@cox.net   

Chevyred57
Chevyred57

Wow. Paul Babeu can not conduct an investigation. Look into his own department and you will see his two face investigations clearly. If you are not one of him, he will dig and dig and dig and if all fails fabricate his findings to fire that employee. If you are one of his he will make up an excusable statement such as the sergeant was off duty on his way home in a county patrol vehicle when he coward down to the citizen and no I.A. is warranted

Rollem45
Rollem45

Looks as if the master puppeteer Joe Arpaio is at it again. He has planned this out for months and waited for the right timing, Hendercheat's convenient knee replacement which means he gets to lay around and recover all on the county and does not have to use his sick leave or vacation time, Sheridan's pet boy Munnell takes the lead as a dimedropper and is in no way under any pressure or threats...so convenient. Now Pinal County (do they have running water there?) is going to interview the likes of Dave Hendercheat...Arpaio is pulling the strings and the public is dancing to his favorite tune.

Hock
Hock

Garrity statements can be used in criminal prosecution IF the person lied in the garrity statements. Compelled statements have to be truthful...so if the person lied, the statement may be brought it to impeach prior testimony.

but it doesn't matter...this is all a dog and pony show anyway. I just don't know where to buy a big enough tent to put over this circus.

Tommy Collins
Tommy Collins

Yes.

Babeu let his sergeant conduct an investigation without examination of a very critical piece of evidence, the shirt worn by the deputy when he was allegedly shot.

An unbiased investigation always is completed to the absolute ability of the investigator and includes examination of evidence, period. That same investigation would be reviewed and approved by at least one person in a superior position to the investigator.

The Puroll incident seems to have been investigated very poorly by a very biased, and probably untrained and inexperienced, sergeant. The sheriff approves of it, knowing a key piece of evidence has not been examined.

NO ONE should trust Babeu for a heartbeat. Like the Flaccid Fool of MCSO, Babeu will do whatever is good for his imagine.

I don't expect Hendershott to be sustained on any policy violations, based on any internal investigation by Babeu and Company.

Coz
Coz

Interesting story about the Deputy Shooting and how it was handled by Babeu,,,are we to expect more of the same on this investigation into Hendershott & Arpaio as well.

http://www.azcentral.com/news/...

R4i
R4i

Agreed with Coz - this certainly smells slightly fishy.

Tommy Collins
Tommy Collins

KingCast said: "...Yes, yes, Garrity is a dirty thing..."

Mr. King, I find that statement interesting. I realize you posted here as part of your agenda regarding exposure of the relationship between the MCSO shurf and Kelly Ayotte, but why say this about the Garrity warning?

Your thoughts?

Mr. Lemons, it's always my pleasure to share comments and opinion. I'm glad someone actually takes the time to read and understand my gibberish. I appreciate your recognition.

Truth08
Truth08

Hey I have been asking this question all along Tommy. Worst case scenario...what else could be done, in the event of this Garrity rule applies, and all are absolved of any wrongdoings? Is there any other agency, or will any other agency step in?

Like Lemons, Tommy, I don't mind at all, reading your "gibberish".

Ha!

Regards,Truth

Tommy Collins
Tommy Collins

Truth, the Garrity rule applies in every internal investigation. It is somewhat similar to a Miranda warning for a criminal investigation in that it is needed EVERY time an accused police employee (not necessarily sworn) is interviewed about the circumstances of the incident.

Garrity has no effect on the outcome. It is ONLY advisory in nature and tells the accused employee (s)he is compelled to cooperate and that any inculpatory evidence discovered as a direct result of said testimony CANNOT be used to sustain criminal charges.

For example: An officer is charged with destroying evidence during a call where he found a small amount of suspected cocaine. The officer flushed it down the toilet instead of taking it into custody and sending a report for prosecutorial review for possible charges. After the Garrity warning the accused officer admits he flushed some of the cocaine and kept some for personal use. He also said he sold a small amount to a friend, for her personal usage.

In that case the investigator should sustain the original policy violations, and can add other policy violations, but CANNOT give the information to a prosecutor for criminal charges stemming from the taking of the cocaine or the distribution of the cocaine to his friend.

The investigator can tender several findings upon completion of the investigation: (1) Unfounded, (2) Exonerated (3) Sustained; for EACH policy violation accused.

I hope this makes sense. It can be very convoluted at times.

KingCast
KingCast

Yes, yes, Garrity is a dirty thing.

Meanwhile let's take another look at Arpaio's buddy Kelly Ayotte, it is so crucial because as we all know, NH and Mass run the country.

It seems that Kelly has flip-flopped in order to get up with Arpaio:

http://kellyayottesenate.blogs...

Excerpt:As I noted in this post, Conservative political writer Debbie Schlussel warned 2 years ago "Don't vote for Kelly Ayotte."

"Ayotte also instructed New Hampshire police chiefs not to use the trespassing laws to take undocumented workers off the street. Remember Ayotte’s wimpishness in any of her future runs for office.

Ayotte is now presenting herself as a conservative and tea party style candidate. That’s baloney. She’s a career politician who did the wrong things while in office. Don’t give her a chance to repeat those wrong things in the U.S. Senate."

But like the paid GOP toady she is, she flip-flopped and now basically supports similar activities and a reign of terror imposed by Arpaio, who has paid $40,000 to American Citizen Nick Babcock for four (4) wrongful arrests occasioned because he works for Arpaio opponent Dan Saban, also suspiciously arrested on a prior election eve. Given Ayotte's history with me as NAACP Legal Chair (she and her buddy, fired Jaffrey Police Chief Martin Dunn lost trying to jail me for writing a Civil Rights Demand Letter), Kelly Ayotte probably supports these unlawful arrests as well, anything to get in office and abuse power.

Tommy Collins
Tommy Collins

Forgot to mention: Because the internal memo has been made public it can be used as a reference for a criminal investigator as to who might be interviewed during any criminal investigation. IF criminal investigations are already under way, at any level, this information just adds fodder that will make the investigation(s) more complete, or may just validate information already contained in said investigation(s).

One thing that really bothers me: What level of experience in internal investigations do any of the potential investigators have?

Imagine a two year deputy from Pinal County trying to interview Hendershott.

Or, a recent law school graduate trying the same.

We don't want to use a .22 pistol to try to take down an assailant with a hunting rifle from 300 yards. In any case, anyone having to interview Hendershott will be tackling a 500 pound bully.

Gerry_C
Gerry_C

Unfortunately...I think that is one strong possibility Coz. Can the BoS ask the DPS do conduct a criminal investigation at the same time?

The BoS has threatened a receivership to manage the finances of MCSO. Something like that could certainly uncover an untold number of irregularities from civil to administrative to criminal.

If there really is $80M to pay back to the Jail Fund, I would think that it should come out of non-essential MCSO functions.

- How much security does the Sheriff neeed?

- How much travel is the Sheriff required to do in order to meet the needs of Maricopa County?

- De we really need to have our Sheriff doing two speeches a day as an essential function?

- How much of PR staff does the MCSO need? Maybe everybody is working hard, but if we put a leash on the Sheriff, we might not have to pay people to coordinate and book him into these non-essential functions. His security detail costs could be reduced if he is in the relative safety of the office rather than at a silver-hair campaign stop.

- There are lots of other options as well I am sure.

If non-essential items are cut out at MCSO, it won't take long to restore $80M to the Jail fund.

Tommy Collins
Tommy Collins

Nicely reported, Mr. Lemons.

"Because these individuals will enjoy de facto immunity from prosecution in the Babeu inquiry, they will not be Mirandized."

No need for the Miranda warning during an internal investigation. An internal investigation is considered a non-criminal (civil) investigation between employer and employee. Simply looking at facts and circumstances to see if company policy has been violated.

Any criminal investigation SHOULD be conducted by Arizona D.P.S. (Highway Patrol) OR the state attorney general. NOT another sheriff department. NONE of the other 14 county sheriffs should have any involvement in a criminal investigation and I personally think NONE of them should be conducting this internal investigation, either.

The MCSO assertion that a sheriff should investigate is hogwash, pure and simple. Law and policy are pretty much black and white and apply equally without regard for the level or type of law enforcement agency.

If, and when, the position of county sheriff is made non-partisan it will be much easier to hold such a position holder accountable than it currently is. The current MCSO sheriff has been able to run pretty much freely and do whatever he has wanted because he's had the support and votes of Republicans in the county. Many of whom apparently don't have the ability or desire to read or believe what is presented to them.

Coz
Coz

Do I smell a good old boy cover up in the making ?

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