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Case 2:07-cv-02513-GMS Document 1752 Filed 07/20/16 Page 1 of 18

Lewis Roca Rothgerber Christie LLP
201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595
Dale A. Danneman (State Bar No. 003776)
Direct Dial: 602.262.5371
Direct Fax: 602.734.3744
Email: ddanneman@lrrc.com
Attorneys for Michele M. Iafrate

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

Manuel de Jesus Ortega Melendres, on
behalf of himself and all others similarly
situated; et al.,

No. CV-07-2513-PHX-GMS
MEMORANDUM RE MICHELE
M. IAFRATE

Plaintiffs,
vs.
Joseph M. Arpaio, in his individual and
official capacity as Sheriff of Maricopa
County, AZ; et al.,
Defendants.

The Court has invited Michele M. Iafrate, former counsel to the Sheriff and the
MCSO, to address its consideration of whether to cite her for criminal contempt. We
do so here by asking that the court consider the entire record in this proceeding
concerning the Knapp IDs and not just the more limited record of the evidentiary
hearing.
“Criminal contempt is a crime in the ordinary sense.” Bloom v. Illinois, 391
U.S. 194, 201 (1968). Such proceedings are intended to vindicate and preserve respect
for the authority of the Federal Court which is essential to the rule of law. Criminal
contempt proceedings are governed by Rule 42, FEDERAL RULES OF CRIMINAL
PROCEDURE.
Rule 42(a)(2), FED. R. CRIM. P., provides “[t]he court must request that the
contempt be prosecuted by an attorney for the government, unless the interest of justice
requires the appointment of another attorney: If the government declines the request,
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1 the court must appoint another attorney to prosecute the contempt.” Thus, unlike other
2 criminal prosecutions, the prosecutor in a criminal contempt citation lacks the
2 prosecutorial discretion as to whether or not to proceed with a case. That government
3 attorney or another attorney must present evidence and advocate for the prosecution
4 even if he or she concludes that the case cannot be proven beyond a reasonable doubt.
5 Thus, in a practical sense the court alone has the prosecutorial discretion that otherwise
6 resides in government attorneys in criminal proceedings.
7

This Court has devoted considerable time and other resources to vindicate the

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 Constitutional rights of the class plaintiffs that the Court has determined were violated
9 over an extended period by recalcitrant defendants and others. Those Constitutional
10 rights, like all Constitutional rights, are vitally important as is the Court’s need to
11 vindicate its authority and respect for its orders.
12

The conduct of Ms. Iafrate that the Court is concerned with occurred during a

13 period of weeks in July 2015. (Doc.1677, filed 5/13/16 at ¶¶ 295 – 348) As the court
14 has noted, Ms. Iafrate was never called as a witness, nor given a chance in the
15 evidentiary hearing to address the allegations made about her conduct. In exercising its
16 discretion as whether to proceed and how, the Court should recognize that if a criminal
17 contempt citation is issued as to Ms. Iafrate there will not only be a criminal trial, but
18 inevitably a disciplinary proceeding will also be initiated before the State Bar of
19 Arizona.
20

We urge the Court to consider the totality of the existing record related to the

21 Knapp IDs that we present here as it relates to the events of July 2015. That record,
22 including transcripts of witness statements not offered at the evidentiary hearing,
23 demonstrates that it is unlikely that any case presented against Ms. Iafrate related to
24 those events can meet the high burden of proof beyond a reasonable doubt required in
25 a criminal case. That record reveals that a criminal prosecution, which will consume
26 even more judicial resources in this long running case and the trial testimony of the
27 many percipient witnesses, is unlikely to succeed.
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If the Court is nevertheless persuaded that Ms. Iafrate’s conduct needs to be

1

2 thoroughly examined to vindicate the authority of the Court, then the appropriate
2 forum for that examination is the State Bar of Arizona. Not in a criminal trial.
THE RECORD

3
4 A.

July 17, 2015 and July 20, 2015 Meetings

5

There apparently is no recording or transcript of the Monitor team meeting with

6 the Professional Standards Bureau (“PSB”) staff on Monday, July 20, 2015. The
7 question or questions that were asked by the Monitor team, and the responses given

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 during what was apparently a meeting of some length covering many topics, is thus
9 subject to the varying recollections of the many participants. There is also apparently
10 no recording or transcript of the preparation meeting Ms. Iafrate attended with the PSB
11 staff the previous Friday, July 17, 2015.
12

The Court’s Order of February 12, 2015 required defendants to produce “copies

13 of identification documents seized by MCSO personnel from apparent (emphasis
14 added) members of the Plaintiff class.” (Doc. 881, p. 1-2) The Plaintiff Class is
15 defined as “All Latino persons who, since January 2007 (emphasis added), have been
16 or will be in the future, stopped, detained, questioned or searched by MCSO . . . .”
17 (Doc. 494, p. 40)
18

The testimony at the evidentiary hearing was that Ms. Iafrate had said she would

19 need to research whether the Knapp IDs were covered by the Court’s orders. Given the
20 information that Knapp acquired the IDs starting in 2006 (Exhibit A, Doc.
21 1194,Transcript of 7/25/15 Hearing, p. 12, lns. 1 – 7) and the Plaintiff class was
22 confined to individuals in contact with the MCSO after January 2007, it was reasonable
23 for Ms. Iafrate to want to consider and analyze the issue as well as the IDs before
24 advising her client whether the newly discovered Knapp IDs were covered by the
25 Court’s orders.
26

The record reflects the following general recollection of Lieutenant Seagraves

27 as to what took place at the Friday, July 17, 2015 meeting of the PSB staff:
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1

Q.

And you were the one who brought up the topic of the

2

identifications during that meeting, is that right?

2

A.

I believe so, from my memory, yes.

3

Q.

And you brought it up because you thought it’s something that

4

the monitors might ask about?

5

A.

Yes.

6

Q.

And you asked the question during that meeting, “If we’re

7

asked about any other IDs, licenses, what would be the response,” is

8

that correct?

9

A.

Yes.

10

Q.

And when you said that, Ms. Iafrate responded that the answer

11

should be no, is that correct?

12

A.

It was more to it than just that.

13

Q.

She said that they should – that the answer to that should be no

14

to the monitors, correct?

15

A.

She didn’t – yes, but she elaborated on the reason.

16

Q.

Captain Bailey – you didn’t actually touch the IDs, did you?

17

A.

No.

18 (Exhibit B, Doc. 1455, October 1, 2015 Evidentiary Hearing Transcript, p.
19 2169 at lns. 3 – 24)
20

Defendants’ counsel on recross-examination, however, did ask Lieutenant

21 Seagraves to elaborate:
BY MR. POPOLIZIO:

22
23

Q.

Now, we also heard some testimony from you this morning

24

with regard to 1500 IDS and a meeting with regard to those IDs, or a

25

meeting in which those IDs we discussed.
Do you recall that?

26
27

A.

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Yes.
4

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1

Q.

2

made some statements during that meeting, right?

2

A.

Yes.

3

Q.

Do you recall that you also testified that Ms. Iafrate

4

elaborated?

5

A.

Yes.

6

Q.

She said more than just the word “no”?

7

A.

That’s correct.

8

Q.

During that meeting with regard to the 1500 IDs, did Ms.

9

Iafrate comment something to the effect that “It must be determined

10

Okay. Now, in your testimony you stated that Ms. Iafrate

if the IDs –“

11

MR. SEGURA: Objection, leading.

12

BY MR. POPOLIZIO:

13

Q.

“-- met the element of the order”?

14

MR. KILLEBREW: Objection, leading.

15

THE COURT: Sustained.

16

BY MR. POPOLIZIO:

17

Q.

Do you recall what Ms. Iafrate said in that meeting with

18

regard to the court order?

19

A.

Generally, yes.

20

Q.

And what was that?

21

A.

That she felt that the IDs didn’t meet the order, and – in her

22

opinion, and she was going to do some additional research to

23

determine whether or not they were within the parameters of the court

24

order, and that she would let us know, but in the meantime to respond

25

negatively.

26 (Id., pp. 2239, ln. 2 – 2240, ln. 8)
27
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Nevertheless, whatever Lieutenant Seagraves understood to be Ms. Iafrate’s

1

2 advice, when the Monitor team interviewed Lieutenant Seagraves on Thursday, July
2 23, 2015 she disclosed the discovery of the Knapp IDs. When asked if there were any
3 other ID cases that she was aware of, Lieutenant Seagraves did not respond to those
4 questions “negatively.” Instead she stated her recollection of what she knew about the
5 Knapp IDs. (Exhibit C, Transcript of “Interview of Lieutenant Suzanne Seagraves6 Young; BY: Chief Sherry Kiyler; PRESENT: Chief Donald Anders, Dawn Sauer,
7 Esquire; DATE: July 23, 2015; TIME: 3:06 pm; In RE: Maricopa County Sheriff’s

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 Office,” p. 20, ln. 4 – 27, ln. 4)
This witness to the July 17, 2015 PSB preparation meeting therefore remembers

9

10 Ms. Iafrate stating “something to the effect of in her opinion it did not meet the
11 elements of the order . . . and that she would be doing some further research on the
12 topic.” (Id.) If this witness’s general recollection is accurate, and the Court credited
13 her testimony in the Findings of Fact, then what it reflects is a lawyer who had made a
14 preliminary judgment but wanted to do further research.

While Ms. Iafrate’s

15 preliminary judgment or understanding of this Court’s orders may have been wrong, or
16 her research not complete prior to the July 20 Monitor meeting, mere negligence will
17 not support a finding of criminal contempt. Falstaff Brewing Corp. v. Miller Brewing
18 Co., 702 F.2d 770, 782 (9th Cir. 1983); Vaughn v. City of Flint, 752 F.2d 1160, 1168
19 (6th Cir. 1985). This Court should not exercise its discretion to initiate a criminal
20 prosecution of a lawyer based upon negligent conduct.
21 B.

July 22, 2015 Monitor Interview of Lieutenant Swingle

22

The earliest transcript in the record that exists regarding the Knapp IDs is the

23 Monitor team’s recorded interview of Lieutenant Kenneth Richard Swingle of the PSB
24 that took place on Wednesday, July 22, 2015. In that interview, conducted two days
25 after the Monitor meeting on July 20, the PSB Lieutenant was asked if other IDs had
26 been found and he identified the Knapp IDs.
27
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1

After covering other topics in the interview, Chief Kiyler asked the following

2 questions and received the following answers from Lieutenant Swingle:
MS. KIYLER: Okay. Other than those IDs, are you aware of

2
3

any other IDs that have been found?

4

LIEUTENANT SWINGLE: Yes.

5

MS. KIYLER: Can you tell me about that?

6

LIEUTENANT SWINGLE: Well, that was – I should

7

probably mention that that was something that Michelle had said –
MS. SAUER: Don’t say anything about attorney-client

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8
9

conversations.

10

MR. ANDERS: Sorry. What’s the response?

11

MS. SAUER: Can we have a moment?

12

MR. ANDERS: Sure, that’s fine.

13

MS. KIYLER: Do you want to step out or do you want us to

14

step out?

15

MS. SAUER: We’ll step out.

16

MR. ANDERS: The time is approximately 12:43. We’re

17

going to go off the record pending the return of Ms. Sauer and the

18

detective lieutenant.

19

[Off the record]

20

MR. ANDERS: And we’re back on the record. The four

21

same individuals are back in the room and the time is approximately

22

12:47.
MS. KIYLER: Okay. I’m going to go back and ask the

23
24

question that resulted in our quick timeout here. Are you aware of

25

other issues involving IDs?
LIEUTENANT SWINGLE: I know that there were some

26
27
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identifications that had been signed out that were returned recently.
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1

That’s the only thing in recent history that I know that involves any

2

kind of identifications.
MS. KIYLER: Okay. When you say “signed out and

2

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Phoenix, AZ 85004-2595

3

returned,” what does that mean?

4

LIEUTENANT SWINGLE: The employee that had them had

5

been to fraudulent-documents class and he had authored I guess some

6

emails or a memorandum, something up his chain of command

7

asking if he could retrieve those items from the Property Room and

8

then go on to use them, you know, in an upcoming class.
MS. KIYLER: Do you know how many IDs that was?

9

LIEUTENANT SWINGLE: It’s a considerable number. I’d

10
11

say somewhere over a thousand.
MS. KIYLER: And where would those – I know he got them

12
13

from the Property Room but where in the Property Room would there

14

have been a thousand IDs that anybody could –
LIEUTENANT SWINGLE: I think that was over a time

15
16

period, a period of time. He didn’t get them all at one time.
MS. KIYLER: Okay, but again, where would those IDs have

17
18

been?

19

MS. SAUER: If you know.

20

LIEUTENANT SWINGLE: I don’t know where they would

21

keep them in the Property Room.
MS. KIYLER: And how long have you been aware of that,

22
23

Lieutenant?
LIEUTENANT SWINGLE: I want to say for, like, a week.

24
25

26 (Exhibit D, Transcript of “Interview of Lieutenant Kenneth Richard Swingle; By:
27 Sherry Kiyler; PRESENT: Chief Donald Anders, Dawn Sauer, Esquire; DATE:
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1 July 22, 2015, TIME: [sic] ; In Re: MARICOPA COUNTY SHERIFF’S OFFICE,”
2 pp. 16, ln. 9 – 18, ln. 16)
2

Chief Kiyler in the interview of Lieutenant Swingle was not definitive in her

3 memory as to the question she had asked about other IDs in the Monitor team
4 meeting with the PSB staff two days earlier:
MS. KIYLER: When we talked about those IDs on Mondays

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

5
6

[sic] and we asked if there were other IDs and you told us about the –

7

not you specifically, but we were told about the 40 and the 42. Why

8

didn’t you mention those?
LIEUTENANT SWINGLE: I wasn’t asked.

9

MS. KIYLER: Wasn’t it a general question, were there any

10
11

other IDs? Because I think two different people answered on the

12

ones that were. I think Captain Bailey answered regarding one of

13

them, and I believe it was Lieutenant Kratzer that answered on the

14

other one. I think it was a general question.
LIEUTENANT SWINGLE: I can’t answer that.

15

16 (Id., pp. 21, ln. 23 – 22, ln. 10)
17

Lieutenant Swingle also told the Monitor in his interview in response to

18 questions that no one, including counsel, had instructed him not to mention the Knapp
19 IDs to the Monitor.
20

MS. KIYLER: Were you instructed by your attorney not to?

21

LIEUTENANT SWINGLE: No.

22 (Id., pp. 22, ln. 24 – 23, ln. 11
23

As the transcript also reveals, Lieutenant Swingle was accompanied at the

24 interview by Dawn Sauer, a lawyer at Iafrate & Associates. After Lieutenant Swingle
25 told Chief Kiyler that other IDs have been found, he then started an answer to a follow26 up question with “I should probably mention that Michele had said --.” (Id., p. 16, lns.
27 13-15) Ms. Sauer interrupted Lieutenant Swingle to admonish him not to reveal
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1 attorney conversations. Ms. Sauer and Lieutenant Swingle then stepped outside the
2 interview room for some four minutes and the interview resumed with Lieutenant
2 Swingle then telling the Monitor team what he knew about the Knapp IDs.
The transcript does not expressly reveal what Lieutenant Swingle understood

3

4 Ms. Iafrate to say. What the transcript does plainly reveal is that Lieutenant Swingle
5 did not understand that Ms. Iafrate advised him to conceal or lie about the existence of
6 the Knapp IDs. Lieutenant Swingle’s recollection five days after the July 17
7 preparation meeting with PSB staff as to what Ms. Iafrate said was more fresh in his

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 mind than the recollection of the witnesses who testified at the evidentiary hearing
9 several months later in September and October.
Thus, the first transcript that exists of questions the Monitor staff asked and the

10

11 answers given by the PSB staff demonstrates that (1) a PSB Lieutenant truthfully
12 answered when the question was simply “are you aware of any other IDs that have
13 been found,” (2) no one (including Ms. Iafrate) advised Lieutenant Swingle to lie about
14 the Knapp IDs, and (3) if the Monitor team believed it was misled with incorrect
15 responses at the afternoon meeting with PSB staff on Monday, July 20, 2015, the PSB
16 command staff had given the Monitor team accurate answers to its question or
17 questions some 48 hours later.
Lieutenant Swingle was neither deposed nor called to testify in the evidentiary

18

19 hearing.
20 C.

July 24, 2015 Hearing

21

On Friday, July 24, 2015, the Court held an emergency hearing at the request of

22 the Monitor.
23

At the emergency hearing on the afternoon of July 24, 2015, Chief Warshaw

24 noted that he had gone that morning to the PSB office where he asked to see and was
25 shown the 1,459 IDs. The night before Chief Warshaw had sent an email to Ms.
26 Iafrate and other counsel at 9:11 p.m. “to request access to certain documents,” but his
27 email did not identify the documents he sought. (Exhibit E attached.) Ms. Iafrate
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1 responded to that email at 7:41 a.m. the next morning on July 24 asking what
2 documents were being sought by Chief Warshaw. (Id.) Chief Warshaw then called
2 Ms. Iafrate at 7:45 a.m. and told her he wanted access to the Knapp IDs and 50 hard
3 drives he believed to be associated with the Dennis Montgomery matter. (Exhibit A,
4 Doc. 1194, 7/24/15 Hearing Transcript, p. 10, lns. 8 – 14.) It is plain that the Monitor’s
5 discovery of the 50 hard drives which he had first learned about on Thursday
6 afternoon, July 23, 2015 during an interview of Lieutenant Seagraves was of
7 significant concern to the Monitor. (Exhibit C, Interview of Lieutenant Suzanne

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 Seagraves-Young; pp. 105 – 107)
9

It is those 50 hard drives that are the subject of paragraphs 349 – 364 of the

10 Court’s Findings of Fact. (Doc. 1677.) There has been no suggestion that Ms. Iafrate
11 was aware of the existence of those 50 Montgomery hard drives before the Monitor’s
12 inquiries revealed their existence on Thursday afternoon.
13

At the emergency hearing the following exchange occurred:

14

CHIEF WARSHAW:

15

. . . . .

16

During the meeting that we had on this past Monday, the 21st [sic], with

17 representatives of the Professional Standards Bureau, we were apprised of two new
18 cases relevant to ID findings, one regarding 40 IDs and another involving 20, but there
19 was no mention of 1500 identifications that recently had been found.
20

Chief Kiyler, who’s in the room, was present with me in the room, and we did

21 inquire at that time: Had there been any additional findings other than the two they
22 represented to us, the 40 and the 20?
23

During our investigative inquiries of other matters that –

24

THE COURT: Well, what was the response?

25

CHIEF WARSHAW: That there were none other; there were no other.

26

THE COURT: So they did not indicate that 1500 had been found.

27

CHIEF WARSHAW: They did not.

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1

(Exhibit A, Transcript of 7/24/15 Hearing, pp. 7, ln. 17 – 8, ln. 9)

2

The question Chief Warshaw remembers being asked at the Monitor team

2 meeting with the PSB staff the previous Monday and that he then reported to the Court
3 on Friday is thus slightly different than the question Chief Kiyler suggested on
4 Wednesday that she had asked during her interview with Lieutenant Swingle. Without
5 a transcript of that July 20, 2015 meeting it can be expected that memories of the many
6 participants will differ as to what was said.

201 East Washington Street, Suite 1200
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7

In that emergency hearing on July 24 the Court then addressed Ms. Iafrate:

8

THE COURT: Let me ask, and I realize there may be

9

privilege issues that need to be asserted here, I don’t want to trample

10

on anybody’s rights, but were you aware that the 1500 identifications

11

were found?
MS. IAFRATE: Yes, I was, Your Honor, and we did not lie to

12
13

the monitors or keep that from the monitors. In fact, when the

14

questions –

15

THE COURT: Well, let me ask you, are you aware that any

16

instruction was given to MCSO that they were not to volunteer that

17

information?
MS. IAFRATE: No, and any further conversation is

18
19

privileged.

20

THE COURT: Well, it may or may not be privileged.

21

MS. IAFRATE: Well, I would assert the privilege to –

22

THE COURT: I understand that you may assert the privilege,

23

and we’re not going to resolve that here this afternoon.

24

MS. IAFRATE: Understood.

25

Your Honor, I was in that meeting.

26

THE COURT: You were in that meeting?

27
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MS. IAFRATE: I was in – no. Excuse me. I was in the

1
2

meeting with Chief Kiyler when it was discussed regarding pending

2

current investigations regarding IDs, and there was two.

3

THE COURT: Which involved the 40 and the 20.

4

MS. IAFRATE: Correct.

5

THE COURT: But not the 1500.

6

MS. IAFRATE: Correct.

7

THE COURT: So there’s actually 1459 IDs, plus 40 more

201 East Washington Street, Suite 1200
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8

IDs, plus 20 more IDs.
MS. IAFRATE: Correct. And the 40 and the 20 are over in

9
10

Property.

11

THE COURT: You’re are aware that in February I issued an

12

order that the MCSO was to disclose – let me see if I can find that. I

13

entered an order that MCSO was to disclose copies of identification

14

documents seized by MCSO personnel from apparent members of the

15

plaintiff class –

16

MS. IAFRATE: Yes.

17

THE COURT: -- are you not?

18

MS. IAFRATE: Yes.

19

THE COURT: And these are yet an additional – well, I’m not

20

sure that they all involve members of the plaintiff class, but

21

apparently you’ve shown them to my Monitor Team and a number of

22

them involve members of the plaintiff class, correct?
MS. IAFRATE: I don’t know what number does or does not.

23
24

I would assume that there would likely be some.

25 (Id,. pp. 16, ln. 4 – 17, ln. 25)
26

Ms. Iafrate’s exchange with the Court at the July 24 hearing, reflects her

27 understanding that the July 20 meeting discussion was “regarding pending current
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1 investigations regarding IDs, and there was [sic] two.” (Id.
2 2)

p. 16, ln. 24 – p. 17, ln.

Ms. Iafrate thus believed that there was no “pending current investigation[]”

2 regarding the Knapp IDs and that the Monitor team was asking only about “pending
3 current investigations,” rather than IDs that are not subject to any current
4 investigations, when the Monitor was told there were no others.
Ms. Iafrate’s statement to this Court that there was no “pending current

5

6 investigation” was what she understood. She understood the Monitor team’s question
7 on July 20, 2017 was whether there was a “current pending investigation.”

Her

201 East Washington Street, Suite 1200
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8 understanding of the Monitor team’s question may reflect negligence on her part in not
9 appreciating the status of the Knapp IDs in the PSB, but it cannot reasonably be
10 construed beyond a reasonable doubt as a willful violation of this Court’s orders.
Neither negligence nor miscommunication are a basis for an adjudication of

11

12 criminal contempt.
“The crime of contempt is established when a defendant willfully disobeys a

13

14 clear and definite court order of which the defendant is aware.” United States v.
15 Armstrong, 781 F.2d 700, 706 (9th Cir. 1986) (citations omitted.)
“Wilfulness,” in turn, is defined as a volitional act done by one who knows or

16

17 should reasonably be aware that his conduct is wrongful.” (citations omitted.) It
18 implies a “deliberate or intended violation, as distinguished from an accidental,
19 inadvertent, or negligent violation of an order.” Falstaff Brewing Corp. v. Miller
20 Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983).”
21 D.

The Evidentiary Hearing in September/October 2015

22

At the evidentiary hearing, the plaintiffs called three witnesses to testify

23 regarding the events relating to the Knapp IDs:

Chief Deputy Sheridan, Captain

24 Bailey, and Lieutenant Seagraves. It is their testimony that provides the basis for the
25 Court’s Findings of Facts. By the time of their testimony, Ms. Iafrate’s role in this
26 case had shifted to working exclusively on the MCSO’s compliance obligations
27 because of the considerable time required for that representation. She no longer had
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1 any responsibility, nor was she involved in the conduct of the evidentiary hearing. That
2 role was filled by other lawyers.
2

The defendants’ lawyers called no witnesses on the subject of the Knapp IDs at

3 the resumed evidentiary hearings in September and October 2015. The defendants’
4 lawyers on cross-examination asked very few questions of Chief Deputy Sheridan,
5 Captain Bailey, and Lieutenant Seagraves. Not a single document exhibit proving
6 Knapp ID related events was introduced or even offered at the evidentiary hearing.
7

The Court found, based upon one witness’s memory, that five other people

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8 attended the July 17, 2015 preparation meeting other than Sheridan, Bailey and Iafrate.
9 (Doc. 1677, ¶ 307 at p. 53) Other witnesses memories as to who was present varies as
10 reflected in the record of this proceeding. The Findings do not identify all those present
11 at the July 20, 2015 Monitor meeting, but it is plain that in addition to the multiple
12 members of the PSB staff present for the team’s quarterly visit that there were also
13 multiple members of the Monitor team present.
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We note these facts not to challenge or question the Court’s Findings of Fact or

15 to be critical of the judgments made by the defendants’ counsel at the hearing who
16 were mainly focused on other issues. Rather, we mention these facts to point out that a
17 criminal contempt citation will certainly result in a criminal trial with some significant
18 number of new witnesses from both the Monitor staff and the Sherriff’s office who
19 were not heard in the evidentiary hearing or otherwise, and who, based on the
20 information available from the interview transcripts and other transcripts, are likely to
21 have materially different accounts of the unrecorded discussions at the meetings on
22 both July 17, 2015 and July 24, 2015. At the end of the testimony in a criminal trial of
23 the many witnesses present at the two meetings at issue it will be unlikely that a Judge
24 or jury will be able to find proof beyond a reasonable doubt as to exactly what was said
25 by the participants in those meetings.
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1 E.

CONCLUSION

2

As this Court has undoubtedly recognized, counsel representing the defendants

2 in this case have been confronted with an extraordinarily difficult representation. Ms.
3 Iafrate replaced prior counsel for the defendants when issues arose relating to his
4 representation.

Ms. Iafrate conscientiously represented the defendants in very

5 challenging circumstances from November 2014 until last month when she withdrew
6 from that representation following the Court’s comments at the May 31, 2016 hearing.
7

She acknowledges and respects the Court’s right to vindicate its authority. A

201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

8 criminal contempt charge here is unwarranted, however, because the existing record,
9 incomplete as it is, demonstrates that it is highly unlikely that proof beyond a
10 reasonable doubt can be presented that Ms. Iafrate willfully violated a clear and
11 definite order of this Court. Conduct on her part in expressing the need to research and
12 investigate the issues concerning the Knapp IDs was that of a lawyer attempting to
13 fulfill her obligation of competence required by ER 1.1 of the Arizona Rules of
14 Professional Conduct. She understood that the responses given to the Monitor team’s
15 question or questions were truthful.
16

The Court, as the sole repository of prosecutorial discretion, should not initiate a

17 criminal prosecution based upon the evidence in the total record concerning the Knapp
18 IDs which reflects that the elements of criminal contempt cannot be proven beyond a
19 reasonable doubt.
20

We do not invite the Court to initiate State Bar disciplinary proceedings.

21 However, if the Court is of the view that Ms. Iafrate’s conduct must be subject to
22 further examination then the State Bar of Arizona is the appropriate forum for that
23 examination – not a criminal proceeding. The State Bar would assess the nature and
24 extent of Ms. Iafrate’s professional deliberations of the facts as she understood them at
25 the time, the cognizance of her clients’ duties to the Court as well as her own duties,
26 her conclusions, her communications that may have flowed from such conclusions, and
27 the extent to which ensuing actions were consistent with her communications.
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1

DATED this 20th day of July, 2016.
LEWIS ROCA ROTHGERBER CHRISTIE LLP

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By:

/s/ Dale A. Danneman
Dale A. Danneman
Attorneys for Michele M. Iafrate

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201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

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CERTIFICATE OF SERVICE

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I hereby certify that on July 20, 2016, I electronically transmitted the foregoing

2 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of
3 a Notice of Electronic Filing to all CM/ECF registrants.
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/s/ May Livingston

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201 East Washington Street, Suite 1200
Phoenix, AZ 85004-2595

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