When I heard Maricopa County Attorney Bill Montgomery tell the federal government recently to "put up or shut up" in its wide-ranging allegations against Sheriff Joe Arpaio of racial profiling, systemic abuse of Latinos, and retaliation against Joe's critics, I was bewildered — for a second.
Montgomery's Clint Eastwood moment came in response to the U.S. Department of Justice's ongoing efforts to bring our recalcitrant sheriff to heel. This, months after Assistant U.S. Attorney General Thomas Perez's December letter to Montgomery summarizing the results of the DOJ's massive four-year investigation into the Maricopa County Sheriff's Office.
Perez's letter, which immediately was made public, told county residents what they should already know: Arpaio's boys in beige engage in widespread racial profiling, "unconstitutional policing," systemic violations of the Fourth Amendment to the U.S. Constitution's prohibition against unreasonable search and seizure, and mistreatment of Latinos in Joe's jails.
Perez even dipped into Arpaio's retaliation against his critics and noted the hundreds of botched sex-crimes cases in El Mirage.
He offered several specific examples from recent county history to back up his points, explaining the depth of the investigation, the more than 400 individuals interviewed, including prisoners and MCSO staff; the DOJ's inspection of jails, and the review of "tens of thousands of pages of documentary evidence."
The DOJ also commissioned a statistical study, Perez said, revealing that Latinos are four to nine times more likely to be stopped by the Sheriff's Office. The DOJ found that one-fifth of all traffic incident reports generated by the sheriff's Human Smuggling Unit, "almost all of which involved Latino drivers," were Fourth Amendment violations.
After initially pitching a fit and then using the DOJ's letter to raise money for his re-election campaign, Arpaio seemed to cave to the reality of the situation. After a February meeting between the DOJ and the MCSO, a joint statement was released by the two sides. For the MCSO it read like an admission of guilt.
"The parties have agreed to work together to develop a document that addresses any agreed upon improvements needed in the Maricopa County Sheriff's Office," the statement read.
"The sheriff and the U.S. Department of Justice are both committed to avoiding unnecessary and expensive litigation," it continued, "by the creation of an enforceable agreement which will lead to sustainable reforms and positive results for all citizens of Maricopa County."
Did you catch that? "Improvements" that were "needed" and "agreed upon." The necessity of an "enforceable agreement" that will lead to "sustainable reforms."
We now know from an April 3 letter to Arpaio's lawyers from Deputy Assistant Attorney General Roy Austin that in the February meeting, the need for an independent monitor was made clear and assented to by both sides.
There's no reason to doubt Austin on this. An independent monitor is standard practice in such cases, and Perez's December letter made clear the need for a "court enforceable agreement."
But like a cheap hood in a '50s TV show, Arpaio was lying his keister off to the feds. When time finally came for the two sides to sit down and start negotiating in earnest, Arpaio bucked, issuing a press release stating, "I will not surrender my office to the federal government," and calling the standard Arpaio press conference, where he blustered away.
In Austin's April letter to Joe's legal beagles, the DOJ lawyer coolly observes that Arpaio's nixing of the negotiations based on his new-found opposition to an independent monitor "calls into question whether you were ever interested in settling this matter."
To which, I would say, "No, duh." The current feud between the MCSO and the DOJ plays right into Arpaio's hands. It's part of the narrative he wants to sell to the public, one he's banking will get him re-elected: fierce county sheriff stands up to feds and does what they won't do — enforce immigration laws.
Racial profiling? Are you kidding? Arpaio's bigoted base believes in racial profiling. Just look at the American Civil Liberties Union's big civil rights lawsuit Melendres v. Arpaio, where a plethora of racist e-mails and letters from county constituents, unearthed through a torturous discovery process, praise Arpaio for racially profiling Latinos.
One letter writer frothed, "Stopping Mexicans to make sure they are legal is not racist."
Another fumed, "If you have dark skin, then you have dark skin! Unfortunately, that is the look of the Mexican illegal."
And one elderly bigot reminisced fondly about the days when her Italian mama was profiled during World War II because "it was the right thing to do."
What did Arpaio do with such racist filth? He kept it in his personal "immigration file," after he had sent thank-you notes to the writers, and in some cases, used the letters as pretexts for Latino-hunting sweeps.
The U.S. District Court judge in Melendres, G. Murray Snow, made official note of this cause-and-effect between some of the racist letters and Arpaio's sweeps and raids. He did this while sanctioning Arpaio's side in the lawsuit for not turning over Arpaio's immigration file and for destroying documents repeatedly requested by the plaintiffs.
In Snow's December 23 order, he granted the plaintiffs' request for class certification allowing all Latinos stopped by the MCSO from 2007 on to sue the department. And he observed that a number of the aforementioned "citizen communications . . . described Latinos congregating, but did not provide evidence of a crime."
Regardless, Arpaio made notes on the letters — such as "for our operations" and "I will be going to Mesa" — and forwarded them to MCSO Deputy Chief Brian Sands for action.
Judge Snow writes, "MCSO subsequently conducted special operations in the areas described by the letter writers and the sheriff's annotations."
The judge also mentioned that MCSO deputies, including those in Arpaio's Human Smuggling Unit, circulated e-mails with racist pictures and jokes that "compared Mexicans to dogs, ridiculed stereotypical Mexican accents, and portrayed Mexicans as drunks."
Continued the judge, "From the totality of this evidence . . . it would be possible for a fact finder to conclude that the MCSO engaged in an intentional policy of racial profiling (italics mine)."
It's important to note that this "finder of fact" in the bench trial will be Snow.
Perhaps it's my familiarity with Melendres that explains my brief befuddlement upon hearing Montgomery's suggestion that the feds were lying about what they had on Arpaio.
"If the Department of Justice actually has information that supports their assertion that there continue to this day systemic concerns of discriminatory policing or racial profiling," Montgomery said in full pound-the-lectern mode, "I demand as the chief prosecutor of Maricopa County . . . to be given that information immediately."
Um, okay. First off, since the DOJ probably will sue because of Arpaio's bad-faith negotiating strategy, Montgomery no doubt will be able to review everything in triplicate, as part of the case's discovery, since his office surely will defend Joe in court, along with Arpaio's other lawyers.
Secondly, though the DOJ didn't cite the proper names of witnesses and victims in its December findings, nearly all the historical evidence mentioned should be familiar to Montgomery, as most has been covered extensively in the local media.
This was a point I made a few months ago rebutting comments by Arpaio's top flack Jack MacIntyre that there were "no specific allegations" in the Perez letter ("Arpaio Corruption," December 22, 2011).
And are we to believe Montgomery's so dense that he fails to recognize the case of Armando Nido, who was intentionally run over by an MCSO officer in 2009, later sued, and ended up winning a $600,000 settlement? Or that of human rights activist Salvador Reza, falsely arrested and imprisoned by the MCSO in a highly publicized 2010 incident?
Both cases are described by Perez in his letter, albeit without names.
All Montgomery really has to do is jump on the court docket for the four-year-old Melendres case and read. There is a mountain of evidence there, including the experiences of the plaintiffs, and a study commissioned by the plaintiff's lawyers, which rigorously demonstrates that Latinos are more likely to be stopped during the MCSO's crime-suppression sweeps, and that those stops are longer on average than for other ethnicities.
The Melendres trial is scheduled to begin July 19. In a recent hearing to set that date, Snow told lawyers for both sides they could dispense with opening arguments, as he's already cognizant of the case's details.
Additionally, the plaintiffs told Snow they have an agreement with the DOJ to share info. Which explains the overlap between the evidence in Melendres and that in the Perez letter.
In his rulings to date, Snow hasn't been favorably inclined toward the defendants. Indeed, Snow has seemed ticked off since it was discovered that the MCSO withheld reams of documents and shredded reams more.
Destroying evidence tends to have that effect on federal judges.
The Melendres case was filed in late 2007 and is only now close to going to trial. We can expect a similar wait when the DOJ files its suit against the MCSO — and a similar cost. I recently noted in a blog post that the law firm representing Arpaio so far has made more than $735,000 for work on Melendres.
That said, Melendres may well stop Arpaio from racially profiling sooner than the DOJ's impending lawsuit.
Former Arizona U.S. Attorney Paul Charlton, an Arpaio critic and a Republican, believes Melendres will "be a much quicker decision." That case, Charlton says, "has a narrower scope than the DOJ's December letter, which includes retribution, abuse of power, [and] hundreds of sex-abuse cases."
Bottom line: Snow — who already is irritated by Arpaio's office over lost and destroyed records — could rule for the plaintiffs and enjoin the MCSO along the lines of what the ACLU wants. And that injunction could include a court-appointed monitor to make sure the ornery sheriff stops racially profiling.
In this scenario, Arpaio wouldn't be able to play the Barack Obama card — that is, blame everything on the feds, as he loves doing.
Ironically, the DOJ investigation began under President George W. Bush, and it was Bush who put Judge Snow on the bench. If Snow finds for the plaintiffs, Arpaio and his underlings will have no choice but to obey.
THOMAS AGONISTES
So why did Bill Montgomery, who graduated magna cum laude from Arizona State University's law school, decide to feign ignorance about the DOJ's evidence against Joe?
The answer: Montgomery prevailed in the 2010 Republican primary for county attorney against then-acting County Attorney Rick Romley partly because Arpaio sunk more than $500,000 on widely aired TV ads slamming Romley.
So Montgomery owes Arpaio, and he had no choice but to pay — which he did by publicly backing the sheriff in his war with the DOJ.
The DOJ's Austin recently wrote to Montgomery regarding his "put up or shut up" stance. Austin was eager to know "the precise role of the County Attorney's Office with respect to the federal investigation of the MCSO."
Austin need not have asked, since it's apparent that Montgomery plans to play a similar role to that played by his predecessor, Andrew Thomas. Because he owes Arpaio for backing him against Romley, he plans to serve as legal and political valet to the combative sheriff.
As this column headed to press, the disciplinary panel of the Arizona Supreme Court announced its ruling in state Bar proceedings against Thomas, his former attack-dog ex-deputy, Lisa Aubuchon, and smaller-fry former deputy Rachel Alexander.
Thomas and Aubuchon received professional death sentences: Each was disbarred for five years, after which they must meet stringent requirements to be re-certified as attorneys in Arizona. Alexander got off light, pulling a six-month-and-one-day suspension of her bar license.
The disciplinary panel found that Aubuchon and Thomas had done a lot of bad stuff, some of it probably illegal, such as prosecuting political enemies without evidence and abuse of power. (See full coverage in our Valley Fever blog.)
Why did Thomas and Aubuchon betray their oaths of office? They were doing the bidding of Arpaio, who at the time was on a rampage against the Board of Supervisors, superior court judges, and anyone else who opposed him.
I'm not saying Monty's recent backing of Arpaio approaches any one of Thomas and Aubuchon's legal atrocities. Actually, he's pretty much ended the war against the supervisors, and he generally has seemed interested in doing his job as a top prosecutor of real criminal cases.
But listening to him defend Arpaio from the same County Attorney's Office lectern that Thomas once railed from made me wonder if the new boss is frighteningly similar to the old boss.
