Today, in a preview of a high-stakes hearing on Tuesday, May 31, in the contempt case of Sheriff Joe Arpaio and three of his subordinates, the ACLU filed a memorandum asking U.S. District Judge G. Murray Snow to make a referral to the U.S. Attorney's Office, requesting an investigation of Arpaio and his chief deputy, Jerry Sheridan, for criminal contempt, perjury, obstruction of justice, and other possible violations of federal law.
The ACLU, which represents the plaintiff class (i.e., Latinos in Maricopa County) in the underlying civil rights case Melendres v. Arpaio, also suggested that Arpaio be forced to pay a $300,000 fine out of his own pocket, and that all authority over internal investigations related to the contempt proceedings in Melendres be handed over to the court's monitor.
Read the ACLU's Memorandum to Judge Snow:
The memorandum comes in response to Judge Snow's May 13 ruling finding Arpaio and three of his subordinates guilty of civil contempt for not obeying Snow's orders in Melendres. In 2013, Snow had found Arpaio and the MCSO guilty of widespread racial profiling.
In his recent "findings of fact," Snow declared that Arpaio and Sheridan had "willfully," "intentionally," and "deliberately" defied the court on numerous occasions. As I argued in a recent column, the judge's word choice telegraphed the likelihood that, along with the imposition of civil remedies, Snow will refer the matter to the U.S. Attorney's Office for Arizona for criminal proceedings against Arpaio, Sheridan, and possibly two others: former executive chief Brian Sands and Lieutenant Joe Sousa, once the head of Arpaio's now-disbanded immigration force, the Human Smuggling Unit.
Read the U.S. Department of Justice's Memorandum:
Arpaio could face six months or more in prison for criminal contempt, depending on how the charges are brought. He also could get a year in the slammer for obstruction of justice. But the crimes of perjury and lying to a court-appointed monitor carry more serious penalties: five years' imprisonment if found guilty of either.
Make no mistake: Arpaio lied under oath to the judge while being questioned during the 2015 contempt trial. Asked if he had ever investigated Snow in relation to a kooky, anti-Arpaio conspiracy theory first reported by New Times, Arpaio said no, an answer that was proven untrue when the hearings confirmed New Times' original reporting that the so-called "Seattle operation" had been run by Arpaio himself.
In his May 13 findings of fact, Snow wrote that the sheriff's responses to his questions, "made while Arpaio was under oath, constitute deliberate misstatements of fact made in bad faith." The judge pointed out that Arpaio repeated his lie "three weeks after his initial testimony in a statement made under penalty of perjury filed with the Court."
How long it would take the U.S. Attorney, an imperfect instrument if there ever was one, to prosecute Arpaio for criminal contempt of perjury is anyone's guess. Which is why I've suggested that Snow, in addition to civil fines and a criminal referral, cite Arpaio, and Sheridan to boot, for direct contempt in his presence, and give them a night or three in a federal hoosegow to cool their heels. After all, Arpaio is almost 84, and could cheat the hangman, so to speak.
Read the Memorandum Filed by Arpaio's and Sheridan's Attorneys:
In a juicy aside, lawyers for the ACLU made reference in their memorandum to an incident in which Michele Iafrate, an attorney for Arpaio, and MCSO Captain Steve Bailey, "made or caused a deceptive statement to be made" to the court's monitor. As a result, the plaintiffs ask that Iafrate and Bailey be charged with civil contempt and that Iafrate possibly be referred to the State Bar of Arizona for disciplinary proceedings.
Other parties in the case have filed recommendations to the court, as well. In a different memorandum filed today, Arpaio and Sheridan agreed with the plaintiffs to a compensation fund for victims of illegal detention, to be established with taxpayer funds by the county board of supervisors, for $500,000. Arpaio and Sheridan also repeated an offer, made in early 2015, to donate $100,000 out of their own pockets to a Latino civil rights group of the court's choosing.
The filing by lawyers for Arpaio and Sheridan also would allow internal affairs investigations related to Melendres and the contempt case to be handled by an "independent authority." And the memo exposes a schism between Maricopa County and the pair. The county is on the hook for Arpaio's civil defense but not his criminal defense, and the defendants blasted the possibility of the county seeking some wiggle room, stating that lawyers for the county had recently informed them that the county "may take the position that it cannot be found liable for the financial consequences" of remedies for "willful and/or intentional violations of the court's order."
Read Draft Proposal Asking for a $500,000 Fund Set Up by Maricopa County:
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In its filing with the court, the U.S. Department of Justice made no mention of a criminal referral, but it did suggest that an "independent authority" other than the monitor take over certain IA investigations and impose discipline. The DOJ said the judge was well within his rights to do so, and could actually impose a broader remedy: "the imposition of a receivership," which would allow the federal government to take over the MCSO, kit and caboodle. But the DOJ stopped short of requesting that.
All parties are supposed to be present at the May 31 hearing to discuss these and other issues. If Snow orders Arpaio held for direct contempt on Tuesday, I'd say game over, the sheriff won't be able to recover. Barring that, will a referral for possible criminal contempt, and worse still, perjury, be enough for the general public to look to ditch Arpaio for once and for all?
That remains to be seen.