Joe Arpaio. who last November lost his bid for a seventh term as sheriff, could get six months if found guilty of criminal contempt.
Joe Arpaio. who last November lost his bid for a seventh term as sheriff, could get six months if found guilty of criminal contempt.
Stephen Lemons

Arpaio Trial Day 1: Sessions Subpoenaed, Witness Dead, Joe's Lawyer Testifies Against Him

The U.S. Supreme Court weighs in, U.S. Attorney Jeff Sessions gets a subpoena, the defendant’s former lawyer testifies against him, and it's revealed that a key figure in the case died just days earlier.

And that was just Day 1 of USA vs. Joseph M. Arpaio.

The case in U.S. District Court to determine whether America’s self-proclaimed toughest sheriff broke the law by flouting a court order was never going to be a dull, invisible affair. If found guilty of criminal contempt of court, Arpaio could face six months in jail.

The sometimes testy first day of trial hinged on the testimony of one key witness: Tim Casey.

Casey is the lawyer who litigated Arpaio’s defense against a class-action discrimination lawsuit, a judge’s compliance order, his resulting civil contempt of court ruling, and appeals.

His testimony fueled the arguments of both sides the criminal contempt case.

The federal government’s case against Arpaio is simple. The U.S. Attorney’s Office is arguing that Arpaio knew U.S. District Judge Murray Snow ordered the Maricopa County Sheriff’s Office to stop racially profiling Latinos in traffic stops, that MCSO continued doing it under Arpaio’s direction, and that he deliberately blew off the order and bragged about it.

Arpaio's defense is equally simple. His attorney is arguing in the non-jury trial that Arpaio only  followed the law of the land and the advice of his counsel, that Snow’s order was anything but clear, and that he never ordered anybody to ignore it.

Making those cases to U.S. District Court Judge Susan Bolton became considerably more labored once Casey took the stand.

He sat for more than four hours of questioning. His appearance was punctuated by interruptions, objections, legal rulings after almost every question. Numerous times, Bolton, visibly frustrated, had to intervene and ask questions herself.

At one point, she rolled her eyes when Arpaio’s legal team tried to stop an official MCSO press release being discussed on the grounds that it was hearsay evidence.

The day began with the revelation that former MCSO Deputy Sheriff Jack MacIntyre had died shortly before the beginning of the trial.

In 2009, MacIntyre was blamed for inadvertently allowing evidence to be shredded in the civil rights lawsuit that led to Monday's trial, Melendres vs. Arpaio.  Whether MacIntyre's deposition can be addressed in court is still being debated. 

The defense team also reported that the U.S. Supreme Court didn't act on a request to stop the trial.

Finally, the  day ended with the defense team disclosing  that U.S. Attorney General Jeff Sessions had been  subpoenaed to testify in this trial. The Department of Justice has filed a motion to quash.

But maybe none of that is surprising because this day has been 10 years in the making, capping  a campaign by local activists, the Latino community and civil libertarians to reign in Arpaio's immigration sweeps. That effort led to the civil rights lawsuit, a resulting consent order and federal oversight of the reforms from it.

Throughout that decade, Arpaio had been defiant and bombastic. He’d enforce immigration because the Obama administration would not; he was all too eager to tell the press and legions of political supporters and financial backers in Arizona and beyond.

But as Judge Snow oversaw the enforcement of court-mandated reforms, he grew increasingly concerned that MCSO was ignoring or backsliding on its commitments. In December 2011, Snow issued a temporary injunction ordering him to stop arresting people based solely on their immigration status. He followed it up with a permanent injunction in May 2013.

What Arpaio and MCSO did in the intervening 17 months lies at the heart of the case. It boils down to what Arpaio knew,  whether he understood the order, and whether he knew his actions violated it.

Prosecutors say Arpaio deliberately thumbed his nose at those orders, arresting 170 illegal immigrants and, counter to the order, turning them over to federal authorities for deportation. Arpaio’s defense is that the order was unclear and that Casey failed to communicate what was required. Further, Arpaio's arrests were legal, they argued.

Casey was the first witness. John Keller, the prosecutor with the U.S. Attorney’s Office, painstakingly went through a series of billing sheets, getting Casey to testify that he repeatedly met with Arpaio and advised him on Snow’s injunction.

Many of those interactions were by phone or in person, Casey testified, because Arpaio “doesn’t do email.”

Casey told the court he repeatedly advised MCSO that it couldn’t arrest people based only on their immigration status. Keller presented a series of MCSO press releases and Arpaio statements indicating the agency was going to keep on enforcing immigration laws.

“He thought he could get away with it,” federal prosecutor Victor Salgado summarized in his opening remarks. “He never thought this day would come.”

Casey testified he recommended training and grew concerned the advice didn’t take hold.

An October 2012 meeting was key. The ACLU had alleged that the Sheriff’s Office continued to violate the order. Casey testified he met with Arpaio in what he characterized as a heated exchange, one in which he became angry.

Casey testified he advised Arpaio that the continued arrests and referrals to Border Patrol were “likely, not definitively, but likely in violation” of Snow’s order. He also suggested he could mount a reasonable defense.

He said it was the first he’d heard of Arpaio’s “backup plan” and that he never told his client he could continue without being in violation. Arpaio, he testified, responded by saying he was the sheriff and it was his call.

“I wanted to make sure he understood he could not detain immigrants and he suggested he did,” Casey testified, later adding that Arpaio called the October 2012 mistreatment allegations the result of a “mistake” and that it wouldn’t happen again.

But the billing sheets from that time were heavily redacted. Casey testified that he turned over all his records to the lawyer representing MCSO after he walked out, and his only documentation was an email from later describing it. The only witness, Brian Sands, left in the middle.

The exchange had echoes of Donald Trump vs. James Comey.

As such, Arpaio’s attorney, Dennis Wilenchik, suggested the meeting was fictitious. He seized on the fact that Casey never wrote any legal advice about the order directly to Arpaio, and the one time he did put his opinion in writing, it was in a one-paragraph summary an hour after Snow issued the 40-page order.

Casey also testified that nobody interfered when he investigated how widespread the ACLU’s allegations went. He agreed that Arpaio never said he planned to ignore the order, but Casey did say the now 85-year-old sheriff, who tended to delegate, might have had a misunderstanding of what was required.

“I was told it was less than two, three, a handful. That it wasn’t systemic. That it was a mistake,” he said when he learned of the alleged violations.

In a letter at the time, Casey wrote that the allegations “lack merit. My investigation and review of the three events indicates no violation of the court’s Dec. 23, 2011,  injunction.”

He went on: “ICE advised that it would not take custody of individuals, but directed (MCSO’s Human Smuggling Unit) to contact U.S. Border Patrol regarding federal handling of the two individuals.”

Prosecutors referred to the sheriff’s reliance on Border Patrol as his “backup plan.” Not long after taking office in 2009, President Barack Obama stripped MCSO of its federal authority to make immigration arrests.

“I expected that it would happen, so I had a backup plan to take those illegal immigrants not accepted by ICE to the Border Patrol,” Arpaio said in a press release at the time. It went on to describe how two suspects were transferred to the Border Patrol “as directed by the sheriff.”

Casey testified he had never seen the release until his appearance in court.

Wilenchik pushed back during cross-examination, getting Casey to acknowledge that three such press releases all involved arrests of people suspected of breaking state laws.

Wilenchik asked Casey whether that meant MCSO could cooperate with the feds once they made a legitimate traffic stop.

“That’s the argument I asserted right there,” Casey replied.

“That’s the argument you asserted right there? Those are the facts,” Wilenchik countered.

The legal issue underlying the exchange is pivotal. The defense’s case revolves around the claim that deputies had probable cause to arrest people based on the suspicion they broke some state law other than an immigration violation.

Snow had ordered MCSO to stop “from detaining any person based solely on the knowledge and without more that the person was in the country without lawful authority.”

Wilenchik argued, and Casey agreed, that deputies did have other reasons, namely human smuggling, ID fraud, and employment fraud.

He also testified he “thought there was ambiguity” in Snow’s orders. In an email at the time, he tried to clarify for his client: “To be clear, the court is not enjoining MCSO from enforcing valid state laws.”

The entire day’s testimony was clouded by the fact that Casey is an attorney and Arpaio was his client. Their correspondence, and much of Casey’s communiques to command staff, were shielded by attorney-client confidentiality.

But lawyers on both sides probed for explanations. Many were not forthcoming, and repeatedly an ethics attorney representing Casey objected. Often Bolton agreed. Sometimes she ordered Casey to answer anyway, or put the questions to him herself.

At one point, Wilenchik tried to get Casey to explain why he quit representing Arpaio. He was trying to build the case he laid in his opening remarks in which he argued Casey "dropped the ball and threw the sheriff under the bus."

Wilenchik managed to wrest this acknowledgment.

“He’s the client. If I had a problem with (Plan B), I could have withdrawn then. I would have withdrawn then, but I didn’t,” Casey said.

“Exactly,” Wilenchik retorted.

Casey did say one thing that few who have watched the saga could quibble with.

“This was always a case when law and politics intersected” Casey testified.

Indeed.

His testimony resumes this morning.

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