Lemons: Arpaio's Criminal Defense and How Bill Montgomery Helped You Pay for Part of It (w/Update)

Joe could get six months if found guilty of criminal contempt, but in reality, he's unlikely to do day one in stir.
Joe could get six months if found guilty of criminal contempt, but in reality, he's unlikely to do day one in stir.
Stephen Lemons

Like a mere mortal, former Sheriff Joe Arpaio ambled out the front door of the Sandra Day O'Connor U.S. Courthouse on Thursday, following a hearing in his criminal contempt case before federal Judge Susan R. Bolton.

While he still was sheriff — before Democrat and current sheriff Paul Penzone rousted him from office —  Arpaio retained his demigod status and all of the perks of power.

A security contingent of three beefy, plainclothes deputies shadowed him everywhere, chauffering him to wherever he needed to be in an unmarked black car with tinted windows.

As for his many appearances in federal court during his civil contempt trial before federal Judge G. Murray Snow, Arpaio was allowed to avoid the usual reportorial scrum outside the courthouse door by sneaking away via the court's underground parking lot.

But on Thursday, Arpaio was all on his lonesome, save for attorney Mark Goldman, who is taking over the case from Arpaio's previous criminal attorney, former superior court judge and onetime U.S. Attorney Mel McDonald.

McDonald wanted off the case for undefined "ethical" reasons. Bolton granted his wish after hearing McDonald's rationale for am-scraying from Arpaio's sinking ship in closed court Thursday. And McDonald was out of there quicker than green grass through a goose.

Which is rather amusing, since McDonald sat through the entire 21-day civil contempt trial in 2015, ostensibly to defend Joe if Snow referred the matter for criminal prosecution. Snow did indeed do this, after finding Arpaio guilty of civil contempt of his court.

The issue before Bolton — who will try the case without a jury — is whether Arpaio knowingly defied Snow's December 2011 injunction, preventing the MCSO from holding suspected illegal aliens for pickup by the feds, when there were no state charges pending.

During the civil trial, Arpaio admitted that he and the MCSO were in civil contempt, which does not require that the alleged defiance of the court be intentional.

But in August of last year, Snow found enough evidence of ill intent on Arpaio's part to refer a criminal case to another judge, as he is required to do under the law.

So why did McDonald take a powder, after no doubt collecting a tidy sum from Arpaio's legal defense fund?

The buttoned-down McDonald wouldn't comment on his departure. Neither would Arpaio's new attorney, Goldman — who has been helping with the case since mid-March and whose long black hair and beaded, braided beard calls to mind Johnny Depp's Captain Jack Sparrow from the Pirates of the Caribbean film series.

You know, attorney-client-privilege, and all that.

But McDonald may have had to leave the case because he could become a witness in it as a result of a motion filed by Goldman on March 24, requesting a "voluntariness hearing."

Goldman plans to argue that Arpaio was "coerced" into admitting to civil contempt by mean ol' Judge Snow, and that McDonald failed him by not advising Arpaio that the admission might be used against him during criminal proceedings.

Though I don't fault Goldman for trying this — or for filing a blizzard of motions on his client's behalf — comparing Arpaio's admission of civil contempt while being questioned by Snow to an arrestee in stir being pressured to confess by hardened cops breathing down his neck is ludicrous in the extreme.

Also, before the civil trial even began, Arpaio's civil attorneys — not McDonald, who acted solely as Joe's criminal mouthpiece — filed a motion to vacate the trial, with an admission by Arpaio and his chief deputy that they had violated the judge's orders, even going so far as offering to pay a fine out of their own pockets.

But Snow rejected this effort because he did not want to approve of any settlement that precluded a criminal component.

Throughout the proceedings before Snow, a referral for criminal contempt was always on the table. To suggest that Arpaio was somehow unaware of this or that his attorneys did not advise him of this possibility is tantamount to suggesting that Arpaio was and is mentally incompetent to stand trial.

Which could be Joe's last line of defense, I suppose.

At the hearing, Goldman said that he was not prepared that day to argue all of the various motions pending before Bolton, and Bolton indicated that she would rule on most of them during the trial itself, which is scheduled to begin on April 25, and could last a couple of weeks.

However, the judge did set a hearing date for April 12 on a motion to stay filed by Goldman, and that's rather infuriating, because it indirectly implicates Maricopa County Bill Montgomery in assisting Arpaio's criminal defense with taxpayer funds.

Followers of this case may recall that last year, shortly after Arpaio was formally charged with criminal contempt of Snow's court by the U.S. Department of Justice, the fancy Washington, D.C., law firm of Cooper & Kirk intervened on Arpaio's behalf in the civil case.

The firm's lawyers attempted to have Snow recuse himself from the underlying lawsuit, Melendres v. Arpaio, because, get this, Snow talks outside of court to the monitor he appointed to oversee the MCSO's implementation of his orders.

The Board of Supervisors had voted down a request to hire Cooper & Kirk, but Montgomery nevertheless authorized the hiring of the firm.

The DC law group has since made an appeal to the Ninth U.S. Circuit Court of Appeals, seeking to have Snow removed from Melendres because of these so-called ex parte communications with his monitor Robert Warshaw.

Snow has never hidden the fact that he speaks with his monitor outside of court, and how he could not do so requires a leap in logic that only a high-priced legal beagle can accomplish.

This is the second attempt to remove Snow from the case. The first failed miserably, and, oddly, never made mention of these supposedly sinister ex parte communications.

Fast forward to just a couple of weeks ago when Goldman filed a motion to stay proceedings in the criminal case until the appeal filed in the civil case by Cooper & Kirk is finito.

"If the appeal is successful," Goldman wrote in the motion, "the Ninth Circuit Court of Appeals will likely vacate the Contempt Findings and Contempt Injunction at the heart of the criminal trial. As such, the criminal trial must be stayed pending resolution of the civil appeal."

Taxpayers are not supposed to foot the bill for Arpaio's alleged criminal violations. But I would argue that by taxpayers' dollars funding Cooper & Kirk's ridiculous appeal, county residents are doing just that, at least, in part.

Thanks to Arpaio's longtime pal and political ally, Bill Montgomery.

Incredulously, Montgomery's office declines to answer any of Phoenix New Times' questions on this matter or explain how much has been paid to Cooper & Kirk to protect a man who is no longer sheriff.

And the MCAO has yet to respond to a public records request seeking this information.

Asked about the appeal, Penzone's spokesman Mark Casey stated the following after I sent him a screenshot of the appeals docket (see below) showing Cooper & Kirk as now representing Penzone:

"Cooper & Kirk are not representing Sheriff Penzone," Casey said, emphatically. "We are forwarding the info New Times provided to the Maricopa County Attorney's Office so can they can get this resolved."

Where, specifically, the money is coming from in the county budget to pay Cooper & Kirk remains a mystery. But in the end, it still comes from you and me. (Note: Please see update below.)

Sigh.

So, despite having to walk out the front doors of the federal court on his own, and having to hitch a ride in his happily hirsute new attorney's Bentley, Arpaio is not yet a regular schmuck like the rest of us.

Because a regular schmuck would not have Cooper & Kirk filing an appeal on his behalf. As Arpaio hopped in Goldman's Bentley, I asked him why he didn't just plead guilty to criminal contempt and spare us the bother.

After all, it's being tried as a misdemeanor. The max Arpaio could get would be six months in the slammer, and even if he is found guilty, it's highly unlikely he'll do day one behind bars.

I asked him if he was worried by the prospect of being booked, if guilty, and possibly having to pose for a mugshot.

Joe gave no answer.

And like his ride, that too, was unlike days of old.

Cooper & Kirk are still on the appeals docket, representing the MCSO at taxpayer expense.
Cooper & Kirk are still on the appeals docket, representing the MCSO at taxpayer expense.
Ninth Circuit U.S. Court of Appeals

Update April 7, 2017 6:06 PM: MCSO's Director of Public Information Mark Casey got back to me with some additional information on Cooper & Kirk.

Casey said that according to MCSO records, from July 2016 to January 2017, approximately $570,000 was paid to Cooper & Kirk from the MCSO's budget.

He explained that when Penzone took office in January 2017, the sheriff ended the use of the DC law firm.

"Since January 1, 2017, MCSO has spent $0 on Cooper and Kirk," Casey stated via e-mail. "Why the firm continues to appear in the docket as representing MCSO is a question best directed to them or to the MCAO."

There has been no activity in the appeals case before the Ninth Circuit since mid February, as the docket now stands.

However, Cooper & Kirk filed a brief in the Melendres case before Judge Snow on March 28, according to the U.S. District Court docket, which indicates that Cooper & Kirk is continuing work on the case on behalf of Arpaio, his former Chief Deputy Jerry Sheridan and the onetime head of the MCSO's now-defunct Human Smuggling Unit, Joe Sousa.

Interestingly, the March 28 filing also mentions the "pending appeal before the Ninth Circuit."

The question remains: Who has been paying for the work Cooper & Kirk has been doing on the case since the beginning of January?

And if it is coming out of county funds, what department is fronting the cash?

More as I get it...


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