Outside Phoenix's Sandra Day O'Connor U.S. Courthouse on Tuesday, opponents of Sheriff Joe Arpaio serenaded passersby with live mariachi music, chanted "Arrest Arpaio, not the people," and unveiled a giant balloon depicting their nemesis in handcuffs and stripes.
But inside the courthouse, by the the end of a five-hour session, Arpaio remained unscathed and uncuffed, even as federal Judge G. Murray Snow signaled that his case would likely be referred for criminal prosecution and agreed with an attorney for the plaintiffs that Arpaio committed perjury while testifying during his 21-day civil contempt trial last year.
Recently, Snow declared that Arpaio, his Chief Deputy Jerry Sheridan, Lieutenant Joe Sousa, and former executive chief Brian Sands were guilty of civil contempt for the MCSO's defiance of the judge's orders arising from the civil-rights case Melendres v. Arpaio, in which Arpaio and his agency were found to have committed widespread racial profiling against Latinos in Maricopa County. In a 162-page "Findings of Fact," Snow ruled that Arpaio, Sheridan, and others at MCSO "willfully" and "intentionally" thumbed their noses at the court's dictates and were dishonest with the court and the monitor appointed to watch over the agency.
The purpose of Tuesday's hearing was to discuss remedies for the civil contempt violations and the possibility of referring Arpaio and others to the U.S. Attorney's Office for Arizona for criminal contempt charges, which could carry prison sentences.
During the hearing, Snow said he was considering four individuals for criminal contempt referrals: Arpaio; Sheridan; the former head of the MCSO's internal affairs unit (known as the Professional Standards Bureau), Captain Steve Bailey; and longtime attorney for the MCSO Michele Iafrate.
(For those unfamiliar with their circumstances, Bailey and Iafrate allegedly misled the court's monitor about the existence of more than 1,400 IDs improperly seized by the MCSO from individuals the agency stopped or arrested, many of them Latinos. Misleading the monitor is potentially a federal offense, punishable by five years in prison. Snow directly addressed the attorney at one point, saying, "Ms. Iafrate, I think you should obtain counsel," though he also said he may refer the matter concerning her to the State Bar of Arizona for possible disciplinary proceedings.)
In its response to Snow's recent findings, the ACLU, which represents the plaintiffs, asked Snow in a memorandum to refer Arpaio and Sheridan to the U.S. Attorney for investigation and possible prosecution for perjury, obstruction of justice, lying to the monitor, and other federal crimes. The ACLU also requested that the sheriff personally be fined $300,000 as part of a civil remedy. ACLU attorney Cecillia Wang raised these issues again at the hearing, flatly stating that "perjury was committed" by Arpaio and Sheridan during their testimony last year.
Snow, who stood at a lectern for the entire proceeding, agreed. But the jurist noted that a lawyer for the U.S. Department of Justice was at the plaintiffs' table, as the DOJ was allowed to join the case last year. "[If] the DOJ wants to pursue criminal charges based on my findings," said Snow, they can.
Wang argued that the plaintiffs have an interest in "seeing that justice is done," urging Snow to refer Arpaio and Sheridan to the USAO for perjury.
Arpaio's civil attorney, John Masterson, countered that this would be improper, because the U.S. Attorney's Office would be unduly influenced and inclined to prosecute if a U.S. district court judge wanted it to do so.
Perjury charges are notoriously difficult to prosecute, and so are rarely brought, several legal sources tell New Times.
However, if convicted of perjury, Arpaio could face up to five years in prison. In his findings of fact, Snow stated that Arpaio deceived the court, when, during the civil trial, Snow questioned Arpaio, asking him if he had investigated the court as part of a wild, anti-Arpaio conspiracy theory involving Snow, the U.S. Department of Justice, former U.S. Attorney General Eric Holder, and many others. Arpaio replied in the negative, and repeated that answer in a document subsequently submitted to the court under the penalty of perjury.
In fact, as New Times originally reported in 2014, Arpaio was running the so-called Seattle investigation himself, with the help of a supposed computer guru based in Washington state. Snow used New Times' articles on the Seattle investigation in questioning Arpaio and later Sheridan, leading to possible perjury on behalf of both.
Arpaio's criminal attorney, former U.S. Attorney Mel McDonald, pleaded with the judge, saying it would be "devastating to the sheriff's office and the sheriff" if a criminal referral were made. McDonald claimed Arpaio came before the judge with "a broken heart and a contrite spirit," and observed that a $100,000 fine that Arpaio offered to pay (together with Sheridan) was equal to a year of the sheriff's salary.
Snow was unmoved by McDonald's performance, citing the possibility that Arpaio may just raise any such funds from his supporters. "$100,000 coming from donations is not a sufficient deterrent...to prevent this kind of misconduct," Snow said. Earlier, the judge had pointed out that he could order that the full weight of the MCSO's disciplinary policies be applied to what he called "do-over investigations" of MCSO command staff, with punishments up to and including dismissal.
These re-investigations will cover internal-affairs probes of Sheridan and other MCSO muckety-mucks that Snow has determined to be void because the MCSO hierarchy gamed the system so as to avoid punishment.
But, Snow said, he could not apply these disciplinary rules to Arpaio, who as an elected official was exempt from them. Arpaio was the "most culpable" of the defendants," said Snow, and yet, "I can't touch him in a civil contempt proceeding," because any fine levied against him may be paid out of donations to a legal defense fund, and not out of the sheriff's pocket.
In other words, Snow seemed to imply, he'd have no choice but to make a criminal referral. The judge likewise left little doubt that he'd be dinging Sheridan in the same way. But he raised another specter for Sheridan and his subordinates: the threat of being fired. If the MCSO's disciplinary policies called for Sheridan or others to be terminated, then they would be terminated, said Snow.
In response, Masterson indicated that the defense will object to the judge "seizing that power" by determining punishment meted out by the MCSO.
Yet Masterson conceded many points in a long discussion of reforms to be made to the MCSO's internal-affairs process, which Snow described as fatally flawed and riddled with conflicts of interest. Snow indicated that he would strip Sheridan and Arpaio of their power over any IA investigations that concern members of the plaintiff class, granting that authority instead either to his monitor or to a third party yet to be decided. The ACLU also wants Snow to order that the monitor or the third party have authority over all future compliance with the court's orders, imposing what the ACLU referred to as a "limited receivership" over the agency, with the monitor or a third party invested with the power to mandate compliance.
Further, the plaintiffs and the defense agreed in principle to a compensation scheme for the victims of Arpaio and the MCSO's contempt of a December 2011 order from Snow that enjoined the sheriff's office from enforcing civil immigration law and holding people believed to be in the country illegally, even if they are not suspected of having violated any criminal statutes.
A $500,000 pool will be established, and individuals who can demonstrate that they were detained or arrested in violation of Snow's 2011 preliminary injunction may receive $1,500 or more for having been detained.
Wang and the ACLU asserted that they have evidence the MCSO continued to violate the preliminary injunction after Snow made it permanent in 2013. Previously, it was thought that hundreds of people might have been affected during the period the MCSO flouted the preliminary injunction, from late December 2011 to May 2013. But Wang's disclosure, which she says the ACLU deduced from records obtained from the U.S. Department of Homeland Security through a Freedom of Information Act request, seemed to open a Pandora's box of additional claims of unlawful detentions and arrests. The ACLU asked for yet another civil proceeding to address this issue.
At the close of the hearing, Snow ordered the parties to file a joint memorandum on the MCSO's internal investigations by June 14, and another joint memorandum on revisions to the MCSO's policies and procedures by June 30. On the issue of fines and a potential criminal-contempt referral, Snow kicked Arpaio's can down the road, saying he will make those determinations at a later date.
Outside the courthouse, when asked if he thought Arpaio would end up in prison, Masterson said no and stated that he still believed "an appropriate, adequate civil remedy" remains possible. Though the attorney conceded that Arpaio could not be sanctioned under the MCSO's disciplinary rubric, he insisted that the $100,000 fine Arpaio offered to pay was enough "skin in the game" to satisfy the court.
Wang was equally adamant that a criminal investigation is needed because "crimes have been committed." As to McDonald's contention that such a proceeding would be "devastating" to Arpaio and the county, she responded, "There are a lot of people in this county who have been harmed and injured and terrorized by this sheriff's [contempt for] federal law and this court's order, and they are the county too and they deserve justice."
For his part, McDonald insisted his client had not committed perjury.
New Times pointed out that an ordinary law-enforcement officer would be fired if he or she lied during the course of an internal investigation. Given that Judge Snow has determined that Arpaio has been dishonest, even if McDonald doesn't think it rose to the level of perjury, shouldn't Arpaio resign?
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"The sheriff has not been dishonest," McDonald responded. "He's not a dishonest individual, and the voters of Maricopa County, if they don't like him, they're free to cast a ballot for somebody else."
Indeed, the sheriff is running for re-election this year for what he hopes will be his seventh term in office. Given his Teflon-like resilience in the past, a pending criminal referral may not be enough to do him in politically, particularly when its prosecution relies on a local U.S. Attorney's Office that has been cautious to the point of inaction when it comes to prosecuting any case seen as less than a sure thing.
At this point, only the spectacle of Arpaio being perp-walked in cuffs would drive a stake through his career with any certainty. And as Snow so far has chosen not to exercise his authority to cite Arpaio for direct contempt and give him a day or two behind bars in addition to civil remedies and a criminal referral, the public is left with what resembles a race between two tortoise-like contenders: the octogenarian sheriff's inevitable demise by natural causes, or the prospect of a federal indictment.