Maricopa County Sheriff Joe Arpaio can bring a criminal defense lawyer to a hearing on Thursday -- and he might need such help, a federal judge says.
The ruling by Arizona U.S. District Court Judge G. Murray Snow comes in response to the motion for determination of counsel by Arpaio that we wrote about on Monday, in which Arpaio's lawyers, noting that Snow has warned that the sheriff might be charged with criminal contempt, essentially asked the court to find him a lawyer. The Sheriff's Office claims its request only sought clarification on whether Arpaio is really facing the possibility of criminal contempt charges.
Snow's latest ruling, filed late Tuesday in federal court, informs Arpaio that he can bring an independent defense lawyer to a planned hearing for Thursday or petition the court to appoint him a taxpayer-funded one.
But the real bombshell of Tuesday's short ruling was in the way Snow outlines the potential crimes committed by Sheriff Arpaio.
See also: -Arpaio Asks Federal Judge to Find Him a Criminal Defense Lawyer -Arpaio's Request for Court-Appointed Lawyer Not What It Seems, Sheriff's Official Says Snow writes in his ruling that Arpaio and his department apparently had tried to cover up important evidence of possible racial profiling by deputies and that the office had ignored court-ordered procedures to preserve similar evidence.
The motion and ruling this week regarding the potential need for the sheriff to have a criminal defense lawyer stems from the long-running Melendres racial-profiling case against Arpaio and the county. Last year, Judge Snow found that deputies with the Maricopa County Sheriff's Office had conducted traffic stops and other enforcement actions with a deep-seated bias towards Hispanics -- a bias that had been nurtured by their leader, Arpaio.
A federal monitor installed to oversee the office subsequently found that internal investigations under Arpaio weren't being conducted adequately, especially in regards to the discovery that members of the Human Smuggling Unit might have been shaking down Hispanic motorists for valuables.
Now, Snow's accusing Arpaio and his office of trying to hide evidence of that corruption in defiance of court orders -- and he's preparing to hold Arpaio in criminal contempt.
As summarized in an order last month, "possibly extensive materials and recordings" requested by the plaintiffs in the case, a group of civil rights lawyers working on behalf of Hispanics who live in the county, was never produced by Arpaio's office, the ruling states. "Some of that material might reveal additional constitutional violations of the rights of the Plaintiff class, the condoning of such violations by the Sheriff's supervisory staff, and the insufficiency of supervision and internal discipline procedures within MCSO."
Snow acknowledges that in a May 2014 hearing, Arpaio's office told the court about some of the audio and video recordings that had been found during an investigation of deceased smuggling unit Deputy Ramon Charley Armendariz, a key witness who testified in the Melendres case who hanged himself last year.
But the "MCSO apparently knew about other such recordings as early as February, and had notebooks of HSU recordings of traffic stops for years that may include recordings made during the relevant periods..." Snow writes, suggesting that material should have been disclosed.
"Further, the Sheriff did not follow the procedures required by the Court in recovering the individual recordings that may have been made and kept by deputies," Snow writes. "This violation of the Court's Orders raised the additional issue of whether the Sheriff may have facilitated the attempted suppression of additional recordings, of which some may have proved to be problematic."
Serious stuff, to be sure.
"The extent to which such materials still exist, or may have previously existed and been responsive to Plaintiffs' document requests, is unknown, but MCSO internal investigations are still discovering and disclosing more materials of this nature to the Court."
The cover-up may be so bad, Snow writes, that civil-contempt powers might not be enough to create a "fair remedy" for the plaintiffs in the case.
During a sealed portion of the November 20 hearing in which Snow hinted at possible upcoming criminal contempt charges, Arpaio's office disclosed that a review of the newly discovered traffic-stop videos by deputies had revealed new and disturbing information.
A traffic stop recorded by a deputy on November 1, 2012, appears to be the type of immigration-enforcement that Snow had banned as of December 2011, the ruling states.
"Our review of the tape has led us to believe that it was an interdiction patrol," Snow writes.
The discovery meant that Snow's 2011 order "preventing the MCSO from engaging in immigration enforcement was never communicated to the MCSO patrol deputies in the [Human Smuggling Unit]," Snow says. "Such prohibited patrols were apparently continuing even after the Sheriff had appealed the injunctive order and the Ninth Circuit had affirmed it.
"The Court is concerned that, given such apparent disregard of its direct Orders and those who were impacted by their violation, it will be unable to fashion a just and appropriate response through recourse to its inherent authority and/or its civil contempt power alone."
Snow says he wanted a representative of the Arizona U.S. Attorney's Office to come to Thursday's scheduled hearing in case sealed portions of the November 20 hearing was discussed. But Arpaio's office hasn't attempted to keep quiet about the sealed parts of the hearing, so the representative is no longer needed.
Snow says the purpose of Thursday's hearing is to figure out how to get the court, federal monitor and Sheriff's Office to all work together on probing the MCSO's "internal investigative processes."
Monitor Robert Warshaw previously found those processes incompetent, unprofessional, and possibly corrupt.
Arpaio doesn't need to be prepared to answer questions at Thursday's hearing, Snow says.
"Nevertheless, for the reasons stated above, the Court does wish to expeditiously allow the parties to be heard on the question of the appointment of a prosecutor ... to pursue criminal contempt proceedings against Sheriff Arpaio, and the possible scope of such proceedings," the ruling says.
Since, at Thursday's hearing, matters that could lead to Arpaio being charged with criminal contempt could be discussed, "the Sheriff is entitled to have counsel present who represent his interests in such potential criminal proceedings."
Snow then says, as mentioned, that Arpaio can petition the court to appoint him a lawyer or bring his own.
Arpaio, after all these years, seems to be inching closer to a criminal charge.
UPDATE 12 p.m.: "Based on advice from his attorneys, the Maricopa County Sheriff's Office and its legal representatives and Sheriff Arpaio himself will refrain from making any comment today regarding tomorrow's court hearing." -- email to New Times and the Associated Press just now by MCSO spokeswoman Lisa Allen.
UPDATE 12:25 p.m.: Judge Snow unsealed a partial transcript of the November 20 hearing. Click here to view it.
Got a tip? Send it to: Ray Stern.