During a hearing in federal court in Phoenix on Friday, Judge G. Murray Snow said more than once that Sheriff Joe Arpaio would have to have "skin in the game" as part of any settlement agreement in contempt allegations against Arpaio and four current and former high-ranking MCSO deputies.
Snow was addressing a surprise admission of guilt this week by Arpaio and his Chief Deputy Jerry Sheridan that they committed civil contempt of the judge's orders in the ACLU's big racial profiling case Melendres v. Arpaio.
Sheridan and Arpaio are looking to head off a four-day civil trial scheduled for late April, which could result in the referral of the matter to the U.S. Attorney's Office for possible criminal contempt proceedings.
Arpaio, Sheridan and other officials face allegations that they did not follow Snow's December 2011 injunction regarding the enforcement of civil immigration law, and his orders regarding the confiscation of video evidence.
Additionally, there are allegations that they did not comply with court-ordered discovery.
As part of the sheriff's suggested settlement plan, Arpaio would make a public apology for his misdeeds, ask the county to set up a $350,000 fund for those detained unlawfully since Snow issued the 2011 injunction against the MCSO's enforcing civil immigration law, and make a $100,000 grant to a local Hispanic civil rights organization to be paid for by the "defendants."
As in a previous hearing, Snow stated that he would not consider a remedy for the civil contempt by Arpaio that did not address possibility of criminal liability, which hinges on whether or not the contempt was done "willfully."
Referring to a legal defense fund Arpaio and his allies have been pimping online and in e-mails, Snow wanted to know how he could be sure Arpaio was being personally punished as part of any settlement.
"I want it to come out of his pocket," Snow told Arpaio's criminal attorney Mel McDonald, "not the Joe Arpaio legal defense fund."
McDonald, a former U.S. Attorney, complained that the amount being considered would equal "a year of [Arpaio's] gross income."
But Snow was having none of it, pointing out that he was aware that Arpaio "had significant sources of other income," such as from books the sheriff had co-authored.
"$100,000 is [just] a number," said Snow. "But more than a number, I want to send a message to the sheriff, that comes from having a little skin in the game."
Snow acknowledged that Arpaio would need to offer up more "skin" than his accused underlings, and at one point, the judge noted that "the interests of justice" required that the "individual defendants need to be punished."
In discussing the $350,000 fund to be established for those wrongfully stopped and detained since December 2011, Snow bluntly told Doug Irish, an attorney representing the Board of Supervisors, that, ultimately, "the county will be holding the bag."
Snow also said that "violations" of his order were likely "numerous," and therefore included an untold number of victims. So there was no way to limit the amount of any compensatory fund to a mere $350,000, since it potentially could run into the millions of dollars.
Still, such suggestions would have to be agreed upon by the plaintiffs in the case, and the ACLU, which has already begun deposing people in anticipation of the April civil trial, seemed no closer to agreeing to a settlement.
McDonald was emphatic that Arpaio was not admitting that he "willfully" violated Snow's orders.
Rather, Arpaio and Sheridan were only admitting to being in civil contempt, not criminal contempt.
The other defendants, Lieutenant Joe Sousa, Deputy Chief Jack MacIntyre, and former Deputy Chief Brian Sands, did not sign on to the Arpaio/Sheridan admission of guilt.
Sands' attorney Dennis Wilenchik told Snow that Sands was willing to go forward with the hearing in April.
After the hearing, Wilenchik said he did not believe Sands' willingness to testify would put his client in any legal trouble.
"We want the truth to come out," he said. "And what is that old saying? The truth shall set you free."
Sands retired in 2013, and has since written a self-published memoir of his 30-career with the MCSO entitled Arpaio De Facto Lawman, wherein he excoriates Arpaio for his insatiable desire for publicity above all else.
Which is one reason to hope the April hearing goes forward: the prospect of watching Sands blast Arpaio on the stand.
At the end of the hearing, Snow made it clear that the court's calendar "remains the same" for the moment, with the dates of April 21-24 set aside for a civil trial.
"The civil contempt matter can be settled," Snow observed, while retaining his right to refer the matter for criminal proceedings.
What if a settlement is reached, and Arpaio once more defies Snow's orders?
"I won't go through this [again]," said Snow, referring to the drawn-out legal prelude to punishment. "I'll just order up a criminal contempt hearing."
He concluded by telling the parties to let him know if there was any sort of settlement between the two sides, and that he would see them all back next week, when another hearing was scheduled.
Outside the courthouse, ACLU attorney Cecillia Wang poured water on the chance of a resolution prior to the April civil trial.
"I think the sheriff and the other [MCSO officials] have a long way to go before we get to the bottom of all of their wrongdoing, and get a remedy that protects the plaintiffs in this case," she told reporters.
She said it was reasonable to expect that Arpaio and others engaged in contempt pay a personal price, since both Arpaio and Sheridan, for instance, have thumbed their noses at the court's dictates in the past.
"We want to make sure that the sheriff does not do what he's done before in this litigation," she said. "By showing one face in front of the judge and then turning around and continuing to violate the law."
Arpaio was slumped down in his chair for the most of the hearing, and later slithered out, surrounded by flunkies and attorneys.
Former County Supervisor and longtime Arpaio critic Mary Rose Wilcox was on hand as an observer.
Afterward, she pointed out there was no way to make 100 percent sure that Arpaio pays a fine out of his own pocket.
"It's a good suggestion," she told me, "but there's no way to monitor it. If [the ACLU] has to go for a settlement, which I really hope they don't, they should put him out with the [chain gangs] cleaning the streets."
I'm with Mary Rose on this one. Even if you fine Arpaio, and Arpaio sells one of his many Scottsdale properties or cashes in some stocks to make the payment, how will they keep one of his rich cronies from coming along and giving the geezer a thick envelope as a birthday present?
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Sorry, Joe, the only way for you to have real skin in the game is to don stripes, pick up a broom, and start singing the blues.
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