Late Friday afternoon, federal Judge G. Murray Snow issued his long-awaited ruling on possible criminal contempt charges for Arpaio, his Chief Deputy Jerry Sheridan, the MCSO's former Professional Standards Bureau Captain Steve Bailey, and ex-Arpaio attorney Michele Iafrate.
In a 32-page order, Snow requested that the U.S. Attorney for Arizona, John Leonardo, prosecute all four for alleged criminal contempt. As Snow is required under federal law, he then referred the matter to another federal judge, to be randomly selected.
Not long after Snow ruled, a criminal case number was assigned to United States v. Joseph M. Arpaio, et al., and a judge was selected for the case — according to blogger Mitch Martinson over at Arizona's Politics, that would be U.S. District Judge Susan R. Bolton, famous for her 2010 injunction against Arizona's anti-immigrant law, Senate Bill 1070. (Unless Bolton recuses herself for some reason, that is; one other judge already has, which is how Bolton caught the case.)
If U.S. Attorney Leonardo declines to prosecute, he must inform the case judge of that decision so that a special prosecutor can be appointed, if the judge sees fit. The possible punishment for criminal contempt could be six months in the slammer — or more if the contempt charges are prosecuted as felonies rather than misdemeanors.
Snow already declared Arpaio and Sheridan guilty of civil contempt of his court in May of this year, finding that the two men had "deliberately" and "willfully" defied his orders in the ACLU's landmark civil-rights case Melendres v. Arpaio, in which Snow had found Arpaio and the MCSO at fault for widespread racial profiling of Latinos.
Intentional defiance is the bright line for criminal versus civil contempt charges under federal law, and Arpaio and Sheridan crossed it long ago, according to Snow.
As early as December 2011, Snow issued a preliminary injunction — later to be made permanent — that the MCSO could not enforce civil immigration law and could not hold individuals solely on the suspicion that they may be in the country without authorization (which is, in itself, not a crime).
But Arpaio thumbed his nose at the judge, publicly stating that he would continue to enforce immigration law and turn over non-criminal aliens to federal law enforcement, saying he had a "backup plan" to get around the judge's dictates.
"Sheriff Arpaio’s attorney and members of his command staff repeatedly advised him on what was necessary to comply with the Order," Snow writes in his decision. Nevertheless, "[Arpaio] continued to direct his deputies to arrest and deliver unauthorized persons to [U.S. Immigration and Customs Enforcement] or the [U.S. Border Patrol]."
Snow found that Arpaio and Sheridan intentionally ignored his order for 17 months. In fact, during a recent hearing in the case, the ACLU, which represents the plaintiff class of Latinos in Maricopa County, revealed that it had evidence the MCSO is still not in full compliance with the injunction. As a result, Snow invited the ACLU to file a motion for yet another possible civil contempt hearing.
Additionally, Snow ruled that both Sheridan and Arpaio had withheld evidence that Snow had ordered to be turned over to the court's monitor. In one instance, this involved 50 hard drives of material pertaining to the so-called Seattle investigation, which involved Arpaio's investigation of a nonexistent conspiracy against the sheriff (supposedly involving Snow and many others) with the assistance of a purported computer guru.
When the monitor learned of the hard drives' existence, Snow ordered them confiscated by the U.S. Marshal. Similarly, when the MCSO did not turn over 1,459 IDs, many seized illegally from Latinos during traffic stops, and tried to hide them from the monitor, Snow ordered them secured by the U.S. Marshal as well. In the case of Captain Bailey, he allegedly lied to the court's monitor about the existence of the IDs, saying that he had done so on the advice of MCSO counsel Iafrate. But Iafrate denied that she told Bailey, Sheridan, and others to deceive the monitor about the existence of the IDs if they were directly asked.
Snow wasn't buying either of their excuses. Bailey "knew the requirements of this Court’s orders," and even if Iafrate told him to lie to the monitor, which is an arm of the court, "[a]dvice of counsel in these circumstances does not constitute a defense to a criminal contempt charge." As for Iafrate, "advising a client to violate a Court’s orders qualifies as criminal contempt."
But the allegations against Bailey and Iafrate are soft soap next to the misdeeds of those veritable potentates of prevarication, Arpaio and Sheridan. During a June hearing, Snow all but said that Arpaio and Sheridan had committed perjury while testifying during their 21-day civil contempt trial in 2015.
Sheridan allegedly has made false statements to the court and the monitor on more than one occasion, too many to repeat here at any length. For instance, after he ordered a subordinate to blast out a mass e-mail about video MCSO deputies had recorded during traffic stops — contravening Snow's orders to round up the video quietly — Sheridan lied to the monitor, blaming the e-mail on his subordinate, before finally fessing up to having given the order to send the e-mail himself.
Both men also misled the court about the intention and the scope of the RICO-financed Seattle investigation, first exposed by New Times in 2014. Snow famously confronted Arpaio with a New Times article about the Seattle snipe hunt as Arpaio was testifying before him during the 2015 civil contempt trial. Asked if he was investigating Snow or a conspiracy involving Snow, Arpaio said no. But mountains of evidence produced during the trial told a different story.
In Friday's order, Snow explains that under federal law, he cannot use the alleged perjury of the two men as the basis for his criminal contempt referral. Still, he invites the U.S. Attorney to explore the possibility of criminal charges for both men based on perjury and obstruction of justice.
This Court has found, under the civil standard of proof, that Sheriff Arpaio and Chief Deputy Sheridan intentionally made a number of false statements under oath. There is also probable cause to believe that many if not all of the statements were made in an attempt to obstruct any inquiry into their further wrongdoing or negligence...Thus, though the false testimony may provide a potential basis for a criminal prosecution, it cannot be separately charged as contemptuous.
In addition to their dishonesty, Arpaio and Sheridan manipulated the internal-affairs system to "engineer pre-determined results." They also withheld discovery material from the plaintiff's attorneys and did their best to block Snow's remedies for the MCSO's pattern of racial profiling. Snow observes in his order that Sheridan and Arpaio have "a history of obfuscation and subversion of this Court’s orders that is as old as this case and did not stop after they themselves became the subjects of civil contempt."
Snow writes that his monitor has reported that after three years since the court ordered a laundry list of phased-in reforms for the MCSO, "the Sheriff is only in compliance with 63% of his Phase I obligations and 40% of his Phase II obligations." Snow quotes his monitor, Robert Warshaw, as stating that "we continue to find supportive, well-intentioned sworn and civilian personnel in administrative and operation units of MCSO. What is lacking is the steadfast and unequivocal commitment to reform on the part of MCSO’s leadership team — most notably the Sheriff and Chief Deputy."
The judge writes that Arpaio's foot-dragging has caused him to revise and toughen the court's remedies for the MCSO, thereby increasing the monitor's duties "at the expense of county taxpayers."
"Little to no personal consequence results to the Sheriff," writes Snow, noting that the county indemnifies officeholders for civil contempt and the sheriff himself, as an elected official, is not held to the same standard as an ordinary deputy. The sheriff "is thus not subject to MCSO disciplinary policy or this Court’s civil remedy," Snow laments, adding, "This lack of personal consequence only encourages his continued non-compliance."
It remains to be seen whether Arpaio, who's now 84, will ever suffer "personal consequence," much less political consequence for his actions. Though recent polls have shown Arpaio's Democratic rival Paul Penzone opening up a slim lead in his challenge for the sheriff's post, that lead is within the margin of error, and Arpaio's last campaign-finance report showed him with $4.1 million on hand, compared to Penzone's $138,000.
Snow seems to think Arpaio will win re-election, and he uses Arpaio's endurance in office as one reason he must go criminal on the sheriff: because Arpaio "may be in charge of the MCSO for the foreseeable future," and the judge has "exhausted all of its other methods to obtain compliance."
There is also the dilemma of an election year, and a local U.S. Attorney's Office that has earned a reputation for inaction. Add to this the tortoise-like pace of the federal judiciary, plus Arpaio's age, and Arpaio's many enemies have no guarantee they will see justice done. Which is why Snow's order, though welcome, remains so unsatisfying on so many levels.
It is also anticlimactic, considering that in a June hearing in the case, Snow telegraphed, for seemingly the umpteenth time, that he was going to lower the boom on Arpaio and Sheridan. Only the criminal referrals for Iafrate and Bailey were ever in any doubt.
In a separate order, Snow detailed a plan for the compensation of individuals detained by the MCSO in violation of Snow's injunction. This involves the county setting up a $500,000 fund (to start), and, for those who can prove they were unlawfully detained, an arbitration system with possible awards of anywhere from $500 to $10,000, depending on the amount of time the person was detained and other factors.
In that order, Snow declined a request from the plaintiffs that Arpaio be forced to fund some of the compensation out of his own pocket, writing that the plaintiffs "provide insufficient legal authority for such a step," and that "[e]ven assuming the Court had the authority to make its judgment against Sheriff Arpaio in his official capacity...it would seem to provide only a symbolic benefit at best."
But symbols matter, too. Arpaio lacks any shame for his ill deeds in office. And after enduring 20-plus years of his rule, many in Maricopa County will take any symbol they can get. Sadly, as things stand, the wait only grows longer.
Read the full text of Judge G. Murray Snow's criminal contempt referral for Sheriff Joe Arpaio: