Attorney Mel McDonald, Sheriff Joe Arpaio's personal Bruce Cutler, rode on the coattails of birther lawyer Larry Klayman Friday morning by filing a motion in Phoenix federal court to have Judge G. Murray Snow recuse himself from the contempt proceedings against the sheriff, in the civil rights case Melendres v. Arpaio.
Klayman's move to intervene on behalf of Seattle computer guy Dennis Montgomery — in a bid to disqualify Snow — was shot down by both Snow and the U.S. Ninth Circuit Court of Appeals last week.
Now along comes McDonald, a former U.S. Attorney and superior court judge, swiping a page from Klayman's book, in an obvious attempt to postpone an upcoming two-week hearing in June.
McDonald even stooped to borrowing from Klayman's failed motion a declaration by Ron Rotunda, the law prof at a podunk Christian college in California.
Arpaio's attorney later told reporters that there had been no coordination with Klayman's organization Freedom Watch, but he admitted to having read Klayman's filings.
-ARPAIO'S END GAME: JUDGE SNOW SETS THE SHERIFF'S CONTEMPT HEARING FOR APRIL, BUT JOE HAS SOME TRICKS UP HIS SLEEVE
-BIRTHER LAWYER LARRY KLAYMAN RUSHES TO THE RESCUE OF ARPAIO'S "SNOWDEN"
-SNOW BLASTS ARPAIO'S "BOGUS CONSPIRACY THEORY"
McDonald announced the move Friday morning, at the beginning of a status conference before Snow. He told Snow the reason for the request had to do with the judge's inquiries into two investigations: one involving Snow's wife, the other involving the MCSO's use of Montgomery to gin up a bogus conspiracy theory involving Snow, the U.S. Department of Justice, former U.S. Attorney General Eric Holder, and others.
Snow agreed to stay all proceedings until he could decide whether or not he would grant the motion and hand off the case to another judge.
However, he noted that the defendants in Melendres already had an earlier judge in the case, Mary Murguia, recuse herself for cause, and that the defendants may only be allowed to have one judge so removed per case.
McDonald countered that there was no limit to the rule. He said the defendants objected to the "entire inquiry" and to the "unbridled authority" given to Snow's monitor Robert Warshaw.
Snow elicited chuckles from the audience when he observed that the defendants had the investigation into his wife Cheri Snow "for three years and did nothing about it."
Still, Snow brought an abrupt end to the hearing, leaving Arpaio's contempt trial in limbo for the moment.
Plaintiffs' attorney Cecilia Wang of the ACLU called the timing of the motion "extremely suspect," and suggested the move was "an attempt to delay."
To the media outside the Sandra Day O'Connor U.S. Courthouse, McDonald denied that the surprise motion was a delaying tactic.
"They can say anything they want," he said of Wang's comment, adding, "There's no advantage in delaying the proceeding. Genuine issues were raised that we thought another judge should consider."
That's a complete about-face from McDonald's statements in April, after a hearing where the investigation into Snow's wife was discussed.
That investigation involved the hiring of a private investigator by Arpaio's then-civil attorney Tim Casey to look into comments allegedly made by Cheri Snow at a Tempe restaurant in 2012.
A woman named Karen Grissom sent Arpaio a private message on Facebook in August 2013, claiming she ran into Snow's wife, who supposedly told her that Snow despised Arpaio and wanted him out of office.
In a January column, I predicted this recent skullduggery by Arpaio and his legal beagles, reporting that Arpaio was investigating Snow's wife in an attempt to conflict the judge off the case.
"Even if Joe pulls the conflict-of-interest card and it fails, he would taint the April proceedings in the minds of his followers," I wrote at the time. "Judge Snow is corrupt, the sheriff's supporters will cry. Part of a plot to railroad their hero."
And so it goes. The MCSO investigation involving Montgomery also was an attempt to compromise the judge, part of Joe's standard operating procedure in dealing with anyone who blocks his path.
I stated as much in a June 2014 column. Snow confirmed the purpose of the Seattle investigation last week during a status conference, when he called the probe, "an attempt to construct a conspiracy involving this court."
Both Arpaio and Sheridan previously had denied under oath that they were using Montgomery to investigate a bizarro-world conspiracy involving Snow.
After Snow confirmed the purpose of the Seattle investigation in open court, sources tell me that Sheridan and Arpaio were at MCSO headquarters till the wee hours of the morning, trying to figure out how to deal with this new situation.
Snow had authorized his monitor to investigate anything to do with the Montgomery affair, one of the topics of the two-week hearing in June.
Interestingly, in April, McDonald was singing a different tune entirely to the press, after the investigation into Snow's wife was revealed.
"I've heard comment or commentary from so-called lawyer experts, saying, `Gee, the judge should recuse himself,'" McDonald stated. "That's ridiculous, of course he shouldn't! People suggest we should now get rid of Judge Snow. Why? It was an inquiry. It ended there. It was not any kind of a witch hunt. Case closed."
Was it an attempt to conflict Snow out, I wondered at the time?
"No, there was no attempt to conflict him out," McDonald told me. "If someone makes a report, [the authorities] have to follow the report."
Snow recently un-redacted further portions of a 2013 letter to Arpaio from the sheriff's ex-attorney Tim Casey concerning the statements supposedly made by Cheri Snow.
Casey looked into the statements himself, speaking with Karen Grissom by phone. He ultimately concluded that the "the information from Ms. Grissom lacked substance or merit."
But Sheridan and Arpaio demanded that more be done with the lead. So Casey hired private dick Don Vogel to interview Grissom and her family.
In a now un-redacted portion of the letter, Casey explains the following:
"I, therefore, respectfully recommend and strongly advise against any use of the Grissom information. Additionally, the Grissom information is so fundamentally flawed in its substance that it likely cannot be used in a Rule 60 motion, appeal, or otherwise, without the lawyer who does so violating the federal court's rule of civil procedure and the Arizona Rules of Professional Conduct."
You can draw two conclusions from this statement: one, the purpose of looking into Grissom's claim was to find material to use against Snow; and two, Casey realized that what they got from Grissom was too flimsy to use in court.
In May 2013, Snow found Arpaio and the MCSO guilty of widespread racial profiling, ordering an end to the unconstitutional activity.
When the parties could not agree to a list of remedies, Snow issued a final order in October 2013, dictating a laundry list of reforms to be implemented by the MCSO with the assistance of a court-appointed monitor.
In August of that year, both Arpaio and Sheridan knew this was coming down the pike.
Grissom's Facebook message during that month to Arpaio must have seemed like manna from heaven.
Arpaio and Sheridan got Casey to do their dirty work for them, but Casey didn't have the stones to go as far as they wanted.
Ironically, they got their chance during the contempt proceedings in April, when Snow asked them about the MCSO's investigations into his court and his family.
Snow was correct to inquire into both matters, as they were meant to improperly influence the court.
For instance, the Montgomery investigation began, significantly, in September or October of 2013, and was to last into late 2014.
As I've pointed out before, such investigations are standard operating procedure for Arpaio. His way of conflicting a judge or an investigation by another entity is to investigate or bring false charges against them.
It would be a dangerous precedent for Snow to concede on this point. From that point on, all it would take for Joe to escape justice is to investigate the judge seeking it.
Arpaio and his new consigliere, McDonald may realize the motion likely will not succeed. Meanwhile they gum up the proceedings, give pro-Joe donors a reason to give to the Joe Arpaio Defense Fund, and perhaps create an issue on an appeal.
Even if Arpaio and Sheridan were to score a new judge, that would not help them.
Look at what happened when Arpaio asked for Murguia to recuse herself because she was a Latina and had a sister who headed up the National Council of La Raza.
As a replacement, Arpaio ended up with Snow, a conservative, Mormon jurist nominated to the bench by former President George W. Bush.
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SHOW ME HOW
In other words, be careful what you wish for, Joe.
Update: Here is Snow's order, filed Friday afternoon:
In light of the Motion for Recusal or Motion to Disqualify filed this morning,
IT IS HEREBY ORDERED vacating the Status Conferences set for May 29, June 5 and June 12, 2015. The Court shall issue no further orders until the Motion is fully briefed and/or a ruling has been issued.
IT IS FURTHER ORDERED directing the parties to continue to hold the dates in June for the continued civil contempt hearings or for discovery, until further notice of the Court.
IT IS FURTHER ORDERED directing the parties to inform the Court of their intention to file responses to the Motion on or before May 29, 2015 and submit a joint expedited schedule for responses and/or replies.
Dated this 22nd day of May, 2015.
Honorable G. Murray Snow