That has been difficult to obtain, even as Arpaio’s support has eroded, as the angry white bigots who vote for him die off, and as his misdeeds, and their cost to the public — more than $250 million and counting since he took office, I estimated last year — accrue.
Hark back, if you will, to 2012, and that day of infamy Arpaio watchers call Black Friday, when the U.S. Attorney’s Office for Arizona declined to pursue charges against the sheriff and his henchmen for abuse of power, despite the fact that the FBI, according to my sources, presented them a case that practically demanded indictments.
The list of Arpaio’s victims of the federal crime of denying someone his or her constitutional rights under the color of law was impressive. Most had been falsely charged and sometimes arrested on ginned-up charges. They include county supervisors, judges, ordinary county employees, businesspeople — even the former editor and publisher of this paper, who were arrested by MCSO thugs in the middle of the night on bogus allegations and rushed away in cars with Mexican plates, like something out of a Costa-Gavras film.
Did you forget all that? I haven’t. Neither has the FBI, some of whose agents still chafe at the thought of the time they put into the investigation, only to have the U.S. Attorney’s Office chicken out during an election year.
The USAO press release issued at 5 p.m. on the Friday before Labor Day weekend was shameful, which is why it was issued when it was. Arpaio was up for re-election, which he barely won against a political newcomer. The decision not to prosecute was an early Christmas gift to him.
Fast-forward four years, and Arpaio has to a large degree been reined in by federal Judge G. Murray Snow’s 2013 decision in the civil-rights case Melendres v. Arpaio, litigated by the ACLU on behalf of a plaintiff class that includes nearly every Latino in or passing through Maricopa County.
A year after the bench trial in Melendres, Snow found Arpaio and the Maricopa County Sheriff’s Office guilty of widespread racial profiling against Latinos. The judge made permanent a preliminary injunction he’d issued in December 2011, forbidding the MCSO from enforcing civil-immigration law. This meant the MCSO was enjoined from holding someone on mere suspicion of unauthorized presence in the U.S.
Snow also ordered a catalog of reforms for the MCSO and appointed a monitor to ensure compliance.
But neither Arpaio nor his top brass had the slightest intention of fully complying with Snow’s orders. In fact, from December 2011 till May 2013, the MCSO had been in willful violation of Snow’s preliminary injunction. This, and Arpaio’s persistent nose-thumbing at the court — sometimes overt, sometimes passive-aggressive — eventually landed the sheriff and four current and former flunkies back in front of Snow last year, facing contempt allegations.
In a stunning admission of wrongdoing in early 2015, Arpaio and Chief Deputy Jerry Sheridan copped to civil contempt of court, offering to establish a fund of $350,000 (in taxpayer money, natch) to compensate people whose rights they’d violated while ignoring the preliminary injunction. Arpaio even offered to pony up $100,000 out of his own pocket as a fine to be paid to a Latino civil-rights group of the judge’s choosing. Arpaio did this because Snow had opined that the sheriff would need some “skin in the game” — and not merely rely on taxpayers to bail him out, as he had in the past.
Snow rejected the offer, deciding to go forward with what wound up being a 21-day trial that dragged out over the better part of 2015, ending in November.
On May 13, based on testimony and evidence established at trial, Snow ruled that Arpaio and his goons “willfully,” “intentionally,” and “deliberately” defied the court’s orders on numerous occasions, and he found the sheriff guilty on three counts of civil contempt. Sheridan was found guilty on two counts, and two others of one count apiece.
Snow’s repeated use of those words “intentionally,” willfully,” and “deliberately” throughout his findings of fact is significant, as they seem to telegraph his intention to refer the matter for criminal prosecution.
This is where things get sticky for those of us who seek that justice I mentioned above: According to the federal rules for criminal procedure, if Snow decides Arpaio and the others may have committed criminal contempt, he must request that “an attorney for the government” prosecute the case, likely the U.S. Attorney for Arizona, currently former Judge John Leonardo.
Snow can decide to appoint a special prosecutor instead, if the “interests of justice” require it, or if the U.S. Attorney’s Office declares a conflict.
A special prosecutor would be preferable for a host of reasons, not the least of which is that among many of the local prosecutors and law enforcement officials I’ve spoken to, Arizona’s USAO in recent years has had a reputation for being risk-averse.
Still, Paul Charlton, who was U.S. Attorney for Arizona from 2001 to 2007, thinks a special prosecutor is unlikely. In a recent interview, he told me that he feels “the court would be hard-pressed to show ‘an interest of justice’ that would support that decision.”
It’s also possible that the USAO might declare a conflict. If that happens, Charlton envisions a U.S. Attorney from another district, or the U.S. Department of Justice itself, prosecuting the case.
A criminal referral by Snow would necessitate a criminal trial, assuming Arpaio pleads not guilty. If the prosecutor, whoever it is, pursues a misdemeanor count of criminal contempt, Arpaio could see as much time as six months in the slammer or a modest fine after a bench trial. If the prosecutor pursues felony counts of criminal contempt, there could be longer prison terms, and Arpaio would have the right to a jury trial.
At the very least, Arpaio and the rest are personally on the hook for their criminal defense, as the cost of Melendres for the county has already exceeded $50 million in legal fees and compliance.
The criminal referral will not interfere with the remedial punishment Snow will mete out for civil contempt. Arpaio, Sheridan, and the others could be personally fined. The county may have to establish a fund to compensate anyone stopped or held illegally by the MCSO. And, as Snow has found the MCSO’s internal-affairs procedures inadequate and rife with favoritism, I anticipate that the judge will curtail the sheriff’s authority in that realm.
In addition to civil remedies and a criminal referral, there is one remote but tantalizing possibility. Snow has the inherent authority to summarily punish what’s referred to as “direct contempt,” i.e., contempt that takes place in the judge’s presence.
Normally, direct contempt covers disorder in the courtroom, like flipping off the judge, and is punished with a day or two in jail. According to the legal commentaries I’ve read, the judge can wait until after a trial to penalize direct contempt.
What might be Arpaio’s direct contempt? Well, not only has he refused to follow direct orders from Snow, issued from the bench, but Arpaio also lied to Snow, when Snow asked Arpaio, with the sheriff on the stand, whether he’d investigated the judge as part of a conspiracy theory that ostensibly sought to undermine Arpaio. (For followers of the case, this was the notorious “Seattle operation,” first exposed by this column, and far too convoluted to get into here.)
Arpaio told the judge that he was unaware of any such investigation, when in fact he was the one running it.
In his recent findings of fact, Snow writes that Arpaio’s answers in this instance “made while Arpaio was under oath, constitute deliberate misstatements of fact made in bad faith.”
Snow has scheduled a hearing for May 31, with all parties present, to discuss all matters before the court. Could a citation for direct contempt be on the table?
Charlton thinks not. He told me that Snow has been too cautious in allowing Arpaio’s lawyers to weigh in on the remedies to be discussed at the hearing. He also noted that Snow did not refer to Arpaio’s prevarications as “perjury” in his recent decision.
“I don’t envision the possibility of the judge taking Arpaio into custody,” Charlton said. “I think he’s going to be more careful about it and follow a different process.”
Still, if I could whisper in Snow’s ear, I’d urge him to order Arpaio cuffed, booked, and held for a day or two in federal custody.
Arpaio is almost 84, and those of us who thirst for justice aren’t getting any younger, either. Who knows how long a criminal referral will take, or if the USAO is up to the task?
But if Snow wants to ensure that Arpaio’s contemptuous conduct ends once and for all, a night in the pokey would drive home the point, and finally show everyone that even “America’s toughest sheriff” has to obey the law.