Feathered Bastard

Joe Arpaio Scores: Judge Mary Murguia Recuses Self From Racial Profiling Lawsuit Against Joe Arpaio

In a surprise turn of events yesterday in the ongoing racial profiling lawsuit against Sheriff Joe Arpaio (Melendres v. Arpaio), U.S. District Judge Mary Murguia recused herself from the case in response to a motion filed in February by the sheriff's legal team. The motion claimed that because Murguia's twin sister Janet is President and CEO of the National Council of La Raza,a Hispanic advocacy group that's been harshly critical of Arpaio's immigration policies, the judge was therefore biased against Arpaio and must step aside.

Murguia disagreed with almost all of the defense's arguments in her 27 page order, pointing out that "no reasonable person would automatically ascribe the views of one sibling to another." However, she ultimately concluded that, "the Court is mindful that it must be vigilant to avoid even the slightest appearance of impropriety," and granted the defense's motion for recusal, directing the clerk of court to reassign the case to another judge by random lot. This has already been done, and the case is now assigned, at least temporarily, to the Honorable Lawrence O. Anderson, a Magistrate Judge. (You can read Murguia's entire order, here.)

The judge observed that the defense's motion requesting her to step aside from the case came thirteen days following her February 10 denial of a defense motion for the case's dismissal. Arpaio's side argued that a blog item in the New Times noting Murguia's the first Latina judge appointed to the U.S. District Court in Phoenix, articles in The Arizona Republic and the Phoenix Business Journal detailing her sister's position with the NCLR, and online comments on these articles, alerted the defense to the existence of Murguia's twin sister and the possibility of prejudice against its case.

The plaintiffs responded to the defense's motion to recuse with evidence that there had already been a December 2007 front page article in the Republic mentioning Murguia's sister and her sister's position with NCLR. And since that piece quoted both Arpaio and County Attorney Andrew Thomas, it's likely that the defense had seen it.

"In other words," wrote Murguia, "Plaintiffs have accused Defendants of knowing about the Court's sister and NCLR, and attempting to use this information as a proverbial ace in the hole, to be pulled out and played when it made convenient trial strategy to do so."

"Our position was that there's absolutely no reason in the law where she has to recuse herself," said ACLU legal director Dan Pochoda (the ACLU joined the amended complaint last year). "We thought [recusal] was not required, but if the judge thought so, so be it."

It certainly looks like Arpaio's side is playing judge roulette because they're not getting the results they desire, implying that because Murguia's sister is the head of NCLR, the judge cannot be impartial and rule on the law. Murguia cited instances where U.S. Supreme Court Chief Justice William Rehnquist refused to recuse himself from an issue involving Microsoft, even though his son was a lawyer for the company. Similarly, in a case involving then Vice President Dick Cheney, Justice Antonin Scalia refused to recuse himself, even though he'd gone on a hunting expedition with the Veep.

But that was the U.S. Supreme Court, where there are no extra "supremes" beyond the nine employed. With a district court, there are other judges who can step in and hear the case. Yet, given the circumstances, one wonders if Arpaio's pettifoggers would object to any judge who happened to be Hispanic. The only other Hispanic surname on the Arizona district court that I can see is in Tucson, and belongs to the Honorable Frank R. Zapata. I'm guessing Arpaio wouldn't appreciate that possibility, assuming someone explained to him who Emiliano Zapata was.

Judge Murguia also addressed an argument by defendant's counsel that she "has a natural, personal bias in favor of the Plaintiffs." In response, Murguria recounted how she has had Arpaio in her court before and ruled in his favor, so how could she have a "natural bias" against him? Murguia observed that this "`natural bias' contention could easily be interpreted as an argument that this court's alleged bias somehow flows from her racial heritage."

Indeed, Arpaio, et al. have deftly played the race card. They have "profiled" Murguia based on her ethnicity, and made assumptions and arguments about her based on the color of her skin. Perhaps it was wise for Murguia to recuse herself, rather than let the issue hang out there. She took the high road. And in the end, team Arpaio will not be able to rationalize a loss as being the product of a Latina judge with a "natural bias" against white, racial-profiling sheriffs.  

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons