See also: Joe Arpaio's Racial Profiling Trial Begins, and, Yes, He's Guilty as Sin See also: Joe Arpaio's Taliban, Nativist Steve Camarota, and More Problems for the MCSO See also: Joe Arpaio's (ahem) Legal Scholar Brett "Shut Up" Palmer and Flunky Brian Sands Under Oath
As U.S. District Judge G. Murray Snow explained what he wanted opposing counsel to address in their closing, written arguments in the ACLU's big racial-profiling case Melendres v. Arpaio, he mentioned that he didn't mean to "foreshadow" his ruling with the questions he was asking.
And yet, Snow seemed to do just that after the last witness left the stand a little before 3 p.m. Thursday, the final day of the trial.
An exacting jurist with an obsession for detail, Snow noted that in videotaped testimony Sheriff Joe Arpaio's lawyers had played for the judge earlier, Alonzo Pena, former Special Agent in Charge of U.S. Immigration and Customs Enforcement's Phoenix office, said race could be used, along with other factors, in developing probable cause regarding an individual's immigration status.
Snow, who is both judge and jury in this bench trial, observed that in the Ninth Circuit, Pena is "dead wrong," according to a precedent set in U.S. v. Montero-Camargo, a 2000 Ninth Circuit Court of Appeals ruling that eliminated race as a factor in most immigration stops.
If the MCSO used race as "one factor among many," does it matter if they believed they were following the law, as instructed by ICE? That is to say, if MCSO deputes intended to use race as a factor, does it matter if they did not intend to violate the law?
That was the inquiry put to lawyers for both sides, and yet, in his December ruling granting class action to all Hispanics stopped by the MCSO since January of 2007, Snow addressed the same issue.
Back then, Snow wrote:
"Defendants assert that in training 287(g) officers, ICE informs them that race or apparent ancestry may be used as one factor in evaluating whether officers have reasonable suspicion to stop an individual, although it cannot be considered the sole factor.
"Whether or not such information is provided by ICE to local law enforcement officers during their 287(g) training, the law in the Ninth Circuit is clear: `Hispanic appearance is of little or no use in determining which particular individuals among the vast Hispanic populace should be stopped by law enforcement officials on the lookout for illegal aliens.'"
In the ruling to come, Snow must address both Fourth Amendment claims of unreasonable search and seizure, as well as 14th Amendment claims of racial profiling. Snow pointed out that to issue an injunction for the 14th Amendment claims, he needed to identify "a certain element of intent" on the part of MCSO.
Plaintiffs' counsel Stanley Young, speaking to reporters after the judge recessed, seemed eager to address that issue of intent.
"I think the issue of intent is a pretty simple one," Young said. "If a government agency has as a matter of policy the principle that it can make decisions on the basis of race, our view is that's wrong. Even if the government agency thinks it's correct in taking race into account."
Translation: the MCSO is up a creek sans paddle, flippers, or canoe.
Its officers have admitted under oath that they believed race could be considered as one among many factors, and even Arpaio has expressed this idea more than once in press conferences and interviews. The MCSO has insisted that ICE taught its officers to do just that.
That's just the beginning of the MCSO's woes. Snow stated that he was going to decide "what the policies of the MCSO are," and that,
"I am also going to be determining what the practices of the Maricopa County Sheriff's Office are, regardless of what the policies state or may or may not state."
Defense attorneys Tim Casey and Tom Liddy spent a fair amount of time trying to show that MCSO officers are trained and admonished by their superiors not to racial profile, though the MCSO has no actual mechanism in place to prevent racial profiling from occurring.
But even if the stated policy of the MCSO is that the organization does not condone racial profiling, it may have a pattern and practice of doing just that.
Sure, policy is important. But as Arpaio himself told Guadalupe mayor Rebecca Jimenez during the MCSO's 2008 sweep of that square-mile town, "Action is what speaks."
Perhaps that's why the battle over statistics was a such a significant part of the seven day trial, with criminologist Dr. Ralph Taylor appearing a second time Thursday as a rebuttal witness for the plaintiffs.
The bombastic Liddy did his best to impugn Taylor's testimony, using the critiques offered by nativist Steve Camarota of the anti-immigrant Center for Immigration Studies.
Camarota claimed Taylor did not use all of the data available and that Taylor did not take into account certain variables that Camarota found appropriate, such as language proficiency and socio-economic status.
But the more Liddy berated Taylor on these points and others, raising his voice and gesticulating in the process, the calmer Taylor seemed to become, and the more patent in his rationale.
Additional data supplied by Camarota was used by Taylor to do a follow-up report, wherein Taylor replicated the same results, finding that Hispanics, by large margins, were more likely to be stopped during the MCSO's saturation patrols, sometimes nearly 54 percent more likely.
The length of the stop was also affected by the ethnicity of the driver or the passengers, according to Taylor.
"What I found was that checking one or more Hispanic names resulted in a stop that averaged two and a half minutes longer, and that this was 22 percent longer than the stops where no Hispanic names were checked," Taylor related during his rebuttal testimony.
What if he used non-Hispanic names as the point of reference? Then the stop was shorter by the same amount of time.
Indeed, Camarota actually agreed with Taylor's basic findings on these two points, despite his criticisms of Taylor's methods.
Therefore, it was no surprise that Snow also wanted the attorneys to argue a point about the statistics in their written statements, asking them if the MCSO's "non-saturation patrol days" would constitute an "acceptable baseline" for comparison with days where there might have been racial profiling in play
It's important to note that though Arpaio's sweeps have largely ceased, he has threatened often that he could do one at any time. Also, the ACLU is alleging a pattern and practice of biased policing both during and outside of the saturation patrols.
Given the legal gymnastics demanded of them, Casey asked for additional pages to make his argument, and Snow granted the request, allowing each side 35 pages for the initial arguments due on August 9 and an additional 17 pages due on August 16.
In the meantime, Snow said he would begin his review of the evidence.
Casey, to his credit, tried his hand at a touch of humor.
"Is it presumptuous to ask if the Court has a time period in which it thinks it may try to issue something?" Casey wondered.
"Yes," Snow replied to general laughter.
He then added, "What I can tell you is that I will do my best. But I can't tell you how long that will take until I get into it."
I didn't sit through the entire trial, but I caught all or part of it most days, and I was quite impressed with the plaintiffs' Dream Team of lawyers from the ACLU, MALDEF, and the firm Covington and Burling.
Stanley Young, Andrew Byrnes, Lesli Gallagher, all of Covington and Burling, took the defense witnesses apart piece by piece like Lego toys.
The ACLU's Annie Lai was methodical, precise. Dan Pochoda of the ACLU had a sly, Columbo-style method of inquiry. And Cecillia Wang, Director of the ACLU Immigrants' Rights Project, betrayed the swagger and confidence born of being on the right side of history. (All apologies for those I missed.)
As for Casey and Liddy, they played good cop, bad cop, respectively. Liddy was often outrageous, and occasionally entertaining, while Casey was reserved, and often as nondescript as hotel-room wallpaper.
Generally, the duo was badly outgunned by the team opposite, their witnesses often backfired on them, and the evidence was just not on their side.
The plaintiffs have asked for an independent monitor to implement whatever the judge orders the MCSO to do, and there seems little doubt he will lay down the law on the MCSO, and force it to end its obscene racial-profiling ways.
My guess is this will happen by late August, early September.
Outside the courthouse a couple of days ago, I asked Liddy point blank if the sheriff would obey Snow's order, no matter what that is.
"Absolutely," he said.
We shall see. Arpaio has balked heretofore at the possibility of an outside monitor. But if a federal judge orders a monitor for the MCSO, Arpaio will have to cooperate, or face contempt of court.
So far, the courts have assisted our community against the hostility of local politics, particularly in regards to Senate Bill 1070. Like SB 1070, Arpaio is a manifestation of the popular will, which is often at variance with the U.S. Constitution and the egalitarianism undergirding American society.
But America is more than the popular will. It is devoted to the concept that all humans have certain unalienable rights, no matter where they are born, no matter where their parents or grandparents or great grandparents come from, no matter what language they speak or how dark or light their skin.
Periodically, these essential truths need to be restated and reemphasized so that we do not forget their importance. I'm hoping that Snow will hit that high note with his decision in Melendres. At least based on what I've seen, I would not expect anything less.
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