As testimony in Sheriff Joe Arpaio's contempt trial wrapped up today in federal court, Judge G. Murray Snow offered an ominous warning for those not named as defendants in the civil case.
Arpaio, his chief deputy< Jerry Sheridan< and three other current and former Arpaio commanders face allegations of civil contempt of Snow's court. Indeed, Arpaio and Sheridan already have admitted to civil contempt of Snow's orders in the underlying civil rights case, Melendres v. Arpaio.
Hypothetically, all five men could face a referral by Snow to be prosecuted for criminal contempt, if Snow believes they may have willfully violated his orders.
Snow set oral arguments for November 20 on the civil contempt allegations and for possible sanctions to be imposed.
At some point, the defendants' criminal attorneys will be allowed to address the judge on the subject of a referral for criminal contempt, though no date was set for this.
But Snow noted that there were "additional parties that could be named in a criminal contempt referral."
Whom these parties might be was left unsaid.
The federal rules of criminal procedure state that the court must give the accused "notice in open court, in an order to show cause, or in an arrest order," and that,
"The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt."
Note the use of the word "must," instead of the less binding, "may."
There has been much discussion as to whether U.S. Attorney for Arizona John Leonardo would pursue a prosecution of Arpaio, et al., if a referral is made to Leonardo's office.
Leonardo is not known as a fan of Arpaio's; however, the U.S. Attorney's Office has been notoriously "risk averse," when it comes to holding Arpaio accountable, infamously declining to prosecute Arpaio and some of his underlings on abuse-of-power allegations in 2012.
With Arpaio up for re-election next year, the USAO might fear seeming biased. Also, it is operating under a lame-duck presidency. Add to this the scuttlebutt that Leonardo essentially has "retired in place" and lacks the will to go after Arpaio criminally.
But Rule 42, cited above, states that "if the government declines" the court's request, then "the court must appoint another attorney to prosecute the contempt," meaning a special prosecutor of some sort.
This should give all those who seek justice against Arpaio hope, contained in that four-letter word, "must."
And it should give Arpaio, Sheridan, and anyone who has gladly done Arpaio's bidding in defiance of the court some pause.
Bringing us back to Arpaio's Cold Case Posse commander Mike Zullo, who continued to sing for the limited span of time he remained on the stand today.
Following Thursday's bravura performance from Zullo, with its strange swing from taking the Fifth to spilling his guts, Friday was pure denouement.
Plaintiffs' attorney Stanley Young wondered about a February 2015 e-mail string where the MCSO's confidential informant, Dennis Montgomery, asked Zullo about Arpaio's travails with Judge Snow.
Maybe he didn't need to keep processing data, the confidential informant in Seattle wondered, since it looked like Arpaio was attempting to make amends with the judge?
"Seems like it would only upset the judge more," Montgomery wrote.
"No, Dennis, I don't think he's solving Jack shit," Zullo wrote him. "I think they're looking to get around this bullshit contempt charge."
Zullo added, "This guy [Snow] is never going to leave him [Arpaio] alone."
First Montgomery should work on the "BC," i.e., President Barack Obama's birth certificate, then Zullo can "get the sheriff back [on board]."
Zullo tells Montgomery that he will "share [the] plan," once "we get [Arpaio] back in the game."
The posse man said this was a way of trying to motivate Montgomery, to "starve him out" and get him to produce.
"I was going to keep pressing [Montgomery] to get something for us," Zullo said.
Sure, MCSO investigators had attempted to get banking and other sensitive personal information on Snow, but he said that merely was because they viewed Snow as a "victim of identity theft."
Zullo tried to explain away searching for information in Montgomery's database, the one allegedly swiped from the CIA, for the names of Arpaio's enemies, current and past, such as former county Supervisor Mary Rose Wilcox and Snow.
It was all about looking for identity-theft victims. The Seattle crew didn't find Mary Rose's name, but they did find the name of her husband, Earl, and of their restaurant.
The Wilcoxes have seen this movie before.
Outside the courthouse, they said the plaintiffs made their point about Zullo and what he and Montgomery had been doing for Joe.
"If Montgomery, who was hired by the MCSO, was targeting enemies of Arpaio, that proves the case," Mary Rose said, with Earl by her side, adding, "There are enemies of Arpaio and [the sheriff] would do anything to get rid of them."
Asked if she thought there would be criminal contempt referrals, Wilcox said she would be "shocked" if the judge "didn't go criminal."
Reporters asked Young if what the defendants engaged in rose to the level of criminal contempt. Young said the plaintiffs are taking no position on that.
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However, he did agree that some of their contempt was intentional.
"I think there were some intentional acts here," Young stated. "I think the violation of [the court's 2011] preliminary injunction was intentional. I think the reaction of the sheriff to being ordered to obey the law and have a monitor imposed — which is what Mr. Zullo's testimony was about — shows that there is further need for...oversight of the Sheriff's Office, and I hope we get that."
In other words, plaintiffs contend that what Zullo and other Arpaio functionaries were involved in during the Seattle operation was part of Arpaio's reaction to Judge Snow's 2013 ruling that the MCSO was guilty of racial profiling and so needed a monitor to make sure the agency followed the jurist's prescribed reforms.
Only if Arpaio and his commanders taste justice this time, will the court ensure that such blatant contempt is not repeated.