Sheriff Joe Arpaio’s lead attorney, John Masterson, had just begun to argue why the court should pay no heed to the MCSO’s so-called Seattle investigation, when federal Judge G. Murray Snow, standing rather than sitting for most of Friday’s final arguments in the sheriff’s contempt trial, interrupted him.
The jurist stated that in the Seattle operation, he believed Arpaio had been investigating “some conspiracy in which I played a role,” but even though that conspiracy was bogus and the probe into it cost taxpayers at least $250,000 by one account, Snow was less interested in the details of the actual investigation.
“I am more concerned with Sheriff Arpaio’s willingness to tell the truth while he is on the stand,” said Snow, who went on to suggest that Arpaio may have perjured himself during the trial.
The exchange was the highlight of Friday’s proceedings, which came following 20 days of testimony in the case, in which Arpaio and four of his current and former underlings face allegations of civil contempt and the possibility of referrals to the U.S. Attorney’s Office for criminal contempt charges.
Arpaio and Sheridan have admitted to civil contempt, the others have not. The actual charges deal with issues such as the MCSO’s violation of the court’s orders concerning the gathering and turning over of evidence and Snow’s December 2011 preliminary injunction, forbidding the MCSO from enforcing civil immigration law.
During closing arguments, Masterson referred to the Seattle investigation as “a sideshow,” while plaintiffs attorneys argued that the Seattle investigation revealed Arpaio’s state of mind at the time, and was part of a pattern of defiance by Arpaio to the court’s authority.
Snow conceded that Arpaio’s state of mind was an issue, but Snow was bothered more by Arpaio’s apparent untruthfulness.
The judge hearkened to April 23, when Arpaio was under oath, being questioned by Snow about a June 2014 article in New Times, alleging that the MCSO had hired Dennis Montgomery, a Seattle-based computer consultant and former CIA-subcontractor, as part of an investigation into a fantastic anti-Arpaio plot, involving Snow, the U.S. Department of Justice, the law firm of Covington and Burling, former U.S. Attorney General Eric Holder, and many others.
At that time, Snow directly asked Arpaio about the article’s allegation that Montgomery was investigating the judge.
Arpaio said it was “not true,” and when Snow asked if Arpaio was aware of anyone investigating Snow or his activities, Arpaio replied, “No, no.”
Then, several weeks later, Arpaio, Snow said, “gets back on the stand and acknowledges he was aware” that the investigation involved the judge.
“He has not been fully forthcoming with this court,” declared Snow on Friday, later adding that Arpaio’s answers and those of MCSO Chief Deputy Jerry Sheridan raised the question of “whether they are trying to deceive this court.”
Snow also referred to statements made by Arpaio, “filed under penalty of perjury,” to the effect that the MCSO was not investigating him.
But Masterson argued that the MCSO really had not been investigating Snow.
Snow countered that Arpaio had received both timelines and a flowchart of the alleged conspiracy created by Montgomery, and the latter document “said I was the one who authorized [a] wiretap” targeting the MCSO. In fact, Snow has never authorized such a wiretap.
Masterson claimed Snow had not been a target of an “investigation,” and therefore Arpaio had not perjured himself.
Snow told Masterson that in April, he had intentionally used the broadest language possible in questioning Arpaio.
As for the word “investigation,” Snow suggested Masterson was borrowing a page from former President Bill Clinton in parsing words, as Clinton infamously did during the Monica Lewinsky scandal.
“What word should I have used?” Snow said, with a Cheshire cat grin.
Masterson claimed Arpaio had no choice but to investigate Montgomery’s allegations regarding the CIA’s illegally harvesting the banking information of more than 150,000 Maricopa County residents.
Snow, however, noted that Arpaio had gone to the Arizona Attorney General’s Office seeking immunity for Montgomery, but Arpaio did not go the U.S. Attorney’s Office.
The state AG at the time was Arpaio’s political ally, Tom Horne.
Regarding the various allegations in Snow’s list of possible violations of the court’s orders, Masterson argued that any disobedience was unintentional.
“The buck stops there and there,” said Masterson pointing at Arpaio and Sheridan, seated at the defense table, with a plethora of lawyers.
“But it was not willful,” insisted Masterson of the pair’s admitted contempt.
Significantly, under federal statute, if the contempt was “willful,” that would fit the definition of criminal contempt.
Masterson said Snow’s 2011 order was difficult to understand for a layman. He further offered that former Arpaio attorney Tim Casey’s communications with the MCSO about the order were “open to interpretation.”
The defense attorney claimed, “We’re all doing the armchair quarterback,” with the assistance of “20/20 hindsight,” when it comes to judging his clients’ actions.
Masterson cast doubt on Casey’s shorthand for Snow’s 2011 order “arrest or release,” meaning that MCSO deputies could only hold suspected illegal aliens on a possible violation of a state crime, and could not prolong detention to turn them over to federal agencies such as U.S. Immigration and Customs Enforcement or the U.S. Border Patrol.
There was nothing in writing indicating that Casey conveyed that shorthand to the MCSO, noted Masterson.
Regardless, Snow said Arpaio had been informed of the order by several individuals: Casey (on several occasions), then-Executive Chief Brian Sands, Deputy Chief Jack MacIntyre, and even Sergeant Brett Palmer, who once argued with Arpaio about the sheriff’s wanting some suspected illegal aliens held until Arpaio could arrive with the media in tow.
Indeed, Friday morning, plaintiffs’ attorneys had gone through numerous MCSO press releases and press interviews with Arpaio following the preliminary injunction, wherein Arpaio announced that he would continue to enforce “all” immigration laws, both state and federal.
Snow questioned Arpaio and Sheridan’s credibility, saying both may have “misstated facts under oath” and “intentionally violated orders” of the court.
The judge also didn’t let the other defendants off the hook. On MacIntyre, Snow said the deputy chief “was up to his eyeballs early on” and was “involved from the beginning” when it came to violations of his 2011 order.
Snow also dinged MacIntyre for a previous admission that MacIntyre never passed on a “preservation letter” from the plaintiffs asking for records from the MCSO. The letter would have covered MCSO video of traffic stops not turned over until more than two years following the 2012 trial in the underlying civil rights case, Melendres v. Arpaio.
The judge also seemed to question ex-Executive Chief Sands’ lack of a memory about what happened to comply with the preliminary order. Snow pointed out that Sands told Arpaio that he could not hold illegal aliens in violation of the order, which demonstrated knowledge of the injunction.
Masterson’s biggest reach came when he blamed the training that MCSO deputies received under the 287(g) program from ICE for the racial profiling that Snow found the Sheriff’s Office guilty of in 2013.
The 287(g) program allows local law enforcement to act as de facto ICE agents under a limited grant of federal power.
Masterson’s charge concerning ICE’s training is correct. But the MCSO lost its 287(g) authority in 2009, in the wake of widespread outcry over its abuse by Arpaio’s deputies. And yet, the MCSO’s racial profiling of Hispanics continued.
Snow’s give-and-take with Masterson outshone plaintiffs’ attorneys’ efforts earlier in the day to characterize the defendants’ actions in the worst possible light.
Both attorneys, Stanley Young and Cecillia Wang, were relentless in their hammering of Arpaio, Sheridan, and the rest.
But Snow’s suggestion of possible perjury by Arpaio stole the show.
At day’s end, Snow gave the parties until December 4 to file written responses to questions he previously had posed to them. Snow will next issue findings of fact and hear arguments on possible remedies.
After remedies are decided upon, criminal counsel for Arpaio will address the court on the possibility of a referral of the case to the U.S. Attorney’s Office for criminal-contempt allegations. Criminal counsel for the other defendants could address the court on the same issue at any time.
After court, New Times walked with Masterson as he headed toward his parking place.
Asked about Snow’s suggestion of possible perjury by Arpaio, Masterson said he didn’t think Arpaio had lied under oath, because of the way Snow put questions to him in April.
New Times reminded Masterson that it didn’t matter, in this case, what he thought of what Arpaio said on the stand. Only Snow’s opinion counted.
Posted with permission. Phoenix New Times.