Posted with permission from Phoenix New Times.
Sheriff Joe Arpaio’s lawyers achieved what they set out to do on May 22, when they moved to have federal Judge G. Murray Snow disqualify himself from overseeing the sheriff’s contempt trial.
That is, they slowed Snow’s judicial express train to the speed of a three-toed sloth.
One day before this article went to press, Snow bowed to the inevitable, vacating a scheduled two weeks of hearings in mid-June, kicking the proverbial can down the road to at least July.
Moreover, since it’s anticipated that Snow will not recuse himself, an MCSO appeal of that decision is probable, putting a gimp into the sloth’s gait.
“In every criminal defense attorney’s quiver, there’s the arrow of delay,” former U.S. Attorney for Arizona Paul Charlton says during a recent discussion of Arpaio’s legal woes.
“Delay is your friend if you’re a criminal defense attorney,” continues Charlton, a longtime Arpaio foe. “People lose motivation, memories fade . . . the exigency of a case becomes less so.”
So if you’re Joe’s mouthpiece, you seek a recusal, then an appeal. If the fates grant your wish on appeal, you get a new judge — and more delay.
But bear this in mind: Arpaio and his co-defendant, Chief Deputy Jerry Sheridan, have admitted to civil contempt of Judge Snow’s orders in the Melendres v. Arpaio racial profiling case.
All that’s left is for Snow to determine whether there’s enough evidence that Arpaio and Sheridan willfully defied the court.
This is the bar for criminal contempt, which carries a possible punishment of six months in the federal slammer.
Even one day in the pen would be fatal to Arpaio’s re-election chances. His approval rating in Maricopa County, currently at 38 percent, according to one poll, would sink further still.
Such is the effectiveness of the perp walk, a tactic Arpaio’s honed against his enemies for more than two decades as sheriff.
Certainly, things were heading in the direction of criminal contempt charges until the defense entered its recusal motion.
It seemed that justice finally was stalking Arpaio, Sheridan, and the MCSO after decades of criminality and corruption that have affected everyone in the county, either in the pocketbook or via false accusation, false imprisonment, and in some cases the loss of life.
The vast criminal enterprise known as the MCSO was threatened by Judge Snow and the impending June hearings.
This forced the hand of Arpaio’s lawyers, who hope to keep the sheriff and his chief deputy out of prison.
Which is why Arpaio’s contempt trial now is on hold.
If you’re keeping score, Arpaio’s misdeeds have cost taxpayer’s more than $243 million, close to a quarter-billion dollars since he took office.
The initial four-day hearing in April stacked up plenty of evidence of willful contempt on the parts of Arpaio and Sheridan, enough for Snow to refer the case to another judge for criminal proceedings, which most observers assumed would occur.
More depositions were scheduled to be taken by the plaintiffs’ attorneys before the June dates, and Snow had empowered court-appointed monitor Robert Warshaw to investigate anything related to the contempt hearings.
Snow held weekly status conferences, offering a steady drumbeat of revelations.
In April, the court had begun an inquiry into an Arpaio-initiated investigation regarding supposed years-old statements by Snow’s wife, Cheri, and into the MCSO’s expensive year-long attempt to gin up bizarre conspiracy allegations against Snow, the U.S. Department of Justice, and others with the use of Seattle-based confidential informant Dennis Montgomery.
During a May 14 status conference, Snow dropped a bombshell, stating in court that the monitor had given him documents that had been part of the Montgomery investigation.
These documents, said Snow, revealed the MCSO’s attempt to construct a “bogus conspiracy theory” to discredit his court.
The MCSO’s Seattle operation, as first reported by this publication a year ago, was an attempt to influence the court, to compromise it, to conflict it.
During that same hearing, Snow also shot down an attempt by Montgomery’s lawyer, Larry Klayman, to intervene in the case, and he denied a request by Arpaio’s civil attorney, Michele Iafrate, that the defense be informed of subjects that any future depositions might explore.
In a sort of legal foreshadowing, Klayman’s filings had sought Snow’s disqualification as judge, but Klayman’s client, Montgomery, is not a party to the case and lacks standing to seek such relief.
After one hearing, Arpaio’s criminal attorney, Mel McDonald, told the media that there was no reason for Snow’s recusal.
However, on May 22, McDonald and Iafrate did a 180, swiping a few pages from Klayman’s book by seeking Snow’s recusal and re-using a declaration from a professor of legal ethics that Klayman had filed.
Since Iafrate and McDonald represent parties in the case, Snow granted a stay until he could rule on the recusal request, allowing for a Kabuki-style exchange of motions and counter-motions from both sides.
The necessity of this move by Arpaio’s counsel was signaled recently by the shrillness of Iafrate’s response to a comment made by Snow in the record.
See, Iafrate had informed the court in a previous status conference that individuals from the DOJ had contacted her via phone.
The Justice Department was interested in a letter that Iafrate had sent to the CIA at Snow’s request asking the agency whether it wanted to review two terabytes of data given to the MCSO by Montgomery.
Snow instructed Iafrate to tell any future DOJ callers to contact the court. The DOJ did this, to judge from Snow’s May 29 notice. In it, he relayed a request received by his monitor from the DOJ to “copy the documents and hard drives containing materials that Dennis Montgomery delivered to the [MCSO].”
This information was “allegedly harvested from the [CIA],” or so the MCSO once thought, according to Snow. But under oath in April, both Sheridan and Arpaio agreed with Snow’s characterization of Montgomery’s material as “junk.”
Snow was going to let the DOJ copy the hard drives on Tuesday, June 2.
Iafrate responded with the sort of verbal ferocity reserved for, well, a criminal case. She argued that Snow had stayed the proceedings and could not issue new orders.
Iafrate also discovered “a potential intellectual and private property claim” for Montgomery in the material. Moreover, the DOJ is a “nonparty” to the case, she insisted.
You know, like Dennis Montgomery.
With almost a wink to readers, Snow addressed Iafrate’s motion, thus: “The Monitor shall not cooperate with the DOJ on a voluntary basis to facilitate such examination, pending the Court’s ruling on Defendants’ Motion.” (Emphasis mine.)
The very fact that the DOJ wants to review the data suggests that the DOJ may believe federal laws have been broken, Charlton states.
Charlton calls the statement “a not -too-subtle invitation to the DOJ” to send the judge a grand jury subpoena for the material. “Likely, the reason the DOJ is wanting to look at these documents is because Mr. Montgomery held them out as classified documents, and Joe Arpaio wanted to buy classified documents,” he suggests.
Even if the documents are not actually classified, buying or attempting to buy them could be what prosecutors call an “inchoate offense,” meaning the crime was not completed.
“It’s still a prosecutable offense if you come to me wanting to buy marijuana and I sell you oregano,” Charlton explains. “And that’s why I suspect the DOJ wants to see what happened here exactly.”
Charlton offers a couple of possible federal statutes that could apply, including 18 USC 371, conspiracy “to commit any offense against” the U.S. government.
“Even if the information is not classified, it is still conspiracy,” Charlton says.
“Ask any narco who is currently in prison for conspiracy to transport, sell, or buy cocaine when in fact there was no cocaine, only a DEA agent pretending to deal in cocaine.”
Then there is 18 USC 4, which has the rather exotic title “misprision of a felony.”
Charlton says this would entail Arpaio’s not alerting, say, the FBI upon learning that someone wanted to sell him classified information.
Similarly, when the MCSO took Montgomery for a so-called “free talk” with an assistant Arizona attorney general under then-AG Tom Horne, it no doubt was a cover-your-ass move, in case some Arizona law had been violated by the Seattle operation.
The possibility that these and other federal laws might have been broken also could explain Sheridan’s avowal to Snow in April that the MCSO had sought the assistance of a judge with the Foreign Intelligence Surveillance Act Court to review the material.
In a previous column, I revealed that the AG’s Office under Mark Brnovich recently had confirmed that the free talk took place, though it would not reveal the subjects discussed.
A free talk is an opportunity for a witness or a defendant to converse with a prosecutor, wherein the prosecutor is limited in how the information can be used.
Other crimes may have been committed by Sheridan and Arpaio, specifically perjury, as both swore on the stand that the purpose of the Seattle probe was not to investigate an alleged conspiracy involving Snow.
Snow since has contradicted that testimony by Arpaio and Sheridan.
No wonder the other actors in this drama have sought to put daylight between themselves and Sheridan and Arpaio.
The county Board of Supervisors recently voted to take no position on the motion to have Snow disqualified. Ditto for MCSO Lieutenant Joe Sousa and former Executive Chief Brian Sands, two of the other three defendants in the case.
Lest you think the MCSO’s misdeeds do not affect you, I recently reported that, including the county’s approved budget through the end of Fiscal Year 2016, Melendres has cost county taxpayers more than $51 million.
The $51 million is not covered by the county’s self-insurance policy, referred to as the risk trust fund. Instead, it comes directly out of the county’s general fund.
Remember that Melendres involved violations of the U.S. Constitution, specifically widespread racial profiling against Hispanics by the MCSO.
But even risk trust is public money. Each county department kicks in a portion of its budget for this fund, which picks up the tabs for the lawsuits that Arpaio’s unconstitutional and inhumane treatment of prisoners has brought on.
Not to mention claims brought by all the political enemies Arpaio’s targeted over the years, or people the MCSO’s just screwed over for one reason or another.
Since Arpaio took office in 1993, the MCSO’s risk-management cases have cost the county more than $74.5 million. Another $6.6 million has been paid in non-risk-management MCSO cases other than Melendres.
Add the 2011 revelation that the MCSO had swiped $111 million from two taxpayer-protected funds, the Jail Detention Fund and the Inmate Services Fund.
The money had to be paid back. About 75 percent of the reimbursement came from a surplus in the fund itself, a side account the county is required to keep. The other 25 percent came from the general fund.
If you’re keeping score, that’s $243 million, close to a quarter-billion dollars that Arpaio’s misdeeds in office have cost us.
And they are set to cost us a lot more, not just in Melendres (which is a giant, gaping black hole for county money) but in numerous other cases involving the high and the humble, the privileged and the down-and-out.
They all are yoked together by one constant: the illegal behavior of Arpaio and his minions.
Take the son and daughter-in-law of Republican U.S. Senator Jeff Flake of Arizona. Arpaio struck a publicity gold mine with 23 dog deaths last year at the Green Acre boarding facility in Gilbert, where the Flake kids had been caretakers for the owners of the business while they were away.
The Flakes’ actions were not criminal, but Arpaio wanted them criminalized to exploit the PR benefit of the Flake name.
Joe’s investigator misled the grand jury in the case. That possible perjury was used by the Flake’s lawyer to have the animal-cruelty charges tossed.
The Flakes since have hit the county with an $8 million notice of claim, the precursor to a lawsuit.
There’s also the case of U.S. Army veteran Marty Atencio, who suffered from mental illness, and shortly after delivery to Arpaio’s notorious Fourth Avenue Jail in 2011 was brutally attacked in what his attorney calls a “jailers’ riot.”
Caught on camera, a passive Atencio, who supposedly had not complied with an order to remove one of his shoes, ended up at the bottom of what one witness called a law enforcement “dog pile” of officers.
Atencio was beaten, Tased repeatedly, stripped, and left to die in a holding cell.
His family filed notices of claim totaling $20 million and later sued in federal court. The case has not yet gone to trial.
You could be a Republican county supervisor, as Don Stapley was, or a conservative superior court jurist, like Gary Donahoe was, and still not evade the criminality of the MCSO.
False bribery charges against Donahoe cost the county $1.3 million in a settlement with the former judge.
Stapley endured false charges and arrest. His case ended in a $3.5 million settlement.
No status in society will protect you, whether you’re a newspaper executive, like former Village Voice Media executive editor Michael Lacey or a citizen riding the wrong way on a bicycle, like Felix Torres, whom Lacey writes about in this issue.
Arpaio retaliated against Lacey and his partner, former VVM publisher Jim Larkin, by having them arrested in the middle of the night and hauled away in unmarked cars with Mexican plates.
Torres was denied proper medical care and ended up dying of a perforated ulcer after, according to a witness, vomiting his own feces.
Illegally going after Lacey and Larkin cost the county a $3.75 million settlement.
Torres’ death is the subject of yet another lawsuit and is sure to take a bite out of the county’s risk trust fund.
The MCSO’s criminality extends to line deputies, such as Ramon “Charley” Armendariz, once a member of the MCSO’s infamous Human Smuggling Unit.
Armendariz allegedly hanged himself on May 8, 2014. His house was discovered to be a trove of seized property: illicit drugs, license plates, driver’s licenses, wallets, purses, watches, credit cards, cell phones, rosary beads.
The testimony of MCSO detectives in April has made clear that keeping license plates as trophies was standard practice in the Human Smuggling Unit. Under oath before Judge Snow, Chief Deputy Sheridan agreed that confiscating IDs willy-nilly also was a widespread practice by deputies.
During internal investigations into members of the now-disbanded HSU, the MCSO’s investigator avoided asking questions about pocketed property.
The case was closed without charges getting brought, despite Snow’s disclosure during the April hearings that some of the property at Armendariz’s home had been seized by other HSU members.
Sheridan has attempted to paint Armendariz as a rogue deputy. In fact, it’s Arpaio and Sheridan’s agency that is rogue.
Arpaio’s Seattle investigation and his inquiry into Snow’s wife were part of a pattern of illegality and corruption that permeates the MCSO.
These probes were intended to improperly influence and intimidate the court, which is why Arpaio and Sheridan lied about them under oath.
From high crimes and misdemeanors to stealing credit cards from detainees, there is no dirty deed the MCSO will not do.
Former U.S. Attorney Charlton offers the following analysis:
“If you work in an agency where the leadership at the top says, ‘We are not obligated to follow the United States Constitution [or] the rules as issued by United States District court judges,’ then the individuals who work below you will follow that cue.”
In other words, the fish rots in one direction. And it ain’t from the tail up.