Megan Cassidy

The Republic | azcentral.com

A federal judge on Friday referred Maricopa County Sheriff Joe Arpaio and three of his aides to the U.S. Attorney’s Office, requesting that they be prosecuted for criminal contempt of court.​

The landmark decision comes after U.S. District Court Judge G. Murray Snow found that Arpaio intentionally violated various orders rooted in an 8-year-old racial-profiling case.

The judge's order also refers Chief Deputy Jerry Sheridan, Arpaio's former defense attorney Michele Iafrate, and Capt. Steve Bailey for prosecutors to consider criminal contempt charges against them as well.

The sheriff and Sheridan already have been held in civil contempt of court. Potential penalties are steeper in a criminal case, and only criminal contempt could result in incarceration.

"Criminal contempt serves to vindicate the Court's authority by punishing the intentional disregard for that authority," Snow wrote in his Friday order.

Snow’s decision, announced in a federal court filing, answers the key question that loomed over more than a year of contempt proceedings: Was the sheriff's disregard of orders a criminal or civil contempt-of-court violation?

But it creates a whole new set of legal questions for the embattled lawman.

Will the U.S. Attorney’s Office accept the recommendation?

What will the charge be?

If Arpaio is found guilty, will a conviction legally force him to resign?

Could Arpaio end up behind bars?

Will Snow's decision affect Arpaio's odds for a seventh term?

Reached for comment Friday evening, Arpaio said he hadn’t yet read the order but that it was being reviewed by his attorneys.

“We’re moving forward, we’re doing our job,” he said. “There’ll be aggressive appeals.”

Arpaio said he was looking forward to an “independent review,” clarifying that he meant a review by the U.S. Attorney’s Office.

Top social-media reactions to judge's decision to refer Arpaio for criminal contempt

Mel McDonald, Arpaio's attorney representing him in criminal matters, said the ruling came more as a disappointment than a surprise.

"I think the evidence is clearly insufficient for him to make this referral," he said. "We will be requesting a meeting with the U.S. Attorney's Office and urging them to not go forward with it."

John Leonardo is the U.S. attorney for Arizona.

Cosme Lopez, a spokesman for Leonardo, described the criminal contempt referral as “a very atypical situation” and said it is not clear what will happen next.

“We just received it about an hour ago,” Lopez said Friday evening. “It’s about 32 pages, so we’re just reviewing it like everyone else.”

He said the U.S. attorney will have several options, including passing the referral on to the Justice Department’s Public Integrity Section based in Washington, D.C. He declined to list other options and said it could take a couple of weeks for a determination on how to proceed.

Lopez said he does not know if Leonardo serves on any government task forces or boards that might create a conflict of interest in handing a case involving the sheriff.

Former U.S. Attorney Paul Charlton said there are few cases to look to for precedent. In a July interview, Charlton said he couldn’t think of another instance in which a federal judge had referred the head of a law-enforcement agency for criminal contempt.

“Fortunately in this country, it doesn’t happen,” Charlton said. “All of this is going to be relatively new in the U.S. Attorney’s Office.”

In May, Snow found Arpaio, Sheridan, Lt. Joe Sousa and former aide Brian Sands in civil contempt of court for violating three of the orders within the class-action racial-profiling case. Punishments for the civil-contempt finding already are being meted out, including reforms over the Sheriff's Office’s internal-affairs department and setting up the compensation fund for victims of illegal detention.

Lee Stein, attorney for Sheridan, said, "We obviously disagree with the Court’s conclusions and think there is ample evidence that Chief Sheridan did not intentionally violate any of the Court’s orders.

"He took responsibility for his mistakes many months ago and this next step was not warranted nor necessary. We ... are confident that when all the facts and circumstances are presented, the judge who hears that case will agree that Chief Sheridan should not be held in criminal contempt."

Friday night, civil-rights advocates, many who have attended courtroom hearings or protested outside of them for years, celebrated what they saw as a step toward what they have demanded for years: to hold Arpaio and his aides criminally responsible for his office’s racial profiling of Latinos.

Roberts: This criminal referral will be Arpaio's undoing

Second order sets up victim compensation

In an order separate from the contempt ruling, Snow laid out the ways and means of compensating victims of racial profiling, which has been an ongoing matter of contention.

Some, which Snow called Track A, would be prequalified to claim damages if they are identified in government documents as being detained transferred to the Border Patrol, for simply being in the country and not in violation of state laws or if they can prove they were subject to other violations of Snow’s orders.

Another group, called Track B, would have to provide further proof or illegal detention.

Maricopa County must establish a compensation fund of $500,000. Claimants would then be awarded a base amount of $500, plus $35 for each additional 20 minutes of detention. Compensation per claim would be capped at $10,000.

In his order, Snow said that as an elected official, Arpaio would face little or no personal cost of reimbursing immigrants for illegal detention.

“The Sheriff’s defiance has been at the expense of the plaintiff class,” he wrote.

The county treasury, which is funded by taxpayers, he wrote, “bears the brunt of the remedy for the Sheriff’s (Civil Rights) violations.”

Snow appointed BrownGreer, a Virginia-based firm that specializes in “claims resolution” to administer the compensation.

Based on back-and-forth discussion with the ACLU and the other plaintiffs, the county and the Sheriff’s Office, Snow ordered that BrownGreer be given a budget of $200,000 to notify potential victims and evaluate their claims.

Civil-rights, immigrant advocates react

Two hours after Snow’s decision dropped, about 15 immigrant activists and lawyers gathered at a Mexican restaurant in downtown Phoenix owned by former Maricopa County Supervisor Mary Rose Wilcox, who has had her own legal battles with the sheriff.

The group took time for a moment of celebration but quickly transitioned to remind supporters of the pain Arapio has caused their community and encouraged them to band together to ensure he will be prosecuted, convicted and forced out of office.

“This is a good day for us, but it is not the end. It is certainly not the end,” state Sen. Martin Quezada said.

Cecillia Wang, a plaintiffs attorney for the American Civil Liberties Union's Immigrants' Rights Project, said, "I think it is a terrific day for the people of Maricopa County.

"I think the court has given the sheriff every opportunity to get into compliance with his orders," she said. "So this next step is one that's necessary."

Lydia Guzman, a local immigrants-rights advocate, said, “I feel good that we are finally vindicated. We were dismayed when (Arpaio) was not following the court’s orders … It restores my faith in the justice system.”

Petra Falcon of Promise Arizona said there are two "next steps" to make sure Arpaio is "no longer able to use the power he has to hurt people."

First, the court system needs to "do the right thing" and criminally convict Arpaio, she said. Simultaneously, Arizona voters need to "do right by our community and our county," and defeat Arpaio in this year's election.

"That's not partisan, that's common sense," she said, citing Arpaio’s civil-contempt citation and the county's legal bills because of this ongoing lawsuit.

Francisca Porchas, organizing director for Puente Arizona, called Snow's decision "affirmation of something we've known for so long," but said she knows there's still a long road ahead.

"It's a very important step forward, but it's not the end all, be all," she said.

Noemi Romero, 24, was one of nine workers arrested in January 2013 after Maricopa County sheriff’s deputies raided Lam’s Supermarket, an Asian grocery store in Phoenix, looking for undocumented workers who were using other people’s Social Security numbers.

The name and Social Security number Romero was using belonged to her mother. She pleaded guilty to a felony charge of criminal impersonation. The felony conviction ruined her chances of applying for a federal program that allows undocumented immigrants brought to the U.S. as children to receive protection from deportation and a work permit. Romero was brought to the U.S. from Mexico when she was 3.

“When that happened to me, it was not just I that suffered, but my whole family suffered,” Romero said.

Romero spent three months and a week in jail.

She said of Arpaio, “I hope he does go to jail and is treated the way all these other people have been treated.”

Sheriff Joe Arpaio has always done it his way

Earlier rulings in long-running case

Friday's referral to federal prosecutors for consideration of criminal prosecution was yet another milestone in what has been a landmark case in Arizona, the state that emerged as ground zero for proponents of hard-line immigration reform in the mid-2000s.

Three years ago, Snow found that Arpaio’s deputies had routinely targeted Latinos during their traffic and saturation patrols. Although sheriff’s officials argued their policies enhanced public safety, critics came to see the tactics more as a deportation machine aimed at buoying Arpaio’s political image.

Last year, Snow told sheriff’s officials to prove why he should not hold them in contempt after allegations that they had had violated three of his orders.

After 21 days of hearings in the spring and fall of 2015, Snow found that sheriff’s officials had, in fact:

Continued to detain those suspected of being in the country illegally — but without suspicion of committing a state crime — after Snow banned the practice.

Failed to turn over video evidence that had been required before trial.

Failed to quietly gather video evidence from deputies after Snow ordered a discreet collection of material.

Arpaio and Sheridan admitted that the violations occurred but said they were the result of miscommunication rather than willful defiance. That distinction may have meant the difference between civil and criminal contempt.

Snow, who has become visibly impatient with Arpaio and Sheridan throughout the hearings, remained unconvinced by their defense.

He seemed to telegraph the criminal referral in his civil-contempt ruling, using the words “intentional” or “intentionally” 22 times to describe the office’s violations.

Judge's order issued Friday

Snow’s Friday order asks that another federal judge be assigned to the case for consideration of criminal matters.

If federal prosecutors take the case, this new judge will determine whether Arpaio should be held in criminal contempt for his failure to follow Snow's orders in a December 2011 preliminary injunction. The sheriff already has been held in civil contempt of the judge's order.

Snow's other reasons to refer the case for criminal prosecution stem from conduct after civil contempt proceedings against Arpaio already were underway.

In a bombshell hearing in 2015, Arpaio admitted under oath that his office had been involved in a covert investigation involving a Seattle computer programmer named Dennis Montgomery.

Evidence would later indicate the “Montgomery investigation” was an effort to undermine Snow, by fabricating a conspiracy between the judge and various federal officials.

During a proceeding in April 2015, Snow ordered Arpaio to turn over all documents related to the Montgomery investigation, which Snow said Friday that Arpaio intentionally failed to do.

Sheridan, Bailey and Iafrate are referred for criminal contempt prosecution for an additional violation of Snow's orders that occurred during a break in contempt proceedings last summer.

At various points throughout the lawsuit, Snow ordered any identification cards related to the case to be turned over the court.

In July 2015, court-appointed monitor Robert Warshaw revealed that the agency had intentionally withheld case-related evidence from the monitor team.

Warshaw said about 1,500 seized ID cards were discovered at the Sheriff’s Office and had been marked for destruction. However, when the monitors asked sheriff’s officials whether there were any other “pending investigations” involving IDs, the answer was no.

Snow determined that it was “not appropriate” to prosecute as criminal contempt “multiple intentional false statements made by Sheriff Arpaio and Chief Deputy Jerry Sheridan.”

“The United States Attorney is presumably aware of this Court’s findings of fact with respect to Sheriff Arpaio and Chief Deputy Sheridan’s untruthful testimony,” he wrote. “Whether any resulting criminal prosecutions are merited is a matter appropriately left to the discretion of the Department of Justice.”

Weighing a case for criminal charges​

Charlton, the former U.S. attorney, said it’s likely that federal prosecutors will take the case to court unless they have a conflict of interest. If that happens, the new federal judge could appoint a special prosecutor.

Regardless, Charlton said, Arpaio would have the same rights as any other defendant in a criminal trial. Like more than 90 percent of all criminal cases, he said, this one may result in a plea agreement or a pretrial disposition.

Arpaio's attorneys: Lawman should not be referred for criminal contempt

In a May hearing, Snow talked about how Arpaio’s aides may be subject to a number of penalties, including termination, under the civil-contempt finding. But because Arpaio was an elected official, options for the one Snow had found “most culpable” were more limited.

“The one person I can’t put at risk (to have) skin in the game is your client,” Snow told Arpaio’s defense attorney at the time. “… I can’t touch him in a civil-contempt proceeding.”

It is unlikely that Leonardo would decline the case. But another case against Arpaio was declined four years ago.

In August 2012, federal prosecutors announced they would not be filing charges against Arpaio or former Maricopa County Attorney Andrew Thomas — an anticlimactic result of a four-year investigation into civil-rights violations, misuse of public money and perjury.

The announcement did not absolve them of wrongdoing. Rather, the case was declined because of a lack of evidence.

Elected and convicted

Felony charges and convictions against elected officials are rare but not unheard of.

In September 1997, then-Gov. Fife Symington resigned after a jury found him guilty of seven counts of bank and wire fraud.

Arizona law requires the removal of an elected official from office if he or she has been convicted of a felony.

But Paul Bender, a professor of law at Arizona State University’s Sandra Day O’Connor College of Law, said it’s unclear whether the statute requires convicted officials to resign immediately, or if they’re allowed to exhaust their appeals.

“I don’t know that there’s an established answer to that question,” he said. However, he added, “there’s a good reason to interpret the statute (as saying) just a conviction by a jury is enough.”

Another poll says Sheriff Joe Arpaio facing a tight general election race

Bender said it’s also unclear whether convicted elected officials could get their jobs back should they win on appeal.

The entire issue could also become moot in a matter of months: Arpaio, a Republican, is running for his seventh term in office this year.

Includes information from reporters Dennis Wagner, Michael Kiefer, Daniel Gonzalez and Jessica Boehm.