Contempt hearings hinge on Arpaio's state of mind

Maricopa County Sheriff Joe Arpaio has thumbed his nose at the federal government for years, galvanizing his conservative base with anti-immigration rhetoric.

His words incense migrant and civil-rights advocates, many of whom still appear with megaphones and cartoon-painted pickets to protest at his frequent public appearances.

While Arpaio’s speech is protected by the First Amendment, it also figured into a lengthy, fact-based federal trial in 2012 that found his office had, in fact, engaged in racial profiling.

Now, in this fall’s civil-contempt hearings, plaintiffs again are using Arpaio’s words against him. They draw from examples of the sheriff’s distaste for the federal government to argue his “state of mind” led his agency to violate the judge’s orders in the racial-profiling case.

“State of mind” is a broad and subjective term meant to lay the foundation for an actionable ruling: That Arpaio’s defiance manifested itself in criminal contempt of court.

The distinction between civil and criminal contempt rests in the violator’s intent. Only criminal contempt could result in incarceration.

In April, Arpaio and four of his current and former aides faced their first round of contempt hearings. The four-day proceedings centered on three violations of U.S. District Judge G. Murray Snow’s orders in the initial racial-profiling lawsuit.

But it became clear by the end of that week that the case was far from over. In the middle of Snow’s examination of Arpaio, the judge introduced a line of questioning that has helped extend the case.

Answering the judge’s questions under oath, Arpaio admitted his office had hired a confidential informant, Dennis Montgomery, who alleged the federal government had been tapping Arpaio’s phones and hacking into citizens’ bank accounts.

But Montgomery’s work strayed onto the subject of Snow and hinted at a web of collusion involving the judge, the U.S. Department of Justice, plaintiffs’ attorneys and former Attorney General Eric Holder. Montgomery seemed to suggest a conspiracy against Arpaio.

The sheriff’s admission that his office had engaged Montgomery would ultimately shape the next stretch of hearings, which resumed Sept. 24.

Rather than rehashing April’s hearings, plaintiffs’ attorneys have pursued two themes with their evidence and witnesses: That sheriff’s officials routinely failed to police their own, and that the “Montgomery operation” was a vehicle to subvert the consequences of racial profiling.

Snow has given the plaintiffs’ considerable leeway to explore their theories, and their trajectories largely follow a path set by Snow himself.

"A clear pattern of recalcitrance"

Snow showed concern about Montgomery’s activities in May, even though Arpaio and Chief Deputy Jerry Sheridan said they concluded Montgomery’s work was junk.

“The court wonders why, when the MCSO should have been spending their time, money and resources implementing this order, they were … attempting to construct some bogus conspiracy theory to discredit this court,” Snow said at the time.

That question has been dissected by plaintiffs’ attorneys in recent hearings, painting a picture of a sheriff eager to concoct a federal scandal.

In various interviews, however, plaintiffs’ attorneys have stopped short of calling for a criminal contempt referral. It is a determination that will be left to Snow.

“I think there’s a clear pattern of recalcitrance here,” said Cecillia Wang, a plaintiff’s attorney with the American Civil Liberties Union’s Immigrants’ Rights Project. “I think that calls for strong remedies.”

But defense attorneys say plaintiffs have crossed the line in the recent hearings. Many of the plaintiffs’ strategies, they say, bear little or no relevance to the initial complaints. They only serve to embarrass the sheriff and his office, they say.

“I don’t think it’s appropriate, and we’re trying to resist those tactics as much as we can,” said defense attorney John Masterson. “It almost seems to me that the strategy is to throw as much mud on as you can and to see what sticks.”

So far, in both sets of hearings, it has been the plaintiffs’ show. Arpaio’s attorneys have not yet had the opportunity to call any of their own witnesses and have not yet presented a cohesive defense.

Their cross-examinations have largely blamed confusion and miscommunication for the office’s failure to carry out all the judge’s orders.

Defense attorneys also had a simple message regarding Montgomery: The Sheriff’s Office was not encouraging him nor paying him to investigate Snow.

Any mention of the judge, the defense contends, was fruitless baiting by Montgomery as he sought to squeeze more money from the Sheriff’s Office. Sheridan and other deputies have testified that Sheridan unequivocally ordered subordinates not to investigate Snow.

Witness by witness, however, plaintiffs have tried to undermine that argument.

Perhaps the most damaging testimony to date came from Arpaio’s former attorney, Tim Casey, who spoke about a meeting he had with Arpaio, various aides and other defense attorneys. The meeting, Casey said, focused on assessing the credibility of Montgomery, who had alleged collusion between Snow, the Justice Department and other federal officials.

While nearly everyone in the room agreed the claims were “hogwash,” Casey said, the notable exception was Arpaio.

“He said something that indicated that he was enthusiastic and that it needed to be looked into,” Casey said. He went on to testify that Arpaio made a side comment to him as the meeting dispersed.

“He had his finger out,” Casey said, before reciting the sheriff’s words.

“You know Jon Kyl is at Covington,” Arpaio reportedly said, referring to the former U.S. senator from Arizona who now works at Covington & Burling, a firm representing plaintiffs in the racial-profiling suit. “Kyl got the judge (Snow) his job.”

Arpaio again denies investigating Snow

Arpaio recently rejected implications that he was working with Montgomery to discredit Snow, however. He testified that Snow’s name kept surfacing because he thought the judge was a victim of bank fraud. Montgomery had told Arpaio he could prove that the Central Intelligence Agency was harvesting bank information about hundreds of thousands of Maricopa County residents, including Snow.

It was this bank-hacking scheme, Arpaio said, and allegations that the federal government was tapping his phone, that initially prompted him to hire Montgomery.

Though other judges also were alleged to be on that list, Arpaio could not name any.

Another key piece of information to surface in recent hearings was a memo typewritten by Arpaio and introduced by plaintiffs' attorneys. It documented a phone conversation with someone named “JC” who alleged Arpaio's and his wife’s phones were being tapped by the federal government. JC, Arpaio wrote, was getting his information from a reporter named Kimberly, who had a contact with White House credentials.

Arpaio said he had a posse member named Mike Zullo check with JC on the allegations. Zullo concluded they were baseless.

Plaintiffs’ attorney Stanley Young additionally questioned Arpaio about handwritten notes at the top of the page. They read: “Judge Snow has sister in law works for Covington” and, separately, “Wilcox husband in 150,000.00.”

Covington & Burling is the law firm where Young and Kyl, the former senator, are employed.

“Wilcox husband,” Arpaio agreed, was a reference to Earl Wilcox, the husband of Mary Rose Wilcox, a vocal Arpaio critic and former Maricopa County supervisor.

Arpaio's defense questions relevance

Plaintiffs have called witnesses to testify how aides urged the sheriff to sever ties with Montgomery, and how their pleas fell on deaf ears. To bolster their depiction of Arpaio, plaintiffs showed a clip from “The Joe Show,” a documentary about Arpaio.

In one scene, Arpaio’s top public information officer and campaign manager unsuccessfully tried to dissuade him from launching an investigation into President Barack Obama and his birth certificate.

“Let them call me a kook,” Arpaio said in the video.

The clip triggered one of the more contentious moments in court, as defense attorneys and Snow challenged the relevance of the scene. Masterson called it “harassment.”

“The relevance, your honor, goes to Sheriff Arpaio’s tendency, with Mr. Zullo, to engage in investigations … that others of his advisers tell him are baseless and stupid,” Young said.

Masterson has said if Snow grants plaintiffs this amount of time and freedom to explore the “state of mind” concept, Arpaio's defense must be afforded the same consideration.

Defense attorneys have consistently tried to insert flattering anecdotes into testimony, mostly centered on the hours spent on internal investigations and compliance with the court’s orders.

That argument, Masterson says, should be equally weighed when assessing the agency’s state of mind. It likely will be the heart of the defense's case when it begins calling witnesses.

"What you’ve learned from being in these trials so far is the tremendous amount of work that has gone into complying with Judge Snow’s orders,” Masterson said. “We’re going to show that the state of mind of the sheriff is compliance, as opposed to resistance.”

Leon Silver, a prominent Phoenix attorney following the case for a separate suit against Arpaio, said the sheriff’s mindset will be crucial to his legal fate.

Snow has previously noted the need to balance the sheriff’s free speech right against his tenor of defiance.

Silver said in an interview that the First Amendment does not give Arpaio absolute freedom.

“The sheriff has the right to campaign, to go out and say what he needs to say to rile up his constituency,” Silver said. “But there’s a line. When he’s acting in his capacity as sheriff, expending state or county resources or directing other county employees to do things in response to a court order, he no longer has that absolute freedom of speech."