Arpaio on trial: Did he understand the judge's order that went ignored? Former sheriff's attorney, called as a witness, said that he repeatedly explained the judge's order not to enforce immigration law and was told the Sheriff's Office had halted the practice

Megan Cassidy | The Republic | azcentral.com

The first day of former Sheriff Joe Arpaio’s criminal contempt trial set the stage for what promises to be days of hair-splitting testimony over emails, public statements and private conversations, all to answer one question:

What was Arpaio’s position on immigration enforcement between December 2011 and May 2013?

Attorneys laid out dueling theories as the trial opened just after 9 a.m. Monday, focusing on whether the former Maricopa County sheriff did — or did not — willfully violate a federal order barring his office to enforce federal immigration laws.

They engaged in a legal tug-of-war with the day’s only witness, former Arpaio attorney Tim Casey. Prosecutors characterized Casey's comments as damning testimony. Defense attorneys alleged that Casey confused the order for his client, therefore rendering Arpaio blameless.

In their opening arguments, U.S. Department of Justice prosecutors provided a series of Arpaio’s own statements in an attempt to demonstrate he knew about the December 2011 order and then thumbed his nose at it.

Defense attorneys challenged the underlying order, simultaneously claiming it was unclear and inappropriate in the face of federal immigration policies. Attorney Dennis Wilenchik pointed the finger at Casey, claiming he didn’t properly explain the order to his client.

The contempt case stems from a 2007 racial-profiling lawsuit in which plaintiffs from the American Civil Liberties Union and other organizations claimed that Arpaio had singled out Latinos in Maricopa County Sheriff's Office's immigration-enforcement operations.

PRO-CON: Diaz: Send Arpaio to jail | Roberts: Don’t send Arpaio to jail

In December 2011, U.S. District Judge G. Murray Snow issued a preliminary injunction that ordered the Sheriff’s Office to stop detaining individuals solely on suspicion that they were in the country illegally. But prosecutors allege that Arpaio’s deputies continued to do so for at least 17 months thereafter, until May 2013.

That month, Snow officially ruled that Arpaio’s office had racially profiled Latinos. He later ordered sweeping reforms to stamp out the discriminatory practices. Snow later found Arpaio in civil contempt for violating his order, and referred the case for criminal proceedings.

Quiet start to criminal contempt trial

There was relatively little fanfare at the onset of proceedings Monday at the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix.

Absent were the protesters who had been a mainstay at the 2015 civil-contempt hearings, and the courtroom’s spectator gallery comfortably seated all who wanted to attend. The first day of the civil-contempt hearings had required spectators to be seated in waves.

In his opening statements, Justice Department trial attorney Victor Salgado said that in the 17 months after the court injunction, Arpaio’s office illegally detained at least 170 individuals in violation of the order.

He then showcased a series of Arpaio’s public statements to demonstrate that the sheriff had known what he was doing.

He cited an April 2012 statement to the media quoting Arpaio saying, “I’m still gonna do what I’m doing … I’m still gonna arrest illegal aliens.”

“He thought he could get away with it,” Salgado said. “He never thought this day would come.”

Wilenchik argued that Snow’s order was far from clear and quoted deceased U.S. Supreme Court Justice Antonin Scalia as saying it was an “assault on logic” to say that local police, when they identify someone suspected of being in the country illegally, could not cooperate with the federal government.

Wilenchik then turned his attention to Casey, whom he said “dropped the ball” in explaining the court’s order to his client.

Former Arpaio attorney testifies

Prosecutors got the first crack at Casey when they called him to the stand. Under the questioning of Justice Department trial attorney John Keller, Casey testified that he explicitly and repeatedly explained to his client Snow’s order that prohibited him from enforcing federal immigration law.

Casey said that, shortly after the court order, he told Arpaio that he could no longer detain individuals solely on the belief that they were in the country illegally, and without suspicion of a state crime.

“Arrest or release,” Casey recalled himself telling Arpaio and his command staff. “Those are the options.”

Casey’s testimony against his former client wasn’t a surprise. He offered essentially the same statements in a 2015 civil contempt trial on the same matter.

Casey’s Monday testimony was repeatedly interrupted as defense attorneys and Casey’s own ethics attorney argued which topics should be under attorney-client privilege and therefore off-limits to testimony.

Presiding Judge Susan Bolton generally sustained objections that dealt with hearsay and Casey’s frame of mind. She allowed various recollections of conversations to be answered.

Casey testified that, when he initially reported the judge’s order to Arpaio and his command staff, he was told that it didn’t matter because deputies had halted this practice.

“He was being ordered to stop doing something he was not doing anymore,” Casey recalled of his conversations.

Casey said he never was given the impression that Arpaio was confused about the order. He said he never was asked to provide training to the agency’s Human Smuggling Unit — the one most affected by the order — but recommended that training be provided.

The cross-examination was just as contentious, with Wilenchik and Casey frequently exchanging snide remarks.

Wilenchik challenged Casey’s recollection of explaining the order to Arpaio, arguing that he had somehow confused his clients. A visibly irritated Casey testified that he was thorough when he told Arpaio’s team they couldn’t hold a suspect for the federal government for any amount of time longer than their investigation.

“It’s not that complicated,” Casey told Wilenchik. “It’s not rocket science.”

Wilenchik zeroed in on one of the at least three instances when Casey reportedly explained the order to Arpaio.

The situation came in fall 2012, when plaintiffs’ attorneys from the underlying case accused Arpaio of violating the order.

The allegations were based on a September 2012 news release that Arpaio had issued that boasted about his “back-up plan” to still enforce federal immigration law. Arpaio declared that since U.S. Immigration and Customs Enforcement no longer would accept individuals detained for being in the country illegally, he directed his deputies to take two suspects to U.S. Customs and Border Protection.

Casey had testified earlier that he told Arpaio this move likely still violated the court’s order. But Wilenchik pointed out that Casey also pushed back against the plaintiffs’ accusations, writing ACLU attorneys a letter claiming that his client did nothing wrong.

It was the Border Patrol, Casey said in the letter, that directed the sheriff’s deputies to deliver the suspects to them.

Casey told the court Monday that he was offering a “good-faith” argument that did not necessarily represent his personal beliefs about the situation.

Wilenchik asked Casey specifically if he spoke to Arpaio about not working with the Border Patrol, and Casey said he hadn’t. Casey also testified that Arpaio never explicitly told him that he planned to violate the judge’s order.

Arpaio’s trial is scheduled to resume Tuesday. It is unclear whether the former sheriff will testify, although his attorney last week said it was "very likely."

The court order in question

U.S. District Judge G. Murray Snow's order dated Dec. 23, 2011, reads in part:

MCSO and all of its officers are, however, enjoined from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States. It follows of course that MCSO may not stop any person based on reasonable suspicion or probable cause, without more, that the person is unlawfully present within the United States. Nor may they seek to develop reasonable suspicion that a person is violating state law by detaining them to ask questions in the absence of reasonable suspicion that they are committing a crime.

READ MORE:

Fact Check: Will closing Tent City save $4.5M?

How Arizona became ground zero for 'birthers'

'I'm not retired': Arpaio launches non-profit