Criminal contempt trial of former Sheriff Joe Arpaio set to open

Megan Cassidy | The Republic | azcentral.com

Joe Arpaio — the man, not the lawman — is the defendant in a federal criminal trial scheduled to begin in Phoenix on Monday.

Unlike before, efforts by his attorneys to delay, dismiss or otherwise adjust the trial this time around have not been successful so far.

The court proceeding is scheduled to last for two weeks, with prosecutors from the U.S. Department of Justice’s Public Integrity Section.

The former Maricopa County sheriff is accused of defying a federal judge's orders that barred Arpaio from enforcing federal immigration law.

The alleged criminal contempt of court happened over a period of 18 months in 2012 and 2013, when Arpaio was still in office.

Arpaio already has been found in civil contempt for the same case. Under the law, the difference between civil and criminal contempt is intent — whether the defendant willfully or unintentionally violated a judge’s order.

Defense attorneys are pursuing a bold strategy: They will argue that U.S. District Judge Murray Snow’s initial order was invalid, or at the very least unclear, and Arpaio is therefore blameless.

“He’s being prosecuted for doing something that the federal government has always told (local law enforcement) to do,” said Jack Wilenchik, one of Arpaio’s attorneys. “It’s an assault on logic to say that local law enforcement cannot even cooperate with federal authorities, if that’s what federal law enforcement wants you to do.”

Defense attorneys are sticking to this tack despite earlier futile efforts to further the narrative.

Arpaio's attorneys have repeatedly sought a jury trial, presuming that an audience without legal acumen would be more likely to sway in their favor.

And they've tried to subpoena U.S. Attorney General Jeff Sessions, who would offer testimony on current federal immigration-policing policies. Though a judge hasn't explicitly ruled against this, legal experts say he's unlikely to show.

Prosecutors have pushed back on this strategy in their pretrial court filings, arguing that the defense is attempting to politicize the case and deflect focus from the issue at hand. Criminal contempt is defined by a deliberate defiance of a court and is not a question of the underlying order.

In a June 19 motion to quash the defense’s subpoena for Sessions, prosecutors argued that the testimony sought was “irrelevant” to the court.

"The Attorney General’s legal opinions nor current Department of Justice policies can excuse the defendant’s repeated, direct violations of a federal court order,” prosecutor AnnaLou Tirol wrote.

Former U.S. Attorney Paul Charlton said the defense’s argument is unlikely to hold water with U.S. District Judge Susan Bolton, who is presiding over the bench trial.

“Generally, Judge Bolton is a no-nonsense judge who will impartially review the facts and the law,” Charlton said. “And the issue that’s immediately before her is whether Joe Arpaio intentionally violated Judge Snow’s orders.”

10 years in the making

For immigration-rights advocates, this moment in court was a decade in the making — a dramatic finale of what began as a 2007 racial-profiling lawsuit against the Sheriff’s Office. Plaintiffs, including the American Civil Liberties Union, alleged that the sheriff’s signature immigration patrols violated Latinos’ constitutional rights.

In December 2011, months before the trial was to begin, Snow issued a preliminary injunction over the Sheriff's Office. The order banned deputies from detaining anyone solely on suspicion that they were undocumented immigrants and without cause to believe a crime had been committed.

In May 2013, Snow officially determined the office had racially profiled Latinos. The following months would introduce multimillion-dollar reforms to the Sheriff's Office, including anti-bias training, recording devices for deputies and a court-appointed monitor to ensure the agency followed the letter of the law.

But information emerged that the Sheriff's Office continued to detain people suspected of being in the country illegally for at least 18 months after the judge’s preliminary order — up to May 2013 and maybe beyond. This and other allegations of court violations resulted in a civil-contempt trial that spanned several months in 2015.

Snow found that the defiance of his orders did amount to civil contempt and could be criminal. He referred the case to the Department of Justice.

The trial could be the personal reckoning for the man whom many say ushered in a culture of fear among people without legal status living in the county. Though the Sheriff’s Office as an entity was admonished by a federal judge, and the county forced to pay tens of millions of dollars for reforms, this trial is the first time Arpaio has had personal skin in the game.

The former sheriff, who is 85, could face as much as six months in jail if convicted, although experts say incarceration is unlikely.

Lydia Guzman, a local immigration-rights leader and longtime Arpaio foe, said she’ll be attending the proceedings and offering commentary to Spanish-language media in particular. Guzman and other activists worked alongside plaintiffs’ attorneys from the American Civil Liberties Union of Arizona on the underlying case.

“It’s something we wanted to make sure to see through,” she said. “I want to make sure that he pays consequences for ignoring the court ruling.”

A packed courtroom expected

The court session Monday morning likely will draw a who’s who of Maricopa County politics. Both Arpaio supporters and adversaries expressed concern about space constraints and wondered if there would be a system for who scores a seat in the gallery.

Arpaio was ousted as sheriff in November after voters overwhelmingly cast votes for his challenger, Paul Penzone. But the former sheriff’s name recognition and far-right brand of politics has generated pockets of support for him throughout the country.

A legal defense fund solicits donations regularly, recycling email addresses from Arpaio’s old campaign fundraisers. Chad Willems, Arpaio’s former campaign manager who runs the fund, declined to provide a dollar figure, but said Arpaio “still enjoys a lot of support from people here in Maricopa County and throughout Arizona and the rest of the country.”

The case strikes a nerve for many on both sides of the immigration debate, particularly as the Trump administration works to implement hard-line policies.

Willems did confirm a $300,000 contribution made by the National Center for Police Defense.

James Fotis, the organization president, said the support represents the “tens of thousands of people know the name and care about Sheriff Joe Arpaio.” In addition to the financial gift, the center reportedly hand-delivered 40,000 petitions to the Department of Justice, urging the agency to drop the charge.

Fotis said he and other supporters believe Arpaio is being persecuted by “holdovers from the Obama Justice Department.”

“I believe that this is a political situation. And politics and law enforcement don’t mix,” he said. “A man who gave his life to law enforcement shouldn’t be treated like this.”

Defense, prosecutors clash in pretrial motions

It’s this line of thinking that Arpaio’s attorneys are hoping will clear their client.

The strategy comes after an April shake-up on the defense team three weeks before the trial was scheduled to begin.

Arpaio’s longtime criminal attorney Mel McDonald asked to be cut loose from the case after new attorney Mark Goldman filed a motion faulting McDonald for Arpaio’s legal predicament.

The motion alleged that Arpaio’s attorneys led him to believe that admitting to civil contempt would spare him from criminal charges.

McDonald’s strategy had been to address the issue at hand. He had consistently maintained that, although the Sheriff’s Office violated the order, the missteps were unintentional. After McDonald bowed out, attorneys Dennis and Jack Wilenchik stepped in, joining Goldman.

The move granted Arpaio a rare victory in the case, with Bolton granting the defense a two-month trial delay as the new defense attorneys prepped.

The new strategy is one of defiance. In a span of two months, they have fought for a mistrial, a change of venue, a jury trial and a delay until the U.S. Supreme Court can rule on the jury-trial appeal, and sought witnesses to testify about immigration policing.

In addition to Sessions, defense attorneys want to call Border Patrol agents to the stand to talk about their policies with local police.

Defense attorneys attempted a last-ditch effort to delay the trial in recent days, asking Bolton to hold off until the Supreme Court could rule on the jury trial.

Wilenchik said the jury trial was a particular sticking point because “juries understand common sense.”

“Judges and attorneys sometimes, we get so wrapped around interpretations of the law that we sort of fail a sanity check at the end of the day,” he said.

The team also is claiming that Snow’s order was illegal — arguing that a federal court cannot restrict a state or local entity from communicating with the Border Patrol — and unclear.

“The entire department did not understand that order said, ‘you cannot even cooperate with the federal government,’ ” he said.

Justice Department officials declined to comment for this article, but motions indicate its attorneys are fed up with the defense’s stall and diversion tactics.

Their filings have pushed back against nearly move defense attorneys attempted, their verbiage indicating thinly veiled exasperation.

“Six days before trial is scheduled to begin and for the third time in four months, the defendant asks the Court to stay proceedings,” prosecutors opened in their response to the matter.

“In an attempt to turn this trial into a referendum on immigration policy, the defendant seeks the Attorney General’s testimony regarding 2017 Department of Justice policies,” they said on the Sessions matter.

Arpaio declined to say much on his pending trial. In a brief interview with The Arizona Republic last week, he said he’s trying to be careful with pretrial publicity.

When pressed, he reverted to his longstanding talking points on the matter: that his legal woes were retaliation from the previous, Democratic administration.

“It’s been something that’s been in the works since 2007, right after Obama took office, and now here we are, 10 years later,” he said. “I’ll be glad to get this over with.”

READ MORE:

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

How Arizona became ground zero for 'birthers'

Immigration arrests in Arizona soar under Trump

Ariz. police won't boost immigration enforcement

Deported Arizona mom: Victim or convicted felon?

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