A federal judge on Friday issued a decision recommending criminal prosecution of Maricopa County Sheriff Joe Arpaio for contempt of court in a racial profiling case.
Arpaio and his second-in-command were found in civil contempt two months ago for intentionally ignoring an order to stop their immigration patrols. They now face the possibility of a criminal contempt case that could result in fines or jail time.
Arpaio and Jerry Sheridan were previously found to have made several intentional misstatements of facts last year during their contempt hearings.
The two deliberately misstated facts when denying that the agency had conducted an investigation of the judge, U.S. District Judge Murray Snow found.
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"I genuinely hoped he wouldn’t do this. I think it’s a mistake, but that’s why we have courts and juries," Mel McDonald, a former U.S. Attorney who is now Arpaio’s attorney. "We think there’s insufficient evidence [for criminal charges]. If it becomes a charge we’ll take it to a jury at trial."
Snow's decision comes just a day after we obtained exclusive video of Arpaio being deposed in connection with a case unrelated to the ongoing racial profiling issues Arpaio and his office have faced. That lawsuit was filed by the son of Sen. Jeff Flake and it accuses Arpaio and his agency of trumping up charges to politically damage the senator.
Now that the judge has recommended criminal charges, what's next?
With Snow's recommendation of a criminal contempt case, it will be up to federal prosecutors to decide whether to bring the complaint to court. If the prosecutors decline, the judge still has the option of hiring a private attorney to press the case.
"The judge makes a formal referral to the U.S. Attorney's Office," Paul Charlton, a former U.S. Attorney for Arizona, explained. "The U.S. Attorney's Office then has the option of agreeing to go forward with the prosecution or declining to go forward with the prosecution. If they decline to go forward with the prosecution, the judge then has the option to select a lawyer in the community who will essentially act as a special prosecutor. And he or she will then step in the place of the U.S. Attorney and prosecute the case."
It's unclear whether a criminal finding would prevent Arpaio, who is seeking a seventh term this year, from serving as sheriff. A felony contempt conviction would force him from office, but the judge has the option of recommending the case as a misdemeanor crime instead of a felony.
The quality of internal investigations emerged after traffic-stop videos withheld at the profiling trial were later discovered at the home of an officer who had been arrested on suspicion of theft.
"The prosecution's office -- the U.S. Attorney's Office in this instance -- will have its own obligation, really an ethical obligation, to make sure that they are comfortable with going forward with this case -- that there is probable cause and a reasonable likelihood of success in this prosecution," Charlton said. "While the judge has made his findings -- and made those clear -- it's going to be the U.S. Attorney's Office's obligation to make an independent determination."
In a filing in July, McDonald said Arpaio regrets the mistakes that led to the civil contempt violations, has made significant strides in complying with court-ordered changes imposed on his office and cited the sheriff's lengthy law enforcement record.
"It would severely undermine these positive changes and unfairly tarnish the legacy of a public servant who has given over a half century of extraordinary service to the citizens of this country," McDonald wrote.
A criminal contempt case could bring personal financial hardship to Arpaio and managers on his staff, McDonald said.
Arpaio's lawyer: "The last thing he’d do is willfully contemptuously violate an order of the court."
"I'd be hesitant to weigh in on what the U.S. Attorney would do here," Charlton said. "But I have never seen a written court order in which a judge says that the head of a law enforcement agency repeatedly made misstatements -- intentional misstatements -- that he willfully ignored the court's orders and he is now subject to prosecution by the U.S. Attorney's Office. That doesn't happen."
"I suppose the only good news is that it rarely happens in this country," he continued. "But that doesn't excuse it's happening here ... very much like Third World countries when we hear this kind of conduct taking place by the head of law enforcement agencies."
Arpaio is a self-styled hard-nosed lawman who branded himself "America's Toughest Sheriff." He's often said he doesn't care what people think of him and that he will always do what he believes is right to "enforce all the laws."
But how might Snow's decision affect him privately?
"No matter what his persona is to the public, it is tearing him apart inside," Rick Romley, who served as Maricopa County Attorney between 1989 and 2004, said. "He is having those sleepless nights, no question about it."
He also addressed what impact the decision might have on MCSO's ability to work with other agencies.
"Even since my time -- and it goes to today -- police agencies are very hesitant to work with the sheriff and the Sheriff's Office," Romley said. "They're afraid that Sheriff Arpaio will all of a sudden be out there talking and giving away sensitive investigation. There's not trust that things can be held close to the vest as may be needed."?
Romley believes that lack of trust will get worse.
"With a criminal referral, it's going to even heighten the concerns of every agency out there."
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"It should have a major impact on the re-election," Romley said. "But this is that odd year. This is that odd year that everything is turned upside down."
"A criminal prosecution of Sheriff Arpaio is the right next step for justice to be done," Cecillia Wang, director of the ACLU Immigrants' Rights Project, said n a statement. "When a federal court finds that a law enforcement official has lied to the court in an effort to cover up misconduct, and willfully flouted court orders, that official must be held to account."
“I’ve known [Arpaio] since 1982, when I was U.S. Attorney and he was at the DEA," McDonald said. "He’s a good guy. The last thing he’d do is willfully contemptuously violate an order of the court."
"If it ever becomes a charge, we will fight it," he continued. "We’ll ask for a jury, and defend him with every ounce of energy we have."
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