Could judge hold Arpaio in contempt? Thursday will tell

What should have been a routine hearing in federal court turned out to be anything but, setting up the prospect of another explosive courtroom showdown between a federal judge and Maricopa County Sheriff Joe Arpaio.

Thursday in federal court, lawyers for the county will ask U.S. District Judge G. Murray Snow to clarify whether he plans to cite the popular sheriff with civil or criminal contempt of court charges, or none at all. The county cannot defend deputies in criminal matters.

Snow indicated he was mulling charges at the last showdown, on Nov. 25. Then, Snow told attorneys he was inclined to widen federal oversight of the Sheriff's Office and proposed a list of new rules it had to abide by.

Thursday, lawyers will argue the merits of Snow's plan.

Snow followed up with an order this week in which he wrote he wanted to move "expeditiously" to hear attorneys on "the question of the appointment of a prosecutor," who might, "pursue criminal contempt proceedings against Sheriff Arpaio," and to discuss "the possible scope of such proceedings."

Snow also revealed in his written order that in a closed-door Nov. 20 hearing, the Sheriff's Office disclosed the existence of a Nov. 1, 2012 traffic stop, which the judge said was significant because it came more than 10 months after he ordered the agency "to stop doing the (immigration) interdiction patrols."

But even as attorneys prepare for Thursday's hearing with Snow, another group of attorneys representing the Sheriff's Office will appear before the 9th U.S. Circuit Court of Appeals in San Francisco as part of an ongoing appeal of Snow's original racial-profiling ruling.

Last month's hearing was supposed to a cut-and-dried matter of letting one member of Arpaio's legal team representing call it quits after a long, arduous legal process.

What actually happened was more dramatic. Amid disclosures that investigators continue to stumble onto new hidden evidence, a federal judge threatened a deeper investigation and possible legal action against Arpaio and his agency.

Instead of a steady march toward compliance with a court-ordered consent decree to reform the agency's treatment of Latinos in traffic stops, the hearing blew open the prospect of new investigations into new allegations of wrongdoing. Rather than put a troubled chapter in the past from a 2007 class-action civil-rights lawsuit, the Sheriff's Office sank deeper into a legal swamp.

The next day, Snow took the Sheriff's Office to task in his court order, especially for failing to produce "many pieces of evidence that may once have been available and highly relevant (and) may have since been destroyed." He also suggested that some witnesses lied under oath.

"This evidence and unimpeachable testimony, if admitted at the trial of this matter, could have resulted in a significantly expanded scope of injunctive relief entered by this court," Snow wrote.

Translation: If sheriff's deputies and administrators hadn't lied and withheld or destroyed evidence, Snow and his appointed monitor would have more power to straighten out the agency.

Snow wrote a draft of the order before he heard in court that even more evidence is coming out.

• Specifically, Snow ordered changes to the monitoring process, including:
• Creating a watchdog team to keep an eye on the sheriff's internal-affairs investigations and report on the thoroughness of disciplinary probes.
• Requiring the Sheriff's Office to inform the court when it finishes each internal investigation.
• Re-establishing the authority for the court-appointed monitor to launch, as deemed necessary, independent investigations beyond the scope of internal-affairs probes.
• Asserting the court's right to order its own such investigations.

Expert civil-rights attorneys agree that Snow has the right to place Arpaio in contempt of court. If evidence emerges showing a pattern of non-compliance or widespread systematic racial profiling beyond what was proved in the original 2007 lawsuit against the Sheriff's Office, Snow has far-reaching authority, they said.

"The judge will have a lot of latitude in ordering compliance," said David Harris, a University of Pittsburgh Law School professor, a national racial-profiling expert familiar with a similar case in Cincinnati. "If there is continued non-compliance, all of it is on the table, including all but receivership."

In Oakland, court monitors don't have full power to take over the Police Department in the wake of a case alleging gross misconduct among police officers, but they did fire senior command staff and mandate sweeping reforms.

"The court has a broad range of authority in his contempt-of-court powers," said local attorney Jim Chanin, one of the attorneys who successfully sued the Oakland Police Department after allegations surfaced of a rogue squad that targeted and beat up Black men.

The court can investigate, fine or jail law-enforcement commanders, including Arpaio, Chanin said.

Snow can also widen his investigation, both experts said, but only if investigators can show the new allegations are connected to the underlying pattern of racial profiling that was shown in court.

Snow, in his ruling, asserted the connection.

He wrote that documented failures "suggest that defendants and/or some of their employees may continue to be engaged in efforts to frustrate the implementation of this court's orders, and may in fact be using the internal affairs investigative process to conceal widespread departmental misconduct."

For instance, Snow cited an allegation by former Deputy Ramon "Charley" Armendariz that "it was common for other members of (the Human Smuggling Unit) to leave items like identifications laying around the office."

Armendariz committed suicide after he testified in the civil-rights trial and was suspected of targeting Latinos illegally during traffic stops.

New evidence

But on Thursday, the county's private attorney, Timothy Casey, disclosed that new evidence, including scores of foreign ID cards, was uncovered as recently as this month.

He added that "it will be an undertaking" to turn what he described as "a substantial volume of material" over to plaintiffs attorneys.

Casey reported that, in pursuing its internal investigation of possible policy violations, the agency uncovered audio and videotapes from interviews of human-smuggling suspects taken from 2009 to 2011. That and other materials, such as Miranda cards and cellphones, were linked to investigations and marked with crime report numbers, but they were never logged into evidence, he said.

Also, he said, deputies opened a locker on Sheriff's Office premises Nov. 5 and found two purses with cellphones, keys, ID cards and indications that they, too, were related to a case file.

Then, five days later, deputies were cleaning departmental offices and uncovered 164 ID cards, mainly bearing Hispanic last names and issued in foreign countries. Deputies told investigators 111 of them were used for "training," while no explanation was offered for the remainder.

Then, Casey said, deputies found 35 license plates that were supposed to have been indexed as evidence and returned to the state's Motor Vehicle Division. Of these, 13 were linked by computer files to Armendariz. At least three other deputies or commanders were implicated by the license plates.

Unlike evidence taken from his house after he committed suicide, the new evidence was found at the Sheriff"s Office.

Snow reacts

Judge Snow had clearly reached his limit on Thursday.

"I am not going to be tolerant anymore," he warned. "We will proceed with dispatch. I am not going to give you any second chances."

He scheduled what promised to be a showdown hearing on Dec. 4 into the proposed order and signaled that he may call deputies as witnesses as part of his own independent inquiries.

"I have given your client opportunity after opportunity after opportunity," Snow said. "In opportunity after opportunity after opportunity, your client has violated the law, violated my express orders or subverted the investigation I ordered."

Casey, who was in court asking for —and being granted the right — to be removed from the case, disagreed with Snow's characterization.

"Despite some of the things that have been said here, my clients' belief is that they have followed this court's orders in good faith," he told Snow.

Deputy County Attorney Tom Liddy, who will represent the Sheriff's Office, said dozens of employees were working diligently to address Snow's concerns.

"We are doing everything we have to to come into compliance with the court order," Liddy said. "The sheriff would certainly disagree that MCSO is doing anything short of full cooperation to get to full compliance as soon as possible."

Background

The latest face-off stems from a lawsuit filed by Manuel de Jesus Ortega Melendres, which expanded to include a class of Latinos who said they were unconstitutionally targeted in traffic stops.

Snow ruled for Melendres and later ordered sweeping reforms to prevent discriminatory policing in the future. The $30 million reforms included in-vehicle recording devices, bias-free training for deputies and increased data collection.

But his initial reforms expanded this spring after revelations that Armendariz had been stashing drugs, identification cards, license plates and torn-up citations in his home, signaling what appeared to be a shake-down operation that stretched for years.

Armendariz also secretly recorded thousands of his own traffic stops, documenting his own misconduct and signaling to Snow that the Sheriff's Office did not turn over all the traffic-stop data that was required for the lawsuit.

Complicating the issue was Armendariz himself. He was one of a handful of deputies to testify during the trial.

Snow soon extended his purview to include the agency's internal investigation into Armendariz and the possibility of widespread corruption within the sheriff's Human Smuggling Unit.

Snow has become increasingly agitated over the investigation in recent hearings.

Sheriff's officials poured thousands of man-hours into inquiry, but court-appointed monitor Robert Warshaw deemed the investigation insufficient.

The monitoring team described a lax inquiry into which deputies also employed recording devices and said investigators disregarded another former deputy's allegations that Human Smuggling Unit members had pocketed evidence.

Such tactics were commonplace in Cincinnati and Oakland.

The Cincinnati Police Department threw the monitor out of the department's offices, Harris recalled. Oakland "played out the clock," Chanin said. Instead of wrapping up the oversight in five years, monitors are still there, 11 years on.

"They thought they would waive the consent decree around for a while and we would go away," he recalled.

More fireworks could erupt on Dec. 4.