BUT WHERE IS THE MEDIA?
by Sharon Rondeau
The civil lawsuit, Melendres, et al, v. Arpaio, et al, was filed by the ACLU representing a number of Hispanic plaintiffs who claimed that Arpaio’s immigration patrols unfairly targeted them as having been in the United States, and Maricopa County specifically, illegally as a result of their ethnicity.
The well-known international law from Covington & Burling later joined the ACLU in suing Arpaio in U.S. District Court for the District of Arizona, Judge G. Murray Snow presiding.
During his six terms as Maricopa County Sheriff, Arpaio developed a reputation for strict immigration-law enforcement as “America’s Toughest Sheriff.” His office participated in the federal government’s 287(g) program, which forges a formal agreement between local and federal agents to apprehend illegal aliens.
On March 17, 2015, an attorney for Arpaio, Michele Iafrate, informed the court that the defendants “consent to a finding of civil contempt against them and the imposition of remedies designed to address their conduct.” Iafrate suggested that in order to save taxpayers “hundreds of thousands of dollars,” an evidentiary hearing could be waived and the defendants could “begin to make amends to those who have been injured…”
Instead of accepting Arpaio’s offer to compensate the plaintiffs out of his personal funds, Snow chose to go to trial, costing taxpayers millions more.
After Snow declared Arpaio to be in civil contempt of court last May, he recommended criminal prosecution by Arizona authorities who recused themselves, sending the referral to the U.S. Department of Justice.
The DOJ announced that it would prosecute Arpaio just prior to the commencement of early voting in the November 8, 2016 election in which Arpaio sought to win a seventh term as Maricopa County sheriff..
In an under-reported development, on December 13, 2016, Arpaio’s three co-defendants, Iafrate; former deputy, Steven Bailey, and former chief deputy, Gerard Sheridan, were removed from the case by U.S. District Court Judge Susan Bolton because the statute of limitations attached to the law under which they were charged had expired.
Snow had suggested that the government could criminally prosecute Arpaio in November 2015 and perhaps earlier.
Bolton said she would proceed against the sole remaining defendant, Arpaio, on the items outlined in the Order to Show Cause. A bench trial was scheduled for early December, then postponed to early April. Another delay rescheduled the trial for April 25, which was then moved to June 26.
On December 27, Arpaio requested a jury trial which Bolton denied. A second request was also denied.
On April 10, attorneys for Arpaio filed a “Defendant’s Motion to Dismiss, or in the Alternative, Motion for Trial by Jury” requesting an expedited decision and oral argument.
The Motion to Dismiss was based on 18 USC 3285, which states, “No proceeding for criminal contempt within section 402 of this title shall be instituted against any person, corporation or association unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act.”
In footnote #2 on page 2 of the filing, Arpaio’s attorneys stated that the U.S. District Court dismissed the criminal contempt charge against the other three defendants because of the expiration of the one-year statute of limitations. They then added, “However, the Government failed to advise the Court that those allegations of criminal contempt in the Order to Show Cause (Doc. 36)” are also separate crimes under state and federal statutory law, and that they are likewise barred by the one-year statute of limitations. The Government was compelled by clear, express, and unambiguous federal statutory law to bring its prosecution under 18 U.S.C. § 402 which has a one year statute of limitations and requires a jury trial.”
On April 21, former Maricopa County Cold Case Posse lead investigator Mike Zullo, who conducted a five-year investigation into Barack Hussein Obama’s purported “long-form” birth certificate at Arpaio’s request, explained the new development on the “Freedom Friday” radio show hosted by Carl Gallups.
“The fact of the matter is that Arpaio was originally embattled over – in the original civil proceeding — was never being brought by the government. It was being brought by private parties, the ACLU and private law firms, not the federal government. So the problems for the then-administration was if they wanted to get Arpaio blown out of his seat as sheriff, they were going to charge him — which is something they never do before an election period — they needed a statute to charge him and they could not use the correct statute. They ginned this up and used the wrong statute,” Zullo said.
On April 14, the two law firms working on Arpaio’s behalf filed a 76-page Petition for a Writ of Mandamus with the Ninth Circuit Court of Appeals stating that the lower court’s denial to Arpaio of a jury trial was “erroneous” and that under 18 U.S.C.A. 3691, Arpaio was “entitled” to one. The wording of the statute reads:
Whenever a contempt charged shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or omitted, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in other criminal cases.
This section shall not apply to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.
On April 18, two judges of the Ninth Circuit Court of Appeals issued an order responsive to Arpaio’s Writ of Mandamus instructing the “United States of America,” or “real party in interest,” to respond within 14 days. “This petition for a writ of mandamus raises issues that warrant an answer,” wrote Judges McKeown and Hurwitz in their brief two-page order.
Bolton has the option to respond but is not required to do so.
In his radio interview on Friday, Zullo posited that the Department of Justice was used as a political tool to unseat Arpaio in his bid for a seventh term as Maricopa County Sheriff. Gallups speculated that Arpaio’s probe of the long-form birth certificate image posted on the White House website in 2011 had been a factor in the DOJ’s prosecution of Arpaio, who is nearly 85 years old.
One new twist which has garnered media attention is Arpaio’s request to have Attorney General Jeff Sessions testify to “underscore a contradiction between current federal immigration policy and the 2011 court order that his client is charged with violating.”
The Post & Email’s previous coverage of the Melendres case can be found here.