“EXTRAORDINARY REMEDY” OR LEGAL RIGHT?
by Sharon Rondeau
In August 2016, Arpaio was referred to the U.S. Justice Department by the U.S. District Court for the District of Arizona on a charge of criminal contempt stemming from a finding of civil contempt of court three months prior.
The civil proceedings arose from a long-running lawsuit filed by Hispanic plaintiffs who claimed they were discriminated against when Arpaio’s immigration patrols stopped them under suspicion that they were in the county, and the country, illegally.
The law firms of Goldman & Zwillinger, PLLC and Wilenchik & Bartness, P.C. filed the 47-page brief on Wednesday, May 24.
The appeal to the Supreme Court was made after the Ninth Circuit Court of Appeals denied Arpaio’s request for a jury trial on May 18 without comment.
“The Ninth Circuit has not yet ruled on Petitioner’s request for rehearing. However, because Petitioner’s trial begins in one month (June 26th), Petitioner cannot afford to wait to file this Petition until after a ruling on the request for rehearing, which may take weeks,” the brief to the high court reads (p. 9 of 47).
On page 4 of 47, the Petition states that Arpaio first requested a jury trial on January 25 which was denied by the U.S. District Court “in a footnote.” A second request was denied on April 10.
Four days later, Arpaio submitted a Petition for Mandamus to the Ninth Circuit, a panel of which “denied the request without opinion” on May 18. As stated earlier, Arpaio’s Petition for Rehearing filed the same day has not yet received a response.
Arpaio’s legal team has asked that the high court review the Petition at its upcoming June 15 conference.
At the end of June each year, the Supreme Court breaks for its summer recess, returning on or about October 1. While justices continue to review cases during its recess, formal decisions are rarely issued.
The brief argues that a jury trial is “a strong constitutional preference, especially in a criminal case” and that the District Court’s referral to the Justice Department for criminal prosecution of an elected official requires the check-and-balance of a jury. “This not only avoids the appearance of bias, but it helps to preserve a fundamental separation of powers in between the judicial and executive branches,” the brief states (p. 22 of 47).
Exhibit “A” to the brief consists of the Ninth Circuit three-judge panel’s response to Arpaio’s Petition for Mandamus:
Appendix “B” is the District Court’s response to Arpaio’s request for a jury trial contending that “A defendant charged with criminal contempt does not have a constitutional right to a jury trial where the conviction can result in a sentence of imprisonment not longer than six months. See Muniz v. Hoffman, 422 U.S. 454, 475-76 (1975);United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983).”
In its response, the District Court wrote that the “government” had asked for a bench (non-jury) trial and not more than six months’ imprisonment. “The case law is clear, if the Court limits Defendant’s potential sentence to six months or less, there is no right to a jury trial,” the Court said.
While during oral argument, Arpaio questioned Judge G. Murray Snow’s “motives” in making his criminal contempt recommendation, the Court responded that “This case focuses on the application of facts to the law to determine if Defendant intentionally violated a court order. It does not necessitate an inquiry into the ‘motives of the referring judge.'”
Further, the Court wrote, “At oral argument, Defendant further explained that he thought there was ‘anger’ on the referring judge’s part in making the referral. (Id. at 17:2-7.) As the Court pointed out at oral argument, the referring judge’s motives are not relevant in determining if Defendant’s violations were in fact willful. (Id. at 17:11-16.) While Defendant argues that a jury trial will prevent any appearance of impropriety, this Court does not believe there is any such appearance.”
Questions about Snow’s impartiality were raised during the referenced oral argument which took place in April 2015, when it came to light that Snow had reportedly made comments, as related by his wife to several restaurant patrons in 2011, that he disliked Arpaio and wished to see him lose re-election in 2012.
Snow did not deny having made the remarks. After Arpaio’s then-defense attorneys objected and requested that Snow recuse himself, he refused.
An appeal to the Ninth Circuit on that point was unsuccessful.
A media circus then ensued by which multiple outlets erroneously reported that Arpaio was “investigating” Snow and his wife after having employed a confidential informant to assemble evidence he claimed to possess concerning government data-collection on Maricopa County residents.
On Wednesday, the news outlet Circa reported on a newly-unclassified FISA Court report faulting the National Security Agency (NSA) and other intelligence entities for conducting searches of specific names of U.S. citizens without the required warrant, which it said violated the Fourth Amendment.
During his March 2013 testimony to the U.S. Senate Intelligence Committee, then-Director of National Intelligence (DNI) James Clapper, when asked if the collection of American citizens’ personal information was being conducted by the NSA, responded, “Not wittingly.”
After former NSA contractor Edward Snowden disclosed the extent of government data-collection through the release to The Guardian of classified documents in June of that year, Clapper admitted that he provided “the least untruthful answer” to Sen. Ron Wyden’s question. Clapper was not prosecuted for lying to Congress.
Page 44 of 47 of the brief summarizes the dismissal from the case of three co-defendants as a result of the statute of limitations under the invoked law having expired. Despite that finding, the government continued its case against Arpaio, who will be 85 next month.
The question of whether or not the government utilized an erroneous statute to prosecute Arpaio as raised by Arpaio’s legal team last month and acknowledged by the Ninth Circuit has not yet been addressed by the Justice Department to this writer’s knowledge.