The non-jury trial of former Maricopa County “Sheriff Joe” Arpaio concluded with the judge announcing her guilty decision via electronic communication, rather than by reading the verdict aloud during a hearing with the defendant in attendance, and omitted significant portions of evidence in reaching her conclusion. One defense attorney says this unprecedented and unconstitutional action is grounds for an appeal.
By Mark Anderson
PHOENIX, Ariz.—Former Maricopa County, Arizona Sheriff Joe Arpaio on July 31 was found guilty of misdemeanor criminal contempt—for what the government claims was his willful decision to disregard a 2011 federal injunction, issued to bar him from rounding up illegal aliens during his time as sheriff of a border county. And that county is often nearly overrun by the mass migration of illegal aliens.
This federal district court verdict came down sooner than defense attorneys expected, amid other twists and turns in this case. However, there’s a story behind the story that few media outlets are discussing: According to the defense, the verdict was announced in a manner that’s unconstitutional and against important legal precedent.
Accordingly, Arpaio plans to appeal this decision of Judge Susan Bolton, who issued her verdict after a brief non-jury trial that ran four days in late June and concluded July 6. Arpaio had unsuccessfully sought a jury trial.
When this AFP writer asked one of the defense attorneys, Mark Goldman, if “ruled from the chamber” would be a better description of Judge Bolton’s decision-making process, Goldman agreed that was a perfect way to define such a back-room manner of carrying out “justice.”
A July 31 press release from the defense clarified: “Judge . . . Bolton violated the U.S. Constitution by issuing her verdict without reading it to the defendant in public court. Her verdict is contrary to what every single witness said in the case. Arpaio believes that a jury would have found in his favor, and that it will.”
Goldman, who’s been an attorney for 29 years, also told AFP: “We expected more time because it’s improper for her to just send it [her decision] out [via Internet] without a court hearing. I’ve never seen anything like it before. There’s a [previous] court of appeals case where the defendant has the right to be present during sentencing.”
What’s especially interesting is that the first indication to the defense that the judge had ruled at all—since her decision was expected to come later—came when reporters called the defense seeking comment, before the team had even learned of the verdict. Goldman explained that a July 31 court-issued “internal electronic communication” addressed to the defense, time-stamped 11:08 a.m. Mountain Standard Time, arrived after those media calls.
“The media was tipped off,” he said, adding that the ruling establishment that excuses the virtually unrestrained entry of illegal aliens into the U.S., many of whom commit additional crimes some of which are serious, has “won the battle but not the war.”
So, in summary, verdicts are to be conveyed at a hearing, with the defendant present, during which the judge reads the verdict aloud. Citing legal precedent, Goldman shared the following excerpt from legal sources:
In United States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997), the Second Circuit specifically found that “the district court’s deliberate decision to mail its decision to the parties rather than reconvene the proceedings to announce its verdict in open court violated both his right to be present at all stages of his trial and his right to a public trial.” The defendant “first learned that he had been convicted two weeks later by reading a newspaper.” . . . . “A leading principle that pervades the entire law of criminal procedure is that, after [an] indictment [is] found, nothing shall be done in the absence of the prisoner.” . . . . “The right [to be present] extends to all stages of trial, including the return of the verdict, to the extent that a fair and just hearing would be thwarted by [the defendant’s] absence.” . . . . The Second Circuit also specifically found that this doesn’t just apply to jury verdicts, it applies to bench verdicts, too. It remanded to the district court for it to reconvene with the defendant present and publicly announce the verdict.
Also, the official record of Judge Bolton’s ruling is larded with remarks that the fact Mexican nationals, Central Americans, and others were entering the U.S. illegally, by itself, does not meet the threshold at which Maricopa Sheriff’s deputies under Arpaio should’ve been allowed to arrest illegal aliens and turn them over to federal authorities, as was done.
Judge Bolton thus basically scolded the Sheriff’s Department for not limiting its roundups to those who entered the country illegally.
Asked why the Department of Justice (DOJ) under Attorney General Jeff Sessions did not intervene in The United States of America v. Joseph M. Arpaio, where the defendant is well-respected by President Trump but was targeted under the Obama White House, Goldman said the DOJ lawyers who initiated this case are the same ones who continued to prosecute it, even after the new attorney general had taken office.
“It’s hard to walk into the DOJ and reverse the course of public prosecutions,” he said, adding that he had written to Sessions to inform him that Arpaio was being sued under “the wrong statute,” even while Sessions, on the one hand, disagrees with sanctuary cities and believes local police should aid in apprehending illegal aliens and hold them for federal custody. Yet Sessions didn’t help Arpaio in return for having been a good lawman and carrying out apprehensions in the same manner.
Moreover, while Judge Bolton’s written ruling, at face value, makes it sound like Arpaio willfully defied the 2011 injunction, including snippets of his comments quoted in various news reports, Goldman said the judge’s “findings of fact are not supported by the record, including trial testimony and documentary evidence.”
Furthermore, the judge is seen as having omitted most or all testimony that mitigated against her narrative that Arpaio defied the injunction, including the testimony of Tim Casey, an outside lawyer retained by Arpaio’s Sheriff’s Department who received free reign from the department to communicate with all its employees on injunction compliance. And the Human Smuggling Unit within the department had unfettered access to Casey. Arpaio, from this vantage point, simply entrusted injunction compliance to others and carried out his duties as he saw fit, not having been advised to do otherwise.
However, Casey allegedly had reasons in court to protect himself more than he did Arpaio. But still, when called to the stand by the prosecution, he admitted during cross-examination by the defense that the injunction was ambiguous and not clear and definitive, as the prosecution argued and Bolton ruled. The catch, however, is that Judge Bolton, defense attorneys say, omitted Casey’s testimony and that of just about everyone else who countered the “defiant Joe” meme.
Notably, while Arpaio is generally expected to get six months behind bars—if sentencing proceedings take place Oct. 5 as planned—the defense, while appealing the verdict, is asking for the sentencing date to be held later.
Mark Anderson is a longtime newsman now working as the roving editor for AFP. Email him at [email protected]