Sheriff Joe Arpaio Asks Judge Who Made Criminal Referral To Recuse Himself

By Jude Joffe-Block
Published: Thursday, October 27, 2016 - 7:11am
Updated: Thursday, October 27, 2016 - 3:20pm
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Maricopa County Sheriff's Office
Former Maricopa County Sheriff Joe Arpaio.

A day after a criminal contempt charge against Maricopa County Sheriff Joe Arpaio became official, his lawyers asked the federal judge who referred the sheriff for criminal charges to recuse himself from overseeing a long-standing racial profiling case against the sheriff’s office.

This is the second time Arpaio’s lawyers have tried to get U.S. District Court Judge Murray Snow kicked off the eight-year civil case.

The sheriff's office alerted media to the motion on Wednesday evening. It was filed by lawyers who recently joined Arpaio’s defense team from the Washington, D.C. law firm of Cooper & Kirk, and are paid by county taxpayers. They filed the request on behalf of Arpaio, Chief Deputy Jerry Sheridan and Lt. Joseph Sousa. Snow found all three men in civil contempt of court in May.

Snow was a critical force in how Arpaio wound up facing criminal contempt of court. Snow found Arpaio violated court orders in the longstanding racial profiling case and asked U.S. Justice Department lawyers to prosecute. Snow also continues to oversee Maricopa County Sheriff's Office compliance with a court order to reform the agency to prevent profiling, with the help of an independent court monitor.

But Arpaio’s lawyers say both Snow and his court appointed monitor need to recuse themselves because they had private communications regarding the civil case against the sheriff’s office. Arpaio’s lawyers argue that communication was improper and violates the law, and also may have unfairly influenced some of Snow's earlier rulings.

“Moving for the recusal of a sitting judge is a serious matter,” reads the motion filed by lawyer Charles Cooper. “The record makes clear, however, that the Court and the Monitor have engaged in ex parte communications concerning the merits of issues before the Court, including (but not limited to): whether Movants have violated the law or complied with the Court’s orders, whether Movants should be held in contempt, whether the Monitor’s powers should be enlarged, and whether Movants or other government officials are credible and trustworthy witnesses.”

They are also asking the judge and monitor to turn over information about their communications. They argue that full discovery into the scope and content of the communications is necessary to determine, “whether any or all of the Court’s prior rulings must be vacated because they are tainted by these improper ex parte communications.”

Snow has been open about the fact that he speaks with the monitor and meets privately with him.

In 2003, a similar recusal request was before a district court judge in Washington, D.C. In that case the judge concluded, “the simple fact that the Court has consulted regularly with one of its judicial officials as part of its oversight function over matters in this case does not constitute a basis for recusal.”

In May 2015, Arpaio's legal team tried to get Snow recused from the case for the first time. They argued he could not stay on the case after he directly questioned Arpaio about investigating comments allegedly made by the judge's own wife regarding the case.

The 9th Circuit Court of Appeals affirmed Snow's decision not to recuse himself.

Attorney Andy Jacob follows this case closely and is involved in another lawsuit against the sheriff's office. He said there are likely to be real questions about whether the latest motion for recusal is timely.

"The key distinction here will be whether the monitor and Judge Snow had ex parte communicate concerning disputed facts," Jacob wrote KJZZ in an email. "The mere fact that the monitor and Judge Snow met in private is no basis to disqualify the monitor or recuse the judge because they had ample reasons to discuss proper subject matter."

Former U.S. Attorney Paul Charlton said this latest motion by Arpaio’s lawyers means taxpayers are paying “for an out of state firm to file a pleading that, whatever its merit, will needlessly slow the proceedings.”

Charlton called the motion “poor stewardship of government resources and wholly inconsistent with good law enforcement.”

Cecillia Wang of the American Civil Liberties Union represents plaintiffs in the racial profiling case against the sheriff's office. She said the recusal motion should not succeed.

"Sheriff Arpaio lost on the merits, then was held in civil contempt," Wang said in a statement. "Now, a day after he was formally charged with criminal contempt, and at a time when he is years behind schedule in complying with the court's order protecting the community from racial profiling, he comes up with a last-ditch attempt to disqualify the court."

The criminal contempt of court case against Arpaio is proceeding under the oversight of a different judge, U.S. District Court Judge Susan Bolton. If convicted, Arpaio could face a maximum penalty of up to six months in prison.

Arpaio is in the midst of a tough re-election race. A recent Arizona Republic/Morrison Institute/Cronkite poll showed him trailing his opponent, Democrat Paul Penzone by 15 points. Arpaio's campaign disputes the poll and said he is ahead in internal polls.

Editor's Note: This story has been updated to include a statement from attorney Cecillia Wang.

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