Arpaio Criminal Charges


TED: JOINING US TO TALK ABOUT THE LEGAL ASPECTS OF THE ARPAIO CASE, FORMER U.S. ATTORNEY FOR ARIZONA, PAUL CHARLTON, HE'S CURRENTLY A PARTNER AT STEPTOE & JOHNSON AND STEPHEN MONTOYA, ATTORNEY FOR THE FIRM OF MONTOYA, LUCERO & PASTOR. GOOD TO HAVE YOU BOTH HERE. THANKS FOR JOINING US. EXPLAIN THE JUSTICE DEPARTMENT'S DECISION. WHAT'S GOING ON HERE?

PAUL CHARLTON: YOU'LL RECALL THERE WAS A FORMAL, IF YOU WILL, INVITATION FOR THE DEPARTMENT OF JUSTICE TO CONSIDER BRINGING CHARGES AGAINST JOE ARPAIO AND OTHERS. THE DEPARTMENT OF JUSTICE IN A SURPRISE MOVE, ANNOUNCED THEY WERE GOING TO, IN FACT, BRING CHARGES AGAINST JOE ARPAIO. AND FOR OTHERS REASONS WE CAN GET INTO LATER ON, THEY WERE NOT YET GOING TO BRING CHARGES AGAINST THE OTHER INDIVIDUALS WHO WERE REFERRED TO THE DEPARTMENT OF JUSTICE FOR PROSECUTION.

TED: ONLY ARPAIO CHARGED? WAS THAT A BIT OF A SURPRISE?

STEPHEN MONTOYA: I CAN'T SAY IT WAS. SHERIFF ARPAIO HAS SAID AD NAUSEAM THAT HE'S THE SHERIFF AND THAT HE'S IN CHARGE. THIS IS THE FRUIT OF THAT. HE'S THE SHERIFF, HE'S IN CHARGE. AS HE ADMITS, THE BUCK STOPS WITH HIM. THE RESPONSIBILITY IS HIS. HE'S THE PRIMARY TARGET. HE WAS THE PRIMARY WRONGDOER.

TED: THE TWO AIDES AND HIS DEFENSE ATTORNEY MENTIONED BY JUDGE SNOW, ARE THEY OFF THE HOOK?

STEPHEN MONTOYA: I DON'T THINK THEY'RE OFF THE HOOK. I THINK THERE WILL BE A DELAY IN CONSIDERING WHAT CHARGES IF ANY TO PURSUE AGAINST THEM, BUT I REALLY DO THINK THE MAIN TARGET IS THE MAN ELECTED TO THE POSITION AND THAT WOULD BE SHERIFF ARPAIO, WHO ADMITTED HE WAS IN CHARGE.

TED: AGAIN, THIS CASE INVOLVES CRIMINAL CONTEMPT OF COURT. A BRIEF OVERVIEW, PLEASE.

PAUL CHARLTON: YOU HEARD HIS LAWYER, MEL MCDONALD TALK ABOUT THE MOST SALIENT FACTOR IN THE DECISION MAKING PROCESS FOR JUDGE SNOW AND THE DEPARTMENT OF JUSTICE. ALL OF HIS LAWYERS AGREE HE WAS IN CONTEMPT OF COURT, FAILED TO FOLLOW THE COURT'S ORDERS. THE DEBATE BECOMES WHETHER OR NOT THAT WAS INTENTIONAL REFUSAL OR SOMETHING LESS THAN INTENTIONAL. THE DEPARTMENT OF JUSTICE AGREES NOW WITH JUDGE SNOW AND SAY WE AGREE IT WAS INTENTIONAL, THE CONTEMPT WAS CRIMINAL AND WE'RE GOING TO GO FORWARD WITH A CRIMINAL CHARGE.

TED: HAS ARPAIO BEEN OFFICIALLY CHARGED? NOT YET, CORRECT?

STEPHEN MONTOYA: I THINK THAT PROBABLY HAPPENED TODAY.

TED: OH, IT DID HAPPEN TODAY? OK.

STEPHEN MONTOYA: I BELIEVE THE JUDGE ORDERED THE FILING TO HAPPEN TODAY.

TED: DO WE KNOW TODAY IF IT'S GOING TO BE A JURY TRIAL?

STEPHEN MONTOYA: NO, PAUL AND I WERE TALKING ABOUT THAT BEFORE THE SHOW, I DON'T THINK WE KNOW THAT, HOWEVER, IT'S MY VIEW THAT HE'S NOT ENTITLED TO A JURY TRIAL FOR A FEW REASONS, FIRST OF ALL, HE'S BEING CHARGED WITH AN OFFENSE THAT WOULD RESULT IN A PENALTY OF NO MORE THAN SIX MONTHS IN JAIL. SO I BELIEVE BECAUSE IT'S A SO-CALLED PETTY OFFENSE OR A MISDEMEANOR THAT HE'S NOT ENTITLED TO A JURY TRIAL. I KNOW HE BELIEVES UNDER A CRIMINAL STATUTE THAT INDICATES THAT IN SOME CRIMINAL CONTEMPT CASES YOU'RE NOT ENTITLED TO A JURY TRIAL, THAT HE -- OR THAT YOU ARE ENTITLED TO A JURY TRIAL, HE THINKS THAT STATUTE IS APPLICABLE. I DISAGREE, BECAUSE FIRST OF ALL, THE GOVERNMENT OF THE UNITED STATES ULTIMATELY WAS A PARTY IN THIS CASE BECAUSE YOU REMEMBER, THE UNITED STATES SUED SHERIFF ARPAIO AS WELL AND THAT ACTION WAS CONSOLIDATED INTO THE MELENDRES CASE AND THE STATUTE SPECIFICALLY EXEMPT IN CASES IN WHICH THE UNITED STATES IS A PARTICIPANT. SO I DON'T THINK HE'S ENTITLED TO A JURY TRIAL FOR THAT REASON. BUT THERE'S ANOTHER REASON, THE NATURE OF THE CONTEMPT, THE STATUTE IS UNAPPLICABLE IF THE CONTEMPT ARISES DURING THE ADJUDICATION OF THE UNDERLYING CASE ITSELF. THAT'S WHAT HAPPENED IN THIS CASE. THERE WAS AN ORDER AND AN INJUNCTION AND JUDGE SNOW MADE VOLUMINOUS FINDINGS THAT SHERIFF ARPAIO INTENTIONALLY VIOLATED IT. BECAUSE HIS CONTEMPT IS DISOBEDIENCE TO A COURT ORDER AND THAT IT TRANSPIRED IN THE CONTEXT OF THE UNDERLYING CASE I DON'T THINK HE'S ENTITLED TO A JURY TRIAL. AND IN SOME WAYS THIS IS OLD HAT. SHERIFF ARPAIO HAS HAD HIS CHANCE, HIS LAWYERS HAVE HAD THEIR CHANCE TO DEMONSTRATE TO THE FINDER OF FACT IT WASN'T INTENTIONAL AND THEY OVERWHELMINGLY LOST. JUDGE SNOW MADE PARAGRAPH AFTER PARAGRAPH OF THE VOLUMINOUS FINDINGS, DETAILING THE EVIDENCE -- DEMONSTRATING THAT SHERIFF ARPAIO'S CONTEMPT OF COURT WAS, IN FACT, INTENTIONAL. I THINK IT'S GOING TO BE A SLAM DUNK AGAINST SHERIFF ARPAIO AND I THINK JUDGE BOLTON, A TOUGH JUDGE, IS GOING TO COME DOWN EXACTLY THE WAY HER COLLEAGUE, WHO IS ALSO A VERY TOUGH JUDGE CAME DOWN.

TED: THE IDEA BECAUSE -- THE SIX-MONTH CAP WHICH I THINK MOST FOLKS SAW AS SURPRISING OR CURIOUS OR NEEDED A BETTER EXPLANATION. WHY WAS THAT PUT IN PLACE AND WAS THAT PUT IN PLACE IN PART TO KEEP IT AWAY FROM A JURY TRIAL?

PAUL CHARLTON: STEPHEN'S ANALYSIS OF THE LAW IS EXACTLY CORRECT IN THE SENSE THERE'S GOING TO BE A DEBATE. AS YOU POINTED OUT, UNDER THE CONSTITUTION, WE ARE ALL OF US ENTITLED TO A JURY TRIAL WHEN CHARGED WITH A FELONY OFFENSE. BUT IF IT'S A SIX-MONTH INCARCERATION OR LESS, YOU'RE NOT ENTITLED TO A JURY TRIAL AND THE GOVERNMENT FOR STRATEGICALLY SOUND REASONS, THINK I WE WOULD AGREE, HAS GONE TO THE JUDGE AND SAID, YOUR HONOR, WE HAD LIKE YOU TO BE THE FINDER OF FACT, NOT A JURY. MCDONALD HAS SAID NO, YOUR HONOR, WE WANT A JURY, WE WANT THOSE PEOPLE WHO WILL FOREVER FOLLOW AND DO JOE ARPAIO'S POINT OF VIEW ON THIS AND THAT'S WHY WE WANT A JURY. THAT'S YET TO BE DECIDED OF THE LEGAL ISSUES WILL HAVE TO BE WEIGHED ON BY THE JUDGE AND BECAUSE THIS REALLY HAS NOT BEEN TERRITORY TREAD OFTEN, THIS IS THE KIND OF DEBATE THAT -- THAT JUDGE BOLTON HAS TO MAKE A DECISION ON FOR THE FIRST TIME IN THIS STATE.

TED: HOW MUCH TIME TO MAKE THE DECISION?

STEPHEN MONTOYA: NOT A LOT OF TIME, I BELIEVE SHE'S SCHEDULED A TRIAL FOR EARLY DECEMBER. I DON'T THINK IT WILL TAKE HER A LOT OF TIME. IT IS, HOWEVER, ULTIMATELY GOING TO TAKE SOMEBODY A LOT OF TIME BECAUSE SHERIFF ARPAIO HAS A RIGHT TO APPEAL. WHICH HE FREQUENTLY EXERCISES, ALBEIT UNSUCCESSFULLY. SO THIS IS GOING TO BE ANOTHER CASE THAT COULD BE DRAWN OUT FOR YEARS AND IS GOING TO COST THE TAXPAYER ANOTHER LARGE BUNDLE OF MONEY, ARGUABLY, I KNOW THE COUNTY IS SAYING IT DOESN'T HAVE TO PAY BECAUSE IT'S A CRIMINAL PROCEEDING, I THINK THAT'S ALSO TO BE THE SUBJECT OF LITIGATION.

TED: THE OBSTRUCTION OF JUSTICE, I KNOW THERE WAS AN AVENUE, AN INVESTIGATION REFERRAL, I BELIEVE -- NOT A -- WAS THERE A REFERRAL FOR OBSTRUCTION OF JUSTICE AS WELL.

PAUL CHARLTON: THERE WAS. THE DEPARTMENT OF JUSTICE SAID WE AGREE THAT WE CAN GO FORWARD WITH THE CONTEMPT CHARGE AGAINST JOE ARPAIO. AS TO OBSTRUCTION OF JUSTICE AGAINST SHERIDAN, BAILEY AND JOE ARPAIO'S LAWYER, WE THINK THERE MAY BE A STATUTE OF LIMITATION, THE CHARGES MAY HAVE BEEN BROUGHT TOO LATE AND INTERESTINGLY, IT'S THE JUDGE WHO SAID, I'M NOT SURE YOU'RE RIGHT. LET'S WAIT AND SEE IF YOU ARE RIGHT. THAT ISSUE IS YET ANOTHER TO BE DECIDED.

TED: THAT'S STILL OUT THERE?

PAUL CHARLTON: CORRECT.

TED: WHEN YOU WERE DESCRIBING THINGS, THERE WAS A NIXONIAN DISSENT GOING ON HERE, IT WASN'T NECESSARILY WHAT HE DID. IT WAS NOT FOLLOWING THE JUDGE'S ORDERS, CORRECT?

STEPHEN MONTOYA: VERY PROUDLY NOT FOLLOWING THE JUDGE'S ORDERS. EXPRESSLY SAYING, I'M THE SHERIFF, WHAT I SAY GOES, AS JUDGE SNOW SPECIFICALLY FOUND BASED ON TRIAL TESTIMONY, HE INTENTIONALLY REPEATEDLY IGNORED THE JUDGE'S ORDER SO I FEEL THERE WAS NO CHOICE BUT TO HOLD HIM ACCOUNTABLE FOR THAT. THE TIMING ISSUE, I THINK THE JUSTICE DEPARTMENT HAD TO DO IT QUICKLY, AS PAUL POINTED OUT, THERE MIGHT BE A STATUTE OF LIMITATIONS PROBLEM. SOME WILL CLAIM IT'S TOO LATE. YOU CAN'T SIT ON THESE TYPES OF CHARGES, YOU HAVE TO BRING THEM AS QUICKLY AS YOU REASONABLE CAN, I THINK THE JUSTICE DEPARTMENT SHOULD HAVE BROUGHT THE CHARGES MORE QUICKLY SO THIS COULD HAVE BEEN RESOLVED FOR OR AGAINST HIM BEFORE THE ELECTION.

TED: CAN A JUDGE PUT A CLOCK ON THE STATUTE OF LIMITATIONS.

PAUL CHARLTON: YOU CAN'T, BUT YOU CAN INVITE THE LAWYERS AS JUDGES DO TO GIVE ASSISTANCE IN UNDERSTANDING WHEN THE STATUTE OF LIMITATIONS ACTUALLY RUNS. IT'S INTERESTING, THE DEPARTMENT OF JUSTICE MADE THIS ANNOUNCEMENT ON THE EVE OF THE ELECTION. TYPICALLY ITS POLICY IS TO WAIT BEFORE BRINGING OR ANNOUNCING CHARGES UNTIL AFTER AN ELECTION BECAUSE THEY DON'T WANT TO INTERFERE WITH THE OUTCOME OF AN ELECTION BASED ON MERE CHARGES. HERE THEY WENT FORWARD AND THERE'S GOING TO BE CRITICISM AND THERE HAS BEEN FROM JOE ARPAIO'S CAMP. THE CHARGES BEING ANNOUNCED ON THE EVE OF THE ELECTION ARE POLITICALLY MOTIVATED DECISION. BUT I THINK STEPHEN IS RIGHT TO POINT OUT THAT THERE ARE STATUTE OF LIMITATIONS ISSUES.

TED: HOW DOES THE CLAIM GO LEGAL WISE?

STEPHEN MONTOYA: I DON'T THINK IT GOES FAR AND CAN BE RESOLVED BY LOOKING AT THE GENESIS OF THIS. LET'S TALK ABOUT THE INDIVIDUAL WHO STARTED THIS, THE FINDER OF FACT. JUDGE SNOW. PAUL KNOWS BETTER THAN I DO, I THINK HE'S WORKED WITH JUDGE SNOW MORE THAN I HAVE, HE'S NOT A POLITICAL ANIMAL. HE WAS NOMINATED BY A REPUBLICAN TO THE STATE COURT BENCH, HE WAS NOMINATED BY ANOTHER REPUBLICAN TO THE FEDERAL BENCH. BELIEVE ME, JUDGE SNOW, WHOM I GREATLY RESPECT IS NOT A FLAMING LIBERAL. I WOULD SAY HE'S CONSERVATIVE, TO MODERATELY CONSERVATIVE. HE'S NOT A PARTISAN JUDGE. I THINK HE BENT OVER BACKWARDS TO GIVE SHERIFF ARPAIO THE BENEFIT OF EVERY DOUBT IN THIS CASE AND SHERIFF ARPAIO FAILED THE TEST AND JUDGE SNOW DID WHAT HE HAD TO DO UNDER THE LAW.

TED: GREAT DISCUSSION, THANKS FOR JOINING US.

Federal prosecutors have said they will file charges against Maricopa County Sheriff Joe Arpaio for ignoring orders from a judge in a racial profiling case. Former U.S. Attorney for Arizona Paul Charlton, currently a partner at Steptoe and Johnson, and Stephen Montoya, a civil rights attorney from the firm Montoya, Lucero and Pastor, will discuss the case.

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In this segment:

Paul Charlton: Former U.S. Attorney for Arizona, Stephen Montoya: a civil rights attorney from the firm Montoya, Lucero and Pastor

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