Did Joe Arpaio receive a fair hearing from an unbiased judge? [UPDATED]

My position on the pardon of Sheriff Joe Arpaio is that it was a reasonable exercise of the president’s pardon power. Not pardoning the sheriff would also have been reasonable, in my opinion. Indeed, as I said in my post on the subject, I don’t like presidential pardons. Absent overwhelming evidence that the person getting the pardon did not commit the offense for which he was convicted, my preference is no pardon. The Arpaio pardon does not meet that standard.

However, Arpaio’s offense arises from his efforts to combat a serious problem of lawlessness — illegal immigration — that the federal government refused to take seriously. Arpaio was filling a void created by the feds, a void that inflicted hardship on the people Arpaio was elected to serve.

In addition, political animus by those who opposed Arpaio’s efforts to fill the void left by the feds appears to have driven the legal case against him. When a public servant is punished in significant part for being on one side of a political/policy dispute, it doesn’t seem unreasonable for a president on the other side to pardon him.

Ron Rotunda, a distinguished attorney and law professor, informs me via email of certain facts that reinforce my view that partisan politics drove the case against Arpaio and, indeed, resulted in an unfair trial in the case that produced the order Arpaio later was convicted of violating. I believe readers will be interested in what Rotunda has to say.

He writes, in part:

I have never met Sheriff Arpaio, and I fully understand (and share) the concerns of those who find that he lacks (to put it mildly) an appropriate tone in his efforts to control illegal immigration.

However, in connection with his recent pardon, I thought I should point out some factors that I have never read in the recent news articles about the pardon and some of the litigation that led to it.

[Full disclosure: I was asked to evaluate the bias of Judge Snow in light of evidence that several witnesses report that Judge Snow’s wife said in a public restaurant, very clearly, “Judge Snow wanted to do everything to make sure” that Sheriff Arpaio not elected. Neither Judge Snow nor his wife has ever denied the statement.] (Emphasis added). . .

It should be obvious that whatever the duties of a federal judge are, that job description does not include conducting a judicial proceeding in a way to insure that Sheriff Arpaio is not elected and to pursue an investigation that is even broader than that for what appears to be personal reasons. . . .

As to Judge Snow’s handling of the case against Arpaio — the one that produced the order Arpaio was found contemptuously to have violated; the contempt case, which Judge Snow referred to the Justice Department, was handled by a different judge — Rotunda sets forth the following (I have omitted citations to the trial transcript):

1. On April 22, 2015, and on April 23, 2015, Judge Snow conducted a cross examination of Sheriff Arpaio. . .[T]he judge was interested in learning all he could about an email that Sheriff Arpaio received from someone named Grissom, who met the judge’s wife in a restaurant. Mr. Grisson heard the judge’s wife say that “Judge Snow wanted to do everything to make sure I’m [Sheriff Arpaio] not elected.”

2. Sheriff Arpaio wanted to confirm that Mr. Grisson’s statement was actually true. The judge. . .asked Sheriff Arpaio various leading questions (indicating that [he] was cross-examining the witness):

Q. Okay. And so you turned that over to your counsel and counsel hired a private investigator, and what did the investigator do?
A. He investigated it.
Q. And what was the result of the investigation?
A. Results were that he confirmed that your wife was in that restaurant and con — I guess talked to the witnesses, three or four, that confirm that remark was made.

(Emphasis added)

3. The judge apparently engaged in his own investigation, outside the courtroom, of facts he thought relevant that were not in evidence. The judge said, “I was told [during the luncheon break] that you also have various sources of funding within the MSCO,” and Sheriff Arpaio responded that the judge’s information was false. The judge did not say who told him this false information, nor did he say if he questioned others as well.

4. Later, the judge said, “Well, so he found information that the DOJ [Department of Justice] had sent a communication to my computer?” Note that this is a leading question, to which the witness (Sheridan) responds, “Something to that effect, yes.”

5. Shortly thereafter, Mr. Sheridan said that he did not think the evidence of this email showed “collusion” [between Judge Snow and DOJ] to which the judge promptly replied, “Well, I certainly agree with that . . . .” The judge appears to be taking evidence outside of court, asking leading questions, and giving his own testimony.

6. The judge also becomes argumentative. He tells Mr. Sheridan that he did not have to hire Mr. Montgomery as a “confidential” consultant — “Well, but what was he doing that needed to be confidential for?”

The witness tries to answer, but the judge interrupt[s] the witness, preventing him from finishing his sentence. Then the judge argues that there was no need for confidentiality because the consultant was not a mole infiltrating organized crime.

The witness responds that the investigation was confidential because it concerns the CIA breaching personal information at least 50,000 American citizens, including “citizens that lived here in Maricopa County.” However, the judge bec[omes] more argumentative, telling the witness, “I still don’t understand” why such a witness should be called “confidential,” even though the witness informed the judge that this informant qualified as “confidential” under the written rules of the operations manual.

7. During several days of hearing, Judge Snow

-asked leading questions,
-gave his own version of the facts,
-conducted his own investigation outside the courtroom,
-argued with witnesses, and
-was extremely interested in what evidence existed concerning the statement he made to his wife that he would do all that he could to make sure that Sheriff Arpaio is not elected.

8. One thing is very clear. Several witnesses heard Judge Snow’s wife say, in substance, that her husband (Judge Snow) wanted to do whatever he could to make sure that Sheriff Arpaio [was] not reelected. The witnesses may not recall or agree on the exact language that Judge Snow’s wife used, but they do agree on the substance and import of the statement.

9. Judge Snow has never denied making such a statement under oath. In fact, he has never denied it at all.

10. Judge Snow’s wife has never denied making that statement or the substance of that statement under oath. In fact, she has never denied making it at all. . . .

13. [I]n the case of Melendres v. Arpaio [the case that is the vehicle for Snow’s investigation of Arpaio], the brother-in-law of Judge Snow is a partner in Covington & Burling, the law firm representing the plaintiffs. It is, as I understand it, a lucrative case for Covington.

The Federal Ethics Advisory Committee says under Canon 3(C)(1)(d)(ii), the judge must disqualify if the brother-in-law is “acting as a lawyer in the proceeding,” or if, under Canon 3(C)(1)(d)(iii), the brother-in-law is “known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” The Committee [states] “that an equity partner in a law firm generally has ‘an interest that could be substantially affected by the outcome of the proceeding’ in all cases where the law firm represents a party before the court.”

Covington & Burling is the law firm, and this “law firm represents a party before the court.”

The Committee then concludes — and its language merits quotation at length —

As a cautionary note, the Committee further observes that the remittal procedures of Canon 3D are not available if the judge’s relative is acting as a lawyer in the case or is a partner in the law firm representing a party before the court. Recusal is required. As discussed, recusal is not mandated if the firm representing a party before the court employs a judge’s relative as an associate or non-equity partner and the relative has no involvement in the case. If nonetheless a judge is concerned that his or her impartiality might reasonably be questioned, the judge may invoke the remittal procedures of Canon 3D.

The Committee notes that recusal decisions are also governed by the recusal statutes, 28 U.S.C. §§ 455 and 144, and the case law interpreting them. Although the Committee is not authorized to render advisory opinions interpreting §§ 455 and 144, Canon 3C of the Code closely tracks the language of § 455, and the Committee is authorized to provide advice regarding the application of the Code.” (Emphasis added.)

I do not understand how anyone could read Advisory Opinion No. 58 and conclude that Judge Snow followed that Opinion.

The Trump administration did not mention these problems with Judge Snow in its brief statement explaining the Arpaio pardon. Perhaps the nature of the trial that produced the order Arpaio violated did not factor into its decision. Perhaps, the administration did not want to attack a federal judge. In any event, the facts set forth by Rotunda support the case for pardoning Arpaio, in my opinion.

Andy McCarthy argues that Trump should have let the appeal process play out in the contempt case before granting a pardon (if then). Rotunda argues that, given the Ninth Circuit’s liberal bias, he could not expect a fair hearing there.

My thought is that, at age 85, Arpaio should not spend a goodly portion of the rest of his expected life with this cloud hanging over him. If he deserves a pardon, Trump was right to grant it sooner rather than later.

UPDATE: Andrew Case, who clerked for Judge Snow during the Arpaio trial, has put up a series of tweets about the case. From his tweets, it appears that Arpaio waived the conflict discussed by Prof. Rotunda in item 13 above, though I’m not certain that this is the conflict Case is referring to in tweet 7 of 15..

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