WASHINGTON – Former Maricopa County Sheriff Joe Arpaio will likely appeal to the Supreme Court, his attorney said Wednesday, after an appeals court rejected his latest bid to have his contempt of court conviction vacated.
Arpaio was convicted last year for criminal contempt of court for refusing to rein in racial profiling by his department, but was pardoned weeks later by President Donald Trump.
When Arpaio sought to have his conviction vacated, the Justice Department said it would not try to stop him – leading the 9th U.S. Circuit Court of Appeals in April to call for a special prosecutor to defend the conviction.
A divided appeals court refused Wednesday to reconsider that special prosecutor order, a move that dissenting judges said “not only violates the separation of powers, but is also sloppy, creates bad law, and invites reversal by the Supreme Court.”
Arpaio’s attorney Jack Wilenchik said he will likely appeal Wednesday’s decision to the Supreme Court, saying the circuit court’s move to appoint a special prosecutor showed a lack of impartiality.
“Judges are supposed to be neutral,” Wilenchik said. “Just because they disagree doesn’t mean they can replace him.”
But David Shapiro, an attorney at the MacArthur Justice Center at Northwestern University’s Pritzker School of Law, said he was pleased with the latest appeals court ruling.
Shapiro, one of a number of attorneys who had filed friend of the court briefs opposing Arpaio’s attempt to vacate his conviction, said the Justice Department took an “extraordinary posture” when it refused to defend a conviction its own attorneys had won.
“The court is well within its authority to appoint a private attorney where the Department of Justice has dropped the ball,” Shapiro said. “Arpaio very clearly violated people’s civil rights and insisted upon doing it to the point of criminal contempt.”
He said it would be it would be unusual for the Supreme Court to agree to hear Arpaio’s case while it is still before the 9th Circuit – which Arpaio’s case still is.
David Madden, the 9th Circuit’s assistant circuit executive, could not say Wednesday when a prosecutor might be appointed. But once that happens, the prosecutor would defend Arpaio’s conviction before the appeals court, while Arpaio’s attorneys argue to vacate.
In defending the appointment of a special prosecutor, Circuit Judge William Fletcher wrote that doing so was not infringing on executive prosecutorial power, calling it “an exercise of judicial rather than executive power.”
Fletcher said Federal Rule of Criminal Procedure 42 allows courts to protect themselves by appointing a private attorney if the government declines to prosecute a criminal contempt of court case. In that case, the rule says courts must appoint a private attorney, Fletcher wrote, and that it applies for both the trial and any appeals.
But in a dissent, Judge Consuelo Callahan called the move to appoint a special prosecutor both unprecedented and unnecessary, noting that amici curiae, or friends of the court, had lined up to argue against Arpaio and could easily do so. There is no need, Callahan wrote, to “supplant the Department of Justice” with a special prosecutor.
“While Sheriff Arpaio and the Chief Executive who pardoned him have evoked strong feelings from those opposing political views, we abandon our role as impartial jurists by ‘wading into that (political) thicket,’ effectively firing that United States’ attorneys, and appointing a special prosecutor in their stead,” Callahan wrote.
But one of those with a strong opinion about Arpaio’s history defended the call for a special prosecutor.
Clarissa Martinez, deputy vice president of Unidos US, said her organization thinks it is important that people know what Arpaio did to receive the conviction for criminal contempt of court in the first place.
“We hope the courts do not cover up who he is and the damage he’s done,” Martinez said. “We know we’re stronger when we confront racism and do not sweep it under the rug.”
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