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Arpaio’s legal blunder

imageAs you have read in these pages, Joe Arpaio through his attorney, has filed a motion to disqualify federal district judge G. Murray Snow, in the radial profiling case of Melendres v. Arpaio. The motion, “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow,” invokes two federal statutes: 28 USC § 455 and 28 USC § 144. You can read about those in my article, Sheriff Joe cries “uncle”!

Invoking § 144 is a problem. Here is the statute:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Note the highlighted portion: “A party may file only one such affidavit in any case.” The problem is that this not the first § 144 motion filed by Arpaio in this case. Let’s set the Wayback machine a thousand documents or so back in the Melendres docket to February 23, 2009, when the Melendres case was under a different judge, U.S. District Judge Mary Murguia. Arpaio filed a motion for recusal then:

Defendants Joseph M. Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455, and also pursuant to Rule 83.5, Local Rules for the United States District Court for the District of Arizona, respectfully submit this Motion for Recusal.

That’s why the current judge is someone without a Latino surname, G. Murray Snow. Filing TWICE under 28 USC § 144 appears to this writer to be a huge legal blunder.


Joe Arpaio: There are no limits on how much money you can give me

imageArpaio is correct in an email solicitation as he writes:

Unlike a political campaign, THERE ARE NO LIMITS to how much you can give. Further, the contribution can come from any entity: business, trust, corporation, etc.

The solicitation was spammed1 to a broad mailing list of people who, I guess, have ever been associated with Republicans or conservatives—not just prior Arpaio contributors. Just in the past 2 years, Arpaio has spend around $3 million dollars in fundraising for his political campaign, so I guess he has access to some serious mailing lists.

Arpaio would make it seem like he has tremendous legal bills from just doing his job as sheriff. In fact, most of these tens of millions of dollars in legal defense costs are borne by Maricopa County. It is this recent contempt of court flap that the County isn’t paying for.

There’s a sucker born every minute.
–David Hannum

1The emails came through Bluehornet, which is considered to be a spammer.


Are birthers right wing authoritarians?

I’m reading this neat book called “The Authoritarians” by Prof. Bob Altemeyer. Thanks to bgansel9 for suggesting the book. Altemeyer has developed a test for authoritarians, and he found that most of them are right-wing politically.

In the book, we find studies that correlate high RWA’s with other characteristics, and some of these seem to fit Internet birthers (birthers who comment on the Internet).

Chapter 3 of the book has a list of characteristics for these authoritarians. What follows each topic is a brief excerpt from the book in italics, selected to most closely sound like birthers.

How Authoritarian Followers Think

Illogical Thinking

Intrigued, I gave the inferences test that Mary Wegmann had used to two large samples of students at my university. In both studies high RWAs went down in flames more than others did. They particularly had trouble figuring out that an inference or deduction was wrong. To illustrate, suppose they had gotten the following syllogism:

All fish live in the sea.
Sharks live in the sea..
Therefore, sharks are fish.

The conclusion does not follow, but high RWAs would be more likely to say the reasoning is correct than most people would. If you ask them why it seems right, they would likely tell you, “Because sharks are fish.” In other words, they thought the reasoning was sound because they agreed with the last statement. If the conclusion is right, they figure, then the reasoning must have been right.

When I read that, I could not help but think of the birther reading of the Supreme Court case of Minor v. Happersett.

Highly Compartmentalized Minds

As I said earlier, authoritarians’ ideas are poorly integrated with one another. It’s as if each idea is stored in a file that can be called up and used when the authoritarian wishes, even though another of his ideas–stored in a different file– basically contradicts it. We all have some inconsistencies in our thinking, but authoritarians can stupify you with the inconsistency of their ideas.

…they don’t seem to scan for self-consistency as much as most people do.

Here I would point to the birther assertions that President Obama’s father is both Barack Obama, Sr. and Frank Marshall Davis.

Double Standards

I have found many other instances in which authoritarian followers show a double standard in their judgments of people’s behavior or the rightness of various causes.

I see this all the time, such as the demand for a double blind study to evaluate the Xerox 7655 experiments, while accepting extremely unscientific results claiming that Obama’s birth certificate is a forgery.


For example, the leaders of authoritarian movements sometimes accuse their opponents of being anti-democratic and anti-free speech when the latter protest against various books, movies, speakers, teachers and so on.

We see this in the censorship that appears widely on birther web sites.

Blindness To Themselves

… they have no idea how much they differ from others in that way. And most of the time they get it quite wrong, thinking they are not different from others, and even that they are different in the opposite way from how they actually are.

Birthers seem fairly unaware that most people who are well informed and intelligent disagree with them.

A Profound Ethnocentrism

Well, aren’t most people likely to trust someone who seems to agree with them? Probably, but people differ enormously in gullibility. Low RWAs are downright suspicious of someone who agrees with them when they can see ulterior motives might be at work. They pay attention to the circumstances in which the other fellow is operating. But authoritarians do not, when they like the message.

…the authoritarian follower makes himself vulnerable to malevolent manipulation by chucking out critical thinking and prudence 92 as the price for maintaining his beliefs. He’s an “easy mark,” custom-built to be snookered….

The birthers have a willingness to continue to believe Mike Zullo even though he is obviously stringing them along.

Dogmatism: The Authoritarian’s Last Ditch Defense

It’s easy to see why authoritarian followers would be dogmatic, isn’t it? When you haven’t figured out your beliefs, but instead absorbed them from other people, you’re really in no position to defend them from attack. Simply put, you don’t know why the things you believe are true. Somebody else decided they were, and you’re taking their word for it. So what do you do when challenged?

Well first of all you avoid challenges by sticking with your own kind as much as possible, because they’re hardly likely to ask pointed questions about your beliefs. But if you meet someone who does, you’ll probably defend your ideas as best you can, parrying thrusts with whatever answers your authorities have pre-loaded into your head. If these defenses crumble, you may go back to the trusted sources. They probably don’t have to give you a convincing refutation of the anxiety-producing argument that breached your defenses, just the assurance that you nonetheless are right. But if the arguments against you become overwhelming and persistent, you either concede the point–which may put the whole lot at risk–or you simply insist you are right and walk away, clutching your beliefs more tightly than ever.

I found debating on Birther Report that many birthers don’t have a clue what they believe, and when confronted with iron-clad evidence that they are wrong, then retreat to a more general position, like Obama is the worst president ever.


The Chapter 3 characteristics are not the only things I found that might link birthers to high RWA’s. One other is:

Authoritarian followers score highly on the Dangerous World scale…. High RWAs are, in general, more afraid than most people are.

I can’t say how afraid birthers are in general. Conspiracy theorists in general seem to think that the world is dangerous and that it is being manipulated by sinister forces. At least some of the denizens of Birther Report have adopted the idea that various government plots are directed at them, and their guns. Jade Helm 15 conspiracies bear that out.

What is really needed to decide the question is to administer the RWA test to a number of birthers and see how they score.


Stay in Melendres

Here’s the telegraphic version of today’s status conference in Melendres v. Arpaio:

Motion to disqualify judge Snow by criminal attorney for Arpaio. Judge issues stay of proceedings until motion has been reviewed by parties and judge.  Snow reserves right for clarification from defense. Snow may add oral argument. Hearing dates in June to be maintained. Arpaio criminal defense attorney objects to entire inquiry by Judge Snow and the unbridled authority of the court appointed monitors.


Arpaio cries “uncle”!

imageDefendants Joe Arpaio and Jerry Sheridan (not pictured right) have taken the extreme step of filing a “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow.”

Under statute, case law, and judicial canons, the perception of judicial bias  and the appearance of impropriety, punctuated by the material witness status of the presiding judge’s spouse, mandate the recusal and disqualification of the Honorable G. Murray Snow.

Do tell.

I suppose that I have some sympathy for the recusal argument, given that Arpaio’s investigation of the judge and his family has entered the case record. I don’t buy some of the arguments for actual bias—when they follow the Orly Taitz model for proving judicial bias: the judge ruled against me. Federal law requires disqualification when a judge’s impartiality “might reasonably be questioned.” It does not require proof of actual bias. Here are some things to consider:

  1. Significant judicial resources have already been invested in the Melendres case.
  2. The 9th Circuit Court of Appeals has already rejected a motion for the recusal of Judge Snow on similar allegations.
  3. It is unlikely that Judge Snow’s wife will be a material witness in the case.

The Supreme Court said in Liteky v. United States:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.

Further, actions by a party that might create animus on the part of a judge (like investigating their wife) do not created grounds for disqualification. The Third Circuit said that the courts should not “encourage tactics designed to force recusal.”1

One matter that is raised late in the motion regarding what the judge’s wife said:

Moreover, regardless of the irrelevance of the Grissom and Montgomery investigations to the issue of whether the admitted contempt of the Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his wife as a witness and her uncontradicted statement into the contempt proceeding. Whether a sitting judge is admittedly biased toward a defendant in his Court and will do anything to ensure he is not re-elected is – without question – a conflict that creates grounds for recusal.

It might have constituted grounds for recusal when Defendants became aware of it in August of 2013, but all of the circuit courts agree that such motions for recusal must be made “at the earliest moment after knowledge of the facts demonstrated the bias for such disqualification.”2 In particular the 9th Circuit requires “reasonable promptness after the ground for such a motion is ascertained.”3 Evidence of bias is not something that a party can keep in reserve until he feels he needs it.

My preceding comments refer to disqualification under 28 U.S. Code § 455, which requires recusal based on the appearance of bias. Arpaio’s attorneys have filed both under § 455 and § 144, the latter dealing with actual bias. A challenge under § 144 is rather a nuclear option. It can be done only once in a case, and it requires an affidavit by the party and a certificate of good faith from counsel that the judge is biased, and results in automatic transfer of the case to another judge. However, filings under § 144 must be timely:

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.

I am not seeing how this motion is timely. Further, the affidavit, must allege facts sufficient to lead a reasonable person to believe that the judge is biased, and the discussion of § 455 applies and the deficiencies of the Arpaio motion already discussed are relevant.

In any case, I’m not qualified to judge the merits of the Arpaio filing, so I’ll wait and see what happens.

Legal citations in this article found in the Federal Judicial Center paper listed below.

Read more:

1United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994)

2Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)

3Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)


RC Radio: Interview with French Attorney Lupin

Vattel made clear

RC Radio continues in its tradition of interesting and distinguished guests, this time a French attorney who is also an editor of works (in English translation) by Emerich de Vattel! What a powerhouse combination for any discussion of both the language and the context into which Vattel wrote on citizenship.

Readers here will know well our distinguished commenter Lupin. Listen to him on RC Radio.

It was a great show. Here are early articles where Lupin has commented here (oldest first):