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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)

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42 Responses to Arpaio cries “uncle”!

  1. avatar
    Reality Check May 22, 2015 at 2:23 pm #

    Judge Snow stayed the proceedings. I believe the next step is that another judge from the district will be assigned to rule on the recusal motion. I don’t believe Judge Snow could rule otherwise. This is automatic if one of the parties moves for recusal. Inappropriate Larry’s motion was denied or moot because Montgomery was not a party to the case and the motion to intervene was denied.

    It is a desperate measure and definitely puts Iafrete’s and McDonald’s butts on the line for sanctions if the new judge finds the recusal motion to be frivolous. Remember Lacy warned Arpaio that Grissom’s story was not credible and he recommended not moving forward with it

  2. avatar
    bob May 22, 2015 at 3:33 pm #

    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.

    “Hey, judge, I my former lawyer voluntarily investigated you the credibility of someone who gave a statement about what your wife might have said. I didn’t create the conflict of interest!” 🙄

  3. avatar
    Maverick May 22, 2015 at 3:34 pm #

    So, if you don’t like a judge investigate him/her.

    Then it doesn’t matter if there is no evidence of bias, just file a motion to disqualify the judge because, well, you investigated the judge.

    Gosh, if only you could create your own disqualification, then no one would ever have to get a judge s/he didn’t like.

  4. avatar
    Dr. Conspiracy May 22, 2015 at 4:27 pm #

    I understand your point, and I have updated the article to include some information on how threats from parties do not demand recusal. Where my “sympathy” lies is on the perceptions of a reasonable person under the statute. Where I, as a layman, fall down is in knowing the legal interpretation of what a “reasonable person” is. Apparently the legal definition of “reasonable person” is not what a reasonable person thinks it is.

    Maverick: Gosh, if only you could create your own disqualification, then no one would ever have to get a judge s/he didn’t like.

  5. avatar
    Dr. Conspiracy May 22, 2015 at 4:29 pm #

    No. While it is theoretically possible for a judge to refer a motion for recusal to another judge, the norm is that the challenged judge rules on the motion. Snow will rule, and that ruling may be appealed.

    Reality Check: I believe the next step is that another judge from the district will be assigned to rule on the recusal motion.

  6. avatar
    Dr. Conspiracy May 22, 2015 at 5:54 pm #

    I think I am finally finished adding stuff to the article. Once again, I get a micro legal education from reading stuff.

  7. avatar
    Curious George May 22, 2015 at 6:44 pm #

    Arpaio’s declaration is revealing. Now we know, according to Arpaio, the court appointed monitors are investigating the MCSO’s / Cold Case Posse investigation into the authenticity of President Obama’s birth certificate. The motion by Arpaio’s defense team to recuse the judge is intended to stop the probe into Arpaio’s sham BC investigation. Zullo must be sweating, probably somewhere in Florida right about now.

    At the end of the day, Judge Snow will deny the motion to recuse. Arpaio’s motion is an act of desperation.

  8. avatar
    bgansel9 May 22, 2015 at 7:30 pm #

    Will someone rid of us this meddlesome Sheriff?

  9. avatar
    Reality Check May 22, 2015 at 7:42 pm #

    One question that I had is are the Defendants allowed to file a response? I assume they do not have to sit idly by while Arpaio tried to investigate himself out of a judge he does not like.

  10. avatar
    RanTalbott May 22, 2015 at 9:16 pm #

    Reality Check: One question that I had is are the Defendants allowed to file a response?

    The would be “plaintiffs”: the birthers are the ones at the Naughty Table this time 😉

    I’m pretty sure I read about responses being allowed to one or more of Orly’s motions for recusal. But that might have been because of her tendency to mix up multiple kinds of motions into one giant mess. It would certainly be surprising if the other party didn’t get a say, since they have a big stake in a retrial or a change of judge.

  11. avatar
    Dr. Conspiracy May 22, 2015 at 9:18 pm #

    I don’t think so.

    Reality Check: One question that I had is are the Defendants allowed to file a response? I assume they do not have to sit idly by while Arpaio tried to investigate himself out of a judge he does not like.

  12. avatar
    donna May 22, 2015 at 9:40 pm #

    Snow has requested legal briefings on the matter, which are expected early next month.

    Lawyers pressing the case against Arpaio say the request is nothing more than a stall tactic. “The timing of this motion is suspect,” ACLU attorney Cecillia Wang said.

    They say Arpaio requested the probe and now wants to use it as justification to delay the contempt hearing that marks the thorniest legal troubles of a 22-year tenure pockmarked by lawsuits and accusations. “They went out on their own to get some dirt,” attorney Dan Pochoda said.

    http://www.abc15.com/news/state/maricopa-county-sheriff-joe-arpaio-seeks-to-remove-judge-from-profiling-case

  13. avatar
    bgansel9 May 22, 2015 at 11:11 pm #

    RanTalbott: the Naughty Table

    Funny way to put that. LOL

  14. avatar
    Krosis May 23, 2015 at 12:17 am #

    It’s all clear now. Judge Snow forged the birth certificate!

  15. avatar
    gorefan May 23, 2015 at 12:19 am #

    Over at AZCentral, Jonathan Moseley made this comment:

    “Well the way the legal system works if Judge Snow does not recuse himself, it will give Sheriff Arpaio the chance to throw it all out on appeal….”

    http://www.azcentral.com/story/ejmontini/2015/05/22/sheriff-joe-arpaio-judge-murray-snow-civil-contempt/27786213/

  16. avatar
    The Magic M (not logged in) May 23, 2015 at 3:45 am #

    Holy cowbagger!

    his wife as a witness and her uncontradicted statement into the contempt proceeding.

    I don’t think it will sit well with this (or any judge) to have the chutzpah to claim since the judge didn’t say his wife’s alleged (!) statement was false, he admitted it as true.

    Whether a sitting judge is admittedly biased

    And again claiming something that directly attacks the judge inappropriately.

    Yeah, I do hope some sanctions are coming out of this. This reads like a KKKlayman argument.

  17. avatar
    Lupin May 23, 2015 at 4:13 am #

    I’ll ask a naive question (not familiar at all with your procedures) but to the extent that you are threatened with contempt of court, doesn’t that kind of imply that the judge already hates you (presumably for good reasons)?

    If there is/was a bias, should the new judge look at the proceedings BEFORE the contempt of court business began?

  18. avatar
    RanTalbott May 23, 2015 at 7:07 am #

    Lupin: doesn’t that kind of imply that the judge already hates you

    No. Although “of court” _would_ normally suggest that the contempt was an emotion being felt by the court, “contempt of court” is an idiomatic expression meaning that person being cited has demonstrated contempt for the dignity or authority of the court. E.g., by acting rudely in the courtroom, or failing to comply with orders issued by the judge.

  19. avatar
    Reality Check May 23, 2015 at 9:39 am #

    Yes, I meant the Plaintiffs of course.

    RanTalbott: The would be “plaintiffs”: the birthers are the ones at the Naughty Table this time

  20. avatar
    Curious George May 23, 2015 at 8:01 pm #

    The Magic M (not logged in)

    “And again claiming something that directly attacks the judge inappropriately.

    Yeah, I do hope some sanctions are coming out of this. This reads like a KKKlayman argument.”

    Look over here at his wife, certainly not over there at Dennis Montgomery coming up “with a bogus conspiracy” to discredit the court. This has KKK / Arpaio written all over it. It sounds like they’ve got lots to hide.

    So, how is that reelection campaign goin’ for ya, Shurf Joke? How about pulling another ostrich or dog story out of your hat?

  21. avatar
    RanTalbott May 24, 2015 at 1:00 am #

    Curious George: How about pulling another ostrich or dog story out of your hat?

    Actually, he did just that: in the last week or so, I saw a story about busting an “animal hoarder” linked off one of the stories in the Phoenix press about the trial.

    BR helpfully linked to a scribd posting of the complete motion, including the zibbits: https://www.scribd.com/doc/266291072/Melendres-v-Arpaio-Motion-for-Recusal-With-Exhibits-5-22-2015?secret_password=11ZM3mO8ckoU3OaZ8wPo

    Among them are transcripts of the PI’s interviews with Grissom and her husband. Grissom’s recollection of the comments were suddenly milder when she was being questioned in front of a tape recorder. But the real zinger is in her husband’s interview: his recollection was that Mrs. Snow didn’t say the judge wasn’t acting out of personal dislike, but because of what Arpaio was doing. It may or may not be significant that the planned interview with the Grissoms’ son was not included in the filing. I haven’t seen any statement about whether it was done. Which, according to the Shrimpton Standard™, means that it _was_ done, and it refuted his mother’s claims 😉

    While not conclusive, this strongly suggests that Snow was simply saying that what he had seen in court convinced him that Arpaio is a bad sheriff, and he hoped the voters would reach the same conclusion based on what the trial turned up. Which would definitely not be grounds for recusal.

    Lemons has a new column on the subject: http://www.phoenixnewtimes.com/news/arpaios-desperation-move-lawyers-move-to-disqualify-judge-snow-7352908

    Which includes yet another zinger: a paragraph in a letter from Casey that had been redacted when it was first published.

    I, therefore, respectfully recommend and strongly advise against any use of the Grissom information. Additionally, the Grissom information is so fundamentally flawed in its substance that it likely cannot be used in a Rule 60 motion, appeal, or otherwise, without the lawyer who does so violating the federal court’s rule of civil procedure and the Arizona Rules of Professional Conduct.

    We may find out soon whether that assessment was correct…

  22. avatar
    john May 24, 2015 at 5:53 am #

    Judge Snow needs to step down. Even though, Arpaio knew about his wife in 2013, it was not an evidence of bias. Now, Judge Snow has poked his nose into personal issues that are outside the scope of the trial. (The contempt hearing has nothing to with the wife’s comments.) Judge Snow has now indicated a possible bias and predjuice on the part of the defendant. What Snow’s wife has said about him to Arpaio, is none of Snow’s business or concern at it applies to this trial. But Snow has poked his nose into it and it now biased. We also have to consider, did Arpaio bring the wife’s comments into the the trial or did Judge Snow bring the wife’s comments into the trial? It’s my understanding the Judge Snow brought the subject up upon questioning Joe Arpaio. If that is true, Judge Snow has no business poking into what his wife might have revealed through hearsay about Joe Arpaio.

  23. avatar
    Dave May 24, 2015 at 8:25 am #

    That New Times article contains a reminder that this is not the first time Arpaio has asked for a recusal. He requested an earlier judge remove herself, she did, and then he got Snow.

    Maybe Arpaio needs to recognize that the problem isn’t Snow. The problem is him.

    RanTalbott:
    Lemons has a new column on the subject: http://www.phoenixnewtimes.com/news/arpaios-desperation-move-lawyers-move-to-disqualify-judge-snow-7352908

    Which includes yet another zinger: a paragraph in a letter from Casey that hadbeen redacted when it was first published.

  24. avatar
    Curious George May 24, 2015 at 9:13 am #

    John

    “….and predjuice…”

    John, please tell us again, what kind of juice is being used in the trial? Did you mean “prune juice” because your Shurf Joke always has that finger pointing, constipated look on his face?

  25. avatar
    Dr. Kenneth Noisewater May 24, 2015 at 9:36 am #

    john: Judge Snow needs to step down. Even though, Arpaio knew about his wife in 2013, it was not an evidence of bias. Now, Judge Snow has poked his nose into personal issues that are outside the scope of the trial. (The contempt hearing has nothing to with the wife’s comments.) Judge Snow has now indicated a possible bias and predjuice on the part of the defendant.

    Sorry Johnny but that’s not how it works this stuff has been going on for years. You can’t decide once you know you’re in trouble investigate the judge and then use that investigation as a claim of bias to dismiss the judge. Any claim of prejudice is laughable. Judge snow is going nowhere. There’s no proof the judge’s wife even made the comments as arpaios lawyer investigates the claims the grissoms made and found them to be inconsistent with each retelling and lacking in credibility

  26. avatar
    Punchmaster via Mobile May 24, 2015 at 10:33 am #

    Oh look! john is pretending to be smart again.

  27. avatar
    john May 24, 2015 at 11:22 am #

    Dave: u

    Talk about “Be Careful What you Wish For, You might just Get It.’

  28. avatar
    Dr. Kenneth Noisewater May 24, 2015 at 11:36 am #

    john: Talk about “Be Careful What you Wish For, You might just Get It.’

    Have you considered not doing drugs before you go online?

  29. avatar
    CarlOrcas May 24, 2015 at 12:38 pm #

    john: Judge Snow needs to step down. Even though, Arpaio knew about his wife in 2013, it was not an evidence of bias.

    So, john, exactly what did it indicate in 2013?

  30. avatar
    Curious George May 24, 2015 at 1:25 pm #

    john:

    “Judge Snow needs to step down.”

    John, let’s hear what Arpaio’s defense attorney McDonald had to say about this in April, 2015.

    https://m.soundcloud.com/stephenlemons/melinaprilwma

  31. avatar
    Reality Check May 24, 2015 at 2:06 pm #

    Stephen Lemons pointed out the remarkable turnaround McDonald made in only a few weeks. To my knowledge the only information that has been released in that intervening time has tended to discredit Grissom’s version of the events rather than support it. This move really reeks of desperation.

    Curious George: John, let’s hear what Arpaio’s defense attorney McDonald had to say about this in April, 2015.

  32. avatar
    Curious George May 24, 2015 at 2:44 pm #

    Reality Check

    “This move really reeks of desperation.”

    They’ve got nothing left because they abandoned the truth a longtime ago.

    BTW, charlesmountain over at Birther Report posted what should be done to Judge Snow. It was in the comments in either the May 23 or 24 article about the Arpaio motion for recusal of Judge Snow. Real swift thinkers.

  33. avatar
    J.D. Sue May 24, 2015 at 3:18 pm #

    Curious George: John, let’s hear what Arpaio’s defense attorney McDonald had to say about this in April, 2015.

    https://m.soundcloud.com/stephenlemons/melinaprilwma

    —-
    Wow … How embarrassing for McDonald to be on the “record” essentially arguing against his own (future) motion–even mocking his own (future) expert! If I were plaintiff’s counsel, I’d be figuring how I’d get that statement on the court record. Maybe on a Rule 11 motion — the same Rule that Attorney Casey referenced when he advised Arpaio that he could not in good faith bring such a motion…

    It appears that Klayman is effectively representing Arpaio behind the scenes, and probably will be paid whatever share of Arpaio’s “legal defense fund” he can get. Meanwhile, Arpaio continues to be the client from hell for his attorneys of record, while poor Attorney Casey still must submit himself to deposition on the subject.

    Just wow!

  34. avatar
    Reality Check May 24, 2015 at 3:45 pm #

    I assume you are referring to this comment?

    Faggot Soetoro and his cadre of Com-Islam Orcs could take down the good Sheriff in a heartbeat if they were able to debunk his investigation into the Usurper’s multiple forgeries.

    They know they simply cannot confront him head on… That’s why we have this kangaroo court headed by a treasonous bastard who is aiding and abetting the greatest criminal hoax in American history.

    Judge G. Murray Snow NEEDS TO HANG!

    charlesmountain (not Kerchner aka Mountain Goat) is one of the more vile and demented commenters at BR. You have to be really vile and demented to earn that distinction.

    Curious George: BTW, charlesmountain over at Birther Report posted what should be done to Judge Snow. It was in the comments in either the May 23 or 24 article about the Arpaio motion for recusal of Judge Snow. Real swift thinkers.

  35. avatar
    bgansel9 May 24, 2015 at 4:44 pm #

    john: Judge Snow has no business poking into what his wife might have revealed through hearsay about Joe Arpaio

    Do you understand the lack of veracity of “hearsay” in a court trial? Apparently you seem to think it has merit? You would be wrong: What is the additional proof that this conversation ever even took place? Are you under the impression that Hearsay is a preferred method of getting factual information in a court proceeding? Because if you are, you are obviously misunderstanding. There is no additional factual documentation to back this up. Would you rule (if you were the judge) that Hearsay is factual and therefore has a bearing on this case? I’m sure you would, because your confirmation bias makes you wish for a positive outcome for Arpaio. John, I see how little relationship you have to established facts just based on this one statement you made. If I were you, I’d be embarrassed.

  36. avatar
    bgansel9 May 24, 2015 at 4:58 pm #

    Reality Check: “Faggot Soetoro and his cadre of Com-Islam Orcs could take down the good Sheriff in a heartbeat if they were able to debunk his investigation into the Usurper’s multiple forgeries.

    They know they simply cannot confront him head on…”
    [quoted from charlesmountain at BR]

    I personally would LOVE for this line of questioning to be introduced. Unfortunately, it is not relevant to the Melendres case.

  37. avatar
    Dr. Conspiracy May 24, 2015 at 5:09 pm #

    He said the same thing about me.

    Curious George: charlesmountain over at Birther Report posted what should be done to Judge Snow.

  38. avatar
    Andrew Vrba, PmG May 24, 2015 at 7:23 pm #

    Dr. Conspiracy:
    He said the same thing about me.

    Naturally he’d wet himself and go hide like a kicked puppy, if one of the people he says should be hanged, were to confront him in person. Birthers are all bluster.

  39. avatar
    Keith May 24, 2015 at 10:57 pm #

    john:
    (The contempt hearing has nothing to with the wife’s comments.)JudgThe contempt hearing has nothing to with the wife’s comments.)

    I know nuance is not your speciality, but you are, in fact, almost right but you need to turn your comment around.

    Arpaio’s interest in Snow’s wife’s comment is evidence of Arpaio’s contempt for the Court and the Law in general.

  40. avatar
    bgansel9 May 25, 2015 at 9:55 am #

    The New York Times apparently has a soft spot for Joe Arpao. This aricle is prominently listed in Facebook’s Trending News right now.

    “With his legal fees mounting and a trial turning increasingly personal, Maricopa County Sheriff Joe Arpaio is turning to the public for money and the legal system for a new judge.”

    What a crock of dog poo! if this trial is becoming “increasingly personal” it’s only due to the Arpaio team’s actions. As for Joe crying that he needs money, why doesn’t he use all those donations he’s collected over the last several years? WTH?

    http://www.latimes.com/nation/la-na-ff-arpaio-20150524-story.html

  41. avatar
    bgansel9 May 25, 2015 at 10:30 am #

    Whoops, I said NYT, it was L.A. Times. My apologies.

  42. avatar
    Curious George May 25, 2015 at 2:26 pm #

    Reality Check,

    “I assume you are referring to this comment?”

    Yes.