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Legally Speaking: Has a light emerged for Arpaio in criminal contempt trial?

Former Maricopa County Sheriff Joe Arpaio, second from right, leaves U.S. District Court on the first day of his contempt-of-court trial with attorney Mark Goldman, left, Monday, June 26, 2017, in Phoenix. (AP Photo/Ross D. Franklin)

Will former Maricopa County Sheriff Joe Arpaio be found guilty of criminal contempt of court?

After Monday’s trial, we were one day closer to finding out his fate.

Monday started with the Supreme Court denying Arpaio’s plea for a jury trial and the prosecution started presenting its case to Federal District Court Judge Susan Bolton.

The prosecution must prove to Bolton beyond a reasonable doubt that Arpaio intentionally ignored or disobeyed Federal District Court Judge Murray Snow’s order that said:

The court is enjoining the [Maricopa County Sheriff’s Office] from detaining any person based solely on knowledge, without more, that the person is in the country without unlawful authority.  To be clear, the court is not enjoining MCSO from enforcing valid state laws, or detaining individuals when officers have reasonable suspicion that individuals are violating a state criminal law. Instead, it is enjoining MCSO from violating federal rights protected by the United States Constitution in the process of enforcing valid state law based on an incorrect understanding of the law.

A strategy that could be successful for Arpaio would be to convince Bolton that his failure to follow the order was unintentional; that it was based on misinformation or lack of understanding.

That appeared to be the angle the defense took when questioning Tim Casey, a former attorney for MCSO.

Tim Casey represented the agency and Arpaio until 2014. He was counsel when Snow issued the preliminary injunction and it was his job to communicate the order to MCSO and Arpaio, as well as to help them understand it.

The prosecution called Casey to the stand and attempted to prove that Casey did his job, that Arpaio was aware of the order and intentionally disobeyed it. Amid the barrage of objections from defense counsel Dennis Wilenchik and Casey’s own ethics counsel, it appeared, at first, that the prosecution was successful.

However, Wilenchik was able to punch some holes in the theory.

Wilenchik started questioning Casey by focusing on Snow’s order and what Casey thought about it. At times, the two attorneys battled and quibbled, but that was quickly shut down by Bolton.

She herself is a strong personality and presence in the courtroom and, quite simply, keeps all the players in line. It is quite refreshing.

Through his questions, Wilenchik made it clear that Casey did not always communicate directly with Arpaio regarding the order, that he oftentimes communicated with his trusted staff, Deputy Chiefs Jack MacIntyre and Brian Sands.

Upon further questioning, Wilenchik made it clear that Casey did not follow up these conversations in writing. If he didn’t converse with Arpaio and didn’t follow conversations up in writing, it is possible Arpaio did not understand the order?

After the questioning of Casey had ended for the day, Bolton addressed the pending motion to quash the subpoena for Untied States Attorney General Jeff Sessions. Both sides agreed that subpoena had been validly issued and served.

Bolton did not address it any further but it is still possible — though unlikely — that Sessions may be ordered to appear.

The questioning of Casey will continue Tuesday, but it appears the defense has made some progress in casting some doubt on whether Arpaio fully understood Snow’s order.

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