America's most famous lawman, and arguably its worst, was on trial in Phoenix this week. His case could have changed the immigration debate -- if only we'd been able to watch it on television.
When First-Amendment-istas talk about the benefits of opening up our nation's federal courts to cameras, the first thing most people think about is televising oral argument at the United States Supreme Court. That's a shame -- and not just because such a goal seems destined to remain beyond our reach for at least another generation. Although the American people say they would like to see the justices hammer away at poor appellate lawyers, the real action, the action that would make great television and radio, more often occurs at the federal trial court level. That's where we need the cameras.
This week, for example, America would have benefited from being able to witness live or on tape the courtroom testimony of Maricopa County Sheriff Joe Arpaio as he defended himself in a federal civil rights case about alleged racial profiling. On trial in Phoenix in a case styled Melendres v. Arpaio, "Sheriff Joe," who is both America's most famous lawman and arguably its worst, acted like most other demagogues act when they are confronted by reason and the truth: He hemmed and he hawed, he blamed his subordinates, and claimed he disagreed with what had been written in his own book.
The case is mostly about Arpaio's overzealous "crime suppression" sweeps in Latino areas of Maricopa County. Arpaio denies that these sweeps constitute racial profiling and that such profiling is the aim of his officers. The American Civil Liberties Union, whose lawyers helped bring the case, says what happened to this U.S. citizen is indicative of the problem:
One plaintiff in the coalition's lawsuit, Manuel Nieto, Jr., a U.S. citizen, was unlawfully stopped and detained in front of his family's auto repair shop after police heard him listening to music in Spanish. "It was very humiliating to be handcuffed in front of my family's business, in front of customers and neighbors," said Nieto. "It's not a crime to be Latino or listen to a Spanish-language radio station but you wouldn't know that by the way Sheriff Joe and his posse treat people."
MORE ON JOE ARPAIO
There already has been some great coverage of Arpaio's memorable time on the witness stand. In Arizona, Joe Dana checked in with this piece noting some of the contradictions between Arpaio's testimony this week and comments he made (on camera, of course) in 2008. At the New York Times, Lawrence Downes focused upon Arpaio's telling book excerpt: "My parents, like all other immigrants exclusive of those from Mexico, held to certain hopes and truths." And at the Arizona Republic, which has well covered this case, J.J. Hensley wrote:
Arpaio did not suffer from the faulty memory that plagued him during last year's disciplinary hearings for former County Attorney Andrew Thomas, though the sheriff, as he did in the Thomas hearings, said he was suffering a touch of the flu on the stand. Instead, Arpaio consistently deflected Young's questions about the impact questionable constituent letters have on the sheriff's immigration sweeps. Arpaio repeatedly said he delegates those decisions.
To this I would just like to add the following three excerpts (verbatim, although I am working off an unofficial transcript) from Arpaio's testimony this week. I offer them here, Harpers-like, to give you a sense of what has transpired over the years in Maricopa County on Sheriff Joe's watch, aside from the birther investigations and the federal investigations and the legal fees and the fiscal mismanagement allegations and the customized bus and the withering scorn of neighboring Pinal County and... well, let's just go to the transcript.
Exhibit A (Note: Q is the lawyer, A is Arpaio)
Q: Now, let's go to PX 353, which has been admitted. Exhibit 353 is another press release from your office, sheriff, about the issue of swine flu. You see that on the screen?
Q: And the first sentence of that press release is a statement attributed to you that says that: "It is estimated that over 90 percent of all illegal aliens arrested by the antihuman (sic) smuggling unit come from areas sough of Mexico City where the swine flue has already killed nearly 150 people.
Q: You authorized your office to issue that statement?
A: Yes. Yes.
Q: Do you have proof of that claim?
A: Well, we were concerned with the people incarcerated in our jails because of this epidemic in Mexico, and I believe we show that a high percentage of the people that are in our jails come from south of Mexico.
Q: You have no proof for the statement that's made in your press release, is that correct?
A: Yes, we'd talked to all the inmates from Mexico that were incarcerated, and the majority said they did come from south of Mexico City.
Q: Did any of them have swine flu?
A: Not that I know of, but we were concerned.
Q: You were trying to associate people from Mexico with disease, isn't that what you were doing?
A: No, I was just being concerned about illegal immigrants coming across the border that may be carrying the swine flue, since they not going through the checkpoints.
Exhibit B (Again, Q is the lawyer, A is Arpaio, and this time they are focusing upon the text of Arpaio's 2008 book, Joe's Law.)
Q: Would you agree with me that the American dream is for everyone?
Q: But on that same page -- again, looking down in the paragraph that starts number 2-- you say in your book that there's a growing -- quote, growing movement among not only Mexican nationals but also some Mexican Americans -- and I'm paraphrasing here a little bit -- who contend that the United States stole the territory that is now Caliornia, Arizona and Texas for a start, and that massive immigration over the border will speed and guarantee the... lands returning to Mexico.
Q: You put that into your book, right?
A: Once again, my coauthor wrote them.
Q: Okay. Is that your view?
A No, it isn't.
Exhibit C (Here, Arpaio and plaintiffs' counsel are sparring over a letter the sheriff had received from someone, a letter which Arpaio promptly passed along to his subordinates handling immigration matters.)
Q. Let's look at the sixth paragraph, the one that starts, what our open border crowd. And what it says is: What our open border crowd calls racial profiling is what I call reasonable suspicion and probable cause, both of which are legal grounds for further action If it looks lie a duck -- no, I'm sorry, if it walks like a duck and quacks like a duck. Do you see that?
Q: Now, that's saying if someone looks like an illegal immigrant it must be an illegal immigrant, correct?
A: Once again, I don't know where this fellow was getting his information. I just took this letter, like I do all the letters that I receive, whether it's animal cruelty, and subject matter, and I give it to the appropriate chiefs that run those divisions.
Q: You can't tell me that you disagree with the sentiments expressed in that paragraph, is that correct?
A: This is just his opinion.
Q: Well, but you can tell me that you disagree with it, is that correct?
A: Can you repeat what I'm allegedly disagreeing with.
(Here, the lawyer plays video from Arpaio's November 16, 2010 deposition and the focus again is on the "duck" letter.)
Q: Do you agree with that statement?
A: Once again, that's his statement and I'm -- I don't know what meaning he's talking about, about ducks or whatever he's mentioning.
Q: You think he's talking about ducks?
A: Well, he says if it walks like a duck and quacks like a duck. Must be talking about a duck.
Q: You seriously think he's talking about ducks?
A: I'm just saying what he's reporting in his report.
Q: You don't think he's talking about illegal immigration?
A: He may, but once again, I can't read his mind. This is his opinion.
The trial is scheduled to end next week and it will likely be many months after that before U.S. District Judge Murray Snow reaches his ruling. Even then, and either way, we are likely to see an appeal to the 9th U.S. Circuit Court of Appeals. But make no mistake. Arpaio's testimony this week is a watershed event in his career, akin to a Welch-McCarthy moment, that ought to finally finish his political career. (He's up for reelection this year and for the first time in a long time might face serious opposition.)
What a gift to the country televised coverage of this trial would have provided. What valuable information about a notable public servant it would have offered to anyone who cared to watch or listen. What a vital and direct way it would have framed the immigration debate in this country. This is what America loses by not opening up the nation's courts to cameras. This, and not the spectacle of Justice Antonin Scalia bullying some lawyer at appellate argument in Washington.