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Legally Speaking: Breaking down Arpaio’s latest bid for innocence

(AP Photo/Jack Kurtz, Pool, file)

No one can say that former Maricopa County Sheriff Joe Arpaio isn’t a fighter.

Arpaio’s legal team got back at it Tuesday and filed two separate motions asking the judge to vacate the verdict of guilty and find him innocent, and/or give the former sheriff a new trial.

The first of the two was the motion for a judgment of acquittal. In it, Arpaio’s attorneys raises several reasons why U.S. District Judge Susan Bolton should change her verdict to not guilty.

First, they argued the original preliminary injunction order from U.S. District Judge Murray Snow was not clear and definite. They made the same argument during the trial.

Think of it this way: How could Arpaio violate an order if it was confusing and ambiguous? For support, the defense pointed out that Tim Casey, Arpaio’s attorney at the time, believed Snow’s order was not clear and not definitive.

The 9th Circuit Court of Appeals also said the order was ambiguous.

The next part of the motion was Arpaio’s claim that he relied in good faith on his attorney’s advice, which is a defense to criminal contempt. Since Casey believed Snow’s order was not clear and Arpaio relied on that, then he cannot be held criminally liable for his failure to follow it.

Arpaio’s attorneys also included what is called the public authority defense. This essentially holds that he cannot be guilty if he reasonably believed that Border Patrol or Immigration and Customs Enforcement authorized his actions.

To finish out the motion, Arpaio’s attorneys raised defense of political speech, statute of limitations and double jeopardy.

Basically, whatever Arpaio said during his campaign should not be held against him, the statute of limitations for prosecution of a misdemeanor had expired before he was charged and the civil trial was, for all intents and purposes, a criminal trial and a person cannot be tried twice for the same crime.

These defenses are creative and the defense strengthens those by including case law and statutory authority.

However, it is likely Bolton will deny the motion since she was aware of all these issues both before and during the trial.

The second motion filed asked the court for a new trial or to vacate the guilty judgment.

In this motion, Arpaio again argued he should have had a jury trial. Bolton previously denied his request for a jury.

He argued a jury was required because the underlying action that constituted the contempt — the illegal detention of illegal immigrants — was a crime, and as such, he was entitled to a jury.

Next, he argued there was an inherent conflict with the judge deciding this case instead of the jury. He explained the victim in a criminal contempt trial is the court, because it is the court’s order that was violated.

Since Bolton and Snow were both in the same court, they are both the victims and there was a conflict having the victim decide guilt or innocence of the crime.

No one can deny he, like every other defendant, was entitled to a neutral and unbiased fact finder.

Lastly, Arpaio argued his constitutional rights were violated on many fronts.

In particular, he pointed out the judge issued the verdict via email even though she knew Arpaio does not use email. As such, the defense argued she denied him the right to be present at all stages of his trial, including the verdict.

Since she did not pronounce him guilty in his presence or email him the verdict, she violated his rights.

What is the bottom line, legally speaking? Is this a bunch of legal tap dancing or does the defense have a chance?

It is unlikely Bolton will grant these motions. The motions pointed out how and why she was wrong and it’s unlikely she will believe she made a mistake. Also, many of these defenses were raised before and during the trial and she has already denied each one.

The defense knows the chances of these motions being granted are slim, but its purpose is to follow the rules and create a very strong and persuasive record for appeal. The appeal will be filed after the sentencing, unless, of course, a trump card is played making that unnecessary.

That trump card could very well be President Donald Trump himself.

Under the Constitution, Trump has the power and authority to grant a pardon to Arpaio. This power allows the sitting president to pardon a convicted person for federal crimes — not including impeachment.

Trump has voiced his support of Arpaio after the former sheriff did the same for him. He has also said he is seriously thinking about a pardon for Arpaio.

Consider the fact that Trump’s re-election campaign was exploring a visit to Phoenix and the stage could be set for a pardon to be issued.

Should that happen, the conviction will essentially be erased and the sentencing, the motions, the appeal will all be moot because Arpaio will no longer be a convicted criminal.

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