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Legally Speaking: Why Arpaio is wasting no time appealing conviction

(AP Photo)

On Thursday, former Maricopa County Sheriff Joe Arpaio appealed his criminal contempt of court conviction, long after he was pardoned by President Donald Trump.

Why? Why would he waste his time, his money and energy on a conviction that has already been pardoned? He doesn’t have to go to jail, he doesn’t have to pay a fine — there are zero consequences.

Right?

Even with a presidential pardon, a conviction carries consequences that Arpaio’s legal team claimed were not erased with a stroke of Trump’s pen. They argued a pardon only deals with the punishment of the conviction, not with the conviction itself, and that could still have an impact.

Arpaio’s “conviction would still qualify as a ‘prior sentence’ for purposes of totaling points under the [federal] sentencing guidelines…[and] could also be used to enhance sentencing under Arizona law, if he were convicted of the same crime again within two years,” his attorneys wrote.

Although unlikely, the possibilities and the consequences that flow from the conviction still exist.

Let me take a moment to remind you what happened leading up to this appeal: This past summer, U.S. District Judge Susan Bolton issued her verdict convicting Arpaio of criminal contempt of court and found that he violated U.S. District Judge Murray Snow’s order in a separate case that dealt with the illegal detentions of undocumented aliens.

She did so after a five-day trial, which did not include a jury.

After Bolton issued her verdict, but before the sentencing, Trump used his first official presidential pardon on Arpaio. This meant the former lawman would not be sentenced and would not be subject to any punishment, such as jail time or a fine, for the conviction.

Bolton accepted the pardon but she refused to vacate the conviction. In other words, she refused to order that the conviction could never be used against Arpaio in the future.

Therefore, the conviction could, arguably, still be used against Arpaio. That is unacceptable to him so he filed the appeal to make sure it will never have any legal power.

Arpaio’s attorneys laid out the legal reasons why the conviction should be vacated in an 82-page brief that was filled with cases, law and a healthy dose of reality and common sense.

“Vacating a conviction is of course not a finding of innocence or of guilt…it is merely an act to remove the conviction, so that it has no future preclusive effect; and the ‘legal question’ of the Defendant’s guilt or innocence will remain forever unanswered.

To those who care about legal orders – which…[Arpaio] does and always has, as a law enforcement officer of over fifty years-vacating an order has meaning; and the Defendant is entitled to seek such relief.”

Broken down, the appeal argued Arpaio is entitled to have his conviction vacated because:

  • He was deprived of a jury
  • The prosecution took too long to prosecute (aka the statute of limitations was up)
  • Bolton violated his rights by not announcing the verdict to him in person (she issued it by email)
  • Snow’s order was vague and unclear
  • Bolton ignored the fact he relied on his attorney
  • ICE asked him to detain individuals and he relied on that

The reasons all come down to the facts that Arpaio doesn’t like the stigma of being convicted and the conviction can still be used against him legally.

Although the prosecution has not yet filed its response, I can assure you it will have its own plethora of cases and law.

Hate him or love him, agree with it or not, Arpaio raised valid issues in his appeal and, in line with the moniker “America’s Toughest Sheriff,” he will fight this fight until the end.

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