Arizona Sheriff Joe Arpaio loses bid to have his criminal record wiped clean

[bathroommonkey76]

Saying the president can't erase facts, a federal judge this afternoon rejected a bid by former Maricopa County Sheriff Joe Arpaio to have all records of his criminal conviction wiped out.

Susan Bolton said she already dismissed the criminal contempt case against Arpaio following the decision by President Trump to issue a pardon. That saved the former sheriff, who had been found guilty, from the possibility of going to jail.

But Bolton rebuffed Arpaio's claim that the pardon also entitled him to have the entire conviction erased.

"The power to pardon is an executive prerogative of mercy, not of judicial record-keeping," Bolton wrote, quoting earlier court precedent.

"The pardon undoubtedly spared defendant from any punishment that might otherwise have been imposed," the judge continued. "It did not, however, revise the historical facts of this case."

http://tucson.com/news/local/arizona-sheriff-joe-arpaio-loses-bid-to-have-his-criminal/article_4d73e31a-b52a-11e7-8960-4f6eb05f81a3.html

[UTUSN]

1. Sigh, well O.K. We are reduced to small victories.

[Amimnoch]

4. Not so small if it prevents him from challenging Flake for Senate.

I think this kills Bannon's aspirations of Arpaio challenging Flake in the primary.

[UTUSN]

5. Point taken in that sphere. But the substitute for ARPAIO against FLAKE will be around much longer.

[former9thward]

21. Why in the world would that stop him from challenging Flake?

[TomSlick]

2. As Horace Rumpole would have said,

A Solomon come to judgement.

[peequod]

6. Here, here.

Arpaio taking Rumpole's advice to "never plead guilty" served him well, even though I'm not sure he ever would in a contempt case. I wonder how Rumpole would relate this case to the Penge Bungalow murders?

[TomSlick]

9. Rumpole is my hero

"There is not a court in Heaven or Earth, Tim, where Horace Rumpole is not ready and willing to appear. On the Day of Judgment I shall probably be up on my hind legs putting a few impertinent questions to the prosecutor."

[peequod]

12. Mine as well; nice quote!

I got hooked on the BBC tv shows watching with my dear old dad in the eighties on PBS, I've been thinking of reading the books; I've discovered there are so many!

[bitterross]

3. This is a great thing. It means he has less of a defense when he is sued.

It is important for the findings to remain on record. That way he can't use his pardon and lack of a record as part of his defense against the civil suits.

[Dustlawyer]

7. Excellent point!

I wonder if it affects his retirement or any benefits he may have been entitled to.

Probably kills his speaking fees and speeches to LE groups as well!

[former9thward]

22. He is not getting sued.

The statute of limitations has run. This court procedure would not have mattered in any civil lawsuit anyway.

[SergeStorms]

8. Good!

It's bad enough the rotten bastard got his fellow white supremacist, Trump, to pardon him. Republicans are always trying to rewrite history, and I'm glad they failed this time.

[EarnestPutz]

10. Does he lose his right to vote, or to carry a firearm?

Is criminal contempt a felony? Is he a convicted felon?

[TomSlick]

11. Doesn't matter whether the contempt is a felony.

A pardon removes all disabilities of the conviction.

[Jim Lane]

14. I'm not sure about that.

The pardon by a federal officer prevents a federal court from imposing the penalty that Arpaio so richly deserves.

But suppose a state has a law that someone who's ever been convicted of a certain class of offenses (including the contempt here) is permanently ineligible for a concealed-carry license or a private investigator's license or whatever. Can the President interfere with a state government's decision about who merits such licenses? I could see logical arguments on each side of the question. It's probably come up before but I don't know what the precedent is.

[TomSlick]

17. A federal pardon removes any disability from a federal conviction.

[Jim Lane]

20. Has the issue of disabilities imposed by state law ever been litigated?

It's clear that saying "removes any disability" is too broad. If a private club has a rule that no one convicted of a crime may join, and it interprets that rule as applying even if the person convicted has been pardoned, that's perfectly legal.

A state government, like a private club, is not the same as the federal government. OTOH, the state government differs from the private club in that it's part of the same overall legal structure. That's part of the reason I said I could see arguments each way.

The Arizona statute cited by Amimnoch in #15 suspends certain rights of "the person sentenced". Arpaio would have a good argument that, because he was never sentenced (his being the unusual case of a pre-sentencing pardon), he's not under any of those disabilities. The question would arise only if a state law were more carefully worded, so that no issue of statutory interpretation would benefit the person convicted. If a state chose to impose certain lifetime disabilities on a person convicted, and the statute specifically stated that the disabilities applied in the case of a federal conviction and subsequent pardon, would that be unconstitutional?

There's language on the DoJ pardon page that suggests by inference that state-law disabilities are removed, but doesn't say so expressly:

10. Effect of a pardon

While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction. Therefore, even if you are granted a pardon, you must still disclose your conviction on any form where such information is required, although you may also disclose the fact that you received a pardon. In addition, most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action. Because the federal pardon process is exacting and may be more time-consuming than analogous state procedures, you may wish to consult with the appropriate authorities in the state of your residence regarding the procedures for restoring your state civil rights.

Incidentally, that web page also notes that, under the provisions of the Code of Federal Regulations, there's a mandatory five-year waiting period, ha ha:

You may make a written request for a waiver of this requirement. However, waiver of any portion of the waiting period is rarely granted and then only in the most exceptional circumstances.

So now we know that "temporary political advantage of the President" constitutes one of the "most exceptional circumstances" that will support a waiver.

[former9thward]

23. It was a misdemeanor.

A misdemeanor does not stop you from anything.

[TomSlick]

25. As I'm fond of telling Arkansas lawyers (and judges) this issue was resolved in the 1860s.

Federal law preempts State law.

[Jim Lane]

27. Yes, I've heard of pre-emption. No, that glib response doesn't answer my question. (n/t)

[TomSlick]

28. Glib responses only work when they're accurate.

The State cannot - for want of a better word - trump the US Constitution. The Constitution gives the President - even one that is mentally incompetent - essentially unchecked pardon powers. Any legal disabilities arising from a federal conviction are removed by a presidential pardon. A state cannot impose disabilities for a federal conviction that has been the subject of a presidential pardon.

A pardon does not extend prospectively for crimes committed after the date of the pardon. So, for instance, a pardoned felon is obliged, in the appropriate circumstances to truthfully answer an official inquiry whether s/he has been convicted of a felony.

Nevertheless, a presidential pardon removes any legal disabilities from the federal conviction - any deprivation of rights that occurs as a matter of law as a result of being a felon - e.g. the right to vote, right to possess weapons, run for pubic office, etc.

As the judge rightly ruled in this case, a pardon does not change the facts - the pardoned person nevertheless committed the crime. The effect of a pardon is to remove the penalties of the crime.

There are posts in this string concerning whether a pardon would have any consequence in later civil lawsuits for the actions resulting in the conviction. That may be a matter of state law. I have - so far - been unable to find any precedent on the question. If a pardoned person pled guilty to the crime, that would be an admission against interest and presumably admissible in a subsequent civil case. If a pardon person had pled not guilty but was convicted contrary to plea, the question is murkier. I could argue either side of the case and would be happy to do so at a reasonable hourly fee.

There. Wasn't the glib answer better?

[Jim Lane]

30. Long or short, it's still all just assertions.

Let me give you an (admittedly remote) analogy. Suppose a state constitution contains a provision that's worded identically to a provision in the U.S. Constitution. The U.S. Supreme Court holds that that provision in the U.S. Constitution doesn't prohibit the government (federal or state) from doing X. The state's highest court says, Oh yeah, well, we interpret those exact same words in our constitution differently, we say that the governmental action in question IS prohibited by those words, so our state government isn't allowed to do it, and you nine nitwits can take your federal supremacy and shove it up your robes.

This has actually happened, IIRC, although I believe the state court decision was worded somewhat more circumspectly.

A layperson might say that the state court was disagreeing with SCOTUS, the highest court in the land. Nevertheless, the principle of federal supremacy doesn't prevent the state from running its own affairs as it chooses, within limits. Each state can set its own standards for who gets a concealed-carry permit or a private investigator's license or the like (again, within limits, no racial discrimination etc.). If the state's law expressly provides that no one convicted of contempt of court may become a PI, whether or not he's pardoned, and whether the conviction was in state or federal court, does denying him a PI license violate the U.S. Constitution? I'm not convinced that it does. That's why I asked if it had ever been litigated.

As for the civil case, I see less uncertainty there. We don't need to get into admission against interest. With or without a plea, there was a finding of fact in court. That's res judicata against the defendant. The subsequent pardon means that no sentence can be imposed for the violation, but, as the judge stated in refusing to vacate Arpaio's conviction, the pardon doesn't affect the underlying finding of fact. If the pardon means that a federal court wouldn't hear an appeal of the conviction, because it's deemed moot, then there'd arguably be no res judicata, but if the state has the law I hypothesized then the appeal shouldn't be dismissed as moot. In the present case, it doesn't matter. Arpaio won't be so foolish as to file an appeal, because he'd get nothing for his trouble but a ringing 3-0 affirmance reiterating what a sleazeball he was.

[TomSlick]

32. I think I agree about the effect of the conviction and pardon in civil litigation.

As the learned judge ruled in this case, the pardon does not erase the fact of the conviction, just the consequences.

I am less confident a State could sustain legislation that purported to impose disabilities for a federal conviction that had been subject of a presidential pardon. A state legislature cannot limit the presidential pardon power of the US Constitution.

I have no problem with the proposition that a State highest court is free to interpret language in its state constitution that is identical to language in the US Constitution as saying something different than SCOTUS's interpretation. SCOTUS is the final arbiter of the meaning of the US Constitution while each State's highest court is the final arbiter of the meaning of its State constitution - subject, of course, to the limitation that a State Constitution (as interpreted by it highest court) cannot contain provisions that are forbidden by the US Constitution (as interpreted by SCOTUS.)

[Amimnoch]

15. I'm not getting that from the article.

It sounds more like he's still considered a convicted felon, and the pardon only removed the imprisonment, not the record. He's serving no prison sentence, but he is still a convicted felon record wise.

The wording of the law in Arizona is:

13-904. Suspension of civil rights and occupational disabilities
A. A conviction for a felony suspends the following civil rights of the person sentenced:
1. The right to vote.
2. The right to hold public office of trust or profit.
3. The right to serve as a juror.
4. During any period of imprisonment any other civil rights the suspension of which is
reasonably necessary for the security of the institution in which the person sentenced is
confined or for the reasonable protection of the public.
5. The right to possess a gun or firearm.

https://lac.org/toolkits/certificates/Arizona%20Statutes.pdf

So, I'd think if, by record he is still a convicted felon, these would still apply?

On edit, I suspect his whole reason for this was to see if he could exercise #2 of that list and run against Senator Flake in the primary.

[TomSlick]

18. See Reply #17.

Deserving people get presidential pardons too. We ought not wish to turn the law on its head because Trump pardoned an unrepentant jerk. "Hard cases make bad law."

[former9thward]

24. No, no and no.

It was a misdemeanor and the judge tossed that out after the pardon. He is not a convicted anything in the eyes of the law.

[TomSlick]

26. I haven't researched

whether a contempt citation is a felony, misdemeanor, or simply an "offense." My point is that it doesn't matter - or maybe that the result is the same either way.

[kcr]

29. The judge did not toss it from his record. He's still got a conviction.

That's what he was trying to do, because he argues the pardon means his record is clean. The judge ruled that is not the case.

[former9thward]

31. Nope.

The charge was dismissed.

Judge dismisses guilty verdict against Arpaio

http://thehill.com/blogs/blog-briefing-room/353897-judge-dismisses-guilty-verdict-against-arpaio

What the judge ruled is that the trial did happen. That is a fact and can't be erased.

[Jim Lane]

33. The article you cite is loosely (and inaccurately) worded

Judge Bolton has made two different rulings about the pardon.

First, there was a colorable argument to be made that the pardon exceeded Trump's power (on separation-of-powers grounds). She rejected that argument and held the pardon valid. On that basis, she canceled the sentencing hearing that had been scheduled. The effect of the pardon is that Arpaio can't be punished for his crimes.

Second, as that Hill article notes, Arpaio asked for yet more of a break. He asked that all the prior rulings and orders be dismissed. That would be the equivalent of what you summarize as "the trial did not happen." The OP's link reports on Bolton's second decision, in which, the day before yesterday, she denied Arpaio's motion. As the excerpt notes, her ruling was that the pardon "did not ... revise the historical facts of this case." That's why Arpaio is making noises about appealing. Not content with beating the rap, he wants to revise the historical facts.

[former9thward]

34. I agree with your summary.

The question I have wondered for a long time is why Arpaio cares about this other than stubbornness. It was just a misdemeanor. It affected nothing in Arpaio's life. Even if he had been found guilty he was never in any danger of going to jail. That is why they denied him a jury trial. There are no other suits nor will there be. And Maricopa County was on the hook for those anyway, not Arpaio.

[Jim Lane]

35. You raise a good question about why Arpaio cares.

There was talk that he might primary Flake. My guess, however, is that it's nothing more than the factor you mention -- stubbornness. He spent years running his little fiefdom, doing whatever he pleased, the law be damned, court orders be damned. Now, pissed off about being ousted, he wants as much vindication as possible.

[oasis]

13. STFU and sit your tired ass down, ex-sherriff.

[Gothmog]

16. Sheriff Joe is a crook

[Iggo]

19. You can't be pardoned for nothing, Sheriff Dumbfuck.

Last edited Fri Oct 20, 2017, 04:01 PM - Edit history (1)