Federal Judge Hints She Might Not Toss Arpaio's Conviction Even After Trump Pardon

[DonViejo]

Source: Law Newz



by Ronn Blitzer | 11:00 am, September 15th, 2017

-snip-

In an order on Thursday, Judge Bolton wrote that while Arapaio did receive a pardon, she might not be able to legally toss the conviction because he hasn’t been sentenced yet. Her reasoning is that without sentencing, there’s not final judgment in the case, and you can’t vacate a judgment that doesn’t exist yet. Bolton wrote than when the government submitted a motion supporting eliminating Arpaio’s conviction, the legal precedent they cited only refers to cases where a judgment was already in place.

Not only that, Bolton cited Supreme Court case that said, “a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment for a crime.” Basically, the pardon can protect Arpaio from punishment, but it can’t necessarily change an existing verdict from the court. Similarly, a Ninth Circuit case that Bolton mentioned says that someone who receives a pardon is “not entitled to erasure of the record of his conviction.”

Judge Bolton gave the government until September 21 to file an additional brief to provide a legal basis for why the pardon should result in Arpaio’s conviction being expunged, instead of just eliminating any punishment.





Read more: https://lawnewz.com/high-profile/federal-judge-hints-she-might-not-toss-arpaios-conviction-even-after-trump-pardon/

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copy of the Judge's comments at the link, above

[zipplewrath]

1. She's right

A pardon is an excuse for a prosecutor to not pursue a case (i.e. Nixon). And it does prevent punishment. But it doesn't change the fact of the conviction. He should be sentenced, and his record to reflect the judgement. In many situations it would prevent him from getting a license of various sorts, and could potentially prevent him from voting.

[ProgressiveValue]

3. +1

[Hassin Bin Sober]

2. This whole conversation has me perplexed.

I don't understand the idea that a pardon can change a prior guilty verdict. The President can override the case, sure, but I don't see how he can retroactively force the judge to act differently.

The Judge only deals with the hear and now and what is before her. She can't base rulings on the opinion of some elected stooge.

[zipplewrath]

7. It doesn't

a pardon changes the punishment, not the conviction. It does not constrain the judicial branch at all. They should sentence him and finish their process.

[Hassin Bin Sober]

8. I read somewhere that they're trying to expunge this whole Affair to Shield him from civil suits

[zipplewrath]

9. They can try

The judicial branch does expungements, not the executive branch. And since this was a judicial order, I'm dubious they'll be amenable to it.

Trump can probably try to "commute" certain features of his federal sentence so that he can obtain federal licenses and such (have federal contracts, etc.). But states may have a different view as well.

[yallerdawg]

4. While Nixon arguably couldn't be charged and convicted of a crime while in office...

he WAS named as an "unindicted coconspirator" and would have been charged after impeachment and removal from office, which triggered the pardon.

Arpaio has been convicted of contempt of court, and the "pardon" only negated any sentencing.

There is no way that a presidential pardon was ever construed to mean there was no crime!

[windje]

5. Admission of guilt

Accepting a pardon is by definition an admission of guilt.

[Va Lefty]

6. Fake pardon from a Fake president!

[They_Live]

10. Trump doesn't understand how the law works,

or the government, or the environment, or anything really.

[Angry Dragon]

12. He is an expert on fraud and all the other things in that arena

[Angry Dragon]

11. Let the conviction stand ........ Justice Dept. wasting money

[Princess Turandot]

13. Some pertinent info from the DOJ's 'Office of the Pardon Attorney' FAQs...

The judge is under no obligation to expunge a conviction; according to the DOJ, that is rarely done.

Does a presidential pardon expunge or erase the conviction for which the pardon was granted?

No. Expungement is a judicial remedy that is rarely granted by the court and cannot be granted within the Department of Justice or by the President. Please also be aware that if you were to be granted a presidential pardon, the pardoned offense would not be removed from your criminal record. Instead, both the federal conviction as well as the pardon would both appear on your record. However, a pardon will facilitate removal of legal disabilities imposed because of the conviction, and should lessen to some extent the stigma arising from the conviction. In addition, a pardon may be helpful in obtaining licenses, bonding, or employment. If you are seeking expungement of a federal offense, please contact the court of conviction....To pursue relief of a state conviction, you should contact the Governor or state Attorney General in the state in which you were convicted for assistance.

What is the difference between a commutation of sentence and a pardon?

A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment. Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States. Pursuant to the Rules Governing Petitions for Executive Clemency, which are available on this website, a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.

NB: (Definition of 'commutation omitted by me for brevity.)

Is a presidential pardon the only way a person convicted of a federal felony offense may regain his right to bear arms?

Yes. At present, a presidential pardon is the only means by which a person convicted of a federal felony offense may obtain relief from federal firearms disabilities. Under Supreme Court case law interpreting federal firearms laws, a state restoration of civil rights does not remove the federal firearm disability that arises from a federal felony conviction....

....at this time a presidential pardon is the only means by which a person convicted of a federal felony may obtain this relief.

https://www.justice.gov/pardon/frequently-asked-questions-concerning-executive-clemency

[former9thward]

14. The first paragraph contradicts the second.

The first: there’s not final judgment in the case, and you can’t vacate a judgment that doesn’t exist yet

The second: a pardon is in no sense an overturning of a judgment of conviction by some other tribunal;


In the first she says there is not a judgment; in the second she says there is a judgment. When judges have contradictory reasoning they are always overturned when appealed to the higher courts.