Arpaio's Criminal Case Ends; No Decision on Vacating Rulings | Phoenix New Times


The Criminal Case Against Former Sheriff Joe Arpaio Is Over

Judge Susan Bolton hasn't decided whether she will vacate previous rulings against him.
Protesters made it clear they weren't in favor of a pardon for Arpaio during President Trump's visit to Phoenix.
Protesters made it clear they weren't in favor of a pardon for Arpaio during President Trump's visit to Phoenix. Zee Peralta
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U.S. District Court Judge Susan Bolton slammed shut the criminal case against former Maricopa County Sheriff Joe Arpaio when she ruled Wednesday that Arpaio’s conviction in a contempt of court case was properly nullified by a presidential pardon.

Bolton ruled the case dismissed, the pardon constitutional, and rejected most of the legal arguments by eight outside third parties, including a group of democratic congress members.

She left open only one remaining unresolved legal issue: Is she is bound by a U.S. Supreme Court decision to vacate not just her ruling of Arpaio’s guilt, but all of her findings along the way?

John Keller, who prosecuted the case for the government, told Bolton and a packed federal courtroom that the case is over during a 30-minute hearing. Arpaio was not present.

“This defendant will never be held accountable for his criminal contempt of court of Judge Snow’s order,” Keller said.

He was referring to Bolton’s colleague on the District Court in Arizona, Judge Murray Snow, who in 2011 ordered Arpaio and his Maricopa County Sheriff’s Office to cease arresting people solely on the basis of their immigration status.

When the practice continued, Snow ordered Arpaio in contempt of court and called for a criminal prosecution. Bolton found him guilty, saying he flagrantly disregarded the order.

President Donald Trump pardoned Arpaio on August  25 for the contempt charges and “any other offenses … that might arise, or be charged, in connection with” the class-action civil-rights lawsuit, which led to all of this.

Trump said Arpaio was wrongly convicted “for doing his job” of enforcing immigration.

On Wednesday Bolton rejected legal arguments that Trump illegally overextended his authority, but did remark on the pardon’s wide sweep.

“It is evident to me that one cannot be pardoned for a criminal act not yet committed,” Bolton said.

But that wasn’t enough to find the pardon unconstitutional, she said.

What she didn’t say is contained in Article II of the Constitution, which says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Nor was Bolton swayed by arguments that the pardon harmed the rights of people who filed the original civil-rights lawsuit, known as the Melendres case.

“This pardon does not interfere with Melendres,” Bolton said.

“This pardon has the effect of allowing the defendant to escape punishment for willfully violating Judge Snow’s order,” she added.

Jack Wilenchik, the attorney representing Arpaio, got two of the three things he wanted – dismissal of the case and the vacating of the conviction. He wanted one more, and Bolton decided to consider it in her chambers rather than make a spot ruling.

Arpaio’s attorneys want all the rulings vacated, not just the one declaring the 85-year-old, six-term sheriff guilty.

They cited a case in which the defendant was convicted of minor criminal charges but died before he was sentenced. The Supreme Court ruled that the death rendered moot all the rulings in that case and should be “vacated,” or cleared.

“We are not asking for expungement. We are asking for the same remedy in (that) case, which we are entitled to,” Wilenchik argued.

Arpaio’s critics feared the entire case might be expunged, or wiped clean as if it never happened. Instead, if Bolton agrees, only her findings that led to the conviction would be vacated.

She asked why it mattered, and Arpaio’s attorneys said they didn’t want any precedents to be set that could affect the remaining open civil lawsuits against their client.

Before Wednesday’s hearing ended, another Arpaio attorney, Mark Goldman, sparred with Bolton over even allowing outside legal arguments and requesting that she order the filers to pay Arpaio’s attorney’s fees to respond to them.

“Under what legal principle … or any other reasoning did the court use to grant these motions?” Goldman asked. “Why are 30 congressmen, Democratic congressmen, allowed to file a brief in a criminal court?”

“Because it’s the sound discretion of the court,” Bolton answered.

“I’ve never seen anything like this before, and I doubt anyone in this courtroom has seen anything like this before,” Goldman said, “And it’s based on the sole discretion of the court?”

“Sound discretion, Mr. Goldman,” Bolton replied.

Arpaio was convicted on July 31 after a four-day bench trial in June, which hinged on the wording of the court order Snow issued on December 23, 2011. In that order, Snow told MCSO to stop detaining illegal immigrants unless deputies had probable cause they broke state laws unrelated to immigration.

Federal prosecutors had to prove that Judge Snow’s order was unambiguous, that Arpaio knew and understood it, and that he willfully violated it.

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Protesters made it clear they weren't in favor of a pardon for Arpaio during President Trump's visit to Phoenix.
Zee Peralta

Arpaio’s attorneys argued that the 85-year-old ex-sheriff delegated responsibility of immigration enforcement to MCSO’s Human Smuggling Unit. Defense attorneys told the court that Arpaio’s subordinates and legal advisers let him down and “dropped the ball” by not articulating the order clearly and not following through on adherence to it.

Judge Bolton accepted fully the U.S. Justice Department's argument that Arpaio essentially thumbed his nose at the federal government.

“Not only did defendant abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise,” Bolton wrote in her verdict, released Monday.

“The evidence shows a flagrant disregard for Judge Snow’s order,” Bolton concluded then.

Within two weeks of the conviction, Trump told a Fox News reporter he is "seriously considering" pardoning Arpaio. The ACLU said a pardon would be "an official presidential endorsement of racism."

And that's what people were expecting when the president visited Phoenix for a campaign-style rally on August 22.  But shortly before the rally, the White House released a statement that Arpaio won't be pardoned during the visit because the president didn't want to incite controversy.

But Trump made it clear in his speech that Sheriff Joe was going to "be all right."

Three days later, at 8 p.m. on the East Coast, 5 p.m. here, the president issued the pardon for the man he said "was just doing his job."

Opponents took it another way.

 "He’s just throwing the finger at (the judges)," Salvador Reza, an immigrant-rights activist, said.

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