Arpaio hits snag in bid to remove conviction from record
By JACQUES BILLEAUD
Oct. 31, 2017
PHOENIX (AP) — Former Sheriff Joe Arpaio has hit a snag in his bid to get the courts to erase his criminal record now that President Donald Trump has pardoned his conviction for intentionally disobeying a judge's order.
An appeals court on Monday issued an order questioning whether it has jurisdiction over Arpaio's appeal of an Oct. 19 ruling in which a judge refused to throw out a decision that explains why the retired sheriff was found guilty of contempt of court.
The order issued by the clerk of the 9th Circuit Court of Appeals explained the pardon was issued before Arpaio's case came to an official conclusion at the lower-court level and cited a case that concluded appeals courts are generally barred from reviewing cases until after a person is convicted and sentenced.
The development points out a paradox for Arpaio: The pardon led the judge to call off his sentencing and dismiss the case, but it also could thwart his name-clearing efforts in the courts and stop his appeal because it never reached the "final judgment" phase that usually occurs at sentencing.
The appeals court has given Arpaio three weeks to say why his appeal shouldn't be dismissed.
Daniel Kobil, a pardon expert who is a professor at Capital University Law School in Columbus, Ohio, said Arpaio's lawyers could argue that the case fits into a narrow exception to the rule that cases aren't appealable until they are final. But Kobil characterized such an effort as an uphill battle.
"The courts are going to be very reluctant," Kobil said.
But Arpaio lawyer Jack Wilenchik said he expects the retired sheriff to clear this legal hurdle, which he described as a routine step by the court to weed out appeals that have been filed too early. "We are in a very unique situation here, and that needs to be explained to the court clerk," Wilenchik said.
The conviction stemmed from Arpaio's disobedience of a 2011 court order that barred his traffic patrols that targeted immigrants. Prosecutors had accused Arpaio of prolonging the patrols for 17 months to boost his successful 2012 re-election campaign.
Arpaio, who endorsed Trump and appeared alongside him at rallies during the 2016 campaign, has acknowledged continuing the patrols but insisted his disobedience wasn't intentional.
His lawyers have said they want to appeal the Oct. 19 rulings by U.S. District Judge Susan Bolton, who said pardons don't erase convictions or the facts of the case. She said the pardon only called off any possible punishments Arpaio might have faced.
Bolton had previously ruled the pardon would stand despite protests from critics who said the clemency would encourage government officials to flout similar court orders in the future.
Arpaio's lawyers want Bolton's blistering 14-page decision that explains the reasons behind the verdict thrown out in a bid to clear his name and prevent attorneys from using it in future court cases as an example of a prior bad act. The retired sheriff could be targeted by lawsuits from Latinos who were illegally detained while the sheriff disobeyed the order, though no such cases have yet been filed.
In the ruling Arpaio wants thrown out, Bolton cited TV interviews and news release in which the sheriff made comments about keeping up the patrols, even though he knew they were no longer allowed.
Arpaio's defiance of the court order is believed to have contributed to his 2016 election loss after serving 24 years as metro Phoenix's top law enforcer.
Follow Jacques Billeaud at twitter.com/jacquesbilleaud. His work can be found at https://www.apnews.com/search/jacques%20billeaud.