Monday, May 28, 2012


One last word from Rumpole before your beloved blogger returns from wherever "elite criminal defense attorneys" go when they are not partying at Urban Weekend on Miami Beach. 

Federal judges have had enough with the powers prosecutors wield in federal sentencing, and they are starting to write freely about their frustrations the NY Times reported on Sunday. 
“Prosecutors run our federal justice system today,” Judge William G. Young of Federal District Court in Boston wrote in this
sentencing memorandum “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”
On the twenty year anniversary of his closing argument in USA v. John Gotti, former federal prosecutor and current United States District Judge for the Eastern District of New York Judge John Gleeson is also at his wits end over the decisions of federal prosecutors to seek lengthy minimum mandatory sentences for small time drug offenders. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”
From the Times article on the case before Judge Gleeson:
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.
“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time....  The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”
Rumpole says: There are similar problems in state court. We have written many times before of the strange scenario played out countless times in state courts where the legislature has invested more power and discretion in the hands of a twenty five year old prosecutor two years out of law school than in the hands of a fifty five year old judge appointed by the Governor or elected because of his/her (supposed) wisdom, experience and abilities. 
Strange. Sad and frustrating, but strange nonetheless.  
Welcome back DOM.  


Anonymous said...

If you believe that prosecutors "run" the system and judges play a "subordinate" role, then I have a pig that can fly that I'm willing to sell you.

The fact of the matter is that in the vast majority of cases judges retain the power to sentence at their discretion.

Rumpole said...

Tell it to the Federal Judges. They're the ones complaining about the prosecutors running the system.

Anonymous said...

Those who have power always want more. That applies with equal force to judges, prosecutors, police officers etc.

Judges, being judges, don't like their power being restrained by another branch of government; in this case the legislative branch that imposed these mandatory minimums. By any measure it is hyperbole to say that prosecutors "run" the system and judges play a "subordinate" role simply because in a subset of cases judges are required to impose mandatory minimums.

This overlooks that judges can vastly influence the outcome of a trial involving those mandatory minimums by making evidentiary rulings that the government cannot appeal--EVEN IF it is contrary to precedent and the FRE. The Court can also maneuver the Rule 29 so that the government cannot appeal it.

I'm not saying that I agree with the mandatory minimums but these federal judges are overstating their lack of power. The fact remains that their power is enormous. Look at the judge in the Stevens case who busted some serious balls to the point where DOJ cried "uncle" and dismissed the case.