Wednesday, November 05, 2014

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.

15 comments:

Anonymous said...

All this bluster is for nothing - they will write an opinion and the DOJ will go marching on, doing what it does.

Until the trial judges and employers these idiots go to after their stints as AUSAs start to understand that they are dealing with a bunch of heartless bullies, nothing will change. Until it happens, the judges will assume the government is right and the jobs will be waiting.

Rumpole said...

I agree. Meaningless. spitting in the ocean. Nothing will change.

Bob Becerra said...

I always have had a problem with the direction in the US Attorney's Manual to charge the most severe crime available. That is rife for abuse.

hateraid said...

Bob, that may be the only section they actually read. They sure as shit skip over the section dealing with brady, etc.

Anonymous said...

Rumpole,

Spitting in the ocean is a crime that carries a maximum sentence of 20 years. Spit in the ocean at your own risk. You've been warned.

Anonymous said...

Interesting that the Yates argument was yesterday and shows the hypocrisy of DOJ. Yates was charged with obstructive conduct for throwing away some fish. The govt sought a 2 year sentence for him. Meanwhile here in our own backyard A-Rod pays off a witness with nearly a million dollars and he gets immunity. What a joke.

Anonymous said...

Wow, I'm glad to see that Scalia was so charged. I would be nice to see him write the opinion on this one.

On another note, this response brings some hope for a good result in Mellouli v. Holder. The DHS seeks deport Mellouli for having been convicted of a crime "relating to a controlled substance" because he has a paraphenalia conviction for having hidden an adderall pill in his sock. He was not convicted of illegally possessing adderall; he was convicted for possession of a sock ... .

Sandy Yates said...

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Anonymous said...

Makes me want to serve grits and grunts in the fed ct for breakfast. Any takers?

Anonymous said...

Markus: why do you choose to post ridiculous comments from your former colleagues at the FPD office castigating the US attorney's office but you won't post legitimate comments about some of the thugs in your former office? You know who I am. Email me and explain your position.

Anonymous said...

Thugs in the pds? What exactly qualifies somebody as a FPD Thug? Do they have tats? Does it say "Thug Life" arching over their ridiculously ripped abs? Perhaps a bandanna on the head? Do they check their gats with the marshals on the way in to court? Love the imagery. Who is the thug master? Please, I want to know so I can join. I hope the initiation isn't to painful. I can stand with shanking somebody, but I really don't want to have to get beat up.

Oh yeah, what is the theme song? My vote is for "we like boom!", or may be "freedom". I know they aren't hard, but I think they could grow on you.

Anonymous said...

Is there a competing ausa crew? Can we set up a rumble? It would be like the jets and sharks, I know the ausas have some big dudes like that guy from the Bachelor and izzy, and pretty boy Roy, but if you ask me, they seem a bit soft. I think we could take them.

Anonymous said...

Dude, when Ian the Canadian (or something like that) steps on the ice, oh I mean mat, game over.

Anonymous said...

5:36: Bachelor dude is gone; who is "izzy"?; and Roy will knock you out and/or cut you in two with his rock-hard and sharp gelled hair (but only if the rumble takes place very soon, as he's also leaving the Office).

Anonymous said...

5:31, perhaps 6:42 should have written "intellectual thugs." Some AFPDs clearly believe that the ends justify the means ...