Dissenting 5th Circuit Judge: 'The war on drugs is not an excuse to violate the norms of fair play'

Those who criticize activist judges may want to turn their sights on the Fifth Circuit Court of Appeals after this recent decision in a West Texas case- that is, unless you think judicial activism on behalf of prosecutors should get a free pass.

In any event, you'll seldom read a more scathing dissent charging judicial activism than that in US vs. Cuellar by Circuit Judge Jerry Smith, who invokes Duke prosecutor Mike Nifong's "'win at any cost' mantra" and calls the case an example of "prosecution run amok." Here's the money quote from Smith's dissent:

In sum, the majority finds a way to ensure that Cuellar goes to prison, thereby protecting the Executive Branch's prosecution despite its having charged entirely the wrong statute. Unfortunately, that now-successful effort requires ignoring the statute's context, its title, the legislative history, the rule of lenity, the canon against absurdities, and existing caselaw. I can find no basis for the majority's holding other than the personal legislative preferences of its members. ...... In summary, Humberto Cuellar likely committed a serious violation of the United States Code, but not of the section of which he was convicted. Justice requires that he be tried for a crime of which a reasonable prosecutor can believe he is actually guilty. The war on drugs is not an excuse to violate the norms of fair play and evenhandedness. I call upon the Attorney General to confess error in this case of prosecutorial excess, and I respectfully dissent from the majority's blessing of the government's failure to do justice in this case.

More evidence IMO that the 5th Circuit has become nearly as big an embarrassment as the Texas Court of Criminal Appeals, whick is saying something. Thanks to Dan Kowalski for the heads up.