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.
.jpg)
1 comment:
It sounds like an open and shut case of a statute being written as broadly as possible to allow prosecution of the maximum number of people possible. These are qualities of abusive laws - giving those who mete out punishments maximum flexibility. This mainly requires that laws be open ended with a lot of undefined misconduct such that prosecutors have maximum flexibility.
Needless to say, prosecutors - who are rewarded for punishing large numbers of people - are familiar with these types of statutes, just as police are familiar with the locations of ridiculously low speed zones that don't match the safe speeds necessary for motorists. That's why speed traps are ridiculously easy to locate. All you have to do is drive in an area where the posted speed is way lower than the safe speed on a regular basis and you will certainly spot police cars on that stretch passing out speeding tickets.
Post a Comment