If You Can’t Trust Prosecutors…

There won’t be much “value added” in this post, as its purpose is to direct readers to Doug Berman’s post at Sentencing Law & Policy on the fiasco of Cesar Huerta Cantu.  In that case, a typo, conceded by all, in the Guidelines calculations went unnoticed by all, including Cantu’s defense lawyer.

While this is not merely inexcusable, but frankly incomprehensible, it happened. When Cantu discovered the error, he sought to correct it via a §2255 petition, which the government opposed as untimely.   The depth of disingenuousness of the government in this case is so low as to shake any confidence in prosecutorial discretion.

The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu’s own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu’s treatment by our Kafkaesque system.

Read Doug’s post, analysis and discussion.  As a somewhat curious aside, Doug openly asks Wild Bill Otis, the patron saint of prosecutors, to offer some comfort in light of how the government treated a typo.  As of this writing, Otis, a regular commenter at SL&P defending the right of government to lock away all the evil citizens, except those who deserve to die, has not been heard from.

Further, your affiant sayeth naught.

21 comments on “If You Can’t Trust Prosecutors…

  1. Paul

    So you want to hear what Bill Otis has to say? Isn’t the world a better place when Bill Otis is not talking?

        1. SHG Post author

          Otis falls on the whacko extremist end of the spectrum. Most prosecutors I know think he’s a nut and reflects poorly on the law and order side. I gather you think better of him. You’re allowed, and others are allowed to think he’s a whacko extremist. That’s how it works.

  2. SPO

    So lessee here, an immigrant, who is graciously granted citizenship by our society, decides to run a dope-running business, gets a reduced sentence and then complains about that reduced sentence, and we’re supposed to be aghast when the government points out the statute of limitations.

    If I am the prosecutor, I doubt I raise the issue–but to make this out as a horror show is a bit much.

    1. SHG Post author

      You almost had me, but then I realize you’re trolling me, since no one capable of breathing could write something that idiotic.

      1. SPO

        I like to read this blog because it is written from a perspective I don’t share. My respect for you just came down a lot. Whether you like it or not, the fact that this guy is an immigrant is relevant to the outrage meter here. I don’t think much of people who come here to run drugs. Did he pay taxes on all his money? Did he get charged with everything he did to violate the law. The answer in both cases is “no.” The word “ingrate” isn’t strong enough.

        So now, I am supposed to get all upset about the fact that the government insisted on a statute of limitations (which serves a very good purpose generally)? Sorry, I don’t. I agree that the best course of action here would have been for the prosecutors to not contest the motion. And I actually support Obama’s action. But it would not have been a horrible miscarriage of justice had this citizen served 85% of his original sentence.

        1. SHG Post author

          To help you with a bit of context, do you suppose it’s distressing that you’ve lost respect for me? Do you not get the idea that your comment was so utterly ignorant that you went into the flaming whackjob category? Or to put this somewhat differently, what sort of pathological narcissism would make you think that I seek your respect?

          You can find reasons to hate anyone convicted of a crime. That’s fairly easy, and so your particular issue is with naturalized immigrants, because your people didn’t come on the boat from Ireland. So, you’re a hater, a hypocrite and a kinda stupid. No big deal, there are plenty of people like that.

          But this case involves one salient issue: that a typo was made. Regardless of how much, or why, you hate a defendant, or whatever fantasies you have about their tax payments (you do, I hope, realize that you engage in facile, rank speculation, again putting you into the flaming whackjob category), Americans don’t sentence by typo. And if you think that’s not a problem, then your failure to grasp American values tells me that maybe you ought to be the one going back to the old country. You have no business in the United States of America if you hate our princples so much.

          1. SPO

            “rank speculation”–um yeah, because most people engaged in drug-running declare all their income (actually gross receipts) from drug-running. (I say gross receipts because, as I am sure you know, deductions go away when you’re running a drug business. (See IRC 280E)). And the idea that the conviction picked up everything this ingrate did is fantasy (to use your word).

            My point, of course, is that the SOL is a valid argument made by the government, and that if we’re going to start tossing around hyperbolic comments about just how awful the prosecutors are and just how awful Bill Otis is, it’s perfectly salient (to choose a word you used, notwithstanding the fact that it isn’t quite the right word in my sentence) to point out how this guy isn’t exactly the most sympathetic character on the planet.

            This actually reminds me of a story (IIRC) about an inmate who died on Florida’s death row. The guy had previously killed two kids and had gotten far less than he deserved in those cases–then he was wrongfully convicted of murdering a third kid. Died on the row before exoneration. Obviously, had the evidence of innocence come to light before the guy died, I would have supported release–but would I consider the guy a victim–hardly. Or Ray Krone? Once again, IIRC, this guy inserted himself into a murder investigation to get lenience for other charges. Am I to think him the most sympathetic guy in the world? Hardly.

            As for me being a “hater”–well, if you’re cool with people who come to America get citizenship and then commit serious crimes, well, that’s just a belief system. Surely, you know that others may not have the same view. I don’t particularly care for people who come to this country and commit serious crime. And that means that I am not going to get all worked up about the government asserting a SOL defense when the government has a valid basis for doing do in this case.

            1. SHG Post author

              Not interested in wasting the time to address your silliness. Your “ideas” are simplistic, and their flaws are obvious to anyone with half a brain who bothers to read them. Your confusion about people who you feel sympathetic towards and the law makes your thoughts worthless. That you think only those people you like deserve substantive due process tells me that your view is not one worthy of discussion.

              You better hope when its your turn that somebody in a position to do you harm doesn’t have a problem with “your type of people.” In other words, pray that neither you nor anyone you love ever has to rely on the integrity of someone like you.

  3. Gray Proctor

    SHG – just FYI I posted over at Doug’s a link to the gov’t motion to dismiss that confirms that the USA relied only on the SoL defense, no engagement with the merits.

  4. SPO

    Now you’re off the rails—substantive due process? I didn’t realize that Section 2255 SOL had an exception (or was tolled) for when the criminal asserts an error that ordinary diligence would have discovered.

    But instead of arguing that the prosecutors were wrong etc., you launch into a diatribe about how horrible they and Bill Otis are. But I am the hater.

    “Your confusion about people who you feel sympathetic towards and the law makes your thoughts worthless.” This is an obtuse comment. You launch into personal attacks against prosecutors and then write as if the discussion is a purely legal one?

    I almost decided to leave the idea that I should leave the USA because I hate American values. But I can’t resist–in your world, a guy like me, who pays his taxes, lives a law-abiding life etc. should leave, but an ingrate criminal immigrant should stay. But I am the hater.

    1. SHG Post author

      The introduction of a statute of limitations to 2255 was designed to foreclose substantive due process in the interest of finality. But then, nobody would have believed that it would be invoked to avoid correction of a typo. And yes, you hate American values, “a guy like me, who pays his taxes, lives a law-abiding life.”

      You are the hater, and can’t grasp why. Just like the haters who scream that we should shoot cop. They can’t grasp what’s wrong either. You’re opposites, and the same. Now we’re done.

    2. Sgt. Schultz

      I’m confused. What part of a guy doing 3.5 years for a typo is good with you? Because he’s a “naturalized” American, and therefore undeserving of the rights that you, 110% real Americans, deserve? Or is it because he’s a criminal, because you feel differently when non-criminals get sentenced by typo? Or is it because you assume he didn’t pay taxes, a “fact” that exists only in your own mind (even though you’re absolutely certain it’s true, just like all true psychotics)?

      Or do they all have to happen before you think sentencing by typo is no big deal? What an asshole.

      1. SHG Post author

        SPO’s point is that he feels no sympathy toward Cantu (because Cantu, apparently, is not SPO’s favorite type of tax dodging criminal immigrant), so therefore who gives a damn what happens to him. Apparently, SPO’s criteria for who deserves fairness is whether he likes them. It’s that idiotic.

      2. SPO

        Apparently, reading comprehension is a skill in short supply around here. Nowhere in here did I say that I would do what the prosecution did–in fact, I say the opposite. My point is that this isn’t the horrible injustice you all make it out to be. And my other point is that the over-the-top rhetoric about the prosecutor and Bill Otis is ridiculous.

        As for the taxes, if you guys want to take the position that I am psychotic because I’m thinking that this guy isn’t the only drug-runner on the planet that is fully compliant with the tax laws, well, whatever.

        Finally, it’s completely fair game to note this guy is an immigrant.

        1. SHG Post author

          You’ve had your say, now numerous times. Do you think it gets less idiotic with repetition? It doesn’t. You’re allowed to think what you want. Others are allowed to think you’re a flaming idiot. Wasting my bandwidth won’t change that.

          1. SPO

            Funny thing is, I don’t think I’ve repeated myself. I’ve tried to correct mischaracterization of my position.

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