One of the tactics frequently urged by aggressive lawyers is to push judges to start living up to their oaths by granting motions, whether for suppression, controversion or even simple discovery. You know, the stuff that really shouldn’t be an issue at all except for the fact that the Government will not negotiate with terrorists give the defense half a chance at preparing.
On the island of Saipan in the northern Marianas, a lawyer named George Anthony Long pushed the envelope by demanding that the government disclose stuff it didn’t want to disclose. Not that it was some huge secret, but that it would have offered Long the chance of defending his client, Julita Sablan. And the judge, Mark W. Bennett, granted his motion.
So the government promptly complied with the court’s order and turned the requested material over to the defense? Nope. From the Rule 48 motion, which is the equivalent of telling Judge Bennett to go screw himself. Instead of disclosing, they responded with a pox on your bench. And, naturally, the defense consented.
Was Judge Bennett serious? They called his bluff by tossing the prosecution and leaving the good folks of the Northern Marianas in the clutches of Julita Sablan. Hah, they spit. And when they tell the tale of the judge who condemned Saipan to drugs, it will be on your head, the government said.
And Judge Bennett collapsed. He folded like a cheap suit.
Judge Bennett, sua sponte (for you non-lawyers or folks who slept through Latin class, sua sponte means he did it on his own without anybody asking) reversed his prior ruling compelling disclosure and denied the government’s motion to dismiss. Pwned.
If you’ve ever had the pleasure of getting a huge ruling, one where you get a judge to move off the dime and actually make the government do something that forces them to give the defense half a chance at fighting, you know the feeling. It’s like a miracle. It’s fantastic. You feel ten feet tall, You feel brilliant. You feel like you’ve finally done something to make all those knee-jerk denials, all those affirmed no opinions, all those rulings that cut your knees out from under you and make you wonder why you wasted a clean shirt, worthwhile. It’s one of the best feelings a criminal defense lawyer can get. And defendants like it too.
And then the rug gets pulled out from under you when the court, in an act of supreme supplication, realizes that by doing the right thing and applying law, he’s violated the basic precept of the legal system: Never give the defense a fighting chance. And poof, it’s gone. Reversed, denied, gone. No, there’s nothing more to discuss.
Try explaining to your client how, in the blink of an eye, a huge win turned into a crashing defeat for no reason whatsoever. Except it’s not quite no reason, but really acquiescence to the government. The government refused, and the judge couldn’t bear the government’s ire. And so, poof.
But the law wasn’t done smacking George Long around just yet. It wasn’t enough that his win crashed around him. The defendant pleaded guilty, and he argued that Judge Bennett should take the government’s willingness to dismiss into consideration at sentence. Nope, he said. Judge Bennett, having been told he’s a bad boy once by the government, wasn’t about to suffer it’s displeasure again.
Long appealed. Nope, said the 9th Circuit in an unpublished opinion, noting that the defendant got enough of a break as far as they were concerned. But Long, even though he was assigned CJA, petitioned for rehearing en banc because the Circuit affirmance neglected to mention, note, consider or recognize that Judge Bennett’s refusal to consider the Rule 48 motion at sentence wasn’t quite the law.
The Circuit had enough. Not only did they
Tactical Dismissal, or How To Make A Federal Judge Cry
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I agree that the sua sponte ruling was a cave to government power but I am not sure I disagree with the Appeals court based upon the scope of the ruling. The defense argues that the governments offer to dismiss is relevant at sentencing. The government can choose to dismiss for many tactical and practical reasons. If for example the offer was based upon protecting future operations, why should the defendant benefit.
The problem here seems to be the failure of the government to turn over relevant information. Given that information the defendant may have mounted a successful defense. That seems to be true issue here, but it does not seem to be part of the appeal. I am guessing that by pleading guilty, this issue was not preserved for appeal?
If the government took the position that dismissal of the prosecution, for whatever reason, and therefore no sentence whatsoever, sufficiently vindicated the government’s duty to the public, then it is a factor to be considered under §3551. It doesn’t dictate sentence, but it’s a factor that suggests that the statutory need for incareration under the legitimate sentencing factors is not so great that the government would not have been fully prepared to set the defendant free. If that’s the case (as it clearly was), then it reflects the government’s view on the severity of sentence needed.
So … more lawyers equals less justice? And a surfeit of them leads to none? Very odd.
Given stuff like this, I’m surprised more suspect don’t just take themselves an honor guard of LEOs with them. There’s no such thing as a fair trial.
So…
Judge: “Turn over evidence.”
Government: “No.”
Judge: “Yes.”
Government: “OK, fine, we’ll dismiss charges and place the blame on you, silly Judge.”
Judge: “Haha, I was just kidding! You guys are way too serious…”
Defendant: …hangs himself in jail cell.
Government: “Problem solved. Justice was done.”
The second most interesting thing about this post is that I had dinner with George a few years ago in San Francisco.
Now of course, I can no longer boast that “Unlike the rest of my brethren, I actually know a criminal defense lawyer in Saipan.”
Maybe third. Or fourth. Not second.
I don’t see the sua sponte as a cave to the government, but rather the judge holding, in essence, “gosh, I didn’t realize the disclosure was so damaging to the government. It’s not worth dismissing the case over, so let’s go back and do this over again.” Also not a laudable reason, but one that is analytically distinct, and which brings into focus the injustice of excluding the dismissal from sentencing. If the government thought this crime was so meager as to justify dismissal over disclosure, that should weigh on the court’s decision.
Glorious exposition, comrade.
Hi Max:
The judge isn’t supposed to weigh how his ruling will affect the prosecution’s case and only make rulings that do minor harm to the prosecution. The judge is supposed to rule only on what is in front of him.
If a traffic cop illegally searches a car trunk and finds a gram of marijuana or a dead body, the rules for suppression are the same.
I’m reminded of that scene in the Jim Carrey movie Liar Liar:
Fletcher:Your honor, I object!
Judge: Why?
Fletcher: Because it’s devastating to my case!
I thought it was a joke, though.
Agreed. I didn’t say otherwise.
About five years ago, I was handling a murder case in Kings County. The rulings in the case were ridiculous. I was even having trouble getting access to my client in the jail — it was newly-built and they didn’t have attorney interview rooms; they wanted me to meet my client via telephone in the bond room, where he would sit next to other inmates on one side of glass and I would sit next to visiting family members on the other side.
I finally got so fed up that I filed a “Motion for Fair Trial.”
I wish I had ordered the transcript. I think even the judge finally felt chagrined when he uttered the words, in open court: “The defense Motion for Fair Trial is denied.”
How did things get so bad?
Maybe a decade ago, I had a case before a judge I knew fairly well. He was smart. He was fair. He was one of the good ones. In fact, he was so smart that he was one of the few who had a decent chance of making it from trial judge to the big bench. I knew it. He knew it.
In my case, he gave me a great ruling. It was absolutely correct according the law, and devastating to the prosecution. At the next appearance, he informed me that he had reconsidered and denied my motion. No explanation. I argued, and he shut me down hard.
Not too long afterward, I had a chance to talk to him without the robe. He told me that he was “reached” that if he didn’t stop “favoring” the defense, he had no future on the big bench. He told me he wanted to get to the big bench so he could do something good, make real changes, change what we all knew was happening.
I responded with words that were not nice. I’ve heard this argument from every person I’ve ever met who aspired to higher position, including a close friend who became a legislator. If they don’t have the balls to stand up now, the day will never come when they will “make real changes.” Never.