Via Raven, an outrageous story. It's in Reason magazine, not a particularly hot-headed place.
The prosecutors, who were found to have committed substantial misconduct throughout the case... held [defendant Esformes] without bond in the years leading up to his trial, placing him in solitary.... [He] was not convicted of the most serious charges leveled against him.... [s]o his 20-year sentence—handed down by U.S. District Judge Robert N. Scola of the Southern District of Florida—may appear grossly disproportionate to his convictions.
Until you realize the judge explicitly punished Esformes for charges on which the jury hung.
That is not an error. "When somebody gets sentenced [at the federal level]…they get sentenced on all charges, even the ones they're acquitted on, [as long as] they get convicted on one count," says Brett Tolman, the former U.S. Attorney for the District of Utah who is now the executive director of Right on Crime. It is a little-known, jaw-dropping part of the legal system: Federal judges are, in effect, not obligated to abide by a jury's verdict at sentencing.
His sentence was commuted by the Trump administration after he had served four and a half years in prison. But!
Esformes... is facing an even stranger ordeal: someone whose sentence was commuted and will soon go back on trial—for charges on which he was already punished.
Central to the most rudimentary understanding of the U.S. legal system is the protection defendants are promised against double jeopardy—the safeguard that prohibits prosecutors from trying and punishing you multiple times for the same crime.
Esformes' second prosecution "directly violates the double jeopardy clause," says Tolman.... Jackson agrees. "If you walk through the facts, it's clearly double jeopardy," she says. "The judge on the record at sentencing used the hung conduct as part of his sentence…. That sentence was then commuted by President Trump."...
s presents a question for the Department of Justice: How can it proceed with the prosecution against him when he was already sentenced, and had that sentence commuted, for the charges it wants to retry?
Some in the government are trying to answer that. "I [am inquiring] as to how the United States Department of Justice could believe that any further prosecution of Mr. Esformes on charges for which he was already tried, sentenced and granted clemency by the President of the United States could possibly be constitutionally permitted, and in all events a proper use of United States government resources?" asked Sen. Mike Lee (R–Utah) in a recent letter to Attorney General Garland.
The query has yet to receive a response.
Is there any part of this system that still works remotely the way it was supposed to work? Are there any Constitutional principles left that still function?
3 comments:
Mao's law is applicable and used widely by the gov.
Are there any Constitutional principles left that still function?
The 5th, as shown here, is functioning very poorly these days.
As far as I am aware, the US military has not recently attempted to quarter troops in private residences against the will, and without the permission, of the owners. ( 3rd Amendment )
OTHER forms of "taking" via eminent domain or by federal law enforcement agencies under guise of "asset forfeiture" or just because the badge-carriers want to set up surveillance concealed inside an innocent citizen's home across the street or in an apartment adjoining the residence of an unconvicted, but suspected or at least accused, target of investigation -- yeah, I'm pretty sure that's happened.
So as a technical matter of constitutional law, the 3rd Amendment stands but as a matter of constitutional principle , that right of a citizen-king to be unbothered in his own secure home-castle, well, not so much.
Truthfully the whole SIXTH amendment thing about "speedy public trials" is another lost promise that I mourn deeply.
THe thing about that Sixth amendment right to a speedy trial thing is everyone *waives* it. Their lawyers tell them they need time to put together their defense- but I've often thought many a prosecutor would find it impossible to put together a good case if required to do it speedily. But no one wants to take that gamble.
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