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October 31, 2007

Judge complains of federal prosecutors making "illusory" promises in plea agreements

A helpful reader sent me this interesting local story about a federal district judge in Illinois making some interesting statements in the course of recusing himself from an on-going federal criminal case.  Here are the interesting details:

Judge J. Phil Gilbert took the extraordinary step of calling out the U.S. Attorney's Office for the Southern District of Illinois Tuesday before recusing himself from USA vs. Katie R. Heath, a case he said highlights serious problems within the federal prosecutor's office.  "For some prosecutors in the Southern District of Illinois, prosecutions are driven by statistics and a desire to prevent judges from exercising any control over the sentencing process without regard for the individual. Although not rising to the level of mean-spiritedness, the words arbitrary and capricious come to mind," Gilbert said Tuesday during a motion hearing on the case....

Heath was charged in federal court in April 2006 for conspiracy to manufacture, distribute and possess with intent to distribute methamphetamine, conduct related to the previous state prosecution, Gilbert said.  She was set to plead guilty as part of a plea agreement last May, but concerns he had prompted Gilbert to delay the acceptance of the plea and sentencing.  That decision was protested by the U.S. Attorney's office, which filed a motion to reconsider.  The case wound up in the 7th U.S. Court of Appeals, which earlier this month granted a Writ of Mandamus, ordering Gilbert to rule on a motion to reconsider the delay in accepting the plea and sentencing hearing.

Before granting that motion Tuesday, Gilbert said many of his concerns regarding the case involve plea agreements entered into by the prosecution and defendants. "In fact, the government frequently violates plea agreements where the mandatory minimum sentence applies and the defendant's guideline range is substantially below the mandatory minimum," he said.  Gilbert accused the prosecution of making "illusory" promises in the agreements and said, "At least in this district, these so-called plea agreements are one-way streets and are unenforceable at sentencing by either the defendant or the Court."

He went on to say that in Heath's case, where she was already punished by the state for her conduct, "I strongly believe our government has failed here in that they have not been objective, abused their discretion and are not treating (Heath) with a concern for fairness or justice.  In fact, sentencing (Heath) to prison for 20 years would be a miscarriage of justice."... Gilbert said he has never spoken out before, but "I feel strongly that the government has abused their discretion and not treated Katie Heath fairly."

UPDATE:  TalkLeft has more on this story in this post.

October 31, 2007 at 10:53 AM | Permalink


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He is my hero.

Posted by: EJ | Oct 31, 2007 11:48:34 AM

The Dual Sovereigns exception is bullshit.

Quoting the Fifth Amendment:

" nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . ."

It doesn't say "except if it's done once by a state, and once by the Federal Government."

The Supreme Court enacted this exception because racist state juries sometimes acquited guilty White people for crimes against Blacks. The court frankly stretched logic to do this in the first place, but at least one can see that at the time, there was a need to do something about those racist acquittals.

What we have here is a remedy (the Dual Sovereigns exception) for something that was patently unfair (those racist acquittals) being used in a patently unfair manner.

Posted by: William Jockusch | Oct 31, 2007 7:36:51 PM

Another aspect of the problem lies with the Courts of Appeals, here the 7th Circuit.
A few months back one of the 7th Circuit judges put the message out that lawyers would be sanctioned for filing "frivolous" appeals.

It is a sad thing that Judge Gilbert felt that he had to recuse himself. His collegues should step up to the plate.

If there is an illusory promise then how can one enter a plea knowingly and intelligently?
The judge can not accept a plea that has been thus contrived.

Some statistics from one of this Blogs other articles were striking. In 1970 there were 200,000 persons in custody in the US. In 2006 there were 2,000,000. Here is one example where a person will be added to the numbers (because she will be in jail twice as long) had the double prosecution not been initiated. She has been punished by one state and now gets punished by the superstate for the same offense.

Judge Gilbert is an honorable man and we should all commend him. But the disturbing thing is that there are not more judges speaking up for the Constitution and decrying this waste of human beings. One problem is that these very same ambitious and capricious U.S. attorneys are given judge jobs as a reward for their efforts.

There was one judge on the federal bench in St. Louis who 20 years ago decried the crack/powder disparity in cocaine prosecutions and the racial impact therein. He was given no support by his collegues and short shrift in the 8th Circuit.

I agree with the previous comment on double jeopardy.

I hope that this case will be followed up in this website as it proceeds in the Southern District of Illinois and the 7th Circuit. Her lawyers are going to have to reconsider their obligations to advise her to plea to something like this. If a federal judge calls the plea promise illusory then ineffective assistance of counsel claims are in the mix in the future.

Posted by: M. P. Bastian | Nov 4, 2007 5:43:49 AM

I am a former plaintiff in a Patent law suit. I did a great deal of my own defense until it came to depositions and mostly because of health issues that ended in a heart attack when I lost the case. I found a law firm to take over the case. My patent claim was valid but perverted by Kodak lawyers and a corrupt or incompetent law firm that I allowed to defend me.

In every opportunity, if I have a friend who is being screwed over by the judicial system, I step in to help. One of my friends is in an ongoing contract dispute in Nevada. I just discovered the so-called agreement is only an illusory promisory agreement that the court and the attorney's for both sides have been treating as real, prolonging the case in the interest of making money. As it turns out, the contract or illusory promise is a part of an ongoing Racketeering scheme that involves the Plaintiff and his attorney. I'm not so sure about the Judge and the Defense attorney. The contract is not enforceable because to enforce it violates state and federal gaming laws. I find your blog very interesting and informative. THANKS.

Posted by: Larry Sparks | Dec 4, 2008 9:04:28 PM

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