Judge Stands Up to Federal Prosecutors

As long as the Executive Branch does not exceed its constitutional authority, the Judicial Branch must generally defer to a prosecutor's charging decisions. Judges are nonetheless occasionally critical of particular prosecutions. Rarely are they as vocal as Judge Phil Gilbert.

Gilbert says even though [Katie] Heath co-operated with a drug investigation, she was hit with a mandatory sentence of 20 years. That's after she's already served time in state prison.

Katie served a year in state prison on a methamphetamine distribution charge. After her release, she made progress toward living a stable life. She got a job. She went back to school. She was taking care of her kids. Leave it to the federal Justice Department to destroy her chance at living a meaningful life.

"She obviously was trying to turn her life around and then this federal indictment hits her with a 20 year mandatory minimum" says Judge Phil Gilbert. "It just raised a lot of questions of fairness."

Judge Gilbert recused himself rather than imposing the 20 years. He has the integrity to refuse to play along with the Executive Branch’s vicious and heartless charging decision. Good for him. (more ...)

Bonus commentary from Judge Gilbert, who gets it right again:

“These plea agreements are really not agreements at all. The defendants have to comply with them but the government doesn't.”
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    Narius.... (5.00 / 1) (#7)
    by kdog on Wed Oct 31, 2007 at 02:58:47 PM EST
    this gave me a chuckle....

    I do not want people in the drug trade in society

    Doctors, pharmacists, pharmacuetical companies....there is no place for them in society?

    Not picking on ya bro.... (5.00 / 1) (#9)
    by kdog on Wed Oct 31, 2007 at 03:08:53 PM EST
    Just a reminder that drugs ain't the problem...prohibition is:)

    Get edumicated (none / 0) (#12)
    by QuatKnot on Wed Oct 31, 2007 at 05:09:50 PM EST
    I don't think meth can be used as a legit medication.

    Wiki is an awesome thing.  Anyone medicated for ADD/ADHD will tell you that they are on "meth".  While technically not true it is close to true.  And meth does have other legitimate uses.


    Actually, (none / 0) (#15)
    by Deconstructionist on Thu Nov 01, 2007 at 08:43:30 AM EST
    Methamphetamine is in Schedule II not I.

    Schedule II criteria.

    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
    (C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

      Under Federal (but not all state CSAs) marijuana is in Scedule I which has the same criteria except "no currently acceptable medical use...".

      Bizarre,  but the law.


    Nifongian Justice (none / 0) (#1)
    by Packratt on Wed Oct 31, 2007 at 02:27:34 AM EST
    This is what happens when prosecutors play politian and politians play prosecutor. The American justice system is more busted up than a cheap one legged crack whore, but much more expensive.

    Sweet jeebus, I've seen the inside of this beast and it's frightening how much it's geared to churn up the innocent and the guilty alike. It's so unbalanced against the accused that it's no wonder so many innocent people have been found waiting on death row.

    When it happened to me, the prosecutor assigned to my case didn't even want it to go to trial, she told my defense attorney that "I cannot, in good concience, take this case to trial." but she was still forced to keep the case going by her politically minded superiors even after everyone knew I was innocent. That's the brand of justice that American citizens want?

    I've been trying so hard to get people to realize how easily that they can be caught up in it like I was, like this woman is, even when you've done nothing wrong like me. Yet people don't care even though when believe me. They still insist on sacrificing the ideas of freedom and justice that America once stood for in exchange for some flimsy window dressing of supposed security.

    It's just so damn frustrating.

    I too am a victim (none / 0) (#2)
    by Electa on Wed Oct 31, 2007 at 06:49:49 AM EST
    of over zealous prosecution of the innocent.  I was forced to enter into a plea agreement eventhough I knew I was innocent.  Like you, I wanted to go to trial but was discouraged by my federal public defender not to do so.  I was told that you can't win against the Feds and if we went to trial that my sentence would be longer.  I spent 12 mos. of my life incarcerated and now am labeled a felon for the rest of my life.  I can no longer work in my profession, can't get a passport and have to live with a felony scare for the rest of my life.  The gov't brought me up on a 40 count indictment and when they couldn't make it stick, they came with a plea bargin threatening to indict my family members if I didn't cop to 1 count of mail fraud.  After 4 years of torture I didn't want to take my children and husband through it, so I pled to 1 count of mail fraud.  Later I learned that when the gov't can't pin anything else on you they lump you into a category of mail fraud.  

    This is a wicked and broke system.  There is no justice.  Hopefully more judges will stand up for true justice and stop executing these ungodly sentences that ruin peoples' lives especially the live of children.  I hope you've been able to recover it's been a long hard road for us.


    My sympathies (none / 0) (#3)
    by Packratt on Wed Oct 31, 2007 at 09:42:08 AM EST

    I know what you mean and I hope things get better somehow. My public defender told my wife and my boss that I should plea when she first met them, my wife asked what was it about my case that made her think that and she replied "Well, I didn't read his case files yet, but he looks distinctive." How ethical is it to offer your client advice without even reading the case yet?

    Even then, she sell kept trying to convince me to plea even after she viewed a video tape that convinced the detective in charge of the case and the prosecutor that I was innocent... and she didn't let me view that tape.

    While they messed around with my life I was stuck in a jail that intentionally refused to give me medical care. I have nightmares over the way I was treated and still get massive headaches from the beating I received. I don't see how we'll recover.

    I agree, there is no justice in America, the whole system is nothing more than an extortionist's racket. If anyone trusts the police, the prosecutors, or even the public defenders... then they're utter fools.

    I wish you all the best Electa.


    You too Packratt (none / 0) (#13)
    by Electa on Wed Oct 31, 2007 at 06:13:44 PM EST
    Unfortunately the first line of defense is to take a plea.  Hopefully you'll get involved with an organization like FAMM, Families Against Mandatory Minimums.  It's up to the public, who are misinformed or all out ignorant about the USSG and above all the misuse of RICO in prosecuting non-violent drug cases and any other cases that they can't outright prove beyond a shadow of doubt.  If this woman spent time in a state facility why did the Feds even get involved?  My point is the Feds are prosecuting cases that should remain in the state court systems.  I challenged my sentence on appeal and won, nevertheless, I did the time and that couldn't be given back.

    BTW, it's good to talk about our experiences, I use every opportunity to share my story and inform others that they too could become a victim under this current system.


    he's gone. (none / 0) (#4)
    by cpinva on Wed Oct 31, 2007 at 10:37:12 AM EST
    don't be surprised if judge gilbert gets "disappeared" in the middle of the night. clearly, he hates america, and needs to be sent to the "re-education camp" in guantanamo.

    where the heck is juan peron when you really need him?

    there's a lot left out of this story (none / 0) (#6)
    by Deconstructionist on Wed Oct 31, 2007 at 02:23:11 PM EST
     which makes it difficult to judge as anything beyond being another example of generally draconian sentences for federal drug crimes.

      The first thing that is not clear is how many convictions she has. A 20 year mandatory minimum would only apply in a meth case in one of two circumstances:

     (1) the offense involved at least  100 grams and  death or serious injury was caused (rarely applied); or

    (2)the offense involved at least 100 grams and the defendant had at least one prior felony conviction which was a crime of violence or a drug trafficking offense.

      If the state conviction described in the article was truly for related conduct, it should not be the basis for an § 851 information doubling the statutory mandatory minimum from 10 to 20 years.  I'd think this Judge would have picked up on that given his views, so more likely sh had ANOTHER prior offense that was a drug trafficking offense or a crime of violence (or the reporter was misled into calling the state offense mentioned as being basically for basically the same offense).

      We also are given absolutely no information concerning her role in the offense by which to judge her degree of culpablity or any information about what type of cooperation she gave or didn't give and what type she refused to give and why.

      20 years is a long time for ANY non-violent offense, but i have no facts from which to assess how this woman stands out from all the thousands of other who receive very long sentences in thse types of cases.

    filling in the blanks (none / 0) (#17)
    by Saluki Lawyer on Fri Nov 02, 2007 at 10:33:23 PM EST
    She received first-offender probation on a cannabis charge when she was 19.  Illinois does not consider this a conviction.  This was what the 851 was based on.

    Her role in the offense was typical of these kinds of "conspiracies" but less than others who were involved to a greater degree who were not even charged.

    After she was charged and enhanced she cooperated, but by that time most everyone else involved had been rolled up so there was not a whole lot for her to contribute.  She was charged separately, later, instead of tacked on in a superseding indictment.

    It is a compelling case, but, sadly, not all that unusual in federal meth prosecutions, at least in this neck of the woods.  The irony is that low-level pill buyers can get much greater sentences than the big dogs due to the effect of unlucky prior convictions and/or the vagaries of criminal histories.

    Hope that helps.  The transcript of the judge's courtroom comments makes things much clearer than the story.


    true decon, but (none / 0) (#10)
    by cpinva on Wed Oct 31, 2007 at 03:20:45 PM EST
    what's in it is more than enough to make one wonder. for example, i wonder why they waited so long to try and get her on a federal charge? it's not like they didn't know where she was.

    i wonder why they refuse to comment on it? it isn't an ongoing investigation or case, the plea speaks for itself.

    maybe they're embarrassed, who knows? surely, if she's as much a danger to society as a 20 year sentence would seem to indicate, they'd want everyone to know that, don't you think?

    That's another thing left out (none / 0) (#14)
    by Deconstructionist on Thu Nov 01, 2007 at 07:06:19 AM EST
      It's not unusual at all for conspiracy cases to be initially charged many years after the alleged commencement of the conspiracy and sometimes several years after the termination of the entire conspiracy let alone the withdrawal of one of the conspirators. That can be for several reasons but most often because  the evidence needed (usually snitches somewhere in the chain) takes time to gather. The Feds --unlike many state or local enforcement agencies-- often take their time and wait until they have an extremely strong case before indicting. That allows the illegal conduct to continue which is a price the Feds are willing to pay in exchange for ultimately obtaining more convictions.

      The decision of the prosecutors not to comment is completely appropriate and standing alone not indicative of anything other than circumspection.

       The DOJ (U.S. Attorney) has great discretion in terms of charging and in terms of plea negotiotions (theoretically DOJ instructs USAs that the greatest readily provable offense should be charged in all cases but there is still room to finesse such things.

      My questions would be first why no substantial asistance motion was filed bty the government and the government's rationale for refusing to offer a plea agreement under which it would not file the § 851 (recidivist) information doubling the mandatory minimum. Without that information, it's difficult to make any judgments beyond, as I said, federal drug laws are extremely harsh generally.


    Because it is the So. Dist. of Illinois (none / 0) (#16)
    by Saluki Lawyer on Fri Nov 02, 2007 at 10:19:44 PM EST
    Because they don't do 5K1s here, only Rule 35s if they feel like it.  851s are usually not subject to negotiation and are filed whenever possible as a matter of policy.  As the boilerplate plea agreements say, in return for your complete cooperation, the Government may, in the sole discretion of the U.S. Attorney, file a Rule 35 motion recommending a reduction of sentence.  (Or not.)