A judge and a prosecutor “collude” to do the right thing

A helpful reader has called to my attention this article that appeared yesterday in the New York Times involving Loretta E. Lynch, who is the United States attorney for the Eastern District of New York. We hear a lot about prosecutorial abuse. We seldom here about prosecutors doing the right thing. In the unique case mentioned in the article which involved a crime of violence, you will see a fine example of prosecutorial discretion used to treat an offender–who made a stupid mistake by rejecting a plea agreement–with a degree of fairness that is remarkable.  You shouldn’t be surprised to know that District Judge John Gleeson plays a prominent role in this story.*

Update:

A thoughtful reader commented:

Interested in whether you have any concern, as a judge, that the U.S. Attorney had no more legal authority to undo this injustice than did the judge. At least, I can think of none. Unless I am missing something, all the U.S. Attorney did or agreed to do here is (a) not object to the judge’s doing something unlawful — again, otherwise right and just, but nevertheless, unlawful — and then (b) not appeal. The underlying injustice arose from a technically correct application of a stupid, cruel and badly written law (18 USC 924(c)), aggravated by one of the worst, hypertechnical, and thoroughly obtuse statutory construction decisions in modern Supreme Court history, Deal v. United States, 508 U.S. 129 (1993). Deal was authored by Justice Scalia, but it was a six-vote majority. Deal mandated (quite unnecessarily and mistakenly, as Justice Stevens’ dissent shows) this sort of “stacking” of consecutive sentences.

Comment by pdgpa, July 29, 2014 at 9:45 AM (italics added by Kopf).

I read Judge Gleeson’s (Gleason) opinion. He used a Rule 60(b) motion to reopen a prior 28 U.S.C. § 2255 proceeding  (Keep in mind that section 2255 proceedings are technically civil in nature.) Rule 60(b)(6) provides that the judge may grant relief from a final judgment “for any other reason that justifies relief.”  Since the United States consented to the vacation of counts of conviction that were “stacked” for sentencing purposes, and section 2255 explicitly gives district judges the power to vacate sentences that “are otherwise subject to collateral attack,” Judge Gleeson arguably had the legitimate power to vacate the underlying sentence.  While reasonable minds can differ about whether Holloway should catch a break while many others who are similarly situated will not enjoy similar treatment, it appears that Judge Gleeson acted lawfully.

RGK

*Long ago, I unsuccessfully tried a similar tactic in the infamous case of Hamedah Hasan where she too made a horrible mistake, rejecting a plea agreement, and ending up with a mandatory life sentence (later reduced through no help of the United States Attorney or the Justice Department). See, e.g.here and here.

18 responses

  1. It’s very thoughtful of Loretta Lynch to do the right thing by exercising “prosecutorial discretion” after Judge Gleeson put the arm on her. The only thing better would have been her doing it of her own accord.

  2. Interested in whether you have any concern, as a judge, that the U.S. Attorney had no more legal authority to undo this injustice than did the judge. At least, I can think of none. Unless I am missing something, all the U.S. Attorney did or agreed to do here is (a) not object to the judge’s doing something unlawful — again, otherwise right and just, but nevertheless, unlawful — and then (b) not appeal. The underlying injustice arose from a technically correct application of a stupid, cruel and badly written law (18 USC 924(c)), aggravated by one of the worst, hypertechnical, and thoroughly obtuse statutory construction decisions in modern Supreme Court history, Deal v. United States, 508 U.S. 129 (1993). Deal was authored by Justice Scalia, but it was a six-vote majority. Deal mandated (quite unnecessarily and mistakenly, as Justice Stevens’ dissent shows) this sort of “stacking” of consecutive sentences.

  3. Another question: why do you call this a “unique” case? Of course, each individual is unique and thus so is each case. But the abuse of 924(c) — that is, the use of 924(c) as a club handed to prosecutors by Congress and the Supreme Court (see discussion of Deal, above) — is commonplace, not unique. It produces many, not one or a handful of, unjust and excessive sentences.

  4. SHG,

    I read your comment while getting infused with chemo poison. I burst out laughing causing the nurses to worry that they had given me the wrong medication.

    A “crusty, ill-tempered, and usually old man” is the definition of “curmudgeon” in Merriam-Webster. Love it!

    All the best.

    RGK

  5. PDGPA, I meant unique from a procedural perspective and also unique from the perspective that the USA gave the guy a break.

    All the best.

    RGK

    PS I am researching your first question which is a great one!

  6. I prefer the more positive, life-affirming definition of curmudgeon. But that’s just me.

  7. Personally, I would reverse the descriptives:

    *Judge Gleeson* treated an offender with a remarkable degree of fairness (and compassion) and the *USA* played a prominent role by eventually using the cover provided by Judge Gleeson to do the right thing (or in the NYT’s telling, by “acquiescing” to Judge Gleeson).

    As an aside, it’s interesting how this was reported – seems almost lawyer-like:

    “The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.”

    “Could win”, without more, means almost nothing – it just means winning is possible, not impossible.

    But “would win” – that is quite different.

    I get the sense the NYT is trying to convey to the reader that “would win” or “likely to win” was conveyed to the defendant. But they chose “could.” Were they hedging on “would” since they couldn’t confirm it? Using “could” plus the enhancer “assured him” gets pretty close to “would” while maintaining plausible deniability as to intentionally suggesting “would.”

    Or I could be reading much into little.

  8. Julian,

    Your skepticism about the prosecutor causes me to suggest that you quit hanging out at brother Greenfield’s blog, Simple Justice. (See comments above.) Just kidding.

    As for the NYT, I have no idea what the real motivation for the story was deep in the brain of the Grey Lady. The word “inscrutable” comes to mind.

    All the best.

    RGK

  9. I read the opinion. It really doesn’t answer my question. Yes, the defendant filed a 60(b) motion to reopen his previously denied 2255. So far so good. Was there in fact a significant defect in the handling of the prior 2255 that would allow 60(b) relief under the standards of Gonzalez v Crosby? Did the defendant even allege that there was? The opinion doesn’t say, which makes me skeptical. The judge says the government’s eventual agreement not to oppose 60(b) relief allowed him to grant that motion, and then to grant the underlying 2255. Well, granting 60(b) relief just puts you back in the position of re-litigating the underlying 2255 motion. What was the ground of that motion? Why was it granted this time, when it was denied previously, other than that the government agreed not to oppose such relief? Did the 2255 motion allege fundamental defects in those two awful consecutive 924(c) counts providing grounds for their vacatur, as a remedy under 2255? Again, the opinion does not say. So we are left where we started, with questions that arise in the realm of the philosophy of law. If the law demands an unjust result, and the judge compliantly imposes that lawful but unjust result, should a judge later collude with the parties to undo that result, simply because all concerned want to “do the right thing,” even if there are no legal grounds for doing so? I would like the answer to be Yes. But in the spirit of transparency that this blog holds high, I ask these questions openly. (1) Am I right that what was done here was unlawful? (2) If so, was it nevertheless the right thing to do? (3) If so, why? Discuss.

  10. Judge:
    At the heart of this, in ringing prose by Judge Gleason, is the plea for a more just criminal justice system. Such a thing takes dedicated people willing to violate the axiom that no one voluntarily gives up power. Here, Mr. Holloway was powerless and the prosecutors held all the cards. Yet, in the end those same prosecutors saw fit to voluntarily surrender their power to allow for the result in this case. This requires moral courage. This case is an object lesson in how to seek justice, rather than to merely convict; it should be required reading for every prosecutor.
    Robert

  11. pdgpa,

    Discuss I will. First, sorry for the late response.

    Second, when I wrote the update to my post, I hoped that it would end your questioning, but I feared not. You have adroitly hit the pertinent nails on their heads with your last three questions. But there may still be hope for my position. Here goes!

    Third, I assume you concede that the judge had the legal authority under Rule 60(b) to reopen the section 2255 motion because you do not seem to challenge that decision, but rather concentrate on the 2255 motion. With that in mind, I turn to my fourth, fifth, and six points which address the substance of your concerns.

    Fourth, when the government concedes error, does the judge have the power or the right under section 2255 to say “No, despite your concession, you didn’t err, motion denied.” If a judge does such a thing doesn’t the judge improperly invade the exclusive perogative of the Executive and particularly the broad nature of prosecutorial discretion? My quick research suggests that there is very little authority on the power of judges to look behind a confession of error by the Attorney General, and what authority exists is old, somewhat contradictory and not directly on point See Parlton v. United States, 75 F.2d 772 (D.C. Cir. 1935) (stating: “Nor do we think it can be questioned that [the Attorney General] has the power, as the representative of the government, to confess error in any case in which he is satisfied the ends of justice demand it. The power is inherent in the office.”; concluding, nevertheless, the court would inquire into the basis of the confession; concluding that the confession was well-founded) cited with apparent approval in Young v. United States, 315 U.S. 257 (1942) (Italics added by Kopf).

    Fifth, if Judge Gleeson had both the power and the duty to inquire into the basis of the Executive’s decision, there is at least an arguable basis for concluding that the government had sufficient legal reasons to make a confession of error, particularly in a case where the government had already gotten its “pound of flesh”: (1) the trial penalty of 42 years (particulary compared to the codefendant’s sentence of 27 months) raises serious questions (a) under a procedural and substantive due process theory that the “tail has finally wagged the dog” and (b) such a penalty raises a fair argument that the trial penalty infringes too heavily on the jury trial right under the Constitution; (2) since the Sentencing Commission’s statistics confirm that black defendants were disproportionatly charged and sentenced under 924(c), and the defendant was black, the specter of a racially discriminatory prosecution was in play also; and (3) under the Supreme Court’s recent decision of Missouri v. Frye, 566 U. S. ____ (2012) and Lafler v. Cooper, 566 U. S. ____ (2012) there was a new claim for ineffective assistance of counsel for poor advice regarding rejection of the plea offer that could not have been raised earlier due to the fact that Frye and Lafler were decided afterwards. Under these circumstances, Judge Gleeson could arguably conclude that the Executive’s confession of error had a sufficient legal basis.

    Sixth, does this case smell, as you imply. Yes, it does. In reality, is this a “one off” case motivated by “fairness” (justice?) rather than law? Quite probably. Does that make Judge Gleeson’s actions unlawful, I can still say “no” with a straight face because of the foregoing. Although I confess (forgive the irony) that I would rather make your argument than mine, at least give me the credit, please, of noting the word “collusion” in the title to my original post.

    You are very smart. Your questions are very important. Thanks for pressing me on this subject.

    All the best.

    RGK

  12. Thank you for digging in, judge. Putting it in the context of “confessions of error” is very helpful. My very best to you, too.

  13. That prior response was from me (pdgpa); didn’t mean for it to be anonymous. Your position on confessions of error appears to be in line with that of six Justices, although three (Scalia, Roberts, and Thomas) seem to disagree. See Nunez v U.S., 554 U.S. 911, 128 S.Ct. 2990 (2008). There are many cases since Nunez in which Justice Scalia, either alone or with others, has dissented from “GVR” dispositions, apparently on this ground. These are cases where the Solicitor General wants to change the position that the government took earlier in the case, regardless of whether the Supreme Court independently concludes that error was committed or would find the case worthy of its certiorari review.

  14. pdgpa,

    The problem, of course, on relying on Supreme Court cases for confessions of error is that, with very few exceptions, the Court is not bound to accept any case for review. Thus, the Court would seem to be imbued with nearly limitless discretion in how to treat confession of error. Whether a district judge can rely upon cases from the Supreme Court regarding confessions of error is far less certain, but such reliance would certainly be plausible. That is, if the Supreme Court accepts the mere “say so” (Scalia in Nunez) of the Solicitor in cases that may create a Circuit split there is no reason for a district court not accept the mere “say so” of a Senate confirmed USA in a 2255 action that has little chance of impacting anyone other than this one plaintiff.

    Again, thanks much for pushing me on this. All the best.

    RGK

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