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.*


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.


*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.

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