We're back. Our short absence can be directly traced to two United States District Court Judges at opposite ends of the country who had no problem making us try two cases back to back. As the saying goes, the difference between the Almighty and a US district court Judge is that the Almighty does not think she is a US district court judge...
Judge Hanzman, a popular subject for the commentators on this blog has issued a ruling that has the FACDL members yapping. We re-print it here for your review and comments.
Judge Hanzman has entered the arena of minimum mandatory sentences. This arena was created by the legislature with the full belief that the 24 year old prosecutor with a year under her belt in court, is more trustworthy, better suited, better able, more experienced and overall a better person to decide the fate of a defendant facing a 15 year minimum mandatory sentence than a wise and experienced judge like Judge Hanzman, who has more than likely tried more cases in his career, than three times the years our young prosecutor has lived on this earth and sipped her Starbucks lattes every morning.
That being said, Judge H reaches into the dark and murky area of the the Restatement of Contracts to come to the decision that HE and not the prosecutor, is best suited to decide the fate of a defendant facing a minimum mandatory sentence.
Judge for yourself.
Order Accepting Plea and Imposing Sentence by Rumpole21 on Scribd
From Occupied America, bully for Judge Hanzman fighting the power!
p.s. Our unscientific survey leads us to believe the last judge in the REGJB to cite the restatement of contracts in a ruling was ...never.
When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
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33 comments:
I told you so!!!!
Good luck getting the State to make offers waiving minimum mandatories anymore. Great job legislating from the bench and failing to follow the law or seeing the big picture as it will apply to many other defendants. Smart judge who is too smart for his own good.
I know this judge personally. He's is smart good and rich. Bravo, judge.
Apart from this interesting subject, the technology that the Russians used to "hack" is not unique at all. The software comes from Israel and Italy. The subject of which is playing out with the extradition of former president martinelli who " hacked" all his opponents cell phones. The concept is quite simple really. There is no such thing as what's app or BBM or email security when remotely, with the software known as Pegasus, you can "look into the huddle" as my good buddy Brady Lessard used to say. In this case, remotely see what is on your targets screen and turn on his camera or microphone. If the Panamanians could do it what do you expect the Russians would do? Hillary is naive.
Hanzman is wrong and will be reversed. This is results oriented judging at its finest. Not only is his order contrary to Third DCA caselaw, but this will also have a negative effect on pleas in his division. Appreciate the effort, but go back to civil.
Courageous and just. Who can ask for anything more.
This will go very quickly to the 3rd DCA. If the names "Rothenberg" or "Emas" are on the panel, he will be reversed. Trust me, the 3rd will not agree. They know who signs their paychecks.
I too hate minimum mandatories but, dealing in a kilo of dope is a greedy crime and I have no sympathy for the moron who sold the drugs to make money without working.
looks like Milt Hirsch has some competition for biggest ego on the bench.
Great order, but soon to be reversed.
Judge H - you may ignore my views on this forum as you ignore them in court. But I passed the Bar not too long ago and contract law is still fresh in my brain. You are misapplying contract law to plea NEGOTIATIONS. Contact law applies to plea AGREEMENTS. The difference--even to this lowly PD--is critical. No plea offer is binding on either the ASA or the defendant in criminal law. We aren't selling hyppothetical widgets here. Either can withdraw the offer at any time before the judge accepts it. There is no agreement until this happens. If you rule that the ASA can't withdraw a counteroffer request, guess what happens to my clients. Exacty! No more offers or counteroffers below the minimums. You'll get lots of trials under your belt, my black and brown poor clients will get lots and lots and lots of unnecessary prison time. Hope the 3rd reverses you tomorrow.
Long before Judge Hanzman came to the REG Justice Bldg. I warned all that he was a great judge who would not tolerate fools lightly. And that he would be the best judge to step foot in the building since the days of Ed Cowart. His opinion in the min-man case clearly exposes the BS that the SAO pulls on a daily basis. Some time ago, another great judge in which I appeared in both civil and criminal in the EDNY, Judge John Gleeson wrote eloquently about the abuses of minimum-mandatory sentences. Hopefully the state will quickly appeal and if they win I hope this case gets before the Supreme Court before Fred and the others have to retire in Jamuary.
If every time the state indicates that they would accept a "counter offer" becomes understood as the state making below guidelines offers themselves, they will simply stop the practice. Defendants will lose out.
Eh. Kudos to Hanzman, but I'm not so sure why you and others celebrate these kind of opinions as if they will have an wide-ranging impact (yeah, I'm happy for the defendant in this particular case). While they may feel good when issued, more likely than not the biggest overall impact they have is influencing prosecutors to make no offers of any kind and require defendants to negotiate against themselves.
The real answer is eliminating inappropriate minimum mandatories and lowering those that are too high. Sorry, but I won't join your celebration absent a real solution with real impact.
BTDT
A simple and elegant solution to gamesmanship. Hanzman rules!
No one believes you tried a federal case out of the district.
Nicely done, Judge!
Trialmaster you're a joke.
Hanzman is Milt 2.0. Too smart for his own good. Ego and lack of temperament also standing in the way of good judging. It is why despite all the hype, his career will end in circuit court.
Guess what ---
The posts written saying not nice things about Judge Hanzman are written by 2nd rate Judges who could NEVER write an opinion like that.
Jealousy of Judge Hanzman.
He is a mensch. He cares about the academics of the law. Way above 99% of the other Judges.
Bravo. Brilliant. Won't be reversed.
By the way - Judge Hanzman has NEVER been reversed. He has written more orders than all of the rest of the bench combined. He did what was JUST - and he followed the law.
Right SIR KENNY?
Most of the bench is not smart enough to even understand this Order.
I like that the entire MDPD drug task force is writing in. This is not the Leo affairs blog douches.
This is simple. If somebody says, I will accept 3 dollars to sell you my car, and you tender 3 dollars, that is a contract. Another example, if you swim the lake, I will pay you 5 dollars. The acceptance is the agreement to perform.
Go back to setting up reverse stings and stealing Peoples money.
I admire what the court did but the effort will backfire with prosecutorial defensive measures.
Some of you are so full of shit. An activist with an ego who is to smart for his own good. Let me get this straight. Big ego. Show me last Judge who gave up millions a year to go sit in Allapatah on dependency bench for 5 years taking care of foster kids. Activist. You act like he struck down min/mans. That Order does nothing more than call out a ruse concocted by the SAO so it can make "offers" and say they were not "offers" and keep Judges on the sideline. Its bullshit and this Judge just called bullshit on them by saying the truth. Its an offer. Young PD needs to take bar again or read Order. Judge H never says offer cant be withdrawn or is binding before accepted. Just said that its an offer that allowed court to make offer. Cited law holding that. Lots of whining that State will now stop making below code offer. Boo hoo. Let them do that and try (and lose) their crappy cases. You can also convey any "offer" your client wants to make or try your cases. All you bloggers do is moan about bad judges who just punch the clock and do what the State wants. Then you get one who has the balls to question the status quo and do the right thing for a first time offender facing a 15 year min/man. Response. Crucify him. No wonder no Judges step up. Maybe he gets reversed. His logic, that State extends an offer when it "agrees to accept a counterofder" appears sound to me. At least he can think out of the box. Hope he does go back to civil, as one blogger says, cause you whiners dont desserve him here.
I have read many comments on the Blog criticizing our judiciary for having no guts. Then Hanzman makes a gutsy ruling taking a considered and narrow position that if the State agrees to accept a specific counter offer, then that is tantamount to an offer and he has the authority to go below the guidelines. His reasoning appears sound to me and that isn’t legislating from the Bench; it’s applying the law.
According to the order, the defendant was a first time offender with no criminal history who may have been entrapped by a CI and the State, after a bad result in a Richardson hearing was “willing to accept a counter offer of 75 months (below guidelines) for a sale of a kilo of cocaine. Judge Hanzman courageously treated that as an offer and did an analysis of why he decided that was a below guideline offer.
Whether he’s reversed or affirmed, he did what he thought was right. Isn’t that all we want from our Judges? Richard Baron
Underpaid PD,
Your contract law analysis is flawed. You're tackling the issue of whether an offer by the State and accepted by the D is enforceable. That's not the point that Judge Hanzman was making.
Case law says that the court can't offer a plea deal below min man if the state hasn't made (or has withdrawn) an offer. Let's call this the "state's right to exclusivity." The issue, therefore, is whether the State's "willingness to accept a counteroffer" constitutes an offer such that it "waives" the state's "right to exclusivity." If it is an offer, the court now has the power to make a below-Min/Man offer of its own.
As you can see, this has nothing to do with whether the state's (withdrawn) offer is enforceable. The issue is whether the state's actions moot the case law prohibiting court pleas bc there's no offer on the table from the State. And the effects of this decision on your future clients, while important as a policy matter, have no bearing on the legal analysis of the court's power.
You'd do well to remember that although the bar exam is fresh in your mind, at your young age that's about all that's in your mind.
Good for Tom Mote!
Why is SIR KENNY in Tokyo with all this legal stuff going on with the minimum mandatory law cases??
The restatement of contracts is not cited because it's not law, nor does it provide a basis to support a legal position for either party. It's the equivalent of citing the urban dictionary, utterly meaningless.
Additionally, the legislature did not create an arena for the so-called 24 year old prosecutor, Rumpole arbitrarily created above, to make decisions concerning minimum mandatory sentences. Quite the opposite, the legislature made the decision for the state, as well as, for the judge.
The order specifically states that Judge Hanzman's sentence was based solely on the fact that the defendant did not have any priors. Although, the Judge may be wise, with years of practice his order merely granted a first time offender a free pass, regardless of the fact that he brokered a deal for a kilo of cocaine or that there is a statutorily set forth mandatory sentence for such a crime.
So, the only thing Rumpole got right in his brief factual synopsis was copying and pasting the order. It was not the position of the State that the defendant must be sentenced to the Min/Man and nothing less. The parties actually engaged in lengthy plea discussions, but were ultimately unable to agree on a pretrial resolution. Guess what, that happens and when it does we go to trial. At the end of the day it's a trial court for a reason, and as here, a jury was picked and sworn in.
Knowing the actual circumstances surrounding this particular case, Judge Hanzman's order has nothing to do with individual positions concerning min/man's or showing the State who's boss. He extended a court offer that was well below guidelines, while also unilaterally waiving the min/man, after the State and Defense could not agree (and not to mention after jeopardy attached). That is simply something a Judge cannot do.
Judge Hanzman is a great judge, I have nothing but the utmost respect for him, but in this case he got it wrong.
If I was the public defender I would fire you. You sound like a coward. Go become a mitigation expert not a trial lawyer.
24:00--- Judge Steele mdfl, Judge Platt EDNY, Judge Sweet SDNY Judge Cedarbaum SDNY, Judge Taylor SDNY, Judge Gagni SDNY, Judge Anderson DSC, Judge Hand EDVA, Judge Bertlesman EDKY,Judge Hinkle NDFL, Judge Paul NDFL, as well as many others in SDNY, Ga., Louisana, District of Nj, California Alabama, Judge David Nelson Dt of Mass,and pro hac vice in state courts around the USA. The trialmaster has been honored and blessed to try cases to juries in front of all of the above and many others that he has long forgotten. But none are superior to Judge Hanzman except perhaps former Judge John Gleeson of the EDNY. Treasure Judge Hanzman while he sits at the REG as he will be federal very soon.
Richard, in answer to your question, no, we shouldn't celebrate judges who issue orders that get reversed simply because they did what they think is right. What if he thought life in prison was the right thing to do? Would you celebrate that decision? What if a judge thought Miranda was a load of crap and ignored court precedent? Would you praise their courage?
Yes, we want judges to do what they think is right, BUT, we only want them to do so within the confines of the law.
I'll let others opine on the legality of the order. The really sad thing is that we're arguing over one judge's decision in one case instead of talking about the folly of ridiculous min mans.
BTDT
Either way, good for Judge H. It's easy to be a mindless judge. Just sit up there, collect a check, don't read the law, don't make the correct ruling and when in doubt...just agree with the state.
Your system is racist. Drugs were all legal while black were slaves. Once they were freed, you changed your laws to lock up the black folks. Is it morally wrong to have 'brokered a deal for a kilo of cocaine?" Heck no. In a free society, folks would be free to sell commodities in a market. Brokering isn't stealing; it is selling. The only reason it is illegal is 'cause your crooked oligarchy says it is. Pshaw.
I knew that you would take the plea before you knew you would accept it but what you don't know is if the judge knew what the state would offer before they offered it and therefore noone knew what I know is that before I know what to say to my client I must know what the state knew before they knew it because if they didn't know it and I knew it then the judge would know that I don't know if the state will know to not offer the plea because before they knew of the problems with their case I knew and the judge should have known but didn't know that we all knew that the case would be continued and all the negotiations would be for naught because none of us knew that a speedy demand was made in writing before any of us knew because that motion would be heard after we all left the courtroom , you know what I'm saying so before you think you know what will happen know this, you don't know what a judge will do because he doesn't know himself so if he don't know and you don't know my client can't know so none of us know. Got it? No shit.
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