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Judge Slams Blogger's Special Treatment

A federal prosecutor's decision to let prominent political blogger Andrew Sullivan off the hook for a marijuana bust was condemned yesterday by a federal magistrate judge as unjustified favoritism. But finding that he was without power to override the prosecutor's decision, the magistrate judge dismissed the charges nonetheless.

"The only reasons given for the dismissal flout the bedrock principle of our legal system that all persons stand equal before the law," U.S. Magistrate Judge Robert B. Collings of Massachusetts wrote in a memorandum opinion issued yesterday. But "fidelity to the law" governing a prosecutor's discretion to dismiss a criminal matter required him to grant the request, Collings said.

The genesis of Collings' ire was Sullivan's arrest July 13 by rangers at the Cape Cod National Seashore for marijuana possession. A British citizen who has lived in the U.S. since 1984, Sullivan is a former editor of The New Republic who became one of the first of a breed of high-profile political bloggers when he launched his blog, The Daily Dish, in 2000. His blog is now hosted by The Atlantic Online, where he is a member of the editorial staff.

The park ranger who arrested Sullivan charged him with a misdemeanor possession offense that carried a maximum penalty of a $5,000 fine and six months imprisonment. He issued Sullivan a citation directing him either to appear in U.S. District Court or forfeit collateral in the amount of $125.

Sullivan was notified to appear in court on Sept. 2. But on Aug. 26, the U.S. Attorney's Office filed a request for leave to dismiss the charge against Sullivan for the reason that "further prosecution of the violation would not be in the interest of justice." Given so general a justification for the dismissal, Collings scheduled a hearing on the request and directed Sullivan to appear.

At the hearing, which was held in Hyannis on Cape Cod, Sullivan appeared together with his attorney, Robert Delahunt Jr., a partner with Mintz Levin in Boston. The U.S. attorney was represented by James F. Lang, acting deputy chief of the office's Criminal Division. Collings questioned why Sullivan's case was being treated differently from the cases of others.

"The Court expressed its concern that a dismissal would result in persons in similar situations being treated unequally before the law," Collings recounted in his opinion. He noted that other people charged with the same offense at the National Seashore were routinely given violation notices and prosecuted if they failed either to appear or to forfeit collateral. In fact, other persons were in court that very day being prosecuted for the same offense.

Both attorneys, Lang and Delahunt, said the reason for the dismissal was that Sullivan is in the process of applying for "a certain immigration status" in the United States, and that immigration experts had told them that if Sullivan paid the $125 forfeiture fee, it could hurt his application. Noting that Sullivan would be required to notify immigration authorities of the criminal charge in any event, Collings asked the lawyers what difference his payment of the forfeiture fee would make. "Neither attorney could answer the Court's query except to say that the lawyers they had consulted who practice immigration law said it would."

After taking the matter under advisement, Collings issued his opinion yesterday, which he began with this statement: "It sometimes happens that small cases raise issues of fundamental importance in our system of justice; this case happens to be an example." He went on to condemn the U.S. attorney's favoritism of Sullivan:

In the Court’s view, in seeking leave to dismiss the charge against Mr. Sullivan, the United States Attorney is not being faithful to a cardinal principle of our legal system, i.e., that all persons stand equal before the law and are to be treated equally in a court of justice once judicial processes are invoked. It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances.

But Collings concludes that the constitutional principle of separation of powers prevents him from doing anything but to grant the dismissal request. "That the Court must so act does not require the Court to believe that the end result is a just one."

[Hat tip to Noah Schaffer at The Docket.]

Posted by Robert J. Ambrogi on September 11, 2009 at 03:09 PM | Permalink | Comments (1)


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