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May 2009
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Supreme Court gets one right

ABUELHAWA v. UNITED STATES
In this case, the defendant purchased a misdemeanor amount of drugs and was arrested. But then the prosecutors decided to pile on — since he had used a cell phone to contact the seller, they charged him with facilitating the sale (a felony). That’s right, they charged him with facilitating his own purchase.
Fortunately, the Supreme Court saw that as just plain silly.
Departing Justice Souter noted:

Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer‰s part is already implied by the term ‹sale,Š and the word ‹facilitateŠ adds nothing. We would not say that the borrower facilitates the bank loan.

Thanks to The Criminal Lawyer, which does a nice job of discussing the decision and has more on it, including this scathing indictment of the prosecutors:

Judgment. It‰s something we require of our prosecutors. They have people‰s lives, liberty and reputations at stake. They have victims who need justice. They work within a system that relies on them to do the right thing. So it is imperative that they have the uncommon sense to do, not what is technically allowable, but what is actually appropriate.
Not every prosecutor lives up to the challenge, of course. But lately the feds have been showing a remarkable lack of judgment. This case is just one of many in recent years where federal prosecutors have committed forehead-smacking acts of WTF.
So we have to aská WTF? Seriously. Federal prosecutors have a well-deserved reputation for being bright, dedicated, hard-working and sensible. But in case after case lately, federal prosecutors have made colossal boners of bad judgment. What‰s going on? Did we change how we hire people? Did the pool of applicants change? Did the internal culture change? We‰d like to know.

Sotomayor

Sonia Sotomayor is to be nominated to replace Justice Souter on the Supreme Court. As far as I can tell, she seems to be a very capable choice. She is intelligent, worked hard to achieve what she has, and she has been a prosecutor, private litigator, trial judge, and appellate judge. I do not, however, […]