It looks like a lot of defendants, including this terrorist, are going to try to use the President's commutation of Scooter Libby's sentence as justification for lowering their own.

An alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush's commutation of the 2 1/2 year prison sentence imposed on a former White House aide, I. Lewis Libby Jr., for obstructing a CIA leak investigation. Mohammed Salah, 57, is scheduled to be sentenced by a federal judge in Chicago next week on one count of obstruction of justice. In February, a jury convicted Salah and a co-defendant, Abdelhaleem Ashqar, of obstruction, but acquitted the pair of a far more serious charge of racketeering conspiracy in support of Hamas's terrorist campaigns in Israel, Gaza, and the West Bank.

"What the president said about Mr. Libby applies in spades to the case of Mohammed Salah," Salah's defense attorney, Michael Deutsch, told The New York Sun yesterday. "We'll definitely be bringing it up to the judge. Â… It's going to be a real test, a first early test of whether we're a nation of laws or a nation of men."

Here's the problem with the argument advanced by the terrorist scumbag and his paid mouthpiece -- decisions in clemency cases are NOT a legal precedent, and DO NOT have the force of law. Indeed, a case of executive clemency is an action based upon the individual case and circumstance, not a general rule. It is an act of mercy in directed at correcting an individual injustice or recognizing individual merit.

However, there is one aspect of this case that troubles me -- and which troubles me every time it is used in justifying a sentence for someone convicted of a crime.

Despite Salah's acquittal on the racketeering charge, which could have carried a life sentence, prosecutors have asked Judge Amy St. Eve to find that the evidence presented at trial proved Salah was part of a terrorist conspiracy. "The jury did not find beyond a reasonable doubt that defendant Salah committed racketeering conspiracy. The standard at sentencing, however, is not proof beyond a reasonable doubt," the prosecution wrote in a recent court filing.

Prosecutors have also asked the judge to consider a series of alleged offenses from the 1990s that Salah was never charged with, including bank fraud and perjury on behalf of a Hamas leader then facing deportation, Mousa abu Marzook. "To sentence Mr. Salah on the basis of non-relevant, stale, and acquitted conduct would most assuredly result in an unreasonable sentence and promote disrespect for the law," Mr. Deutsch said in papers filed with the court.

It strikes me that if the prosecution wants to have someone sentenced based upon criminal conduct, they should have to prove that conduct in court and get a conviction, not come back after obtaining a conviction on some other offense, even a related one, and demand that the sentence be based upon a crime with which that individual was never accused, against which he was never permitted to defend himself, and of which he had never been convicted. That strikes me as loading the dice too much in favor of the prosecution when the Bill of Rights makes it clear that an individual should not be punished for a crime of which he was not convicted.

Posted by: Greg at 03:49 AM | Comments (6) | Add Comment
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