In principle…[a statutory]… interpretation which leads to “distinctions that are arbitrary and irrational” leading to a “strange result” which would shock “common sense” would be dismissed.
While the yet to be indicted corrupt of Jefferson Parish do lunch at Galatoire’s and Antoine’s, USA Letten has his site set on none other than Ashton O’Dwyer – and that, Slabbed readers, is the absurd result of the USA’s statutory constipation.
On June 24, 2010, the district court issued its written conclusion that the charged threat was “not a threat, conditional or otherwise, rather it was a cry for help seeking money to pay for…prescription medicine.” USCA5 1214. The district court reviewed the sequence of e-mails contained in the government’s Rule 404(b) motion and held that O’Dwyer “did not threaten bodily harm,” and that whereas ” [p]hrases taken out of context could suggest a threat…reading the sentences as a whole, no threat as a matter of law was made.”
Also on June 24, 2010, the district court denied the government’s reconsideration motion and request for oral argument, USCA5 1219, and ordered that “[t]he indictment against the defendant is hereby dismissed with prejudice”…On July 23,2010, the government noticed its appeal.
Naturally, Ashton fought back, filing a cross-appeal – and that led to yet another absurd result, this one produced by the Fifth Circuit:
Under 5th Cir. R.42.3, the appeal is dismissed as of 10/14/2010, for want of prosecution. The appellant failed to timely pay docketing fee.
Of course, Ashton failed to timely pay docketing fee – he didn’t have money for the medication that would have prevented his indictment or money to retain counsel.
Ashton, bankrupt and represented by two attorneys from the Federal Public Defender’s Office, should have been on equal footing with the Government:
07/23/2010 75 NOTICE OF APPEAL re 74 Judgment, 72 Memorandum Ruling, by USA as to Ashton R O’Dwyer, Jr (Filed on behalf of USA – Filing Fee not required)
USA Letten argues that the Fifth Circuit “has been clear that distinguishing a ‘true threat’ from hyperbole is for a jury”. No doubt that’s true. However, there is an underlying presumption – the presumption that a United States Attorney would only indict when there is a “true threat”.
Of course, that presumption doesn’t account for the reality of a US Attorney allowing “true threats” to “do lunch” while ignoring Ashton’s need for medication – and that, SLABBED readers, is the absurd result of misplaced priorities leading to statutory constipation.