I have been trying to figure out how that might have happened.
I have not seen the document that releases him. But based on Ed's short description, it seems the Governor must have commuted the sentence as to the 25 years violation related to methamphetamine trafficking. That would leave the lesser crimes' sentences in place, where the Board of Parole would then have room to decide on terms for release into the community.
A brief response to the commenter on Wendy's blog who said:
Jane, you are practically committing legal malpractice. You haven't practiced criminal law in decades.
There is a big, big difference between probation (in which a court retains jurisdiction) and parole or pardon and commutation, in which it does not.
Your hatred of Fitial is so extreme that you blame him for things over which he legally has no control, namely the Board of Parole. That's who any OGA request should be addressed to, not the Governor.
This blog is replete to "citations" of law without any authority whatsoever, a practice which, unfortunately, carries over to CNMI courts and judges. You should be setting an example, Jane, because people trust and rely on you as a lawyer.
I never practiced criminal law as a lawyer. My comments are not legal advice, but opinions, and not a basis for malpractice. But a court has the power to enforce its judgments, whether those are civil or criminal. And I am aware of the differences between suspension of a sentence, probation, parole, commutation of a sentence and pardon.
I didn't talk about probation in any part of my discussion.
I don't hate Governor Fitial, but I disagree vehemently with his continued actions and misgovernance in the CNMI. And I criticize those actions. He certainly is responsible for the commutation of the sentence of David Tanaka Diaz that was necessary before the Board of Parole could take any action to release him. It was obvious, even before Ed spoke on television news, that the Governor had a role in the release of David Tanaka Diaz. Any Open Government Act request would have to addressed to both the Governor and the Board of Parole to get the full picture.
I don't understand the commenter's criticism that the blog is replete with "citations" of law without any authority. That statement itself makes no sense. Perhaps the commenter doesn't realize that a citation of law is a citation of authority. I don't mind being lumped in a criticism with the CNMI courts and judges. I'd rather be with them than with the current Administration.
On the governor's decision to commute the sentence of David Tanaka Diaz:
I think this is reprehensible. Perhaps the Governor knows something that we don't. But then the community should be told, because this is a matter of public importance.
The Legislature has long held a strong line against drug trafficking, especially of ice. The 25 year sentence without being subject to suspension, probation, or parole is one aspect of that line against drug trafficking. (Some may disagree with the law and call it draconian. I might even think so as it is written to apply against a first-time offender. But as it applies in this case, I don't think it is unfair, draconian, or illogical.)
The Court respected the Legislature's policy in the case of David Tanaka Diaz, but the Governor has not. He gave a THREEPEAT offender a commutation of sentence for the worst drug-trafficking crime in the CNMI.
And it should be noted that at the time of the original sentencing of David Tanaka Diaz, the CNMI Attorney General's office asked for a sentence of 50 years!
David Tanaka Diaz has already proven that arrest, conviction and jail time for drug trafficking isn't rehabilitative for him. His first time getting caughtresulted in a federal conviction. His second time resulted in charges that were pending when he committed his third offense--the largest drug haul in the CNMI's history.
I recognize that the Governor has the power and discretion to commute the sentence of David Tanaka Diaz. That is not subject to judicial review. I think the Governor exercised that power irresponsibly and to the jeopardy of the community. Why should this man get a break? What message are we really sending through this Governor's action? Is this about connections? Is it about political favors and payback? Because it certainly isn't about law enforcement or justice.
On the Board of Parole's decision to grant parole:
Apparently after the Governor commuted Diaz's drug trafficking, non-parolable sentence, all that was left was the sentence on the lesser crimes. I disagree with the decision by the Parole Board to grant parole on those, also. What makes me angriest is the possibility that this THREEPEAT drug offender will be allowed access to our children. I don't want him doing any youth outreach. I think that is just a way for him to find easy prey for continuation of illegal drug trafficking. I don't want him singing a song that is played on the radio or in the schools. I don't want the possibility that any student thinks drug trafficking is a way to get airtime for your talent; I don't want the possibility that any young child becomes a fan of David Tanaka Diaz. Is there any science, criminal justice experience, or rational thought to support such ridiculous terms for the release of David Tanaka Diaz? The Board of Parole should be showered with criticism and the community should let all of its members know that their action is disgraceful.
Perhaps it's time to follow the federal jurisprudence's lead and abolish the possibility of parole in our own local criminal justice system.