Friday, April 16, 2010

David Tanaka Diaz-update

The weather, the world-more of the same. The ocean was a study in light and dark this morning, with patches of brigh turquoise and strecthes of indeterminable gray/purple/shadow, and in between pacific blue.

As if hearing Wendy Doromal's question, the Marianas Variety apparently tried to track down the information about the release of David Tanaka Diaz. In fact, he was paroled.

Some interesting bits:

1. Diaz's appeal challenged the court's sentencing. The CNMI Supreme Court, in its October 2003 opinion, said that he could be sentenced to either 25 years or more of jail OR a fine. The Supreme Court wasn't sure the trial court realized that it could avoid jail time in sentencing and just order a fine. So it remanded.

2. The sentencing STATUTE 6 CMC sec. 2141(b)(1)(b) (amended in 1991 by P.L. 7-42) specifically says the sentence shall not be subject to suspension.

Any person that violates subsection (a) of this section with respect to
(1) A substance classified in Schedules I or II which is a narcotic drug or methamphetaminehydrochloride shall be sentenced for a first offense to a term of imprisonment for a term of not less than 25 years, a fine of not more than $10,000, or both and the term of imprisonment shall not be subject to suspension, probation, or parole...

3. The Supreme Court, among other things, held that the language of this statute meant that the original sentence, which included 5 years suspended sentence after the 25 years mandatory imprisonment, was not authorized. The sentence, whatever the term of imprisonment, could not be subject to suspension, probation or parole.

4. On remand, the Superior Court issued a 25 year sentence of imprisonment, not subject to suspension, probation, or parole.

5. Obviously, by statute and by court order, that sentence is NOT SUBJECT TO SUSPENSION, PROBATION OR PAROLE.

6. The Attorney General, Ed Buckingham, is the legal counsel for the Board of Parole, according to the Marianas Variety.

7. The Board of Parole granted a parole to David Tanaka Diaz, despite having no authority to do so. (EDIT: This is an assumption. DOC says that David Tanaka Diaz was released on "parole"-so it appears that it means a typical parole. It could be linguistic gamesmanship, however, with the AG or DOC meaning something else, as if any release from DOC would be a parole. The legal definition of parole, from Black's Law Dictionary, however, talks of parole in criminal law as a "conditional" release." So without seeing the actual document granting his release, it seems that he was granted parole on conditions by the Board of Parole.)

8. The Attorney General, Ed Buckingham, seems to also be the legal counsel for the Department of Corrections. (I say this based on the AG's role in massage-gate.)

9. The DOC, knowing that the Board of Parole had no authority, knowing the terms of imprisonment set by law and court order, knowing 25 years has not elapsed since his imprisonment and the sentence has not been satisfied, released David Tanaka Diaz on March 12, 2010. [EDIT: We know now that the DOC did have authority to release Diaz based on parole, because the Governor commuted the 25 years/non-parolable sentence.]

10. CONCLUSION: We have put the crooks in charge of the prison. We have a breakdown of law and order.

Or we just have some very deceitful, lying responders to inquiries about the basis for Diaz's release.

This is the third incident involving DOC in the past couple of months--the Chinese federal detainee-masseuse taken to the Governor in the dead of night by Dolores San Nicolas to massage him; Mr. Aldan, husband to the same woman-now former DOC chief- Dolores San Nicolas, in prison but noncompliant with the terms of his plea but getting weekend releases and the AG making excuses for his gun which has not been returned; and a two-time convicted ice dealer who got caught with the largest amount of the drug in CNMI history now released contrary to statutory law and the court ordered sentence for his crime [EDIT, but legal as the Governor commuted the sentence].

This is really bad.

1 comment:

Wendy said...

Jane, you are right. This is really bad. I am glad you posted the law.I am going to link to this excellent post.