The KSPN news last night had Ed Buckingham saying that the Governor commuted a part of Diaz's sentence, giving room to the Board of Parole to consider parole.
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. 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 sentece 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, 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. His
first time resulted in a federal conviction. His
second time resulted in charges that were pending when he committed his
third offen
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.
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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 methamphetinehydrochloride 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.
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.
10. CONCLUSION: We have put the crooks in charge of the prison. We have a breakdown of law and order.
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 former DOC chief Dolores San Nicolas, in prison but noncompliant with the terms of his plea but getting weekend releases and 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.
This is really bad.
Enormous cumulous clouds in the sky; trees in perpetual motion swaying in the breeze. Another hot and beautiful day in paradise.
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An anonymous commenter mentioned on this blog and in the Marianas Variety comments that Governor Fitial has commuted the sentence of convicted ice dealer, David Tanaka Diaz.
I couldn't confirm that report.
I did learn from a DOC official that David Tanaka Diaz has been released from jail.
David Tanaka Diaz was caught with 212.59 grams of ice (a/k/a methamphetamine) and 77.28 grams of marijuana. The ice haul was considered the biggest in CNMI history at the time, and it seems that record may still stand.
Although he tried to quash the search warrant against him that led to the discovery of the ice, he was unsuccessful. And then he was convicted of charges in April 2002 after a jury trial.
The Saipan Tribune reported on this as follows:
The prosecution, through Assistant Attorneys General Daniel Cohan and Janine Udui, convinced the court of Diaz' guilt on the seven-count charges by presenting corroborating witnesses' testimonies, as well as, physical evidence pertaining to the events that occurred on August 29, 2001.
Diaz was apprehended that day in the district of Garapan, where authorities were able to seize from him quantities of crystal methamphetamine or ice.
Aside from the drug charge, prosecutors were able to prove beyond a reasonable doubt that Diaz had fought to elude police arrest and in the process, rammed into a police vehicle and injured several bystanders.
After disclosing both his and the jury's verdict, Lizama proceeded to impose the sentence on Diaz, which is as follows:
A $500-fine and restitution to the Department of Public Safety on the unsafe backing charge; six months incarceration with a $500-fine on the fleeing/attempting to elude a police officer charge; six months incarceration with a $500-fine for the hit-and-run charge; six months incarceration with a $1,000-fine for the reckless driving charge; and a $50 fine for illegal possession of a controlled substance.
The court has yet to impose a sentence on the two other charges---drug-trafficking and criminal mischief---pending the release of a pre-sentence report.
Illegal trafficking of a controlled substance, in itself, has a mandatory minimum sentence of 25 years, according to the court.
Diaz was represented by court-appointed counsel Antonio M. Atalig.
The Superior Court then imposed its sentence in August 2002:
30 years jail term, 25 in jail without the possibility of parole.
Again, from the Tribune:
The Superior Court yesterday sentenced a musician to 30 years in jail "the highest penalty imposed so far by a local court on a drug trafficking offense" for what authorities consider to be the biggest drug-seizure in the Commonwealth last year.
Superior Court Associate Judge Juan T. Lizama, however, ordered that the last five years of the sentence on defendant David Tanaka Diaz be suspended, meaning that he would be released on supervised probation later on. The first 25 years of the sentence is to be served without parole.
Given this report, it seems likely that the only way David Tanaka Diaz could be released from jail would be by the Governor's action.
I hope the Variety and Tribune will investigate the facts and circumstances surrounding the release of David Tanaka Diaz from the Department of Corrections.
One small detail--I wonder if he is still obligated to comply with the terms of release orginally set by the judge.
Upon his release from jail, Diaz is to pay a fin
Maybe the Governor let him go because he was in need of a massage?
And that comment from Wendy's blog about the Governor not controlling every aspect of his administration? I beg to differ.
Remember the people that lost jobs because they supported the monument?
He even tries to control the private sector. Remember how they went after Jay Solly's girlfriend?
I forgot to thank the anonymous commenter who called this to our attention. If not for him/her, we might not even know.
The governor likes to operate in secrecy. There would be no public announcement, no public notice from the Board of Parole.
We can't do anything now, but at least we know he's out there, we know he's free, and perhaps the Feds will be watching.
You are welcome Jane. And I am pleased that Anna is enjoying NYC.