Judge reverses his decision in drug case (The Salem News)

Judge reverses his decision in drug case
Original order could have helped accused dealer, 19, avoid deportation
November 4, 2010
By Julie Manganis Staff writer
The Salem News Thu Nov 04, 2010, 06:00 AM EDT

SALEM — A judge has reversed his own controversial decision to try to help an accused drug dealer avoid deportation by continuing the case without a finding for just one day short of a year.

Peabody District Court Judge Richard Mori yesterday granted a motion filed by prosecutors to reconsider his original order in the case against Josue Santiago, 19.

He vacated Santiago's continuation without a finding and then imposed a guilty finding and two years of supervised probation.

In September, Mori came under criticism for imposing the 364-day continuation without a finding, after Santiago's lawyer, William O'Hare, raised concerns about the potential impact of a longer sentence on Santiago's legal status in the country.

Santiago, O'Hare said, came to the United States with his family at the age of 11 and went on to graduate from Peabody High School. He is a legal resident, but a conviction could jeopardize his ability to stay in the country.

Prosecutors, meanwhile, were urging what is known as a "split" sentence, including some jail time and some suspended jail time and probation, for Santiago.

Santiago was arrested last year by Salem police detectives following a series of hand-to-hand cocaine sales to what turned out to be an undercover officer.

Santiago had a prior marijuana possession conviction on his record.

Prosecutor Jane Prince argued yesterday that the judge went beyond his authority in taking immigration status into account in fashioning a disposition in the case.

She cited a case in which a Boston Municipal Court judge had repeatedly dismissed cases on immigration grounds. He was later found to have acted improperly.

"Whether we agree or not, we're left with the statute before us," Prince said.

She also said that Mori's decision goes against public policy by creating a "two-tier system of justice."

"Every person that walks in that door ought to be treated equally," argued Prince, who went on to say that it would be just as wrong for a judge to sentence someone in a way that increases their likelihood of deportation.

"If a judge ever imposed a higher sentence to enhance the immigration consequences, we'd all be brought before the bar," Prince said.

O'Hare, who questioned whether prosecutors had the right to ask for a revised sentence, said yesterday that immigration issues were just one factor he was considering in his argument to Mori.

O'Hare said Santiago had graduated from high school and worked steadily for the year that it took his case to be resolved.

"So I was looking to try to keep his record clean, as if he were Bob Smith from Amherst Lane in Boxford," O'Hare argued. "I was moving for the (continuation without finding) for this fellow to protect his future as a participating member of society."

O'Hare said his client has abided by the terms of his probation and stayed out of further trouble.

Mori said immigration concerns were not the only reason for his sentence and noted that Santiago's prior record is "miniscule."

He acknowledged that he was not up-to-date on the current state of the law and didn't realize that there had been some court decisions that applied to the case until Prince filed them with her motion.

"I hear a lot of these cases," Mori said. "I had just not followed the changes in the law until I read these cases."