By JJ MacNab | November 7, 2008
It’sÂ theÂ final game in the US Giants vs. DC Tax DodgersÂ world series…
Crack.Â The batter hits a line drive straight into the waiting glove ofÂ an attentive outfielder.Â Â It’s the bottom of the ninth, and if the runner at third makes it home, his teamÂ wins the game.Â So he runs like there’s no tomorrow, his fans cheer him on,Â but, as he slides towards home plate, the gloveÂ of the catcher tags him on the shoulder.Â All eyes turn to the umpire.Â
The umpire flashes his best Hollywood smile at the crowd.Â His pearly whites go “Ting” in the sunlight.Â He takes a dramatic moment before speaking.
“I’m afraid there are just too many variables for me to call the play today,” says the umpire. “Come back in six weeks for my decision.”Â He smiles winningly.
The managers from both teamsÂ rushÂ up from their benches.
“Umpire Dude,Â the runner is still three feet away from home plate. He’s obviously out,”Â declares the US Giants manager.Â
The managerÂ is clearly irritated at yet another delay in this interminable game.Â Â The same umpire had already turned the seventh inning stretch into a six-month waiting marathon, and all of the players and coaches were feeling a tad rusty and anxious to resolve the game.
The umpire frowns.Â “I knowÂ the vast majority of umpires would agree with you, but I’ve never really liked theÂ idea that the runner has to actuallyÂ touch the base.Â It just seemsÂ so unfair to me.”
The US Giants manager whips outÂ his rule book.Â Â ”Section 7.02Â of the MLB rules clearly states, ‘In advancing, a runner shall touch first, second, third and home base in order.’Â With all due respect, Umpire Dude, this runner was tagged before he touchedÂ the homeÂ plate.”
Realizing that the umpire is leaning in his direction, the DC Dodgers manager plays it safe.
“I agree with you, Umpire Dude,” he claims, nodding his head sagely, “and if you don’t mind, I’d like to introduce some of the runner’s fans to you at this time.”
The umpire agrees,Â and one by one, roughly 40Â fans step out on to the field and state their names and occupations. They all declare, sometimes through tears, just how much they think the runnerÂ is a really cool guy.
Bolstered by the endorsements of the fans, the umpire continues his stubborn quest to find the runner safe.Â
“Even if it’s in the rulebook, I’m the umpire.Â I can decide to call him safe, just ’cause I want to.”
The DC Dodgers manager gets excited that he might actually win what had appeared to be a losing play. “It’s happened before, you know, Umpire Dude.Â In the 1998 game of Seahawks v. Jets, the ref there ruled thatÂ a player named Testaverde was close enough toÂ score.”
The Giants’ managerÂ replies cautiously, “That’s football, not baseball, and that ruling was considered so egregious it brought back the instant replay.Â The only rules that matter in this call are baseball rules.”
“Well, I suppose that mightÂ be a validÂ point,” concedes the umpire.Â “So, before I rule on the play, I would likeÂ theÂ Giants managerÂ to put together a comprehensive list ofÂ games for me which illustrate their contention that a runner who is tagged before he touches home plate is actually out.Â Besides, by delaying my decision for the next six weeks, the runner can have a far more pleasant Christmas holiday!”
And so, all of the players, managers, and fans return home to wait an additional six weeks for the umpire to make up his freakin’ mind already.
So what happened yesterday in the criminal case of USA v. Michael C. Irving?
To put in plainly, the judgeÂ does not want to sentence the defendant to prison.Â The law, the sentencing guidelines, and literally 100% of relevant casesÂ clearly call for a prison sentence to be imposed; he just doesn’t want to do it.
Usually, sentencing takes place two to three months following conviction.Â It’s been almost six months in this case, and the judge still wasn’t prepared for the big day.Â He hadn’t read the letters from the defendant’s friends and family, and he hadn’t reviewed the trial transcripts.Â Instead, he is nowÂ telling the prosecutors to prepare a list of similar tax cases where the defendant has been sentenced to any time in prison.Â
By my estimate,Â 100% of similar cases have resulted in prison time. WhileÂ quite a few criminal tax cases have resulted inÂ probation, these were the result of plea agreements and/or cooperation withÂ federal prosecutors, which simply doesn’t apply in Detective Irving’s situation.Â As of fiscal year 2007,Â 68.5% of all tax criminal cases resulted in prison sentences, and the average prison time doled out for those cases was 23.8 months.Â Â These numbers include a large number of plea agreements are so are artificially low.
The judge has the power to simply decideÂ on no prison time, butÂ he is desperately seeking the justification to backÂ up that decision.Â He is looking for ways toÂ minimize the tax loss in the case, thereby reducing the federal guideline sentence range, and he is looking for similar cases where no jail time was imposed in order to show that hisÂ use of discretion did not result in any sentencing disparity.
TheÂ judge has indeed postponed the sentencing until December 18th.Â That way, according to the judge, the defendant can be home for the holidays, even if the judge does decide to impose a prison sentence.