BENTON - Judge J. Phil Gilbert took the extraordinary step of calling out the U.S. Attorney's Office for the Southern District of Illinois Tuesday before recusing himself from U.S.A. vs. Katie R. Heath, a case he said highlights serious problems within the federal prosecutor's office.

"For some prosecutors in the Southern District of Illinois, prosecutions are driven by statistics and a desire to prevent judges from exercising any control over the sentencing process without regard for the individual. Although not rising to the level of mean-spiritedness, the words arbitrary and capricious come to mind," Gilbert said Tuesday during a motion hearing on the case.

Randy Massey, U.S. Attorney for the Southern District of Illinois, said he could not comment on Gilbert's remarks.

"I'm bound by local court rules and the code of ethics not to comment while this matter is pending," Massey said.

Heath, 27, an Eldorado resident, was initially charged in state court for methamphetamine-related offenses. She served one year in the state corrections department and was paroled in January 2006, about three months before her indictment in federal court.

Since getting out of jail, Heath has turned her life around, Gilbert said. She has cooperated with the government and is compliant with her bond and state parole requirements and has tested drug-free since her first federal screening. She is employed and also attends school.

Heath was charged in federal court in April 2006 for conspiracy to manufacture, distribute and possess with intent to distribute methamphetamine, conduct related to the previous state prosecution, Gilbert said.

She was set to plead guilty as part of a plea agreement last May, but concerns he had prompted Gilbert to delay the acceptance of the plea and sentencing. That decision was protested by the U.S. Attorney's office, which filed a motion to reconsider.

The case wound up in the 7th U.S. Court of Appeals, which earlier this month granted a Writ of Mandamus, ordering Gilbert to rule on a motion to reconsider the delay in accepting the plea and sentencing hearing.

Before granting that motion Tuesday, Gilbert said many of his concerns regarding the case involve plea agreements entered into by the prosecution and defendants.

"In fact, the government frequently violates plea agreements where the mandatory minimum sentence applies and the defendant's guideline range is substantially below the mandatory minimum," he said.

Gilbert accused the prosecution of making "illusory" promises in the agreements and said, "At least in this district, these so-called plea agreements are one-way streets and are unenforceable at sentencing by either the defendant or the Court."

He went on to say that in Heath's case, where she was already punished by the state for her conduct, "I strongly believe our government has failed here in that they have not been objective, abused their discretion and are not treating (Heath) with a concern for fairness or justice. In fact, sentencing (Heath) to prison for 20 years would be a miscarriage of justice."

"She's no saint. She got caught up in drug addiction and made bad choices that resulted in her spending a year in state prison," Gilbert said. "As you were trying to put your life back together," he continued, "the federal government, believing you haven't been punished enough, charged you with this indictment."

Before recusing himself from the case, Gilbert apologized to Heath, saying he feared his continued presence on the matter would bring her "misery."

"The reason I say I will bring you nothing but more misery is that the government, armed with this appellate court opinion, is going to send the message to me that they are in control of sentencings and not this court. And unfortunately, that is true," he said.

Gilbert said he has never spoken out before, but "I feel strongly that the government has abused their discretion and not treated Katie Heath fairly."

Another judge will be assigned the case, Gilbert said.

Heath said she appreciated Gilbert's comments.

"I'm going to keep the faith," she said.

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