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Judge chastised for vacating assault conviction

'Deviation from laws of Commonwealth'

A prominent federal judge issued an angry rebuke yesterday against his counterpart in the state district court, adding another extraordinary twist in the now failed attempts of a repeat convict to sidestep a lengthy prison term under the career criminal statute.

"It never occurred to me that there could be [such] a deviation from the laws of the Commonwealth," US District Court Judge William Young said at a sentencing hearing. His ire was directed not at the convicted drug dealer before him, but at Quincy District Court Judge Diane E. Moriarty, who last month vacated a previous state conviction against the defendant without prosecutors present.

Moriarty's Sept. 24 decision to rescind a previous assault conviction against Matthew West, who was awaiting sentencing on a federal drug charge, would have spared him designation as a career criminal and a longer prison term. According to transcripts, she told West's lawyer to tell his client that "it was an early Christmas present."

While Young never mentioned Moriarty by name, his criticism clearly referred to her decision, which would have reduced West's maximum prison time from 27 years to less than two.

Young said it never occurred to him that a state judge would display "so little respect" for court proceedings by ruling without consulting Suffolk County prosecutors.

"I confess that having gone over the record, I am guilty of a stunning naïveté," said Young, a Superior Court judge from 1978 to 1985, who sentenced West yesterday to 15 years in prison for his March conviction on two federal counts of distributing cocaine.

The rare public rebuke was the latest development in the topsy-turvy case in which Moriarty rescinded her reversal Tuesday, under pressure from federal prosecutors. A spokeswoman for the state court system said Tuesday night that Moriarty had experienced "significant chest pain, nausea, and lethargy" in court when she tossed out West's conviction and was taken to the emergency room later that day.

Yesterday, Joan Kenney, a spokeswoman for the state courts, said Moriarty took a medical leave Tuesday. Kenney did not say why or for how long.

As a result of Moriarty's initial dismissal of the conviction, Young said he would change procedures for sentencing federal defendants who are waiting to see whether they can get minor state convictions thrown out to avoid being labeled career criminals.

Moriarty vacated West's 2001 assault conviction after his lawyer argued that West had not understood the implications of his guilty plea if he was later convicted of a federal crime.

Her ruling would have enabled West, snared in a high-profile Boston police corruption investigation last year, to avoid a much harsher sentence under the three-strikes provision for career criminals. But after US Attorney Michael J. Sullivan accused Moriarty of subverting judicial proceedings, she abruptly reinstated the conviction. In a one-sentence order Tuesday, she said she had changed her mind after reviewing a transcript of the hearing and after experiencing "an improved physical condition." She did not elaborate.

Moriarty, who ran unsuccessfully for mayor of Boston in 1993 as a Republican and was appointed to the bench in 1998, could not be reached for comment.

The sentence Young issued yesterday was less than the nearly 22 years recommended by Assistant US Attorney John T. McNeil. But it was far longer than the one or two years that West would probably have received if Moriarty had not reversed herself, said his lawyer, Timothy R. Flaherty. West was convicted in March of selling about 18 grams of cocaine to an FBI informant.

Young said he had no doubt that West was a career criminal who deserved a long sentence.

"I'm not persuaded that your main line of business was dealing drugs," Young told the defendant. But, he went on, "you . . . have been involved in vicious assaults on law enforcement officers. . . . It certainly is not wrong to treat you as a career offender."

West's criminal record included two previous convictions for selling cocaine and three assaults on police officers, although not all of them took place in the time span required to trigger designation as a career criminal, prosecutors said.

A cocaine distribution conviction in Virginia when West was 22, the 2001 assault-and-battery conviction in Roxbury for shoving someone after a car accident, and his March cocaine conviction triggered the career criminal statute.

The FBI informant to whom he arranged the sale of cocaine was involved in a federal sting that led to cocaine trafficking charges against three Boston police officers. The officers were arrested in July 2006 on charges of protecting truckloads of cocaine for agents posing as drug dealers. Flaherty said prosecutors wanted a stiff sentence for West because he refused to cooperate in the investigation.

Flaherty told Young that Moriarty vacated his client's conviction out of a sense of fair play. The amount of cocaine involved in West's federal conviction would have carried only a three-year sentence in state court, he said. Flaherty said he conveyed to Moriarty the objections he knew that Suffolk County prosecutors had. He also said a Norfolk County prosecutor was present.

William J. Leahy - chief counsel for the state public defender agency, who was not involved in the case - said yesterday that state judges are right to consider requests to vacate relatively minor convictions because federal prosecutors leverage those cases to obtain excessive sentences.

"The sentencing system currently in effect in the federal courts is disgraceful," he said.

Young, however, said the actions of Moriarty, who presided over West's 2001 assault case in Roxbury District Court, reflected "institutional issues" for the state courts to deal with.

As a result of Moriarty's actions, Young said, he will no longer postpone sentencing federal defendants who are seeking to have state convictions thrown out, a relatively common request.

Such defendants can ask the federal court to resentence them later if they succeed in getting state convictions dismissed. But Young said he would now insist on transcripts from those proceedings to make sure that state prosecutors had a chance to object.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

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