Sun Sentinel Columnist Mike Mayo wrote this
IN HIS BLOG
recently about Broward Attorney Sean Conway’s decision to accept a public reprimand from the Florida Bar:
Part of me is disappointed that attorney Sean Conway backed down from an important free speech fight against the Florida Bar for an Internet posting in which he called Broward Circuit Judge Cheryl Aleman “an evil, unfair witch.”
But part of me understands completely.
There was simply too much risk involved. If he lost this Bar fight, he could have lost his livelihood.
In the end, the practical outweighed the principle.
And that’s what scares me almost more than anything.
When a lawyer is afraid to challenge rules that might be unconstitutional and stand up for what he thinks is right, where does that leave the rest of us?
Welcome to the world of criminal defense Mr. Mayo.
Let’s say you’re a lawyer and you’re defending a client who was stopped by the police. Inside the vehicle the police found 100 pills of oxycodone in a prescription bottle with the name of a woman on it. You’re client tries to explain to the police that the drugs belong to his girlfriend. She has cancer and he just dropped her off at a friends house and she left the bottle of drugs in his glove compartment. “Sure” says the cop and arrests your client for trafficking in drugs.
The prosecution files the case, and after reviewing the evidence says to you that they believe you and your client’s girlfriend but it’s still a crime for him to be in possession of the drugs, however, because of the circumstances the prosecutor will waive the prison minimum mandatory and offer your client a simple possession charge, 6 months in the local jail and 5 years on probation.
Your client is innocent. What do you do?
You try the case and win and he goes home. You try it and a jury buys the “letter of the law” crap and your client catches 10 years in prison or more.
What do you do?
The simple fact is that everyday people make the same decision Sean Conway made. He was innocent. The First Amendment protects his right to speech in all but the most extreme circumstances. But he could not afford a negative verdict and possible loss of his right to practice law, so he settled.
Our clients in criminal court settle every day. Every day there is some defendant rotting in jail because the judge won’t lower his bond who takes a plea because he is losing his job and apartment and needs to get out no matter the consequences. Its an open secret that judges well know that people in jail are more willing to take a plea that will close the case and get them out of jail, then someone who is already out of jail. Some honest judges will tell you that the older judges who trained them in the art of keeping their overall case load low told them to do just that.
And then there are the minimum mandatory prison sentences. You see, somewhere during the 1980’s the legislature got the bright idea that a 25 year old prosecutor one year out of law school had more wisdom and experience to decide the appropriate jail sentence for a defendant than a 60 year old judge who has been on the bench 20 years. So the legislature started writing minimum mandatory penalties for all sorts of crimes- from misdemeanor DUIs to gun cases and drug trafficking cases. And no matter how good your client is; no matter if she is 65 years old and has never been arrested before in her life, if she is charged with a crime that carries a minimum mandatory penalty, then the only person on the lord’s green earth who can waive the minimum mandatory prison sentence is the prosecutor. The judge is nothing more than a (not so interested) bystander.
You try dealing with some snot nosed 25 year old trying to make a name for themselves in their office when you have an innocent client, or a client dying of AIDS or cancer, or a client who for any number of reasons needs the wisdom and experience of a person who was born before 1980 to help determine the proper sentence in their case. And then when this prosecutor decides- and they pretty much have unfettered discretion in fashioning any sentence they wish- to be gracious enough to waive the minimum mandatory, you see if you and your client have the guts to turn down that offer and risk perhaps the next few decades of their life in prison, just to fight for something as silly as the truth, or justice, or in Mr. Conway’s case- an important principle.
Hopefully Mr. Conway’s case has opened your eyes a bit to the coercive nature of our court system. We like to brag about our justice system. Well, from someone on the inside who has laboured in this system for a few decades, let me give you the inside scoop- in technical legal terms: it sucks. It’s broke. It needs fixing.
If you’ve got a million bucks maybe, maybe you can buy yourself some justice. If you can afford bond, and afford to live a few years without working while your attorney investigates and fights your case- and if you’ve got the cohones to risk the next few decades of your life- then you can place your hands in our vaunted jury system.
Hopefully you have a judge who has not decided to go earn the name “maximum”.
Hopefully you have a prosecutor who wants to do whats right.
Hopefully your fate does not rest on unreliable eyewitness evidence. How many innocent people have been let off of death row and out of prison because they were innocent? The count is well over 200 by now.
Hopefully you have a lawyer who didn’t snatch up your case on a late Friday afternoon for a quick two grand to help him pay his rent. Hopefully you went to a lawyer who was referred to you by someone other than the bondsman who is getting a kick-back from the lawyer on the fee. (That’s illegal by the way, and if you really want to do an expose on the justice system, start with that block buster.)
And in the end, if it all goes wrong, then hopefully, like Scooter Libby you can just call your friend the President and get your sentence commuted.
But unless you have a friendship with the President to fall back on, then like millions of other people do every year, you will settle your case like Mr. Conway did, even if the Judge is an unfair, evil witch.