WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, October 08, 2008

FIRST CRACK IN THE SYSTEM

Sometimes all it takes is one man or woman to stand up and say "no, this is wrong. I won't do it."

Judge Thomas Remington of Okaloosa County is apparently that type of man. Presented with a plea deal in which a young woman with no prior record was going to enter a plea requiring him to impose the 25 year minimum mandatory for possession of hyrdocodone, the Judge said "no." The punishment in this case, in his opinion, does not fit the crime.  (For another time- what kind of lawyer pleads his client into a 25 year min man????)

Isn't this what we elect and appoint Judges to do? Don't we want the life of an individual in the hands of an experienced and impartial jurist, and not a prosecutor who in all likelihood is younger and less experienced than the Judge? 

It's time for the legislature to start trusting Judges again. (Yes, even we had to make sure we were really reading that statement on this blog.) 

Repeal minimum mandatories and let Judges do their job. 

Here is the article from the NWF Daily News.

Thanks to the Broward Blog for the tip. They have an interesting article on Broward SA Mike Satz (motto "charge em all- guilty or innocent, let the jury sort it out.") Actually, that very much approximates his motto, as we have been told over and over again by prosecutors North of the Border. 

See You In Court with a picture of Judge Remington in our wallet. 

15 comments:

South Florida Lawyers said...

Good catch, Rumpy.

batman said...

Excuse me Rump, but there is one fatal flaw in your argument. Look at the age and experience of the judges vs. the age and experience of some of the prosecutors. We have a bench filled with inexperienced, less than competent lawyers who think that making these life and death decisions is easy.

Gone are the days of the long toothed judge who young lawyers respected and revered for their presence and thoughtfulness.

Do you really want to trust sentencing issues to the likes of Peter Adrien, Barbara Areces, Spencer Eig, Jorge Cueto, Migna Sanchez-Llorens and others without guidelines or min/mans? These are babies making adult decisions.

If you want judges with discretion, you have to have judges with the tools to know how to excercise that discretion appropriately. As you have so often put it, they have to know how to "do the right thing."

Anonymous said...

Last time I checked we're still a democracy where elected officials make the law. If judges want to be legislators they should run for a legislative seat. Does no one in our modern America understand the separation of powers laid forth in our Constitution? If George Bush (the worst president in history) were refusing to follow a law passed by congress it would be viewed as the ultimate usurpation of power. Here, Rumpole touts this minilegislature judge as some kind of hero. Give me a break! The first role of a judge is to follow the law not make it up as they go along.

Anonymous said...

your post is EXTREMELY inaccurate. I read the article. the woman stole and sold hundreds of tablets and if the sao wanted to come down on her could charge multiple counts. does she deserve a lot of prison -No. but you made it seem like some innocent girl was getting screwed . the facts seem to indicate she was a drug dealer, profiting from theft from her employer and committed hundreds of felony counts.

Anonymous said...

17,000 pills stolen from wal mart's pharmacy. Now that is what I call quality control. poor baby- facing 25 years for stealing thousands of pills and making 3000.00 for every 6 bottles she stole. sounds like she made in excess of 25,000 and was driving a car that cost over 1000.00 a week to rent. must have had a drug problem. now let's see if state comes back and charges 20 counts to show the judge who the boss is. the Q would get her 7 years.

Anonymous said...

11:32. Perhaps you are unfamiliar with the rule that requires a judge to approve plea bargains? The "law," as you put it, requiring a 25 year min/man is inapplicable until the entry of a judgment of guilt. Thus, the judge was not ignoring the law.

Duh.

Also, I believe Rump's not-all-that-unclear argument was that the legislature should abolish min/mans. I did not read his comments as advocating that judges abolish min/mans sua sponte (that means "on their own.")

See id. at "duh."

Anonymous said...

11:32, if you had any idea how legislatures make law, you'd have a very different position.

Anonymous said...

migna sanchez llorens ruling on a dui case is a frightening prospect. we should have letter take shelly schwartz seat and now she is in county handling dp cases and she got fired from fed pd for incompetence

Anonymous said...

can we all agree that sarah palin is the nastiest politician to hit the scene since nixon era? she is a goddamn disgrace and i cant believe that mccain has associated himself with her. mccain has sold his soul to the devil and i think his erratic behavior is because he is disgusted with who he has become.

it will all be over soon and palin can get back on her broom and go back to her redneck wolf killing lifestyle

Anonymous said...

2:57...........I've seen legislatures pass laws. It CAN be ugly. But, that's no justification for violating the separation of powers (I agree that's not what Rump was advocating; your response to 11:32 is what I take issue with).

As for doing away with min mans, I agree with Batman. Many judges don't have a clue what they're doing. We've all seen it. Yes, there will be situations where people are sentenced harshly. Just remember that THEY are the ones who put themselves in that siutation. As so many cops and prosecutors say, "if you can't do the crime, don't do the crime." There's something to be said for that.

BTDT

Anonymous said...

Rump.........would you be praising a judge who exceed the maximum penalty because "the punishment didn't fit the crime"? Would you praise a judge who refused to suppress a statement in a heinous case because he knew the defendant would kill again if released?

I get the point you're making about the min mans and respect your position (though I disagree for reasons I stated in a prior post..........many of our nation's judges don't have the experience to make the right calss........which is why the min mans exist in the first place. Also, if we eliminate min mans on the theory that we should trust our judges, should we also eliminate the statutory maximums for the same reason? It would make perfect logical sense......).

Regardless, I completely disagree with the concept of praising judges who legislate from the bench. It's a dangerous slippery slope (not to mention a violation of SOP). Remember...........there are just as many judges who would hammer everyone as there are judges who would cut unreasonable breaks for everyone (or dump cases to clear a docket).

Taken as a whole, the system is reasonably fair. It does, of course, need some tinkering. But, throwing out min mans altogether is not the answer. Neither is encouraging judges to usurp the legislature's (or executive's) authority. I don't like a lot of our laws.........but getting individual judges to ignore because they don't think they're "right" them would undermine the integrity system.

BTDT

Rumpole said...

I COULD NOT DISAGREE MORE BTDT.

First, we should not have judges who do not have the experience to make the correct decisions. We do have legislators who know nothing and pander to public opinion. Given half a chance I would bet more than 50% of legislators who would vote to end the exclusionary rule and the 4th amendment.

I do not want Judges who legislate from the bench. On the other hand can you conceive of the monstrosity of a 25 year MANDATORY prison sentence for someone who does not deserve it? As a human being I am glad we have Judges who are human and humane enough to see the horrible impact that min man has.

And forgive me for the cheap shot, but if you think the criminal justice system is mostly working, you have not been there and you have not done that.

Anonymous said...

Well Rumpole, he could only be practicing in State Court - try Federal where it really is broken.

Anonymous said...

"We should not have judges who do not have the experience to make the correct decisions."

The problem, Rump, is that that's not the reality. As long as we elect judges, and thus have too many judges on the bench solely due to their money or schmoozing skills, you will have too many incompetent judges.

The result is that the legislature must avoid illegitimate sentencing (both above and below guidelines or min/mans) by constraining judges' discretion. The true problem here is that the legislature has gone too far: the min/mans are too inflexible and punish a true narcotrafficker to the same degree that they punish some nobody who had just barely too much oxycodone on him.

Guidlines are good, and the fact that a judge can deviate from guidelines for well-documented reasons is a good thing. The same provision should apply to min/ mans, and a deviation from min/mans should be appeallable.

That would solve the problem.

Anonymous said...

Rump, I think reasonable people can differ as to whether or not the min man is deserved, especially in this case.

I never said that the system is "working." Though I think a very good argument can be made that it's the best in the world.

Still, there's a lot that needs to be improved. I did say that the system is "reasonably fair." That's a far cry from saying that the system is perfect or that the best sentences are given out routinely. A fair sentence (ie. one that is fitting relative to the crime) is not always the "best" sentence (ie. a year in jail for someone who broke into a house may be fair for someone with some priors [but not an HO], but is it the smartest or best sentence for someone who would not have done so but for an alcohol or drug problem? I say no).

The problem isn't the concept of min mans. The problem is the numbers associated with them. Twenty-five years is a hell of a long time.

Regardless, judges shouldn't legislate from the bench. Nothing good can come of that. You think the legislatures are restricting them now? Just wait and see what happens if judges continue to disregard the law. THEN you'll see restrictions (or budget cuts) that make the current min mans look like nothing. And, guess what? They will be constitutional and we'll really be screwed.

Yes, I can conceive of the monstrosity of a brutal min man applied in certain cases. But, again, the state only has the power to punish people who commit crimes. The defendant put herself in the position she's in, not the state. And, it's hard to have much sympathy for someone who did what she did. I'm sure you can find much more extreme examples (no, that doesn't make me happy. But, if you're going to argue the point, at least choose a more sypathetic defendant).

There are no perfect answers. The price of ensuring public safety is high, just as the price of ensuring that innocents don't go to jail or prison is high. Do you ever think of the monstrosity of guilty people going free to kill again because of something that the public would consider a "technicality." When I was a prosecutor, I dropped several cases involving dangerous defendants because of proof issues even though I knew they were guilty. Each time, I felt sick. I knew that someone would pay a steep price for my decision. Still, I did it because it was the right thing to do.

I hate the idea of an innocent person suffering because a prosecutor or judge freed a dangerous person who everyone knew was guilty. But, it happens. Guilty offenders sometimes are freed becasue that's what our constitution requires. And, innocent people suffer (and even die) as a result. THAT's truly tragic (unlike this offender's situation). Should we ignore or change the consitution to eliminate this possibility? I sure as hell hope not. Should prosecutors ignore the constitution and push forward with inadmissible evidnece? I sure as hell hope not. Should judges disregard the constitution and admit evidence they shouldn't because of some alleged higher calling? Again, I sure as hell hope not.

The point is that you're making a very simplistic argument on something that really is very complex. Your generalizations take away from your point.

BTDT

PS---yes, many legislators pander to the public. So do many judges. We have some judges who dump everything, others who slam everyone. Remember that. Judicial discretion isn't close to perfect either. At least legislators aren't one person decision makers like judges are. Further, their laws can be stricken as unconstitutional (if, to use your example, legislators did something beyond their authority like strike the exclusionary rule). That's part of the balance of power. Don't be so quick to abandon the SOP doctrine. The path to destruction is paved with good intentions. Violating the constitution is NOT appropriate, especially for a judge who is supposed to follow/enforce it.

PS2---I'm not offended. Amused is more like it.