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

Saturday, January 09, 2010

PHIL DAVIS GETS 20 YEARS

Monday update: We're going to leave the Davis post up today so those of you who contribute at work (or from the bench) can weigh in. 3-2 on football picks- 2-2 on games and 1-0 on the over.

PLAYOFF SUNDAY: Won on the Jets yesterday, should have picked the money line. Lost on the Cowpokes, but mitigated that with a win on the over.

Today: Ravens at Cheaters: Ravens, like the Jets, are built to win in January. Ravens -3 +500.
Pack at Cardinals. Line is all over the place here from Cardinals -2 t0 Cardinals +2. The money line is -110 for both (meaning you have to bet 110 to win 100) so lets call is even and put 500 brats on the Pack.

PHIL DAVIS : Requiem for a fallen man:

The sad and sordid saga of the life and legal career of former Dade Circuit Judge Phil Davis came to an inglorious end on Friday in a fourth floor courtroom in the Justice Building. A courtroom that was two floors above the second floor courtroom where Davis used to preside over twenty years ago.

On Friday Judge Butchko sentenced Phil Davis to 20 years in prison for stealing over $86,000 in County money ear marked for poor and underprivileged residents.

The title links to the Herald story.

We have no sympathy for Davis. He skated on a bribery and corruption case in federal court in which he was clearly guilty. His mish-mash defense then of cocaine abuse and entrapment was ridiculous considering his position, and only a lawyer as talented as ex-federal Judge Alcee Hastings could have pulled it off.

Having escaped the clutches of federal prison that ended up capturing co-conspirators former Judges Harvey Shenberg, Roy T. Gelber, Alfonso Sepe, David Goodhart, and others, Davis got a more than a one in a million chance.

And then he did it again.

And not only did Davis steal, he stole from the poor of this community and he committed his theft using what Judge Butchko labeled his "gifts" that he had "been blessed with."

All that being said, and with the firm belief Davis needs to go to prison if for no other reason than to punish him for acting like he was above the law for the last 20 years, the sentence is excessive.

The sentence is excessive because under our system we punish people based on the extent of the fraud and the monetary amount of the crime.

Disgraced NY Lawyer Marc Drier ran a Ponzi scheme, stole 700 MILLION dollars and received 20 years in prison.

The sentence is excessive because 20 years is anywhere from a third to a quarter of an individuals average life span and that is way too much to take away from someone who has not physically injured another.

The sentence is excessive because not only is it not proportionate with what federal courts in general have been giving across the country for this type of crime, but it is also excessive based on prior Miami Dade cases.

Within the last few years Circuit Judge John Schlessinger sentenced attorney and former prosecutor Knovack Jones to five years in prison for stealing over $300,000.00 in inheritance money from a client whom she befriended at her church. No coincidence that prior to becoming a Circuit Judge, Schlessinger spent many years in a distinguished career as a federal prosecutor.

We don't as a habit give the feds much credit, but this much is clear- they seem to realize the devastating impact prison has on an individual and most sentences come out between the 5 and 15 year range. It takes a lot to get into the 30-life category. Justifiably so.


The sentence is excessive because ten years is more than sufficient in this case. Davis would have spent behind bars ten birthdays, ten of his daughters birthdays, ten holiday seasons, and missed for a decade all of the small little things that make our lives memorable and enjoyable. He would have gotten out of prison in ten years as an old man with no conceivable way of making a decent living.

20 years amounts to a life sentence, and that is too much, even for the despicable crimes Davis committed in this case.

The sentence is excessive because the minimum sentence under the guidelines was 4 years and the maximum was 30. 10 years in prison followed by 10 years probation and 5000 community service hours to be performed at the rate of 500 hours per year would have accomplished the same goal.

Having witnesses Davis in court as a judge and watched as this reprobate sold his robes and sullied the reputation of our humble courthouse and all who worked here, we take no joy in defending him. Indeed, we are not defending him. We are just saying that in general the system for punishment and the terms of incarceration that Judges issue, especially in the state courts of Florida, are out of line, and are excessive to the point of being cruel and unusual.

Our legal system is supposed to issue punishment based on the crime in a fair, moderate, and humane way, devoid of vengeance based on emotion, and not cruel either in the manner or the length.


FOOTBALL: Our Saturday football playoff picks in the comments section today before noon.



35 comments:

Anonymous said...

Well said. Ten would have been my sentence.

Anonymous said...

Sentencing in Florida State courts is, bluntly put, ridiculous. Too many judges seem to give no thought to the cost of incarceration (to the defendant or to taxpayers.) The fault lies with the legislature and our sentencing scheme combined with a body of elected judges desirous of appearing tough on crime (or who simply have no perspective.) In such a system, 20 years for a burglary or other property crime begin to appear "standard", Something must be done. The question is...what?

Rumpole said...

The more I think about this the more I think 15-20 may be right. Davis, unlike Knovack Jones has displayed a contempt for the law for most of his life. I just don't know. He's the extreme case- this was a tough one.

OK> I'm getting on plane back to Miami- I have my leather coat for when we land.

The Jets are getting 3 in Cincinnati. The Jets are built for the playoffs. Great Defense, great running game. Their D stopped The Saints. Totally discounting what happened last week, I think I like the Jets here. Cincinnati is over rated. They've played very badly all of December, and as their coach said they're not mature enough to turn it on and turn it off. It's been off for a while in Cincy.

Jets +3 500


Will put up the Cowpkes Eagles pick when I land, but let me simply say this- you can't make enough money betting against Dallas in the playoffs the last few years. it's been low hanging fruit. The Cowpokes will lose- this week or next - Vanilla Phillips will be fired- and the Pokes will make Bill Cowher the first 10 million a year coach.

Anonymous said...

Its kind of like what happened to OJ.

Do we really think that "up to 33 years in prison" was merited under the facts there? He wasn't the gunman right?

He was punished mainly for escaping being convicted for murder previously is what it was.

And so here, Davis, who escaped due to the prowess of Alcee Hastings, now finally the law caught up with him.

While one's story is a story of violence and reckless disregard for the safety of others and the other is a story of theft and corruption, there are parallels.

Anonymous said...

What is not part of the discussion here, is the codefendant who is not as much in the spotlight as Davis is.

His former assistant Joan Headley.

She got 10 years prison. Did she have a prior record? Did she exhibit a lifetime of contempt and disregard for the law?

Does anything think her sentence was excessive?

Anonymous said...

Well Said Rump. Judge Butcho was excessive and she is always excessive.

Sam said...

Well as has been said before,
"We ought to incarcerate those we are afraid of, not those we are just mad at". I think the conviction would have brought humiliation and even a few years in prison is good punishment. But why should the good taxpayers increase their cost, (every one that gets thrown in prison just because we are mad and not for our safety makes our taxes increase)! Give the additional punishment after incarceration. Surely we can be more creative....

Shoot The Lawyers said...

What talent did Phil Davis have that Judge Butchko talks about? Query: if Davis were white and did what he did, would she talk about his "talent?" I doubt it. His only talent is as a con man. But 20 years is way over the top. If he were Phil anybody else, he would have taken a plea to a non jail disposition with a promise of restitution. An aside: Dante Stallworth kills someone and walks away with 30 days, Phil Davis steals money and gets 20 years. Go figure.

Anonymous said...

Not saying that this is an issue unique to Florida courts, but there is no uniformity among the judiciary. Maybe that's a good thing at times, but it literally comes down to the luck of the draw. If you get a client whose case is in front of a judge perceived to be "pro-defense," you know that the risks involved are significantly less than if your client's case were in front of a "pro-state" judge. Same charges, same set of facts. Largely different outcomes.

What would have been the sentence had the Davis case been tried in front of Rosa Rodriguez or Sarah Zabel? What would have been the sentence had Davis been tried and found guilty in front of David Miller?

the trialmaster said...

a 10 year sentence considering his age would have been the sentence if the TRIALMASTER was the judge. but the TRIALMASTER is too smart to don the black robes for what he makes on one case.

Two fingers Tony said...

Two fingers Tony says it's time to pay the piper rumpole. Your math stinks. You were 9-7 last week not 10-6. Tennessee won by four and you gave five. Despite the fact that you bet no money in advance you should be happy that you were not betting $100k a game this year. Otherwise you would owe us closer to $2 mil instead of the $1980 that you actually dropped.

So who are you rooting for in the playoffs now that your team is out? And what the heck are you going to do if your two favorite coaches from Dallas and San Diego end up in Miami ?

Now Pay Up and tell your friend Paulie that he can't hide forever

The Professor said...

Rumpole,

Couldn't disagree more. The sentence was appropriate.

Your analysis focuses strictly on retributivism ... focusing on what THIS defendant deserved. You wholly ignore the far more compelling side of the equation in this case, which is utilitarianism ... focusing on the sentence's impact on future crime control.

For instance, this sentence largely ensures that THIS defendant will not be able to get out of jail and defraud others. Simply put, he'll likely be too old. A ten year sentence may not have accomplished that goal. Unlike violent crime, where recidivism decreases with age, recidivism in economic crimes actually increases with age until very late in life.

Second, this sentence also sends a strong message to would-be corrupt judges. It says that the judiciary as a whole will not protect its own in these circumstances. In fact, it sends the message that the judiciary views corruption within its own ranks as the ultimate insult to justice.

And that point also distinguishes all the examples in your post. Each of your examples focused on lawyers (Drier and Jones), not judges. When a lawyer commits a crime of fraud, it is reprehensible. When a judge (even a former judge) does it, it's unthinkable.

Judges symbolize justice. When they engage in fraud, the result is a distrust not just of the individual but the entire justice system. This sentence sends the message that the judiciary understands that nuance and will not stand for this judge's actions.

This sentence was appropriate.

Rumpole said...

Professor you are way off base. Davis did not commit these crimes as a judge, so there was no message except to former judges removed by a previous federal indictment. And while Miami may lead the nation in those individuals, it is still a select group under 10.

Second- sentencing should always be individualized- who is the person being sentenced? What is their particular crime? What are their family circumstances and background?

As one commentator put it- the woman who got ten years also got an extremely high sentence for someone I am theorizing had no priors. This was 86 K, not 860K or 8 million. 4 years in prison for her- which is roughly 1440 days followed by probation would be sufficient. And as to Davis- for a non-violent fraud crime- probation has been shown to be very effective. Davis is a poor case for my argument because he may arguably deserve it. I am close on this. But the facts of the crime itself does not require 20 or even 10. If you've ever spent a day in jail then you know that day is unlike any other day you've ever spent (and we've spent more than one).

10 years would have been enough. 120 months. 3,650 days. That's enough.

Anonymous said...

The higher you go, the greater you fall. Although, 20 is a very long sentence, given who he was, and who he stole from, I'm on team Butchko on this one, and I can't even believe I 'm typing this. I'm not normally a fan.
He betrayed those who had initially trusted in him the first time around, again, what a slap in the face to Miami's poor. He deserves no mercy.

Anonymous said...

OMG! Rumpole thinks is the appropriate sentece so we must all fall in line b/c Rumpole is the ONLY one who knows what is justice.
hahahahaha. that's so funny.

Thank G-d we have RUMPOLE to tell us what Rumpole thinks. Otherwise, all judges would have no clue how to properly manage their cases.

Anonymous said...

fuck davis. he deserves life because he walked in ct broom. remember rump, the post man always rings twice. and btfw, davis maxed a lot of men when he wore a rob. so again, fuck him.

former pd

The Professor said...

Rumpole,

Thank you for your considered response. Let me first note that I disagree with attempting to distinguish this situation on the basis that Davis was no longer a judge. Wouldn't an average member of the community say "wow, I can't believe we elected someone who would do that. I bet we've elected others that have/ would do the same thing and that they're current judges"? That thought process thus undermines public confidence in the judiciary.

Second, whether a judge is still a member of the bench would do nothing to impact the possibility that a sitting judge might give a more lenient sentence to "one of their own." Thus, the sentencing judge here demonstrated to the public that no "brotherhood" (or sisterhood) leniency would apply here. This symbolism was crucial regardless whether Davis was a current or former judge.

Third, at no point did I argue that sentencing should not be individualized. Of course it should be individualized, and leniency should certainly be exercised when appropriate. I was pointing out that your analysis looked ONLY at this defendant's individual blameworthiness. The other side of the coin, the impact of the sentence on society at large, must be considered as well. Your analysis failed to do that.

But, even if we're going to stick with a purely retributivist analysis, the sentence is STILL justifiable. Unlike the other cases you site (Jones and Drier), this situation involved victims who were doubly vulnerable: they were kids, and they were poor. I can not think of any non-violent crime that could possibly be more vile, and the difference in the amount stolen does nothing to vitiate the impact this crime must have had on those kids.

The reason I'm so insistent on this issue is because I truly think that most of Florida has a serious problem in sentencing. Instead of devoting time on your very public forum on a person who had every ability to avoid a criminal lifestyle, you should focus your ire on the true injustices. Your recent commentary on the juvenile justice system (which is an affront to the term "justice") is a good example of bloggingg time well spent.

Again, thanks for your thoughts.

Rumpole said...

Lets lock in a winning Saturday. Eagles +4 , 400.
over 45 100.

Anonymous said...

This man made a life out of scheming taxpayers, he is akin to a career criminal and was punished as such. His accomplice was exposed to a far greater penalty than she received and she was sentenced in accord with her role in the case. Nonetheless she also earned her punishment for defrauding taxpayers.

Well done Judge Butchko.

Anonymous said...

Fool me once, shame on you.
Fool me twice, shame on me.

(The famous expression)

Fool me once, shame on you.
Fool me twice, shame on you.

(Rep. Virginia Foxx, R-NC)

Fool me once, shame on you.
(Awkward pause.) Fool me — you can't get fooled again.

(President G.W. Bush)

Rep. Foxx would contend he's being locked up out of shame. And also Dubbya may have the answer. Davis is being locked away so that "he can't get fooled again."

Makes sense in a RNC kind of way. I'd bet 100 Michael Steele's on it.

Anonymous said...

The "Trial Tax." Was there an offer? What was it? Was the offer unreasonable? Or did Phil just want to roll 'em. Was he just hopin' a Miami jury wouldn't convict him. It appears he suffered from "P. O. D., Previously Acquitted Disease." If the offer was 5 it sure looks pretty good now, eh?

Anonymous said...

Factor into the mix the unstated fact that Davis and Headley ran diversionary and other programs designed to give defendants additionally chances and rehabilitate them and 20 seems quite reasonable given all of the previously stated factors.

BTDT

PS----Rump, while you may be correct that Davis' actions do not reflect on the judiciary as strongly as the professor argues they do (since Davis already was a disgraced former judge), his actions, as a diversion/probation/monitoring "official" reflect on the system as a whole. I have zero sympathy for him. He's shown no remorse, took advantage of a State Attorney who gave him an additional chance despite significant criticism from within and outside the office, stole from offenders and taxpayers and made the community a little less safe. He had more chances than most anyone else and look what he did. Twenty is a more than fair.

Anonymous said...

Rumpole, an ex-Judge is still a Judge in the public's eye. David betrayed his people TWICE. The poorest most needy people, TWICE. Butchko was dead on on this one.

Rumpole said...

All of the points in FAVOR of the 20 year sentence are mostly well thought out and persuasive.

Here is what I am saying: The man deserves prison. The man deserves a lengthy prison sentence.

Have any of you truly considered what 20 years is?

If Davis went to prison for this in 1999, would getting out last year have been sufficient, followed by 10 years probation? Think of all that has happened in our collective lives over this last decade and in your personal life?

10 years followed by 10 years probation is sufficient punishment.

As to Davis betraying "his people"- respectfully, that is racist. Just because Davis is black does not mean all afro-americans are his people. Did Roy Gelber betray his people (jews) or Sepe (Italians) No. Each of them betrayed the public who elected them, themselves, and their families and that's it.

It's time to stop "marveling" at the accomplishments of a black man because he's black. We don't marvel at the accomplishments of a man of Dutch heritage because he's Dutch.

I once had the opportunity to introduce Clifton R Wharton, Jr. at a function (Rumpole hint if you Google it enough) and Mr. Wharton said this in the late 1970's:
"I am a man first, an American second, and a black man third."

Anonymous said...

butchko is in the right ball park on this one, maybe a few years to high but this is not like david miller locking up that woman for 30 years becuase of a traffic accident rumpole. that sentence involved one person making a bad decision on one day of an otherwise law abinding life whereas in davis it is clear that every single day this man woke up and was thinking of ways to screw over the tax payers and the poor people he was supposed to be helping.
the difference between these fraud offenses involving public figures and regular street crime cases is the issue of deterrence. judges can max out burglars all day long and word wont get out among the mostly drug addicted burglars to the point where they will say to themselves "hey the SA is serious about this crap i better find a new line of work". in contrast someone like davis, who knew the ins and outs of the system better than almost all criminals, is the type of criminal who probably was thinking "hey if i get caught its a few grand i'll probably get probation like every other white collar defendant who gets charged in state court". those similarly situated to davis (gov employees or people with access to public monies) are exactly the type of defendants who are smart enough to be deterred when they see a sentence like this.
i am a former asa and while i think that 10-15 years might have sent the same message i dont think that this sentence was way out of line.

and i give butchko credit for having the balls to hand out a serious sentence and not think "oh no i might lose the african american vote over this" like so many other judges do.

Anonymous said...

Yes, Rump, I have considered what 20 years is. Davis deserved a lot more than that in his prior case, but our community (represented by the jury) gave him a second chance. Davis is con man, plain and simple. He would be just as effective in 10 years as he has been for the previous 20. It's time to put him behind bars, punish him for his decades of betrayal, and protect the community from further harm.

BTDT

PS----I agree with your points on prison overcrowding and join in the call to consider alternatives to jail and prison. I just don't believe Davis is the guy who deserves the additional chance(s).

Rumpole said...

Goodbye Cheaters, Goodbye Cheater, Goodbye Cheater- we love to see you go (and take that fancy pants pretty boy QB with you.)

Good riddance.

Rumpole said...

I have admitted that I do see your point BTDT. And Davis is the hardest poster boy for me to make my point with. I don't weep for him.

Anonymous said...

Thieves are the worst people in the justice system. If we are going to put anyone in a cell it should be a their.

I can understand violence. Burglary and Robbery are just plain evil.

Property criminals need prison time.

Anonymous said...

On non-violent crimes a few things should be considered at sentencing:

1. Did or will the defendant make a 100% restitution of all the money stolen, or at least 50% of the cash?

2. If the answer to #1 is Yes the defendant should be given probation with a suspended sentence so that the victim can get all the stolen money back and the tax payers do not pay foot the bill of incarceration.

3. If the defendant has no money and no assets and no way of paying the stolen money back then a good jail sentence is in order.

In the Lou Pearlman $350 million(Orlando, FL) Ponzi scam the Federal Judge gave Pearlman over 30 years in prison and ordered that for every 1 million dollars Pearlan pays the victims in restitution the Judge would reduce his sentence by one month.

Get the cash back for the victims!

Anonymous said...

It is real hard to feel sorry for Phil but,20 years is too much. He got that simply because he went to trial. What was the plea offer before trial? Probation? I am tired of judges blowing them away simply for going to trial.

And, I like most, am no fan of Butchko. She is simply not nice.

Anonymous said...

J-E-T-S....how bout them Dolphins?....I'll take a regular season sweep, painful as it WAS, and still do what we're doing in the playoffs anyday

Three Fingers Vinnie said...

Pick 'em Paulie has been whacked because he didn't pay up. Capice Rumpole?

Anonymous said...

I agree, largely, with 1:58. This was a non-violent theft of $86,000, committed by an educated and talented, but flawed, man, with the help of a (presumably) educated and talented, but flawed, woman.

Would not a suitable probation — to harness that education and talent to repay the victim(s) and, at the same time, to perhaps reform the perpetrators — do justice here?

Why place people who misbehave like this in cages? To what end? To drive a needle into the eye of Reason? Of Mercy? Of Hope that we can fairly mete out non-capital punishment?

These sentences reveal more about us — judges stand for election and feel they must pay homage to the tough-on-crime one-upmanship demagogy that dominates public discourse about the criminal justice system — than the wrongdoers.

Hard to believe, but just 140 years ago, when $5,275 equalled $86,000 today, Britain abolished debtors' prison. Look how far we've come in such a short time!

Peace on earth. Good will toward men.

Anonymous said...

I have no sympathy for Phillip Davis. I liked and respected him when he was a Judge however, his greed has brought him to the point where he currently is and this is what happens when you get too greedy.