Court is closed Thursday. Why?
A Job Well Done goes out to ace PD David Sisselman who pried a 12 year sentence out of Judge Rodriguez-Chomat in the widely reported case involving a hate crime assault in Hialeah by a Hispanic man against two stranded African American motorists. Sisselman started the defense by convincing the jury to convict the defendant of the lesser included offense of aggravated assault (down from attempted murder) and followed that up with a thorough effort at sentencing that included the expert opinion of FIU African American scholar Marvin Dunn that the defendant was not a racist.
A sentence of 12 years when the max was 60 and the prosecution typically asked for 30? Well done Mr. Sisselman, well done indeed.
Ovalle's coverage in the Herald is here.
A Hypothetical: You may have seen this on the FACDL listserv. We have changed the names to protect those involved. You may be surprised at our take:
Client charged with an exportation of firearms charge. The defense was that the client had not taken a substantial step to committing the attempt. The guidelines for this charge are 46 months where someone has no priors. After plea negotiations the parties agree to a Rule 11(c)(3) plea wanting to guarantee the sentence. The client was willing to take it in order to avoid the chance of losing and getting 5 years after trial. Prosecutor agreed to the plea, however the judge would not accept the 11(c)(3) plea. AUSA told defense that if client pled he would continue to recommend six months. Defense declined the offer. As soon as the judge took the bench to begin trial, the government moved to dismiss the Indictment.
Query: was the prosecutor's last minute attempt to get the defendant to take a plea to six months done in bad faith, knowing that if the defendant rejected the plea the prosecutor was going to dismiss the charges?
Rumpole, surprisingly says "NO." Why? Because there is a difference between the ability to prove a case at any particular moment and proof sufficient to prosecute the defendant. For instance, a prosecutor may have a confession and DNA and if the lab loses the DNA and the cop who took the confession is indicted, the prosecutor still has a good faith belief in the proof of guilt. The prosecutor cannot lie and announce ready for trial when that is not the case. Nor should the prosecutor insinuate off the record in private discussions that s/he is going to try the case when they are not. But as long as they believe the evidence shows guilt, they have a right to attempt to salvage a plea even if other circumstances dictate that they cannot proceed to trial.
See You In Court, where the last time a prosecutor bluffed us, Zybigniew Brzezinski was National Security Director.
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