Tuesday, July 13, 2010


The heat wave had subsided in the Northeast, but it's still hot in Miami. And the forecast is for the current heat wave to continue through.....like November.

The Barefoot Bandit is on his way to Miami and our federal courts, and of course everyone's favourite federal blogger is right on top of the story here.


The Herald is quoting a prosecutor at a sentencing for DUI Manslaughter
( here is the story) in what appears to be a remarkable story. The facts are familiar to anyone who handles DUI manslaughter cases: a young man killed his friend when he was driving impaired. The car was involved in an accident and the deceased was thrown from the vehicle. The Defendant was a law student at Nova. His friend who was killed was 26 years old. Judge Marin sentenced the defendant to seven years in prison with credit for the three years the defendant has been on house arrest pending the plea. The remarkable part of the story is the quote in the Herald attributed to one of the ASA s handling the case:

``He was twice the legal limit. He should have known better,'' VanderGiesen said of Spencer's blood-alcohol level. ``However, he can't be locked up the rest of his life . . . These are young guys who all had something going for them. Everybody lost here.''

Here's our point- we all have for sometime now laboured in a criminal court system where the state almost always seeks the maximum penalty for most serious cases. The fact is that while many serious cases do mandate the maximum penalty, not all of them do.

Sometimes good people do bad things for inexplicable reasons.

Sometimes people who are not criminals commit criminal acts.

It used to be that participants in the criminal justice system laboured for justice. That included a just sentence. This was before the age of political correctness- and before the time that a victim's subjective (and fully understandable) desire for the maximum punishment outweighed what we all otherwise knew was a just sentence-

It is therefore refreshing to see prosecutors act with an understanding that this defendant- whose crime was horrible- does not deserve to have his life completely ruined.

This is a difficult proposition to defend. A young man made a tragic decision to drive impaired. In doing so, he killed his friend. He needs to be punished and its easy to say that he should be sentenced to prison for the rest of his life because he took a life.

We are not suggesting that people who drive impaired should not be punished. We are not in any way diminishing the never ending pain the parents and family of the victim are suffering. We are applauding the result which in some basic way recognizes that two wrongs don't make a right.

For over twenty years now the criminal justice system has been a pendulum swinging towards retribution and excessive sentencing . The momentum of this pendulum has been driven by politicians running for office on a "get tough on crime" platform. Not many people get elected by espousing the more sophisticated view that the punishment should fit the crime.

However, in this case, Judge Marin and two prosecutors in his division decided to not do the simple thing- which would have been to insist on the maximum sentence of 30 years. Judge Marin and the ASAs did the right thing. They sought a sentence that was fair and just. These two prosecutors sought justice, not vengeance. They are to be congratulated.

The unfortunate thing about this story is just how surprising this result is.

See You In Court.


Anonymous said...

Well put.

Anonymous said...

The prosecutors in this case are fair. The problem for the defendant was not just that he killed his boy going to a UM game- im sure they were all loaded up btw- but rather that he picked up anpther dui while out on bond. A lot of lesser men would have given this kid 10 years. 4 years is spot on under these facts. Plus, if he gets credit for the "3 years cts" he gets gain time.

Anonymous said...

I litigated against Tim Vandergiesen on a few cases in the past. I'm glad to hear that maybe he has matured.

FACDL listserve leaker said...

So we're all good with another prosecutor sweeping into office, in a campaign run by Bob Levi and a Miami Police assistant chief? Anyone think she won't be completely pro-cop every day she sits in criminal?

I have never heard of Kunts. He is some civil puke who will probably get sent to juvenile so I won't have to. But unless Miami gets hit by a comet before January one of these two will be a judge. There's probably no stopping this, but I sent the guy a couple of bucks.

Rumpole said...

Quite frankly I'm glad this kid didn't get 30, but I would have probably sentenced him to 8 with 3 years cts based on the second dui. or perhaps even 10. The second DUI is extremely troubling. But prison will not be easy for him. He is going to prison for longer than law school would have taken, and for all of us, those three years seemed to have taken an eternity.

Anonymous said...

I remember the case where David Miller gave 30 years to a woman with no record in a vehicular homicide case that did not involve alcohol.

Tony Marin is a common-sensical judge with a lot of life experience and street wisdom. The prosecutors were remarkable in that they did not let political sense trump justice and common sense.

Anonymous said...

Was the decedent wearing his seat belt? Maybe that would have been an issue as to the cause of death.

Anonymous said...

I went to law school with the Defendant in this case. He was a jerk, a compulsive drinker and showed no remorse in the immediate year or two after the accident. However, from other friends I have spoken to, he has since matured, been sober and showed genuine remorse. With that said, I agree with Rump. Although it is tragic that someone lost their life, it was an accident. Also, the victim in this case got into a car with a drunk driver and wasn't wearing his seatbelt. He is just as responsible as Stephen Spencer. This was a fair and just sentence.

Anonymous said...

Hold on a second.

1. The Miami SAO frequently offers about 7 years on run of the mill DUI manslaughter cases if plead it out before trial. That is a reasonable offer for a DUI death case.
2. How can you feel sorry for a guy who picks up another DUI while on bond on on this case? That alone should have made this case a ten year deal.
3. The victims always have the final say on DUI manslaughter cases.
4. I know of other lawyers who have gotten much better deals for this kind of a case. (Catalano/Reiff...)

5. Tony Marin had nothing to do with this. He just allowed it to happen. (BTW, Tony really is a great judge and a great guy to work with)

6. The guy who killed Trooper Robbie Smith about 14 years ago got a guideline sentence of 14 years.

7. I still do not undestand why we give such long sentences for DUI manslaughter. It is an act of negligence after all. Yes, I know someone died but, we almost never give those sentences for intentional crimes unless the jerk has lots of priors.

I'm just saying....

Anonymous said...

I agree with 11:56 Judge Marin has a common sense approach, alot of life and client experiences with good street smarts. Would like to see more Judges with this type of experience on the bench, not like some of the babies we have now.

Anonymous said...

I would have given him 10 with CTS. Then again, I would have given the same to Donte Stallworth. This kid was probably too poor to buy 30 days jail like Donte.

Anonymous said...

I disagree that Spencer was as responsible as the Defendant, and agree with Rumpole that the second DUI is profoundly disturbing. But both the Court and the SAO saw that locking up the Defendant and throwing away the key wasn't the answer in this case. I probably would have given 8 to 10 with CTS, but also remember Defendant has two more years of CC and seven years probation after prison. I think the sentence was a tad light on the incarceration part, but on the whole very fair.

Anonymous said...

No one won everyone lost. DUI manslaughter is a lose lose proposition.

Anonymous said...

The people writing on the comment section on the Herald's article don't agree with the sentence.

Rumpole said...

158 pm- 'm just sayin....-

the real problem is your statement that the next of kin always have the final say in a dui manslaughter case. And what if they wanted 30 years? That's the problem I've been trying to highlight- that the SAO bends over and kowtows to the victim's desires.

Next of Kins in these cases usually want the maximum sentence. I would want that as well if that type of horrific tragedy struck my family. The problem is that people want 30 years or more because of their emotional pain. The law is not supposed to run on emotion, but facts and law. The state usually abandons their obligation to seek justice in the face of a victim or next of kin's emotional desire for the maximum. The fact that that did not occur in this case is what I find remarkable. And the problem is that this case, with the defendant picking up a second dui is far from the poster child of what a fair dui manslaughter sentence should be.

And finally, the Donte Stallworth case didn't even enter into my thinking. I wonder how this defendant feels about the Stallwortth case.

Anonymous said...

Tony Marin is doing a heck of a job. Then again, that's usually what you get from a person who presides in a courtroom which he once roamed for several decades.

As far as this sentence is concerned, it once again shows the piss poor job the State did on the Stallworth case. just got an offer of 120 DCJ on a 2nd DUI w/in five. Maybe he should have run someone over and then gotten 60 DCJ.

Just goes to show you that the rich get richer and the poor get prison.

Anonymous said...

Out on bond after killing your friend and you get another DUI?! Ridiculous, pure asshole. At the very least, no credit for that time.

However, an interesting comment from Herald:

"Donte Stallworth got 30 days in prison and 2 years house arrest for a similar offense.
Donte Stallworth got 30 days in prison and 2 years house arrest for a similar offense."

Anonymous said...

Marin is a very decent judge. Did the right thing. The idiots in our community commenting in the herald comments section are crying FOUL and asking for the resignation of the prosecutors. Go Miami!

Anonymous said...


Responding to your 10:18 post. This is an issue where you can see the skill of the prosecutor. Just as skilled defense attorneys can convince a difficult guilty client that they need to take a certain plea despite their unreasonable insistence that it's too much time, skilled prosecutors can and should be able to convince next of kin on a just sentence. The problem arises in situations where you have an ASA who doesn't have that skill, is too dense to realize they need that skill, or where you have a systemic culture of seeking the max for no reason (Broward).

I'd suggest that many of the better ASAs in Dade do this just fine, and you never hear about it because the convincing is done behind closed doors. These ASAs never seem to have a problem convincing NOK or getting reasonable offers from higher-ups on min man/ career criminal cases. You only hear about this issue when the ASA doesn't have the skill or cajones to do what they need to do on the right cases. Similarly, weaker defense attorneys take easy guilty verdicts to trial because they lack the skills to convince their client that a plea is in their best interest.

IMHO, this whole issue, on either side of the bar, separates the real lawyers from the chumps.

Anonymous said...

Spanish lesson for 8:51 am:

Cajones = big boxes.

Cojones = balls.

Anonymous said...

The sentence is a mockery of the system. A kid drives drunk, kills someone, breaks another's neck, and then picks up ANOTHER DUI while out on bond. Guaranteed that if this was a public defender client, he would've gotten 15 years with no credit. But of course, financial status and having a private attorney named O'Donnell really "pays" off. Freakin joke. Stop praising the ASA, they always create a double standard

Anonymous said...

Forget about a public defnder client. The case screams of WHITE, WHITE, WHITE. Had that guy been Black, he would have been launched. White boys who kill while on bond with their cars have "useful lives to live." Black defendants similarly situated, but not blessed with social position or cash, have useful lives to spend in prison. After all, without Black defendants, where would the prison industry be today -- lots of unemployed North Florida C.O.s