There was a time, before legislators reacted to Hollywood movies and began enacting sentencing guidelines and minimum mandatory laws, when Judges could be Judges instead of calculators.
There was a time when Judges like Ed Cowart, Tom Scott, Tom Carney, Herb Klein, David Tobin, were trusted with deciding a sentence. They presided over a case, or listened to the facts of a plea, and based on their legal experience, sentenced a defendant.
Then a few sentences got headlines, a few movies began to show criminals being released from prison and running amok in society, and everyone over-reacted and the legislature placed most of the sentencing power in the hands of a 25-30 year old prosecutor a few years removed from law school. Judges, many of who were practicing law for as long as many of the prosectors appearing before them were alive, were regulated to moderately paid calculators - sorting through the alphabet soup of minimum mandatory sentencing laws (HVO, HO, PERP, WTF, etc) the prosecution refused to waive, totaling points, and imposing sentences without regard to the particular facts of the case.
Rare is the case where a judge has any real discretion.
Rarer is the jurist with the guts to exercise that discretion.
It's easy to sentence a defendant to the maximum prison sentence. It doesn't make headlines in the Herald. Dog bites man.
It's hard to temper justice with mercy. To ignore the bloodlust of prosecutors after a hard fought trial and sentence a defendant to what he or she deserves (in that Judge's opinion) without the fear or the Herald or the dreaded "victim". Man bites dog.
When did "victims", most of whom are not lawyers, take over sentencing?
When politicians took over criminal law.
This is not to disparage the victim of a crime.
But victims are emotionally attached to what happened to them. They mostly cannot see justice, and just want vengeance. And criminal law is supposed to be about justice and not vengeance.
But walk through any criminal court these days and you frequently hear the refrain "The victim wants the MAX" as the prosecutor's explanation as to why they cannot offer a reasonable plea that everyone but the emotionally affected victim knows is correct.
Nobody (successfully) runs for office on the slogan "fair on crime."
Enter Judge Milt Hirsch. Faced with sentencing a 76 year old lawyer with prison, he instead issued a sentence that he thought fair or just.
Judge Hirsch's sentence might be right.
Or it might be wrong.
But on this point there can be no doubt- it's the sentence of a JUDGE. Not a coward. Not a prosecution lackey who's afraid of the Herald and kowtows to victims who are understandably and rightfully upset.
Tough decisions aren't always popular. But this is why we pay Judges those mediocre salaries: to do justice in the face of cries for vengeance.
Sometimes, as Winston Spencer Churchill observed, you need to fight even though you may not win:
“If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”
Better to do justice as a Judge, then perish a slave and lackey to prosecutors and negative media.
When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
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47 comments:
The anger over this sentence says more about how we as a society have been trained to look at the system than it does Judge Hirsch. Think differently, it's OK. Just don't criticize something because you would never have the guts to do it.
excellent post
The anger over the sentence from the SAO office is that it was a blatantly illegal downward departure. It appears clear Chief Justice Hirsch was going far out of his way to help out amother lawyer. The irony is that Hirsch loves to talk about the law, but he time after time fails to follow it. If Judges are free to ignore the law then aren't all your clients free to do so also?
Milt has the eye of the tiger and you're gonna hear him roar.
Meat's just meat and it's all born dyin'
Some is tender and some is tough
Somebody's gotta mop up the A1
Somebody's gotta mop up the blood.
"The victim wants the MAX."
I remember in the darkness of my memory that I was taught that the original purpose of the criminal law was to enforce the king's peace. Therefore, the duty of the administrators of the criminal law was to do justice and prevent vengeance.
Now, there is a view that prosecutors are supposed to represent the "victim." I thought they represented all of the people of the State or United States, including the defendant.
I guess that view now is consigned to the same place as Santa Claus and the Easter Bunny; just another fairy tale.
Milt is nuts is all
Love Uncle Milty.
glad to see a positive post about Judge Hirsch. I've always found him to have more courage and reason than most of his colleagues.
To take a stab at the manner in which Judge Hirsch chooses to express himself..."Something is rotten in the state of Denmark." - Hamlet (1.4), William Shakespeare.
The problem I have with the sentence in Mr. Bailey's case is that it makes me think of the case of Knovack Jones and makes me doubt that justice was done in her case and whether justice is really blind. Why, when Guy Bailey was convicted of stealing what I believe is more than twice the amount of money as Ms. Jones from their respective trust accounts, was Ms. Jones sentenced to prison and probation (Black/Female) and Mr. Bailey was sentenced to only probation (White/Male). It leaves a very sour feeling in my stomach that perhaps race played into the harsher sentence..., or the more lenient one.
Well done Sir. This one goes in the Blog Hall of Fame for sure. And thanks to the good judge for having the courage and veracity to write that opinion. Let us hope the 3rd doesn't cower.
Part 1
Justice or vengeance? That is a false choice. Guy Bailey is one of the worst kinds of criminals: Bailey stole $700,000 from clients to whom he owed a special duty, a fiduciary duty.
It is long established that the relationship between an attorney and his client is one of the most important, as well as the most sacred, known to the law. The responsibility of an attorney to place his client’s interest ahead of his own in dealings with matters upon which the attorney is employed is at the foundation of our legal system. Deal v. Migoski, 122 So. 2d 415.
It is a fiduciary relationship involving the highest degree of truth and confidence, and an attorney is under a duty, at all times, to represent his client and handle his client’s affairs with the utmost degree of honesty, forthrightness, loyalty, and fidelity. Gerlach v. Donnelly, 98 So. 2d 493.
Bailey’s crime and punishment go to the core of a self-regulated legal profession, which does not work.
Article V, Section 15 of the Constitution of the State of Florida gives the Supreme Court of Florida exclusive authority to regulate the admission of persons to the practice of law and the discipline of those persons who are admitted to practice. The Court performs those official functions through two separate arms: the Florida Board of Bar Examiners, which screens, tests and certifies candidates for admission to the practice; and The Florida Bar, the investigative and prosecutorial authority in the lawyer regulatory process. Prior to adoption of Florida’s current version of Article V, the Supreme Court created our state’s unified bar by its own action, in the case of Petition of Florida State Bar Ass'n, 40 So.2d 902 (Fla. 1949). The Supreme Court further specifies the powers and duties of the Bar through its Rules Regulating The Florida Bar, which superseded the Integration Rule in 1986 that had previously contained such guidance - see In Re Rules Regulating The Florida Bar, 494 So.2d 977 (Fla.1986)
Judge Milton Hirsch’s order is a testament to Florida’s two-tier injustice system, where insiders like Bailey walk free with probation for a crime that ordinary people may loose their liberty for many years. Judge Hirsch’s order is missing, inter alia, a money judgment against Guy Bailey at the statutory interest rate established by section 55.03, Florida Statutes. A money judgment would allow Murray and Seth Levrant right to proceed in aid of execution. While Judge Hirsch ordered restitution, that is unlikely to provide $700,000 to the crime victims. Instead, survivors of attorney fraud who are entitled to restitution may have an "insurable interest" in the crooked lawyer until restitution is made in full, and might purchase and own an insurance policy equal to the amount of their insurable interest until the convicted lawyer made restitution, and would be the beneficiaries of the policy proceeds upon the insured's death.
Part 2
Still, that is too much legal wrangling for Murray and Seth Levrant to endure, given the uncertainly of legal actions. The Constitution of the State of Florida gives the Supreme Court of Florida exclusive authority to regulate the admission of persons to the practice of law and the discipline of those persons who are admitted to practice. Therefore, Judge Hirsch’s order should include a money judgment against Guy Bailey and the Supreme Court of Florida, by and through The Florida Bar, at the statutory interest rate established by section 55.03, Florida Statutes. As for Mr. Bailey’s liberty question, he should be ordered to report to the nearest veterans hospital for community service as an orderly. If Bailey is deemed medically unfit for community service, Bailey can sit bedside and lend comfort to dying veterans. Bailey’s community service should be for the equivalent hours needed to repay $700,000 at the minimum wage in Florida. Okay Mr. Harkness, Executive Director of The Florida Bar, time to write a Bar check payable to Murray and Seth Levrant in the amount of $700,000 plus interest. And shame on Judge Hirsch for his lack of imagination in sentencing a financial terrorist like Guy Bailey.
As Lauri Waldman Ross pointed out, this lawyer committed this crime over and over and over again. Should he have received jail time, probably.
Having said that, your article makes me wonder whether you have ever been a victim of a violent crime. I have and I wonder why "mercy" should be so cavalierly mentioned so often.
Rottenberg will get him good ...
Yes, it's true. Judge Hirsch has courage and he is to be admired for it. However, it is his judgment that must seriously be questioned. Sparing a dishonest well-connected attorney, who should have known better, feeds the common perception that lawyers, and those who know the right people, receive a different brand of justice than the average Joe. And that is simply not good.
I've known Milt for years and think he is a good judge. Definitely one of the smarter on the bench. I applaud him for making this decision and its one that I would have welcomed if it were my client.
The one thing that is left out of the order is that while the defendant owes 700k to the victims and the need for restitution outweighs the need for incarceration, there is no mention of how, when or if this defendant will ever pay anything back.
The Miami SAO is very reasonable in cases like this and if the defendant had made any attempt to pay back the victims or even had the capability to do so, they would have worked out a deal.
Instead, it looks like the defendant, who was not so old and infirm as to actually steal the money, just rolled the dice at trial, lost and then claimed he was too old to go to prison. Then basically stated that if you do throw me in jail, I cant pay the victims back- but probably wont pay back the victims anyway.
So this was basically a civil trial handled at the criminal courthouse.
Wouldn't surprise me if the 3rd reversed this.
Reprinted, From Friday, July 18, with Permission from The Captain.
THE CAPTAIN REPORTS:
MILT DOES IT AGAIN; nine page Order quotes Shakespeare, Plato, and Oliver Wendell Holmes .....
Here is what you need to know:
The Defendant, Guy Bailey, is 75 years old. He is an attorney; or should I say WAS an attorney before this mess. He was convicted of First Degree Grand Theft after a jury trial. He scores State Prison. The State asked for State Prison. The Defense filed a Motion for Downward Departure.
Judge Hirsch, decided to write a nine page sentencing Order that quotes from the like of:
Shakespeare, Plato, and Oliver Wendell Holmes; just to name a few.
WORD OF THE DAY GUYS:
Get to work and define the following words, all used in the Order:
Malapropism
Deontological
Tautology
Septuagenarian
Sedulously
Penological
Infracted*
Peculated*
*As suggested by a loyal reader
In all seriousness, it is an Order worth your time to read. Not for the big words, or the quotes from famous dead persons, but for the proposition that prison is not always the proper sentence. And Judge Hirsch advances that argument in his well written Order.
Have a great weekend and stay out of the direct sun, lest you end up like some of those that are quoted from in the Order.
Here is David OValle's article and his link to the Order.
http://www.miamiherald.com/2014/07/18/4242736/miami-lawyer-convicted-of-looting.html
Cap Out .....
Captain4Justice@gmail.com
Friday, July 18, 2014 4:52:00 PM
Captain, do any of our local 11th Circuit JNC members have Criminal law experience?
Monday, July 21, 2014 6:32:00 PM
THE CAPTAIN REPORTS:
The short answer is YES. Two of the nine members of the 11th Circuit's JNC are employees of the SAO.
The nine members are:
Ms. Christine Hernandez-Baldwin, Chair (2015)
Miami Dade State Attorney's Office
Mr. Daniel Scott Fridman, Vice Chair (2015)
Holland & Knight, LLP
Ms. Johnette Hardiman * (2015)
Office of the State Attorney
Ms. Melanie E. Damian, (2016)
Damian Valori
Mr. Paul C. Huck, Jr. (2016)
Hunton & Williams, LLP
Mr. Daniel W. Schwartz (2016)
Akerman Senterfitt
Mr. Robert H. Fernandez (2018)
Robert H. Fernandez, PA
Mr. Hans Ottinot, Sr.* (2018)
City of Sunny Isles Beach
Mr. Luis Eduardo Suarez, * (2018)
Boies Schiller & Flexner, LLP
Cap Out .....
Attorney, Lauri Waldman Ross, who happens to be one of the best darn appellate attorneys we have here in South Florida, commented on our criminal blog about the Guy Bailey sentence. She was one of the attorneys involved with previous litigation against Mr. Bailey.
The comment is reprinted below. You really need to ask yourselves whether the SAO even brought this past history to Judge Hirsch's attention. It appears that Mr. Bailey already had two strikes against him, (read the two cases), and this was strike three.
First, he took money from his trust account, that did not belong to him. Then, in a punitive damages trial, he lied, under oath, to the jury about whether the Bar was investigating his conduct on the taking of the money.
In the current case, what he did in stealing $700,000 from these "victims" who were already victims in a civil action, was despicable. He's now been disbarred. How is he ever realistically going to be able to pay them back any of the money? Maybe he did need to spend a few months behind bars. Our sentencing statute is very clear: "the primary purpose of sentencing is to punish the offender".
Anonymous Lauri Waldman Ross said...
Guy Bailey's past history dealing with client trust funds is a matter of public record. See Kenet v. Bailey, 679 So.2d 348(Fla.3d DCA 1996). For his "remorse," see Kenet v. Bailey, Hunt, Jones & Busto, 785 So.2d 515 (Fla.3d DCA 2000).Explain this. And yes, I'm signing my name.
Kenet v. Bailey, 679 So.2d 348(Fla.3d DCA 1996)
http://scholar.google.com/scholar_case?case=7678451399393544415
&q=Kenet+v.+Bailey&hl=en&as_sdt=4,10
Kenet v. Bailey, Hunt, Jones & Busto, 785 So.2d 515 (Fla.3d DCA 2000)
http://scholar.google.com/scholar_case?case=10990371026190319991&q
=Kenet+v.+Bailey&hl=en&as_sdt=4,10
Saturday, July 19, 2014 7:42:00 PM
Mr Gilespie- while I respect your comments, it is phrases like "two tiered " Justice system and "insider" that put us in the mess we are in with the legislature taking away power from judges. I represent many lawyers and others on the "inside" who get into trouble and they are treated more harshly if anything because of their status. Just look at Judge Cohn taking a former police lieutenant into custody yesterday instead of allowing him to surrender.
I view this sentence as a product mostly of Bailey's age more than anything. I don't think any lawyer out there looks at this case and feels that they can now steal trust funds and not worry about going to prison.
I don't know Rump. In Federal court, they almost always take them into custody.
And your example, the Lt. David Benjamin case, where he got five years, the max, his act of ordering an officer to arrest someone when they had committed no wrong, was a horrible act.
A citizen was illegally stopped, searched, arrested, booked, fingerprinted, strip searched, and held in jail for 18 hours, all on a bogus case. All because Scott Rothstein was willing to pay Benjamin lots of money to get that lady arrested so her ex could have a better chance at getting custody of the children in a divorce proceeding.
I personally know Jeff Poole. I represented his family in another personal matter. He is the 20 year veteran who was fired, will likely lose his pension, and on Thursday, will likely go to prison, as he was the officer, who followed orders from Benjamin and actually effectuated the arrest.
I feel bad for Jeff, but the whole idea of what those two did just stinks,. Badly.
First of all, lots of defendants who are out are allowed to self surrender. Secondly, you are making my point- "Insiders" got severe sentences, which belies the comment from the gentleman who said the Bailey case is an illustration of the two tiered justice system.
Right now every time a judge slams someone, no one cares outside of the family. But the one case out of tens of thousands where a judge exercises his or her discretion gets media attention and cries of "insider justice" and the system is broken and treats rich insiders different from poor outsiders. We have reached the point where we- the lawyers who work in the system must work to stop this kind of misinformation from spreading.
Seth and Murray? Weren't they the owners of the crooked land sale company in Glengarry Glenross?
I have to agree with Neil Gillespie andthe secret judge and others who think Bailey should have received prison time. I could care less about his health. If he dies in prison then so be it, it was his conduct that caused him to be incarcerated.
I was not at the sentencing hearing but according to the news accounts the victims would have been satified with a bottom the guidlelines sentence. For this dirtbag to steal this much money and essentially get by with is a disgrace to the entire criminal justice system. The system is diminished because of this garbage sentence. The public hates lawyers and this is a prime example as to why they have no faith in the legal system.
Two points. 1- but the public doesnt see the thousands of people- including lawyers- who are slammed at sentencing. And they need to so as to understand this sentence is An outlier.
2- the discussion to me is less about whether Hirsch was right or wrong. This is about a judge having the courage to follow his convictions based on the case. I want judges and not prosecutors making sentencing decisions.
LOL. Right. The only courageous judges are those who issue lenient sentences.
The reality is that, with few exceptions, Miami's judiciary bends over backwards to appease the defense bar and we all know it. If so many judges hadn't been so ridiculously lenient, we wouldn't have guidelines.
I respect Milt's intelligence and admire his desire to do what he thinks his right. However, I do not respect his willingness to flout the law when he disagrees with it. This sentence will be reversed.
Further, I can't imagine anyone thinking this sentence is appropriate. Bailey knew what he was doing, knew it was illegal, knew he was hurting others, and just didn't care. He took a calculated gamble that he'd get away with it and, thanks to Milt, he did. There's nothing good about that.
There's also nothing good about the fact that the Legislature learns about opinions like this and imposes more minimums, raises the bottom of the guidelines, etc. I hope that doesn't happen here.
Milt's sentence is nothing to celebrate.
BTDT
Should he have gone to jail? Probably. Should a 70 year old be sentenced to serve the last years of his life in jail for a nonviolent crime? Probably not.
It's a wash. One big MEH.
However, Rumpole is right. The hysterical masses can do a lot of damage and we, as insiders, don't need to be adding fuel to the fire.
Disbarred attorney Roger Besu stole millions from his trust account and never did a day behind bars. What's the big deal here?
BTDT- not true. Look at DOM's blog. I was the first to comment today on Judge Cohn's sentence of the Broward LT who falsely arrested a woman to help her husband in a divorce case. Cohn slammed him with the max five years and had him taken immediately into custody. I think that was a courageous thing to do to a popular BSO cop with lots of supporters in the courtroom.
But generally speaking , its easier for a judge to appease the public, victims and prosecutors by issuing a tough jail sentence than not. So more often than not, the courage comes from not sending someone to jail. But not always.
Rump, I agree with you on most things, but not on this.
Your argument may have been true decades ago when we started, but not anymore (it remains true in many other jurisdictions north and west of the border). We all know plenty of judges who regularly dump cases with impunity. In fact, I'd venture to say that most of Miami-Dade's bench is more sympathetic to the defense.
And, it's a sad day when anyone think it's courageous (or a "slamming") for a judge to max a cop who knowingly arrests someone without cause, particularly when the max is five years. Any officer who intentionally throws someone in jail as a favor deserves a hell of a lot more than that.
BTDT
There once was a judge named Hirsch.
Whose decisions could not have been worse.
With written words he did not fail
But his actions were taken with too much zeal
And all his opinions were reversed on appeal.
Please don't celebrate this Rump. At best, this is cowardice to sentence an older well connected lawyer to jail (or prison time). At worst this is cronyism.
If my client, living in Miami Gardens and working as a janitor, took even 1/7 of the amount involved, milt would have sentenced to some incarceration unless there was proof of restitution. The only reason this guy got a break was because of who he is, what he has done, and his connections (maybe because of race too).
This happened not because of Milts courage, but because of his lack of courage, and an inability to sentence a well connected colleague on his third strike for stealing money from his clients when justice dictated it was necessary UNLESS restitution was possible (which it clearly is not). Baily, and the cronyism seen in this sentencing order, are the exact reasons people have no faith in the justice system.
Oh my, people are upset because a old man convicted of a non-violent offence DID Not go to prison.
Blog Poet, maybe learn the rhyming scheme for limericks before you call yourself Blog Poet?
Is Guy Bailey just another sleazy lawyer? Is Judge Milton H nuts, an iconoclast or merely an intellectual provacateur. The bottom line is that attorney trust funds should be abolished, a neutral third party should hold funds in escrow, to be released only upon a court order. When I was a kid there was a public service announcement that said " Don't make a good boy go bad. Don't leave your keys in the car."
Same thing for lawyers, best not tempt a good lawyer to go bad when they "borrow" against the trust fund for just a few days. Eliminate "Trust Accounts". As Kendall Coffey once said, tongue in cheek, " Its the 99% of lawyers that make the other 1% look bad.
9:46 hit the nail on the head. The sentence is a joke. Guy Bailey is scum and this was not the first and only time he stole from somebody. He wont make any restitution and who gives a rat ass if he performs any community service. If this scumbag wanted to our community a service he would move to Alaska or commit suicide.
Are you kidding me by defending this travesty of justice? Wake up. Guy Bailey desrves to be behind bars. Hirsch suffers from classic narcissistic personality disorder.He
does things like this for the attention and to flaunt "his holier than thou" attitude he likes to wield like a banner. I don't care how smart he is. He's a dispicable human being in my book and does not belong in any position of power.
Really? He's a despicable human being for not putting an old man in jail? As Ayn Rand would say- define your terms. What does dispicable mean in this context ?
I would say he has compassion.
Now watch all the people say "what about compassion for the victims?"
To which I reply- jail wouldn't help the victims in this case one bit. Restitution would.
Rump, you're argument re restitution makes no sense. Do you think Bailey is going to go out and get a job at this point? Either he has the money to pay restitution now or he doesn't. Jail won't change that.
Milt's sentence is meaningless to this guy. It's not all about dangerousness; punishment has its place.
Also, please explain to me why cops and prosecutors should be held to a higher standard, but not attorneys? Don't you think that attorney misconduct (such as we see here) undermines the system in a similar way?
Finally, it amazes me that so many are hung up on the "non-violent" nature of the crime. People said that same crap about Madoff and Rothstein. You think that matters to their victims? You think the victims are any less traumatized or their lives any less impacted? These jerks have destroyed people's lives. In fact, I'd say they deserve incarceration more than many of the other folks who routinely receive lengthy sentences.
BTDT
PS---the fact the other scumbag lawyers got away with the same thing and that people like Bailey continue to rip people off only underscores the need for judges to start taking this stuff much more seriously.
9:51:00 AM is Milton Hirsch.
"a neutral third party should hold funds in escrow, to be released only upon a court order." Great idea Seth.
"Sorry client, I know you want to move on that property today, but I can't get a court order til next Thursday, judge is on vacation."
So ultimately it still comes down to if you are white, have money and/or are connected, you get leniency??? Looks like it.
Even my 7 year-old daughter knows how to spell "despicable" right.
THE CAPTAIN REPORTS:
BREAKING NEWS .....
from the DBR
Broward Circuit Judge Lynn Rosenthal pleads no contest to reckless driving after an arrest in May.
A collision in May between the judge's car and a parked Broward sheriff's patrol vehicle led to the arrest of Broward Circuit Judge Lynn Rosenthal in front of the main Fort Lauderdale courthouse.
A Broward sheriff's report said it appeared Rosenthal was under the influence of a sleep medication.
Judge Rosenthal is up for election in August of this year. She is opposed by attorney Jahra Lawrence.
Cap Out ....
Captain4Justice@gmail.com
Cap Out .....
Whether we agree or not the sentencing guidelines and purposes for punishment in Florida is more retributive than utilitarian. Punishment is the order of the day.
Do we now have the "elderly exception" to our criminal punishment scheme. Why not the "I have small kids exception" or the "I have high blood pressure exception" or an exception for every illness or distress you can think of?
There is an old man (72) in Tampa who shot someone in a movie theater. He has high blood pressure, high cholesterol, arthritis and host of common ailments to senior citizens. Let's just say he is convicted of manslaughter instead of murder, should we waive the minimum mandatory sentence in showing compassion for him.
I think you receive the compassion you show for others. Bailey showed no compassion for those he defrauded. Quite the opposite. He stole money intended for their benefit and used it for his benefit without concern for them. Punishment was the order of the day.
Hirsch wrote the sentencing order to inflate his ego. He is the center of attention again. lol
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