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How the Drug War Disappeared the Jury Trial

law-gavel-book

The criminal jury trial is a vital check against prosecutorial excesses, police misconduct, and arbitrary state power. But over the last three decades, criminal justice policy has transferred enormous amounts of power to prosecutors and away from juries and judges. Judges once had wide discretion in weighing the facts and circumstances of each case prior to sentencing. Mandatory sentencing laws give control of sentencing proceedings to prosecutors instead, leading one federal judge to describe the process of sentencing someone to years in prison as having “all the solemnity of a driver’s license renewal and [taking] a small fraction of the time.”

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works.

Prior to 1980, the percentage of cases resolved by guilty pleas was anything but consistent. But since then the trend has risen sharply from seventy-seven percent to, according to a recent Supreme Court case opinion, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”

By passing laws with fixed-minimum sentences for almost all crimes, legislatures, beginning largely in the 1980′s, removed discretion over offender sentencing from judges and handed prosecutors the power to determine which sentence a defendant will receive.Judges have no power to override the mandatory prison terms these laws carry, regardless of the individual circumstances of each case. This is especially troubling because of the overly punitive penalties these laws carry. Even worse, when a case does goes to trial, the jury doesn’t even know how much time a defendant faces.

The prosecutor alone chooses whether to charge the accused, which charges to file, whether to drop charges, and whether or not a plea on lesser charges will be offered, outside of any judicial oversight. These unilateral discretionary decisions “often predetermine the outcome of a case since the sentencing judge has little, if any, discretion in determining the length, nature, and severity of the sentence.” This results in radically different sentencing outcomes between the sentence a defendant receives who loses at trial compared to one who pleads guilty.

These enormously different outcomes effectively coerce criminal defendants into pleading guilty. Mandatory minimum sentencing laws give prosecutors the leverage and superior bargaining position needed to coax accused citizens, many of whom are completely innocent, into surrendering a fundamental right for a perceived benefit – a significantly lesser sentence for forgoing a jury trial and pleading guilty.

Well before the Declaration of Independence and the Constitution were even an idea, the jury trial was held as an inherent right – representing a great protection against government oppression and tyranny. And in the 1968 case of Duncan v. Louisiana, the Supreme Court affirmed and made clear that the Sixth Amendment right to a jury trial is absolutely fundamental to the bedrock principles of liberty and justice, stating that the jury is “an inestimable safeguard against the corrupt or overzealous prosecutor . . . .”

So what does it say about the current state of American criminal justice where those who exercise this fundamental right are actively punished for doing so, while others are coerced from exercising it altogether?

With an out-of-control prison population and burgeoning criminal codes full of laws that punish a host of non-violent consensual behavior, it’s far past time to end the one-size-fits-all mandatory minimum sentencing laws the 1980′s drug war fervor brought us. Doing so will allow the role of the criminal jury trial to at least be restored to a modicum of its intended status – a check on the largely unconstrained and arbitrary police power of the state. A truly free society requires it.  As 19th century American intellectual Lysander Spooner so aptly wrote back in 1852, “if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.”​

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About Brad Schlesinger
Brad R. Schlesinger, Esq. is a Young Voices Advocate and criminal defense attorney, criminal justice and drug policy analyst, and Florida Spokesman for Americans for Forfeiture Reform. Brad holds a Juris Doctor from St. Thomas University School of Law and a Bachelor’s of Science in Criminal Justice from Florida International University. He previously worked as a legal analyst at the Criminal Justice Policy Foundation.

Comments

  1. CB says:

    Just stop thinking about it and have some more freedom fries. Your head won’t hurt as much.

    Great first post, though.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 1

  2. Gustopher says:

    Juries themselves have been neutered to remove their power to act as a check on unjust outcomes.

    The restrictions placed on defendants and juries — defendant’s attorneys are not allowed to bring up jury nullification, and juries are not informed of mandatory minimum sentences — ensures that the jury is only considering questions of legality, rather than justice.

    It’s disgusting.

    Also, this guy would have been better off shooting a person rather than the ground. Except for the whole shooting one’s friends grandson part of it.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 0

  3. Franklin says:

    I’m not much of a fan of mandatory sentences. It’s the same crap as zero-tolerance policies at school. Surely there are people left who still have the facility to consider each unique situation independently.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 0

  4. HarvardLaw92 says:

    I don’t necessarily have a problem with the revocation of mandatory minimums, but nobody has ever been forced to accept a plea arrangement and waive their right to a trial by jury. The defendant has to agree to the plea, and typically gets a shorter sentence than he/she would otherwise have received.

    Speaking for myself, I only offered such deals when I knew my case had the defendant screwed to the floorboards. Otherwise, I took them to trial.

    Poorly-rated. Helpful or Unhelpful: Thumb up 4 Thumb down 29

  5. HarvardLaw92 says:

    I’d also say that this piece reads with a great deal of bias. Thompson was offered a three year plea arrangement, and chose instead to refuse the offer and subject himself to a jury trial in full knowledge (via his attorney) of what Florida’s admittedly draconian statute mandated were he to be convicted.

    Whether the jury knew or not about the statute, Thompson certainly did, and chose to put himself in jeopardy by refusing the deal. You chose your example case very poorly.

    Poorly-rated. Helpful or Unhelpful: Thumb up 5 Thumb down 37

  6. rudderpedals says:

    True discretion in criminal sentencing is a lost cause. Maybe it had to be that way once the customary judicial discretion in sentencing matters was overcome by dual opposition from the other two branches. Why it’s better to sentence based on a worksheet as compared to evaluation of the evidence I am not sure, but it must hold political delight or we’d not be here.

    Full-frontal assaults against other protective elements of the system date back to the early 80s (at least). The hollowing out of the Legal Services Corp took place at the same time as the courts, with the help of legislatures nationwide, effectively narrowed many remedies to the few with the means to litigate.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. c.red says:

    Good post and I agree with the general conclusion of the article, but some thought needs to be put into where minimum sentences came from in the first place. Was it because judges and juries were showing leniency to criminals that could produce a compelling sob story or prejudicial/preferential treatment based on race and/or wealth? Was it to make the judiciary more efficient? Pure fascism? Some Combination of all of the above? Seems you can’t address prosecutorial abuse until you figure out why it was allowed to come into being.

    Like or Dislike: Thumb up 11 Thumb down 0

  8. Tony W says:

    @c.red: My take is that they came from the same place all right-wing attacks on the “Other” come from – people feeling small and wanting to make themselves feel big by putting somebody else down.

    It’s a pretty easy vote to come down hard on criminals. After all they’re asking for it – right? All they have to do is obey the law, right? Fixing the social constructs that cause somebody to see crime as their only avenue to success is so much more work, and doesn’t really fit on a bumper sticker.

    Like or Dislike: Thumb up 7 Thumb down 8

  9. HarvardLaw92 says:

    @c.red:

    They come from the same place that all laws come from – the legislatures. Back in the drug hysteria of the 1980s, many states passed such laws in an attempt to address burgeoning crime. The thought was that the threat of mandatory long sentences would serve as more of a deterrent (and they had, as always, the added effect of allowing legislators to position themselves as being “tough on crime”.)

    Prosecutors, for a variety of reasons including a sense of distaste at the mandatory sentences and a desire to offload cases from what are always overloaded and jammed up schedules, offer plea deals which effectively skirt around these mandatory minimums.

    Speaking as a former AUSA, don’t blame the mess on us and call it prosecutorial abuse. Blame it on, and accuse, the nimrods who passed these laws in the first place.

    Like or Dislike: Thumb up 12 Thumb down 3

  10. HarvardLaw92 says:

    Referring to Fla. Stat. § 775.087(2)(a)(1):

    during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense

    It would appear that Thompson’s mistake was unnecessarily firing the weapon into the ground, rather than brandishing it first as an attempt at nullifying the perceived threat.

    He went to trial because he believed that he would be exonerated, and he did so (unless his attorney was completely incompetent, which doesn’t seem to be the case) in the knowledge that the choice exposed him to the potential penalty.

    Also, why were Fla. Stat. § 776.012 and Fla. Stat. § 776.013 not applicable? Did Thompson’s attorney attempt to raise them as an affirmative defense? If not, why not?

    Again, it was probably a poor choice of an example case.

    Like or Dislike: Thumb up 3 Thumb down 2

  11. PD Shaw says:

    I think its unhelpful misdirection to frame this issue as one of a deprivation of the right to a jury trial, particularly as a similar percentage of non-civil trials also settle without going to trial. Going back further, to Lincoln’s time, 86.5% of slander cases filed in his home county were resolved without a jury. IOW, even in private litigation, settlement and compromise has long been seen as advantageous.

    The issue is that the Florida legislature has tough gun laws that the Defendant admitted he violated, but felt justified.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. Grewgills says:

    @HarvardLaw92:

    Speaking as a former AUSA, don’t blame the mess on us and call it prosecutorial abuse. Blame it on, and accuse, the nimrods who passed these laws in the first place.

    There is a healthy dose of both. The laws themselves are mostly counterproductive if the desired outcome is justice, rather than simply longer prison sentences, and prosecutors use them to intimidate the ignorant and poor into unjust outcomes. That is not to say that is what you did, but that it is an all too common practice.

    Like or Dislike: Thumb up 14 Thumb down 0

  13. PD Shaw says:

    Some of the facts in Thompson’s case are disputed. Here is the Florida Appellate Court summary:

    Thompson turned down two- and three-year plea offers and elected to go to trial. At trial, the victim testified that after a verbal altercation, Thompson left the room that the victim occupied and returned with a firearm. Thompson then approached her, extended his arm toward her, and discharged the firearm. The victim testified that once she saw the gun, she was put in fear. The bullet shattered a computer screen located on a table next to the victim, causing her cuts and abrasions. Based on the incident, Thompson was charged with, and found guilty of, aggravated assault with the discharge of a firearm.

    Thompson didn’t accept the plea partly because he was afraid his health condition meant that he wouldn’t survive any jail time.

    Like or Dislike: Thumb up 7 Thumb down 0

  14. HarvardLaw92 says:

    @Grewgills:

    and prosecutors use them to intimidate the ignorant and poor into unjust outcomes.

    Some may, sure. Most, at least the ones that I know anyway, are more interested in clearing cases off of their calendars. The thought is that justice is served and the state is spared the expense of a trial.

    I dealt almost entirely with complex frauds while at the Southern District of NY, so I was rarely in the mood to offer any sort of plea arrangement. Neither was my boss.

    Like or Dislike: Thumb up 2 Thumb down 2

  15. OzarkHillbilly says:

    Welcome aboard Brad.

    A friend of mine was a Public Defender in the East St Louis Federal court district. She got so frustrated she quit. The one story she told me that stuck with me was of a client who had just gotten out of prison for his 2nd offense. He was sharing a joint with a prostitute after sex when federal marshals kicked down his door. Yep, that’s right. Distributing a controlled substance.

    3rd strike, he was out. Or to be more accurate, In.

    Like or Dislike: Thumb up 7 Thumb down 0

  16. OzarkHillbilly says:

    Actually, there was another story Miss A told me that stuck with me… She briefly had a client assigned to her who had a rap sheet as long as her arm and even more mob connections. IIRC, he was arrested on a weapons charge and she got it thrown out because the cops were stupid and the prosecutor way over reached.

    I am still very careful around Miss A. As payment, he told her anytime, anywhere, anyone, he would take care of them.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Greg Newburn says:

    @PD Shaw: That’s the wrong Ronald Thompson. (Yes, there are two with very similar cases. It confused me at first, too.)

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Greg Newburn says:

    @HarvardLaw92: How is a defendant’s “full knowledge” of the mandatory minimum somehow evidence that the trial penalty isn’t really a penalty? If a defendant truly believes he’s not guilty of a crime, what is he supposed to do? Lie and say he is guilty? The fact is, Thompson and others like him genuinely believed they’d committed no crime, and exercised their constitutional right to trial. As a result, each received significantly longer sentences than if they’d accepted plea deals. (Lee Wollard turned down five years’ *probation* and got 20 years.) Any way you slice it, that’s a penalty for exercising constitutional rights.

    Like or Dislike: Thumb up 10 Thumb down 0

  19. Greg Newburn says:

    @HarvardLaw92: “No one’s ever been forced to hand over his wallet. The victim has to agree and usually avoids being shot and killed.”

    Like or Dislike: Thumb up 10 Thumb down 0

  20. Greg Newburn says:

    @HarvardLaw92: No doubt firing the weapon caused the mandatory minimum to jump from three to 20 years, but as you noted simply brandishing is aggravated assault and gets him three years mandatory minimum.* (See this case for one such example: http://famm.org/why-florida-needs-the-threatened-use-of-force-act/.)

    *(Hopefully not for long! http://www.foxnews.com/politics/2014/01/09/florida-moves-ahead-with-bill-legalizing-warning-shots/)

    Like or Dislike: Thumb up 2 Thumb down 0

  21. HarvardLaw92 says:

    @Greg Newburn:

    The fact is, Thompson and others like him genuinely believed they’d committed no crime, and exercised their constitutional right to trial.

    And I agree. They made the choice to accept the penalty that they had been made aware of in the event that they were found guilty.

    I’m just failing to see how the responsibility for that outcome devolves to anyone but them. The prosecutor in this case bent over backwards, with two separate plea offers carrying a fraction of the potential maximum penalty. She can’t force the defendant to accept the offer.

    In this case, Thompson had the benefit of competent counsel, and the guy chose to roll the dice on a jury trial and lost rather than accept a reduced sentence on a plea deal. He made his own bed.

    In any event, this case has already been resolved. The guy had his original conviction set aside, was offered a new plea deal with credit for time served rather than go through a second trial, and he accepted it. It’s done.

    Like or Dislike: Thumb up 3 Thumb down 5

  22. HarvardLaw92 says:

    @Greg Newburn:

    but as you noted simply brandishing is aggravated assault and gets him three years mandatory minimum.*

    Not necessarily, not in the wake of Fla. Stat. § 776.012 and Fla. Stat. § 776.013. I haven’t read the transcript of this particular trial, and I’m not admitted in Florida, but I see no reason why that affirmative defense wouldn’t have been applicable here. I have no idea if his counsel attempted to raise the issue at trial.

    Like or Dislike: Thumb up 3 Thumb down 1

  23. HarvardLaw92 says:

    And I’m not sure if the OP is associated with your group Greg, although I suspect that he is, but this article amounts to pressing an agenda as opposed to presenting a topic for discussion.

    You showing up to chime in and press it further just exacerbates that sense of bias. It’s an off-handed commercial for FAMM.

    Like or Dislike: Thumb up 2 Thumb down 3

  24. PogueMahone says:

    @HarvardLaw92:
    It would appear that Thompson’s mistake was unnecessarily firing the weapon into the ground, rather than brandishing it first as an attempt at nullifying the perceived threat.

    Don’t you mean that Thompson’s mistake was that he failed to go back inside to his computer, look up the statute, determine the elements – including voluntary act, actus reus, mens rea, actual or proximate harm – and then go about a best course of action for a reasonable person in the same or similar situation???

    I don’t necessarily have a problem with the revocation of mandatory minimums, but nobody has ever been forced to accept a plea arrangement and waive their right to a trial by jury. The defendant has to agree to the plea, and typically gets a shorter sentence than he/she would otherwise have received.

    Speaking for myself, I only offered such deals when I knew my case had the defendant screwed to the floorboards. Otherwise, I took them to trial.

    Is that what it is all about? Screwing one to the floorboard? Isn’t there something called prosecutorial discretion? Or is it all about winning the game?

    I don’t have a problem with you blaming the legislature, but I do have a problem with “I was just following orders.”

    Cheers.

    Like or Dislike: Thumb up 7 Thumb down 0

  25. HarvardLaw92 says:

    @PogueMahone:

    Is that what it is all about? Screwing one to the floorboard? Isn’t there something called prosecutorial discretion? Or is it all about winning the game?

    My job as a prosecutor was to represent the interests of my client – the state – and when my client has a case, I’ll pursue it vigorously to the best of my ability. If I offered a deal at all, it was solely because that deal was in my client’s best interest. Since they rarely were, given the area of criminal law that I worked in, I rarely offered them. Other prosecutors make that decision based on their own situations.

    Representing the defendant’s interests is between him and his attorney. I don’t represent him.

    Like or Dislike: Thumb up 2 Thumb down 6

  26. HarvardLaw92 says:

    Don’t you mean that Thompson’s mistake was that he failed to go back inside to his computer, look up the statute, determine the elements – including voluntary act, actus reus, mens rea, actual or proximate harm – and then go about a best course of action for a reasonable person in the same or similar situation???

    Ignorance of the law is no defense, sorry, but I would hope that someone in possession of both a firearm and a concealed carry permit would educate himself on where, when and how he is permitted to use it. He evidently failed to do so.

    Statutes are publicly available. He had access to them. If he didn’t understand them, there are hundreds of attorneys in the phone book ready and willing to explain them to him. I’m sure the state police would have explained it to him had he called them.

    Did he screw up? Sure. Was that unfortunate? Sure. Was it avoidable? Yes, and that’s the bottom line. He made choices, both in the act itself and in the conduct of his defense. Those choices have consequences.

    Like or Dislike: Thumb up 3 Thumb down 4

  27. PogueMahone says:

    One question, Harvard, is offering a plea deal all about what is in the best interest of your client, or is it about prosecutorial efficiency?

    I realize that they are not mutually exclusive… but if you had to pick one, what would it be?

    (I rarely have the opportunity to chat with a former prosecutor on such friendly terms, so I appreciate your response)

    Cheers.

    p.s.
    I know that ignorance is not an excuse, but you will surely concede that given the amount of statutes, and the difficulty of interpretation (even the most learned judges and prosecutors cannot agree upon) coupled with legislative intent, what is an average person merely wanting to control a situation (however flawed) supposed to do? I mean, is everyone supposed to have an attorney on standby? Is everyone supposed to know every element of every possible crime?

    Thanks.

    Like or Dislike: Thumb up 3 Thumb down 0

  28. HarvardLaw92 says:

    I realize that they are not mutually exclusive… but if you had to pick one, what would it be?

    For me personally, the best interests of my client. I can’t speak for the motivations of other prosecutors. Some do it to clear out hopelessly jammed up dockets. Others see it the way that i did. Every prosecutor is different, but again, none of us work for the defense.

    what is an average person merely wanting to control a situation (however flawed) supposed to do?

    The average person choosing to carry a firearm should educate themselves about the responsibilities, and potential legal pitfalls, of doing so. A person who chooses to seek out a concealed carry permit? Even more so. It’s no different than the way that someone driving a car needs to know what he/she is permitted to do and, more importantly, what is proscribed.

    If there is confusion, seek out the advice of a competent attorney. They fill the yellow pages because they want you to ask their advice. Call the police and ask them what is permissible and what isn’t. They don’t want to deal with the outcome of you making a bad decision either, so they’ll be forthcoming. The resources are there, but one has to choose to seek them out.

    If one chooses not to do so, then one accepts the consequences of getting it wrong.

    Like or Dislike: Thumb up 3 Thumb down 1

  29. Rafer Janders says:

    @HarvardLaw92:

    My job as a prosecutor was to represent the interests of my client – the state – and when my client has a case, I’ll pursue it vigorously to the best of my ability….Representing the defendant’s interests is between him and his attorney. I don’t represent him.

    Well, no. A prosecutor’s job is to represent the interests of justice, not merely to convict. While the defense attorney is supposed to be an advocate for a particular individual, the defendant, and to vigorously represent his interests, the prosecutor is supposed to advocate the interests of justice, of a principle itself.

    Like or Dislike: Thumb up 7 Thumb down 0

  30. PD Shaw says:

    @Greg Newburn: “That’s the wrong Ronald Thompson. (Yes, there are two with very similar cases. It confused me at first, too.)”

    You’re right; how weird. I hope people disregard the block quote I posted at 17:37.

    Like or Dislike: Thumb up 3 Thumb down 0

  31. anjin-san says:

    @ HarvardLaw92

    For me personally, the best interests of my client.

    If you are the state, what is your best interest? Justice for your citizens, or simply locking people up whenever possible? Especially when you factor in the high cost of incarceration.

    Like or Dislike: Thumb up 7 Thumb down 0

  32. PD Shaw says:

    This is the background from Ronald Thompson’s Appellate brief:

    Mr. Thompson was visiting at the home of a friend, Theresa Crews, who lived two doors down from him. Ms. Crews was not at home and Mr. Thompson was there with her mother, Betty Warren, who also lived in the home. [T]he incident began when Darrell Connelly, the son of the homeowner, came to the residence with three of his friends. Mr. Thompson believed Connelly had been ordered to stay out of the home by his mother. According to Mr. Thompson, Connelly began to curse his grandmother. At some point thereafter, Mr. Thompson obtained his pistol and fired a shot into the ground. Mr. Thompson later fired a second shot, also into the ground, near the car in which Connelly and his friends had arrived. Mr. Thompson did this in order to scare the four into leaving. Mr. Thompson never denied that he fired the gun.

    From Thompson’s Post-Trial Memo of Law:

    Because of his concerns with how Mr. Connelly was acting toward Ms. Warren, Mr. Thompson testified that he went to his truck and retrieved a .38 pistol. Mr. Thompson testified that he fired a shot into the ground to get the kids’ attention so that they would leave. Mr. Thompson never fired the gun at Mr. Connelly or any of his friends. Mr. Thompson did fire a second bullet into the ground after Mr. Connelly and his friends had gotten into the vehicle but had hesitated before leaving. Mr. Thompson was concerned when they stopped that the four may be “coming out with knives, weapons, or a tire iron. They’re younger and stronger than I am.” Mr. Thompson said that he did not believe that at his age he could physically protect Ms. Warren from her grandson without harming himself. Mr. Connelly and his friends testified that the bullet from the first shot hit close to Mr. Connelly and that Mr. Thompson pointed the gun at them. Both Ms. Warren and Ms. Taylor testified that did not point the gun at any of the four friends or fire the gun in their direction.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. dsgntd_plyr says:

    The price of discretion is the “Affluenza” drunk-driving case. I guarantee DOJ/NAACP/La Raza etc. would be pissed if judges could decide how long a person gets.

    And why should Person A get 10 years for crime Q, while Person B gets 4 years for the same crime? It seems the problem is the “harshness,” of the sentance. But that’s subjective.

    Like or Dislike: Thumb up 0 Thumb down 2

  34. MikeR says:

    @HarvardLaw92: Disgusting. I don’t know if you understand how immoral you sound. Blackmailing him to accepting a prison sentence he might have had a chance with in a jury trial, by threatening him with a tremendous vicious penalty that you know he didn’t deserve. Sure, you’re right, blackmail victims have a choice. That doesn’t make blackmailers any less disgusting.

    Like or Dislike: Thumb up 6 Thumb down 1

  35. OzarkHillbilly says:

    @anjin-san: @Rafer Janders:

    We have an adversarial court system. The prosecutor represents the state. The defense attorney represents the defendant. The judge is the referee and represents the ‘Law’. All are supposed to zealously represent their clients to the best of their ability.

    Justice is what is supposed to come out on the other end of this sausage making process. It does not always work out that way which is why we have an appellate process. Sometimes even that fails. Which is why governors and presidents have the power to grant clemency and pardons.

    And when at the end of it all we still have an injustice? That is called “the human condition”.

    Like or Dislike: Thumb up 2 Thumb down 2

  36. HarvardLaw92 says:

    @MikeR:

    Evidently reading comprehension isn’t your strong suit.

    Mr. Thompson was offered a plea deal that carried a much lower sentence than what he faced in a jury trial.

    He CHOSE instead to reject the deal and subject himself to a trial by jury, which he received. He was found guilty by said jury.

    He gambled that he would be found innocent, and he lost. He got the jury trial that he was constitutionally entitled to, and he got that trial by his own choice. Spare me the histrionics.

    Like or Dislike: Thumb up 3 Thumb down 13

  37. Regis says:

    @HarvardLaw92: How many families and lives have been destroyed by people like yourself? At least we know that you are disgusting bootlicking fascist.

    I just hope one day you don’t have to face the meatgrinder system you actively support. One mistake and you’ll have a lifetime to make up with Bubba.

    Like or Dislike: Thumb up 4 Thumb down 7

  38. Regis says:

    @Rafer Janders: The interest of the HarvardLaw92 is to get brownie points towards his career advancement. There is no concern for justice/morality there, otherwise he wouldn’t be a prosecutor.

    Like or Dislike: Thumb up 8 Thumb down 4

  39. Rafer Janders says:

    @OzarkHillbilly:

    We have an adversarial court system. The prosecutor represents the state. The defense attorney represents the defendant.

    Again, that’s not quite right. While the prosecutor represents the state, and the defense attorney the defendant, the state’s interest is in justice, not a conviction per se, while the defense’s only interest is in acquittal.

    The defense can seek acquittal even if it believes that its client may be guilty. The prosecution, on the other hand, has an extra ethical responsibility not to prosecute and not to seek a conviction of someone it believes may be innocent.

    Like or Dislike: Thumb up 6 Thumb down 1

  40. HarvardLaw92 says:

    @Rafer Janders:

    We have an adversarial system. Justice is determined by the jury and or the judge, who weigh matters of guilt & innocence and impose the appropriate penalties for violations of the law.

    Now, as I said, I have no real problem with the repealing of mandatory minimum sentencing laws, but my job was not, indeed the job of any prosecutor is not, to pursue some ephemeral sense of justice. It is to prosecute violations of the law and, by doing so, represent the interests of my client – the state – which enacted the laws to begin with in order to ensure that the sanctity of those laws is preserved.

    The important term above? Adversarial. I’m not there to be the defendant’s friend. I’m there as his adversary. It’s not singing Kumbahyah around the campfire.

    Like or Dislike: Thumb up 2 Thumb down 7

  41. theBuckWheat says:

    One area of liberty-oriented activism is to educate the jury pool on their rights and responsibilities as jurors. In states where a verdict must be unanimous, only one member of a jury has to be sufficiently knowledgeable in order to secure acquittal where acquittal is needed to serve justice.

    See: Fully Informed Jury Association http://www.fija.org

    Like or Dislike: Thumb up 2 Thumb down 0

  42. HarvardLaw92 says:

    @Rafer Janders:

    the state’s interest is in justice

    The state’s interest in justice is tended to by the judge and/or the jury, not by the prosecutor. I know they taught you this in Criminal Law 1 & 2. We took the same classes at the same school.

    Like or Dislike: Thumb up 2 Thumb down 1

  43. HarvardLaw92 says:

    @Regis:

    Speaking of histrionics …

    Like or Dislike: Thumb up 2 Thumb down 1

  44. HarvardLaw92 says:

    @Regis:

    The interest of the HarvardLaw92 is to get brownie points towards his career advancement. There is no concern for justice/morality there, otherwise he wouldn’t be a prosecutor.

    No, jackass, he served as a prosecutor for a while, at a fraction of the compensation that he could have been earning a mile down the street, because he loves the law. He was recruited out of law school, along with many of his peers, by white shoe firms and chose to put that easy path to a 7 figure partnership on hold for a while.

    Why, you ask? Because in his view, the offices of prosecutors are hard pressed to attract serious legal talent and he felt like he owed it to the law to apply his skills for the good of the people, by defending their laws, before he went off and applied them to his own benefit.

    Career advancement? No, if anything you should call it career retarding. But hey, thanks for speaking about me rather than to me and presuming to know my motivations.

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  45. Chavez says:

    “My job as a prosecutor was to represent the interests of my client – the state – and when my client has a case, I’ll pursue it vigorously to the best of my ability”

    “The state’s interest in justice is tended to by the judge and/or the jury, not by the prosecutor.”

    vs.

    ” (c) The duty of the prosecutor is to seek justice, not merely to convict.”

    There are too many Nifongs and Nifong clones around to permit prosecutors to view their job as only to get convictions, imho.

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  46. MikeK says:

    @HarvardLaw92:
    Well, he certainly made a mistake thinking that innocence counted for much. What about the “stand your ground” law ? Was it not applied because it was not his house ?

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  47. Regis says:

    @HarvardLaw92:

    “he owed it to the law to apply his skills for the good of the people, by defending their laws”

    I guess you love the ‘law’ so much that had you been born earlier then you would also have loved to enforce past laws that enforced slavery, segregation, prohibition, homosexuality etc… and you helped enforce current laws as a prosecutor that make the US the worldwide leader in prison population and the only country in history with more male rapes than female rapes. The law does not equal morality nor justice, just a mere hodgepodge of conflicting arbitrary rules issued by clownish self-serving politicians over time.

    I would recommend you read Hasnas’ article ‘The Myth of the Rule of Law’ (available online if you google).

    “Because in his view, the offices of prosecutors are hard pressed to attract serious legal talent”

    Why would anyone want to this job indeed? How could anyone go to sleep at night while destroying the fabric of society during the day?

    “by defending their laws, before he went off and applied them to his own benefit.”

    Well at least you have made it clear where you stand now…

    Remember, everything Hitler did was legal. Stop thinking the law is ruled by impartiality. morality, rationality and especially not universality in its application.

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  48. HarvardLaw92 says:

    @MikeK:

    He believed himself to be innocent, and the law presumes him to be. He and his counsel failed to convince a jury that the prosecution’s case was specious, ergo he was found guilty.

    Again, he could have avoided the 20 year mandatory minimum by taking the 3 years that was offered. He didn’t have to, and he chose not to. He chose to go to trial and gamble that he wouldn’t face a penalty at all. He lost.

    The job of the prosecutor is to 1) determine if the state has a case that is sufficient to take to trial based on the totality of the evidence before him and 2) if the determination in 1 is a yes, to convince the jury that the defendant is guilty beyond a reasonable doubt.

    I personally don’t care much for mandatory minimum sentencing laws, as they cram disparate situations into a one size fits all sentence, but if a defendant is determined to go to trial and risk the penalty that these laws impose, he/she has that right and I can’t forcibly deny it to them. That said, if they lose, the consequences are something that they brought on themselves, first by violating the law and second by deciding to face a jury and put their fate in its hands.

    Stand your ground is the statutes that I cited above. It is an affirmative defense in Florida that has to be raised by the defendant to the satisfaction of a judge if he/he chooses to pursue it, otherwise it is inapplicable. The prosecutor has nothing to do with that beyond opposing such a motion were one to be presented.

    I have no idea if Mr. Thompson’s counsel raised the defense, as I haven’t read the transcripts (as I said above), but if he didn’t, that’s a matter between him and his defense counsel. It doesn’t involve the prosecution.

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  49. HarvardLaw92 says:

    @Regis:

    Godwin, for the fail.

    I don’t entertain emotionally driven ad hominems. Seek joy elsewhere.

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  50. Regis says:

    @HarvardLaw92: If you cannot refute Hasna’s article I put forward, then yes please squirrel away.

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  51. HarvardLaw92 says:

    @Regis:

    I have no problem with Hasnas’s (you misspelled it) article, other than to say that he’s an academic who has never practiced law beyond serving as a corporate counsel for a few years, has never been a prosecutor, has never clerked and indeed, seems to have no real world experience with the justice system that he goes to great lengths to criticize in an exceedingly hypothetical way at all.

    I simply don’t like YOUR tone, YOUR histrionics and YOUR distasteful rhetoric. I wasn’t flipping off Hasnas. I was flipping off YOU.

    Have a nice day

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  52. Pharoah Narim says:

    Look, I like a good percentage of HarvardLaw92s postings…but he/she is a lawyer. And being such they view the law as an entity unto itself. Every occupation does it. IT folks could care less whether technology actually plays a part in enabling the business of the organization they are employed in. Same with teachers, music producers, you name it. I got it..you used the latest producing techniques in your song–did anyone dance? You employed X/Y/Z teaching strategy perfectly–did someone learn? Sure, we got the latest version of Windows and all the Sharepoint widgets you can shake a stick at. Did we sell more product?

    What we have is a problem of Focus, it’s easy to get fixated on a the art of any discipline rather than treat it for what it is—a tool to enable something else. Therefore, the law is suppose to be a tool to enable justice. Everyone in the disciplie ought to have that as a goal. When you have fractured focus “I do my job, somebody else does their” the goal of endeavor can never be realized. So yes, for the law to every serve citizens, EVERYONE involved in the process must have Justice in the the back of their minds as a high good guiding their action. You want kid to learn, make THAT the goal of teaching, etc. As much as I respect the thinking ability of HarvardLaw92, they are a part of the problem. But frankly, I don’t see that many in the Legal industry that believe we have a problem with Justice and Prison Overcrowding. Sure, folks might want to clear their calendar…but that’s probably a self-serving desire. i.e. I’d like more leisure time rather than I want less non-violent people in jail and I want less people of little or no means getting buzz sawed by the machine.

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  53. HarvardLaw92 says:

    @Pharoah Narim:

    Truthfully, I disagree with many criminal statutes as enacted. I don’t particularly care for mandatory minimums and I’m not a huge fan of the criminalization of innocuous drugs like marijuana. Many statutes as enacted are, to put it charitably, just stupid.

    That said, I am an officer of the court. I do not make laws. I do not enact statutes. As a prosecutor, I was tasked with prosecuting violations of the law, even those that I personally disagreed with or felt were ridiculous. . People seem to think that prosecutors have the power to effectively pass judgement on the laws that they enforce, and that just isn’t the case.

    I don’t think that this guy deserved 20 years. It doesn’t appear that Corey did either, given how far she went in trying to get the guy a lighter sentence, but much of the outcry that I’m seeing here hinges much more on “he shouldn’t have been convicted”. In that context, they are attacking the wrong villain, and they consistently refuse to accept that Thompson CHOSE to pursue a trial by jury.

    Nobody forced him to do that. What exactly do these folks think should have happened?

    Are they faulting the prosecutor for charging him at all? Are they faulting her for trying to get the guy a lighter sentence? Are they just mad because a guy in his 60s went to prison and they think that he shouldn’t have had to do so?

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  54. Regis says:

    @HarvardLaw92: Hasnas’s thesis and my objections still stand, because you still haven’t refuted anything and instead resort to ad hominems.

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  55. HarvardLaw92 says:

    @Regis:

    Noted. You’ve gotten all the attention that you are going to receive from me, and probably more than you deserved. Seek satisfaction elsewhere; you’ll receive none from me.

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  56. Mikey says:

    @Regis:

    instead resort to ad hominems

    Dude, you are the LAST person who should be slamming someone else for that. The first thing you posted in this thread accused HL92 of destroying people’s lives and called him a “disgusting bootlicking fascist.”

    Bashing him for not wanting to engage with you when you proved at square one you’re not willing to address him in a civil tone is the height of immaturity and arrogance.

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  57. Greg Newburn says:

    @HarvardLaw92: I “chime in” to contribute to what I consider is an important conversation, “HarvardLaw.” I trust you do the same.

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  58. Greg Newburn says:

    @HarvardLaw92: But that’s the thing. You call going to trial “rolling the dice.” I call it, “Exercising one’s constitutional rights.” You, apparently, have no problem with attaching a 17-year prison sentence to the exercise of that right. I do. Fair enough.

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  59. Greg Newburn says:

    @HarvardLaw92: What I mean is: one can be charged with aggravated assault with a firearm for merely brandishing. One need not fire to be subject to the charge and to a mandatory minimum (though firing does increase the mandatory minimum from thee years to 20.)

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  60. Greg Newburn says:

    @HarvardLaw92: In a different case (and it might’ve been the other Ronald Thompson case, actually), Corey offered a plea bargain. The defendant rejected it AND THEN Corey added the firearms enhancement that carried the mandatory minimum. Fortunately the Appeals Court said that was impermissible.

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  61. rudderpedals says:

    @Greg Newburn: The question every defendant has to ask himself is whether to take the sure thing plea or roll the dice and go to trial. It’s just the way it is. There are too many contingencies. You can’t predict the output of a trial based on the inputs.

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  62. Regis says:

    @Mikey: I was simply pointing out that HL93 was also using ad hominems.

    “Bashing him for not wanting to engage with you when you proved at square one you’re not willing to address him in a civil tone is the height of immaturity and arrogance”

    Next time you face an unaccountable I-love-the-law prosecutor juggling with your life prospects, I hope you keep your composure. Because you know, that would ‘the height of immaturity and arrogance” not to.

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  63. rudderpedals says:

    Rather you can’t assure a particular trial outcome based upon the inputs. Grudgingly give odds, maybe.

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  64. Mikey says:

    @Regis:

    I was simply pointing out that HL93 was also using ad hominems.

    Well, no shit, Sherlock. If someone started the conversation by calling me a “disgusting bootlicking fascist,” I’d probably respond similarly, although with less grace than HL92 did.

    If you want a discussion, you come with a discussion, not with insults. Coming with insults and then whining about not getting a discussion is silly.

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  65. Grewgills says:

    @dsgntd_plyr:
    The groups represented by the NAACP and La Raza are disproportionately hurt by these mandatory minimums and actively oppose them, so you couldn’t be more wrong on that score.

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  66. Pharoah Narim says:

    @HarvardLaw92:

    ….What exactly do these folks think should have happened?…</em>

    Given that charging the guy involved 2 of 3 possible extreme outcomes, the best interest for citizens would be to not charge (assuming no history of violence or brandishing.) No harm, no foul. Agree’d, the method he chose was stupid–but not 3 years in the hole stupid and certainly not 20 years in the hole stupid. The least dumb thing to do was to not charge. Lets put another Pedophile in the bed he ended up occupying.

    I come from a poor community where many people took pleas because they understood that going to trial with a cheap lawyer or worse, public defender would have been disastrous. Guilt or innocent doesn’t come into play. It all about minimizing damage and improving odds, which, if you are poor and/or brown…are against you. If these folk don’t take a deal, they are going to get corn holed and they know it. A few crap nuggets is preferable to choking down a whole crap sandwich.

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  67. Grewgills says:

    @HarvardLaw92:

    People seem to think that prosecutors have the power to effectively pass judgement on the laws that they enforce, and that just isn’t the case.

    The prosecutor did have some leeway on what to charge him with. She didn’t have to charge him with the crime that carried the 20 year mandatory minimum. One problem with the system as exemplified in this case is the habit of some prosecutors to pile on charges (anything that might stick) to build up a terrifying potential downside for taking the case to trial so that their plea offer will be more attractive. That act, particularly when used against the poor and legally ignorant represented by overburdened public defenders, leads to unjust outcomes. The best answer to this problem is to change the laws and give back more discretion in sentencing to the judges and juries tasked with finding the most just outcome. Absent that unfortunately unlikely event our best hope is discretion on the part of law enforcement and prosecutors to mitigate the mess created by poorly constructed sentencing guidelines.

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  68. Grewgills says:

    @Mikey:
    seconded

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  69. HarvardLaw92 says:

    @Greg Newburn:

    I call it, “Exercising one’s constitutional rights.” You, apparently, have no problem with attaching a 17-year prison sentence to the exercise of that right. I do. Fair enough.

    No, as I have noted, repeatedly now, I am no fan of mandatory minimum sentencing laws.

    That said, let’s consider what happened. The guy fired a firearm in the commission of a felony. Not once, but twice. He was appropriately charged.

    I’m getting the opinion that your beef is with the Florida legislature for passing an uncommonly stupid law (and I’d second that opinion), and that this exercise in misdirection is aimed at somehow servicing that primary gripe.

    That said, no, I do not have a problem with a defendant who, after having been advised of the potential consequences and having been offered a far more palatable alternative, chooses to reject that alternative and to exercise his constitutional right to a jury trial. What, is the guy supposed to get brownie points for deciding that he wants a trial?

    He wanted a trial – he got a trial – he was adjudicated guilty – he is responsible for accepting the consequences as being the product of his own choices.

    Corey charged him according to what the facts of the case merited under extant law. I get that you don’t like that, but go after the actual villain responsible for creating it. It isn’t Corey.

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  70. HarvardLaw92 says:

    @Greg Newburn:

    What I mean is: one can be charged with aggravated assault with a firearm for merely brandishing. One need not fire to be subject to the charge and to a mandatory minimum

    Yes, a three year minimum in that instance, which is exactly what Thompson was offered and rejected.

    That presumes that he doesn’t decide to assert an affirmative defense under SYG, which the Florida legislature thoughtfully provided for him and which he should have done here.

    That said, give me your alternative. What do you think should have happened here? What was the appropriate charge under Florida law as it existed at the time of the incident?

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  71. PD Shaw says:

    @Grewgills: “The groups represented by the NAACP and La Raza are disproportionately hurt by these mandatory minimums and actively oppose them, so you couldn’t be more wrong on that score.”

    I think its more complicated than that. The sentencing guidelines were advocated as reducing racial disparity in sentencing and studies have shown that they did. There is every reason to believe that judges, when using their discretion, will be less harsh on the “socio-economically advantaged” because judges gravitate towards the amount of time necessary for deterrence. And the deterrence needed to scare straight a kid heading to college is not the same as for the kid going nowhere.

    Where I think it went wrong is that the mandatory minimums are too high. Sentencing is too high across the board.

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  72. HarvardLaw92 says:

    @Greg Newburn:

    You chimed in to what to me looks like a manufactured opportunity to press the agenda of your group, and I still haven’t gotten an answer as to whether the OP is affiliated with you or not.

    It would be the equivalent of me getting a friendly editorial written about a merger that I’m constructing and then leading the discussion resulting from that editorial. Ethically, there should be a degree of detachment involved, or at the very least, announce that you represent the group being presented in the piece before you begin to contribute.

    Just my $0.02. I”m a stickler for ethics.

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  73. HarvardLaw92 says:

    The prosecutor did have some leeway on what to charge him with. She didn’t have to charge him with the crime that carried the 20 year mandatory minimum

    Again, what should she have charged him with? Lessen the charges, or as has been suggested, decline to charge him at all and we’ve just sent the message that it’s open season on using a firearm to settle whatever disagreement or emotionally charged situation you find yourself in.

    What other solutions were available to defuse the situation? Were the police called? If so, at what point in the event? If not, why not? Did Thompson attempt to defuse the situation without utilizing the firearm? Did he attempt to defuse the situation without firing the firearm?

    Admittedly, I have not read the transcripts of this case, but it sounds to me like his first response was to fire the weapon, apparently in the belief that it was justifiable and wouldn’t result in legal difficulty for him. If so, then the charge was appropriate and is exactly the one that I would have filed. The last thing society needs is vigilantes deciding that a firearm is the first and best recourse to resolve a conflict. That is the last message that the legal system needs to be sending to the public.

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  74. Greg Newburn says:

    @HarvardLaw92: “A manufactured opportunity”? What are you talking about? I learned about this article after Megan McArdle tweeted about it, and then came over here to find an already robust discussion going. And then I decided to jump in because, frankly, I know more about this issue and these cases than anyone else does.

    I don’t know what “OP” means, but I’d be happy to answer any question you have about FAMM.

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  75. Greg Newburn says:

    @HarvardLaw92: ” I have not read the transcripts of this case, but it sounds to me like his first response was to fire the weapon . . .”

    In other words, “I have no idea what I’m talking about, but let me offer my opinion anyway . . .”

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  76. HarvardLaw92 says:

    @Greg Newburn:

    Original poster. The guy who wrote the article.

    There is no need to discuss FAMM. The OP linked to it three separate times in the article, and your website is pretty concise as to your mission and goals.

    I’d much rather you answer my questions regarding what an appropriate (in your opinion as a representative of this group) process would have been for Mr. Thompson, and exactly why you believe it to be appropriate given the facts of the case.

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  77. HarvardLaw92 says:

    In other words, “I have no idea what I’m talking about, but let me offer my opinion anyway . . .”

    By all means, feel free to address the questions above the nugget of text that you cherry picked out of that comment. Provide us with the facts, or better yet, if you have it available, link to the case itself.

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  78. Greg Newburn says:

    Oh! Original Poster. Well, in that case, no, Brad is not affiliated with FAMM in any way I’m aware of, and I’d appreciate if you’d recognize explicitly that your implications of impropriety on either Brad’s part or FAMM’s were completely unfounded.

    As to your question, well, that’s easy. I wouldn’t have charged Thompson, because I don’t think he broke the law. But under the assumption that Angela Corey was just *so* convinced that he had that even the most basic fidelity to justice required charging him, I would’ve recommended charging him with improper discharge of a firearm, or at most aggravated assault without the firearms enhancement. But if I just HAD TO charge him with the crime that carried the most severe sentence, I might not have appealed when the sentencing judge gave him three years instead of 20 (distinguishing this case from others under 10-20-Life). And when he was granted a new trial after serving 2.5 years, I wouldn’t have tacked on two years to the plea agreement sending him back to prison for two years after he’d spent a year out of prison finally getting healthy again and building a home in Keystone Heights.

    But that’s just me.

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  79. Greg Newburn says:

    @PD Shaw: Which studies showed that mandatory minimums reduced racial disparities in sentencing? The Sentencing Commission report said the opposite, so I’d be curious to see which studies you’re referring to. (Which isn’t to say you’re wrong! I’m genuinely interested in seeing all of the data out there. Thanks!)

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  80. HarvardLaw92 says:

    I wouldn’t have charged Thompson, because I don’t think he broke the law.

    Based on what statutes? You’re an attorney, presumably admitted in Florida, so can do better than that.

    I would’ve recommended charging him with improper discharge of a firearm

    Oh come on, a first degree misdemeanor for firing a gun not once, but twice, towards unarmed individuals who, while vocal, had indicated (at least according to the appellate brief your org filed in this case) no intention to display force? That is a creative reading of 790.15.

    or at most aggravated assault without the firearms enhancement.

    So now we are supposed to pretend that he didn’t fire his weapon, twice?

    But if I just HAD TO charge him with the crime that carried the most severe sentence, I might not have appealed when the sentencing judge gave him three years instead of 20 (distinguishing this case from others under 10-20-Life).

    The trial judge’s ruling held the mandatory minimum statute to be unconstitutional, not merely inapplicable in this isolated instance. That would have put EVERY prior sentence issued under this statute at risk, and Corey had no choice in that position BUT to appeal the ruling. I suspect that you already know that. Either that or you are just an exceptionally bad attorney.

    And when he was granted a new trial after serving 2.5 years, I wouldn’t have tacked on two years to the plea agreement sending him back to prison for two years

    Why not? Your org’s own brief suggests that 3 years was an appropriate minimum, and indicates that the appropriate sentencing scoresheet indicated 46.5 months. What factors in his conduct argue for reducing the minimum even further than your own arguments have already reduced it at trial?

    I’m getting the impression that the motivating factor here is the “he’s a nice old guy who never did anything bad before other than drive drunk once, and he’ll never do it again. I like him, so I think he deserves a break” attitude.

    Tell me honestly, has a defense attorney EVER thought his client deserved to spend a day in jail? I’ve heard all the rationales for why nothing is their fault and they all deserve a break a thousand times, and they do not impress me, sorry.

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  81. Greg Newburn says:

    @HarvardLaw92: I don’t know how to do all the quoting stuff so:

    1. I think he should have been immune from prosecution under Stand Your Ground. I understand that reasonable people will disagree about this, but prosecutors routinely decline to file charges in cases that are very similar to this one for the same reason.

    2. *FAMM* didn’t file any appellate brief in this case, and we’re not involved legally in any way with this case. Again, prosecutors routinely file that charge in these cases where no one is injured, etc. And, again, reasonable people will disagree on whether that’s appropriate. But it does happen (and in this case that was what one of the judges was hoping would be the charge). However, in this case, both Mr. Thompson and the grandmother said that the grandson was not just “vocal,” but actively threatening. Make of that what you will.

    3. We don’t have to “pretend” anything. Are you suggesting, as a former prosecutor, that you’re not familiar with charging particular crimes even though the facts might fit crimes for which more severe sentences are available? Again, that’s a common practice (and it’s particularly common when mandatory minimums are in play; prosecutors have long come up with “creative” charges to avoid mandatory minimums).

    4. The trial judge ruled that 10-20-Life was unconstitutional *as applied in this case and only this case.* I know that because he told me and explained all the ways he drew the relevant distinctions in order to limit the applicability of the order. (I understand that you don’t know what you’re talking about here, and that makes discussing this case difficult, but I’m doing my best to carry you along.) That said, I understand why Corey’s office might be afraid of more general applicability (after all, without 10-20-Life she’d have a hard time coercing defendants to plead guilty) and why she’d appeal. But it *was* an option.

    5. Again, FAMM never filed a brief in this case. That brief was filed – surprise! – by Mr. Thompson’s – what do you call those guys? Oh, right – attorney. (Perhaps Harvard Law should teach its students to read the cover pages of briefs.)

    6. And, again, I don’t think three years was appropriate. I think zero years would have been appropriate. But setting that aside, let me ask: the prosecutor in this case offered three years. Thompson served 2.5 before his new trial was granted. At that point, the prosecutor changed the offer to five years (with credit for time served). What, in your mind, is the justification for adding two years?

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  82. HarvardLaw92 says:

    To quote, use the b-quote button above the text block. It is easiest to paste the text, select it, and then <click the b-quote button. To emphasize the text as well, use the bold "b" button.

    I think he should have been immune from prosecution under Stand Your Ground.

    SYG is an affirmative defense that has to be raised by the defendant at trial to the satisfaction of the trial judge in an evidentiary. Did Mr. Thompson raise it at trial? If not, why not?

    While we’re on the subject, I think that SYG laws are inordinately stupid & bad policy, and are one of the million or so reasons why I’m profoundly grateful that I don’t live in the South.

    FAMM* didn’t file any appellate brief in this case, and we’re not involved legally in any way with this case.

    My apologies. Feel free to substitute “the” for “your” above.

    Again, prosecutors routinely file that charge in these cases where no one is injured, etc.

    Remind me where someone has to be injured for an assault to have been committed? Yo have assault confused with battery. Per your own statute, Fla. Stat. § 784.011(1):

    An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

    Now, we move to Fla. Stat. § 784.021(1)(a):

    An “aggravated assault” is an assault (a) with a deadly weapon without intent to kill

    You’ll have to fill me in on how Mr. Thompson’s actions don’t fit those statutes, since, as you assert, I’m apparently exceedingly stupid and need to be carried.

    The trial judge ruled that 10-20-Life was unconstitutional *as applied in this case and only this case.* I know that because he told me and explained all the ways he drew the relevant distinctions in order to limit the applicability of the order

    Right, and of course no enterprising defense attorneys would have clogged up the courts for months or years afterward arguing that the applicability of the ruling wasn’t limited. Thinking that you can limit unconstitutionality to a finite person is a fool’s errand. What happens when a 65 year old heroin dealer with a heart condition decides to start firing his gun around as a warning? Helpful hint – it involves your judge’s reasoning.

    Again, FAMM never filed a brief in this case. That brief was filed – surprise! – by Mr. Thompson’s – what do you call those guys? Oh, right – attorney. (Perhaps Harvard Law should teach its students to read the cover pages of briefs.)

    Error noted and addressed above.

    And, again, I don’t think three years was appropriate. I think zero years would have been appropriate.

    Again, why? Because you believe that warning shots should be ok, as you seem to have indicated above? Is this about Mr. Thompson, or about your position on guns? Just asking.

    What, in your mind, is the justification for adding two years?

    Sending the message to the public that using a firearm as a first recourse in the settlement of a non-violent dispute will not be tolerated by society. Even if you are a sick old man who screwed up and should have known better.

    And nobody has yet bothered to tell me whether or not the police were called. Given that the brief doesn’t mention it that I saw, I’ll assume that they were not, so Mr. Thompson clearly had other options besides the poor one that he chose to utilize.

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  83. Greg Newburn says:

    Thanks for trying, but my tech ability is deficient beyond repair. I’ll give it a shot:

    SYG is an affirmative defense that has to be raised by the defendant at trial to the satisfaction of the trial judge in an evidentiary. Did Mr. Thompson raise it at trial? If not, why not?

    This is incorrect. Our procedural process allows for an immunity hearing *before* a trial. At trial, defendants can argue self-defense, and that was argued in this case, too. However, prosecutors routinely argue that warning shots are per se evidence *against* self-defense. The argument is that if you’re *really* scared, you wouldn’t fire a warning shot. I think that’s silly, but that’s their argument. Apparently the jury agreed. (A different jury might not have. Acquittals and convictions in self-defense cases are in some measure a matter of luck.)

    While we’re on the subject, I think that SYG laws are inordinately stupid & bad policy, and are one of the million or so reasons why I’m profoundly grateful that I don’t live in the South.

    I disagree, but it’s not germane to the discussion. (I’d add that SYG isn’t limited to the South; most states have some form of the law.)

    Remind me where someone has to be injured for an assault to have been committed? Yo have assault confused with battery.

    I know the difference between assault and battery, and I didn’t claim that injury was an essential element of assault. What I said was that prosecutors, in using their charging discretion, sometimes CHOOSE to file some other charge even if the facts might technically meet the elements of a more severe offense. I don’t see what’s particularly strange about that idea.

    You’ll have to fill me in on how Mr. Thompson’s actions don’t fit those statutes, since, as you assert, I’m apparently exceedingly stupid and need to be carried.

    It isn’t that you’re stupid; you’re just unfamiliar with the case. I happen to be familiar with it, so I know what the state alleged, what the defense said, what the witnesses said, etc. I think an argument can be made that Thompson’s actions technically did fit the elements of aggravated assault. But as prosecutors routinely remind us, they have discretion for a reason. I think that discretion could have been better used in this case.

    Right, and of course no enterprising defense attorneys would have clogged up the courts for months or years afterward arguing that the applicability of the ruling wasn’t limited…

    I agree with this. The decision to appeal the three-year sentence is probably the most defensible decision Corey made in this case.

    Because you believe that warning shots should be ok, as you seem to have indicated above? Is this about Mr. Thompson, or about your position on guns?

    Again, I say “zero years” because I don’t think Thompson broke the law. Florida law provides immunity from prosecution for people who use force in the defense of themselves or others, and I think the facts of Mr. Thompson’s case puts him within the protections of that immunity provision. But, again, I understand that reasonable people will disagree. (And that’s why mandatory minimums in these cases make no sense!)

    Sending the message to the public that using a firearm as a first recourse in the settlement of a non-violent dispute will not be tolerated by society. Even if you are a sick old man who screwed up and should have known better.

    But the prosecutor believed the same “message” would have been sent by three years in prison. This reasoning doesn’t provide an explanation for the additional two years.

    And nobody has yet bothered to tell me whether or not the police were called. Given that the brief doesn’t mention it that I saw, I’ll assume that they were not, so Mr. Thompson clearly had other options besides the poor one that he chose to utilize.

    The police were not called before Mr. Thompson fired his weapon. I don’t know if you’re familiar with Keystone Heights, Florida, but if you think the police will show up before you’re attacked, you’re kidding yourself. Like the old saying goes, “When seconds count, the police are only minutes away.” If an infirm old man wants to protect a grandmother from a wild-eyed teenager (who’d abused her before), calling 911 ain’t going to get the job done.

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  84. PD Shaw says:

    @Greg Newburn:

    I think this is the study I was thinking of, but its of the federal sentencing guidelines, not mandatory minimums specifically.

    It looked at the period after the SCOTUS struck down the guidelines, and before they were reinstated as presumptive. The author concludes that the racial gap in sentencing nearly doubled during the period of judicial discretion in sentencing, and the disparity was even greater for judges appointed after the guidelines had been struck down, “suggesting acculturation to the Guidelines by more experienced judges.” That last point is interesting since it suggests that over time the disparity would have likely increased.

    I don’t think this is because federal judges (particularly relatively young ones) are reflexively racist. I think its because deterrence considerations tend to favor the more privileged. Looking at the briefs filed by Thompson’s attorneys on your website, you can see that his attorneys want to impress on the judges who Thompson is. Some would say in a perfect world it wouldn’t matter who Thompson is, whether he is young or old, but the character of his actions. Its hard to escape . . .

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  85. Greg Newburn says:

    @PD Shaw: Excellent, thank you!

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  86. HarvardLaw92 says:

    I somehow lost half of this posting. I’ll attempt to reconstruct below in a separate posting.

    Beyond that, it can establish a pernicious double standard when prosecutors start applying leniency for the “right” people, but denying it to the “wrong” people. I prefer a standard where the statutes are equally applied to all similarly situated acts. Aggravate assault is aggravated assault, whether you are a gang banger or a 65 year old veteran. That may sound callous, but the law is the law.

    I think an argument can be made that Thompson’s actions technically did fit the elements of aggravated assault. But as prosecutors routinely remind us, they have discretion for a reason. I think that discretion could have been better used in this case.

    What is the impetus for that discretion? As I asked above, is it because Mr. Thompson is the right sort of person? Is it because somebody wants to push the broader agenda that warning shots are okie dokie and we should look the other way despite what the statutes dictate? I’m having trouble getting behind that, because I’m smelling an agenda being pushed, and I don’t like those.

    Again, I say “zero years” because I don’t think Thompson broke the law. Florida law provides immunity from prosecution for people who use force in the defense of themselves or others, and I think the facts of Mr. Thompson’s case puts him within the protections of that immunity provision.

    And within the context of FL’s statute, I wouldn’t disagree were he to have successfully claimed that immunity in an evidentiary. I’m not seeing any instance where he did so and it was denied; from all that I can tell it was just never raised at all. In any case, that is an argument for not convicting him, not one for not charging him.

    But the prosecutor believed the same “message” would have been sent by three years in prison. This reasoning doesn’t provide an explanation for the additional two years.

    It seems to me that she was trying to do the guy a favor by offering an insufficient penalty with respect to the facts pretrial. At that point he hadn’t been convicted. Once he was, and the applicable penalty had been imposed by the appellate, it makes no sense from her perspective to resweeten the pot. There is no incentive for her to do so when the new trial was granted on technical issues of procedure as opposed to issues of fact. She arguably would have won the retrial as well, and gotten the 20 years reimposed. She did him a favor by offering him less than what the statutes mandate for his charged acts. This time, he wisely took the deal.

    The police were not called before Mr. Thompson fired his weapon. I don’t know if you’re familiar with Keystone Heights, Florida, but if you think the police will show up before you’re attacked, you’re kidding yourself.

    I’m not, and I have no difficulty believing your assertions about their force. The broader point is that the encounter was not heat of the moment. It played out over some degree of time and gradually escalated, so they failure to even attempt to involve the police is indicative of Mr. Thompson’s state of mind and intentions. In other words, it’s not a case where he had exhausted all other options and had no choice but to act. He never bothered to even try to call the police, and I think you know where any halfway competent prosecutor is going to go with that one.

    Anyhoo, apologies for the earlier snark. That other poster had me in a decidedly toxic state of mind. I respect your position; I just don’t agree with it, and as you said, reasonable people can disagree.

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  87. HarvardLaw92 says:

    I have somehow lost half of this posting. I’ll attempt to reconstruct below

    Beyond that, it can establish a pernicious double standard when prosecutors start applying leniency for the “right” people, but denying it to the “wrong” people. I prefer a standard where the statutes are equally applied to all similarly situated acts. Aggravate assault is aggravated assault, whether you are a gang banger or a 65 year old veteran. That may sound callous, but the law is the law.

    I think an argument can be made that Thompson’s actions technically did fit the elements of aggravated assault. But as prosecutors routinely remind us, they have discretion for a reason. I think that discretion could have been better used in this case.

    What is the impetus for that discretion? As I asked above, is it because Mr. Thompson is the right sort of person? Is it because somebody wants to push the broader agenda that warning shots are okie dokie and we should look the other way despite what the statutes dictate? I’m having trouble getting behind that, because I’m smelling an agenda being pushed, and I don’t like those.

    Again, I say “zero years” because I don’t think Thompson broke the law. Florida law provides immunity from prosecution for people who use force in the defense of themselves or others, and I think the facts of Mr. Thompson’s case puts him within the protections of that immunity provision.

    And within the context of FL’s statute, I wouldn’t disagree were he to have successfully claimed that immunity in an evidentiary. I’m not seeing any instance where he did so and it was denied; from all that I can tell it was just never raised at all. In any case, that is an argument for not convicting him, not one for not charging him.

    But the prosecutor believed the same “message” would have been sent by three years in prison. This reasoning doesn’t provide an explanation for the additional two years.

    It seems to me that she was trying to do the guy a favor by offering an insufficient penalty with respect to the facts pretrial. At that point he hadn’t been convicted. Once he was, and the applicable penalty had been imposed by the appellate, it makes no sense from her perspective to resweeten the pot. There is no incentive for her to do so when the new trial was granted on technical issues of procedure as opposed to issues of fact. She arguably would have won the retrial as well, and gotten the 20 years reimposed. She did him a favor by offering him less than what the statutes mandate for his charged acts. This time, he wisely took the deal.

    The police were not called before Mr. Thompson fired his weapon. I don’t know if you’re familiar with Keystone Heights, Florida, but if you think the police will show up before you’re attacked, you’re kidding yourself.

    I’m not, and I have no difficulty believing your assertions about their force. The broader point is that the encounter was not heat of the moment. It played out over some degree of time and gradually escalated, so they failure to even attempt to involve the police is indicative of Mr. Thompson’s state of mind and intentions. In other words, it’s not a case where he had exhausted all other options and had no choice but to act. He never bothered to even try to call the police, and I think you know where any halfway competent prosecutor is going to go with that one.

    Anyhoo, apologies for the earlier snark. That other poster had me in a decidedly toxic state of mind. I respect your position; I just don’t agree with it, and as you said, reasonable people can disagree.

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  88. HarvardLaw92 says:

    ok, I am clearly incompetent with this posting system tonight.

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  89. HarvardLaw92 says:

    This is incorrect. Our procedural process allows for an immunity hearing *before* a trial.

    As I understand Dennis, immunity may be, but need not necessarily be, sought pre-trial, and the failure to successfully obtain it pretrial is not prejudicial for attempting to obtain it at trial. So we’re both more or less right about this one. That said, the broader point is the immunity is not automatic – it must be obtained via a successful evidentiary in in favor of the defendant, and AFAICT Mr. Thompson’s counsel never did so. I admit to wondering why. I vehemently disagree with the statute, but it exists and as such, Thompson should have taken advantage of it.

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  90. Engineer says:

    @HarvardLaw92:

    Actually, it was an excellent example case because the guy in question did not commit a crime. He fired warning shots. He knew he did not commit a crime and so he chose a trial (which is his right) over being screwed by a prison sentence.

    The problem with this country is that prosecutors like you think that he committed a crime, and that he deserved to go to jail for losing at trial.

    This is dishonest on two parts:
    1. He did not commit a crime.
    2. The jury was denied the opportunity to nullify, which means the jury was TAMPERED WITH
    3. The jury was denied knowledge of the mandatory minimum, again TAMPERING
    4. The prosecutor exploited this corrupt “trial” to offer him jail time for a non-crime, when if they had known the trial would be fair, would have instead been an offer of probation.

    In this example, the judge, the prosecutor and the lawmakers who passed the mandatory minimum legislation belong in jail.

    Because if we don’t put people in jail for kidnapping an innocent man for 20 years, then how can we claim to have a justice system at all?

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  91. Engineer says:

    @HarvardLaw92:

    Your client was not the state, but the people of whatever god forsaken jurisdiction had the misfortune of employing you.

    Putting someone in jail for a non-crime (e.g.: drug possession, other victimless crimes) makes you a criminal.

    It doesn’t matter what the law says, after all, gassing jews was legal in Germany. Didn’t make those who were “just following orders” any less criminal.

    You destroyed people’s lives in violation of the trust they had put in you…. and you are an example of why justice is something that cannot be trusted to government.

    You destroyed people for your own profit and career advancement.

    You belong in jail. Actually, giving the number of cases, if the total criminal sentencings you caused (for non-crimes) exceeds 100 years cumulative penalties, then you deserve the death penalty.

    You are no better than a mob boss who locked people up for years for failing to show proper respect to some mafia don, and the like.

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  92. bobby b says:

    You make it sound as if the nasty prosecutors are chuckling darkly as they receive an unexpected gift of bad and hurtful law granted to them by some hateful and malevolent god of war or battle or something.

    But WE empowered much of this body and philosophy of law ourselves, and we did it by electing, on less than adequate investigation, people who ran blatant, in-our-faces scams and lies and evasions about what they valued and what they’d do if we elected them, and then we did it again when they asked us to four years later.

    It’s that second time that really gets to me. Once, I can see anything happening, no matter how clearly stupid it might be. P.T. Barnum called it. But . . . a second term?

    It makes me wonder if my country has any realistic chance anymore of reforming as that smaller-government, rigorously-educated, armed-and-thus-polite collection of individuals to which we aspire to join, or if such a group of people ever really existed here in the first place. Could such people have spawned today’s mobs who scream on camera that their candidate is going to pay their rent?

    I end up torn between “what I want to return to never actually existed” or “we waited too long and we lost critical mass and we’re over.”

    There are far too many people who know almost nothing about government or politics or economics or laws or science or rights (the real rights, not their entitlements) or capitalism or medical care or insurance or guns or crime or . . . but who are more than willing, for the price of someone gratuitously stroking their egos right before elections, to become rabid, mission-from-God-type supporters of that someone, without knowing anything true or relevant about that someone.

    It’s like picking who you want on the island, but easier, because voting is secret.

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  93. Mikey says:

    @Engineer: This is some of the dumbest shit I’ve ever read. Congratulations.

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  94. HarvardLaw92 says:

    @Engineer:

    LOL, wow. Just … wow …

    smh

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  95. Warren Bonesteel says:

    Welcome to police state America. Please, enjoy your stay.

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  96. Pharoah Narim says:

    @HarvardLaw92:

    Sending the message to the public

    Here is what I think thing Lawyers and Politicians miscalculate.: “Sending a message” via sentencing is a myth. Being charged and facing punishment maxes out the message sending. Its like sky diving, the Army figured out that there is no greater fear jumping from 200 feet than it its jumping from 10,000 feet. So they constructed their training jump tower to that height to train the fear instinct out of new jumpers. If they’ll leap out of the 200ft tower without fear…they’ll have no issues in the plane.

    3 years, 5 year, 20 years….it really doesn’t have any orders of magnitude affect on people choosing not to commit crime. Yet lawyers and politicians are always sending messages…frequently the wrong one.

    BTW…. The law ISN’T the law–The law IS a tool. We pay people to make decisions and use judgement. Guidelines are fine and as long as people can show valid reasons to deviate from those guidelines. No, there is probably a difference in the 65 year olds and the gang-bangers battery situation. Thats why we pay the the prosecutor to mark distinctions and hard choices.

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  97. Pharoah Narim says:

    @Engineer: This is a serious blog…if you want to start with genocide comparisons–Huffpo comments section might provide better trolling.

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  98. wr says:

    @HarvardLaw92: “Beyond that, it can establish a pernicious double standard when prosecutors start applying leniency for the “right” people, but denying it to the “wrong” people”

    Yes, this would be a terrible thing indeed. Imagine a world in which poor blacks were punished far more severely by the legal system than rich whites for exactly the same drug crimes.

    Oh, wait. That’s the world we live in.

    Where did you practice — Fantasyland?

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  99. richard40 says:

    I would propose the following reforms:
    1. Any plea bargain the prosecutor makes is briefed to the judge, and can be presented as evidence at trial. Same for any plea bargain the deefendent makes. That will give the jury some idea about how weak or strong the prosecutor really thinks their case is.
    2. The jury always has the option of convicting the defendent of the plea bargain offer, as a lesser included charge.
    3. If the defendent is still convicted of the larger charge, and it has a manditory minimum, the judge still has the option to sentence the defendent as if they were convicted of the lesser plea bargain.

    These 3 options should give prosecutors a big incentive to reduce the disparity between plea bargains, and the charge that goes to trial. Even with a reduced difference, a truly guilty defendent will probably still take the plea pargain, but an innocent one can refuse it with lesser risk to themselves.

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  100. HarvardLaw92 says:

    @richard40:

    Plea bargains involve a defendant agreeing to plead guilty to a specified offense in return for a delineated sentence, and agreeing to waive their right to a trial by jury by doing so. They are reviewed by the assigned judge, who does have the power to reject them.

    It’s little different in context, beyond the negotiation of the charge(s) applied and the penalty imposed, from you deciding to plead guilty at arraignment.

    Broader point being that there is no empaneled jury for an accepted plea bargain to be presented to. The trial never gets to that stage.

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  101. HarvardLaw92 says:

    @wr:

    Where did you practice — Fantasyland?

    No, New York.

    Do you sift through everybody’s commentary looking for sound bites to bitch about in general, or is it just me you can’t stand?

    Get a hobby

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  102. PD Shaw says:

    @richard40: I’ve seen some of these suggestions before, I believe through Instapundit, and that they get dissed by practicing public defenders because they disincentivize the prosecutor from ever offering a plea. I’ve linked to them in the past.

    Anything that adds to the cost and consequences for a prosecutor’s offer of compromise will either stop the prosecutor from making any offer, or diminish the offer. Thompson gets either no plea deal or perhaps ten years or fifteen years.

    For Thompson, the problem was the minimum sentence was 20 years for a crime that he pretty much admitted.

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  103. wr says:

    @HarvardLaw92: Honestly, I can’t decide if you are for real or not. If you are not, you’re fairly insufferable (although very good at what you do). If you are, you stand for pretty much everything that’s wrong with our current justice system.

    How anyone could work as a prosecutor and be completely unaware that the rich and powerful are treated differently than the poor and powerless by the system is pretty close to incomprehensible.

    And when these injustices are pointed out to you, your response is always the same — it’s their fault for not being rich and powerful.

    I have simply never met a human being as un self-aware as you. On the other hand, you’ve seemed to imply that you worked in the Bush justice system, so I guess maybe that would make sense.

    Sometimes you sound quite rational. But when you start talking about justice, it’s as if you have no idea what the word means…

    I understand that you will now accuse me of interrupting the Socratic dialogue with ad hominems. I’ll live with that.

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  104. Grewgills says:

    If a message is being sent by the pattern of prosecutions in Florida it seems that message is, “If you shoot, shoot to kill.”

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  105. Davey Maj says:
  106. HarvardLaw92 says:

    @wr:

    My broader point is that you guys don;t seem to read the totality of what is written. You see a sound bite (often one that is misinterpreted) that inflames the sense of righteous indignation, set your hair aflame and break out the torches.

    Above, I stated, repeatedly, that I am not a fan of mandatory minimums as they currently exist. I am not a fan of statutes like those enacted with respect to cocaine and crack that effectively create a two tiered justice system aligned on racial boundaries.

    That said, I do not make laws. I do not pass judgment on guilt, I do not determine sentences in trials and I do not impose them on guilty defendants. It seems like there is an expectation that prosecutors should examine the laws, decide which ones are unjust, and make adjustments in order to correct disparities and inequalities created by the legislatures.

    A shorter way of saying that is that prosecutors should set themselves up as a replacement for elected representation and short-circuit the law to their liking. Rational people would probably call that a coup d’etat.

    My approach to it was to charge all similarly situated defendants the same. If you violated law X, I charged you with violating law X, whether you were black, white, rich, poor or from Mars. My piece of the system was unfailingly and brutally consistent, because the law must be enforced, equally, without respect to social position, race, means or personal beliefs.

    If a jury likes Walter Whiteguy better than they like Barry Blackguy, there isn’t much that I can do about that. If a judge / jury then decides that Sally Surburbanite deserves a shorter sentence than Gary Gangbanger, there isn’t much that I can do about that either. I recognize that it is evil, but again, what would you have me do?

    The takeaway from that is that maybe you are barbecuing the wrong villain(s) here. Legislators make law, and if they make bad law, maybe the correct response is to replace them. If the people don’t want them replaced, then maybe the people themselves are the problem. Something to think about.

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  107. MikeK says:

    @HarvardLaw92: It’s a bitch being innocent, isn’t it ?

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  108. rudderpedals says:

    Y’all are bitching about a man doing his job. Hate the game, not the players.

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  109. HarvardLaw92 says:

    @Davey Maj:

    Spare me. Wershe was apprehended with $25,000 in cash on his person and was tied to 8 *kilos* of cocaine. He’s a drug trafficker.

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