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Should Judges Be Consistent?

Should Judges Be Consistent?Is there any value in holding onto a particular point of view?

Children seem free to change their mind, but adults face a bit more peer pressure to remain consistent. I think children have this issue right; we should feel a bit more freedom to change our position if need be. Often, we don’t give our positions any sort of deep analysis, and once we’re confronted with a situation that requires some bit of thought, we end up changing our mind anyway.

Nothing wrong with changing your mind, unless you’re in politics. A change of heart will open the flood gates of “flip-flop” negative campaign ads. In reality, we’d probably be far better off with politicians that don’t have their mind made up about every single topic on Earth (but, they wouldn’t sound very smart, would they? The Katie Couric’s of the world would have a field day with such intellectual thoughtfulness, editing the interview to look like a series of “gotcha” moments–it would get ugly).

Also, I can see “changing one’s position” as being a problem for professors and researchers. These folks may be funded to do research consistent with their previously published works. Imagine the disappointment of the folks funding the research when they discover a “change in position”. If you’re going to change your mind, you better have tenure (possibly one of the benefits of tenure?). Tom Petty once quipped that the music industry is never satisfied, because when he releases a new album the world says “Oh, this is the same old Tom Petty stuff he’s been churning out for decades”. And, if Petty does something completely different, they’ll say “This artist has Jumped the Shark, abandoned the rock that made him successful.” Basically, you can’t win.

I’ve changed my mind about many things over the years–an embarrassing number of things. The good news is, history has shown that most of what we believed 500 years ago has changed. Most of what we believed 100 years ago has changed. Will we look back on today, 100 years from now, and laugh? Everybody will acknowledge that our understanding of things changes dramatically as time marches on, but most people do not think that any of their beliefs could possibly be different years from now. I could see my view on gravity changing (and consequently, maybe our views on dark matter and dark energy). I could see our view of money changing (think Star Trek TNG, a very rosy picture indeed, but it’s possible!).

Our court system changes it’s mind. Our judges do as well. When this happens, they are careful not to suggest that their previous decision was a mistake, or wrong–they just withdraw their previous opinion and substitute a new one in its place.

So, I wrote an article a few months ago entitled “What to Look for When Appealing a Sentence“. It was based upon the case of Charles v. State, in which the defendant’s sentence was overturned because the judge used impermissible reasoning during the sentencing phase. 2016 Fla. App. LEXIS 8186 (Fla. 4th DCA 2016) Not one shred of that case is good law now, as the court overturned itself within a couple of months. Here’s the story.

Have you ever watched a football game, a soccer game, or whatever, and felt cheated when the referee injected himself into the match to such an extent that the outcome was decided by the officiating, rather than the players on the field? Same goes for the Charles case. The prosecutors brought a lawsuit against Charles, and they were able to convince Charles to risk his life to snitch on his fellow gang members. Remember the movie Goodfellas? Goodfellas was based on the true story of a government informant who confessed to numerous murders–but didn’t serve a day in jail due to his testimony against other mafia members. Same goes for Charles, except that his agreement called for 8 years in prison for taking down his former gang members. And, he did just that. So, where’s the 8 years? We’re getting to that….

After all of Charles’ work on behalf of the prosecution, judge Karen Miller would not accept the eight year deal already cut by the defense, the prosecutor, and law enforcement. All the parties to this lawsuit went back to the drawing board. They presented a second deal to the judge of 15 years prison. This time, the detective took the witness stand to testify on behalf of Charles, explaining how crucial Charles was to bringing down this gang, and further explaining that the court should accept the 15 year agreement. But again, the judge refused to go along with the plea deal.

At this point, Charles was probably feeling used and abused. Rightfully so. This article is going to sound like Judge Karen Miller is the bad guy here, but defense counsel could have done a few things to fix this problem (and maybe they did, but it’s not published in the appellate record). Namely, defense counsel could have had the prosecutor drop all other counts in the case, leaving only a 15 year second degree felony on the table. That way, the judge could max out Charles at 15 years. Everybody wins. State gets the 15 years they wanted, Charles gets the 15 years he wanted, the detective gets the 15 years he wanted. No such deal was ever presented, and the judge’s rejection of the 15 year prison deal forced Charles into a jury trial.

Having done all the work to help the government, and having his deal rejected, Charles was found guilty of charges carrying a grand total of 66 years in prison. And, that’s exactly what the judge gave him. Sixty six years in prison. Yes, this guy went from doing the right thing in exchange for 8 years prison, all the way up to sixty six years prison.

THIS IS A PUBLIC ANNOUNCEMENT TO ALL CRIMINALS IN JUDGE KAREN MILLER’S JURISDICTION (PALM BEACH COUNTY): You’ve had a change of heart. I get that. You want to make the world a better place, and put an end to the violence that your criminal associates are inflicting upon the public. Your efforts are going to save lives. You’ve heard Michael Jackson’s “Man In The Mirror” a thousand times, but your change of heart makes you shed a little tear every time you hear it. I get that. Naively, you probably think the judges in Palm Beach County also care about saving lives. So, in order to help the government, you sign a deal, say, for 8 years. The prosecutor signed the deal, and the signature block below that name is long and important sounding. This document looks really official. And, the deal also has the signature of the detective you’ll be working with to bring the violence to an end. Plus, you have reviewed this written agreement with your defense attorney. What could go wrong, right? Unfortunately, according to Judge Karen Miller, your agreement is not worth the paper it is written on. Just look at what happened to Mr. Charles in this case. Help the government in exchange for an 8 year sentence, only to be cornered into a 66 year sentence.

Ok, I’m slightly off track here. As I wrote about in August, the appellate court overturned Judge Miller’s 66 year sentence, and sent the case back to Palm Beach County for a sentencing before any judge other than Miller. As you can read here, the appellate court felt that Judge Miller factored into her decision improper deterrence considerations, and overturned her sentence. Unfortunately for Charles, the appellate court gave the prosecutors a re-hearing–and based upon those arguments–the court reversed themselves, finding that Judge Miller did nothing wrong in giving Charles 66 years. [Charles v. State, 2016 Fla. App. LEXIS 15940]

Regretfully, I have to say that Judge Miller did nothing wrong, technically. A sober look at the court’s second opinion seems to be more correct than their first decision. The second opinion correctly ruled that Judge Miller was legally entitled to give Charles the maximum sentence.

Judge Miller did what she was legally entitled to do, but did she do the right thing? Well, the citizens of Palm Beach County may be disappointed to discover that her actions in Charles will deter future defendants from providing the government any sort of assistance. Yes, I know. The first appellate opinion told Judge Miller she couldn’t consider deterrence as a factor in sentencing. Yikes.

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