This is the lie: Florida standard jury instruction 3.10(5):
5. Your
duty is to determine if the defendant has been proven guilty or not, in accord
with the law. It is the judge's job to determine a proper sentence if the
defendant is found guilty.
This is the truth: with dozens upon dozens of criminal statutes carrying minimum mandatory sentences, the Judge does NOT determine the proper sentence. The legislature already has done that, about twenty years ago in many cases. The judge, who sees the defendant, sees the unique circumstances of the case, has NO say in what the sentence is. If it is a drug trafficking case, the sentence for a twenty year old first offender could be as high as twenty five years.
How could that be, you might ask? How could a first offender get mixed up in a drug case carrying a twenty five year sentence?
When I was a prosecutor many years ago in the Dade County State Attorneys Office narcotics division, I was assigned to investigate a case where an undercover drug unit was buying a lot of heroin. Possession of heroin, over a certain amount, immediately becomes a drug trafficking charge. That's what drug trafficking in Florida is- nothing more than possession over a certain amount. You don't need to be selling the drug in a Ferrari, while wearing a Rolex.
The drug deal went bad, the bad guys ran away, the cops chased them, and one of the bad guys threw a bag containing about 200 grams of heroin in an alley. Enter the homeless man in the alleyway who saw the whole thing unravel. grabbed the bag, and started to run. Eventually the cops chased him down and arrested him. The charge? Trafficking in Heroin. He had grabbed the bag, taken possession of it, and tried to run away. Smart? No. A mistake worth twenty five years of his life? No. (which makes me think that if he had been fully prosecuted and convicted, he would be getting out around now).
I reduced the charge. The unfortunate soul pled guilty to obstructing justice or tampering with evidence, served a few weeks and went on with his life.
But let's say I wasn't a reasonable prosecutor. Let's say I was looking to burnish my trial stats and get an easy conviction on my record as I tried to make a name for myself. And let's say the case went to trial and I won (which I did close to a hundred times as a prosecutor). I- as a twenty seven year old prosecutor three years out of law school, had all the power. The trial judge (I forget exactly who it was)- hopefully a learned and experienced man or woman who could have recognized the extraordinary zealous abuse of power by the prosecution, was and is completely powerless to do anything about the case or the sentence.
The legislature has made many sentences mandatory and given the prosecutor- many times the least experienced lawyer in a case- total power about seeking or waiving a minimum mandatory.
Which goes back to judges lying to juries. Going back to my example, if I had forced the case to trial, the judge would have been required to read to the jury the jury instruction above. One could imagine the jurors in the jury room carefully reviewing the instructions. Seeing that the prosecution had technically proved drug trafficking (simple possession of the drug over a certain amount) one could imagine the jurors saying something like "well even if we convict him, the judge will surely realize this is an unusual case and give him a fair sentence. He's not a real drug trafficker, even though he did possess the heroin."
If the jurors in that case would have convicted the homeless man, he would have served a quarter century in a Florida prison, assuming he survived.
I am attaching a motion I am now filing in these cases for my clients. I invite any lawyer to email me and I will send you a clean copy to use for your client who may be caught in this horrible and unfair situation. Philip@miamicriminallaw.net,
It's time Florida took the unfettered power and discretion away from twenty five year old prosecutors and gave the power of sentencing back to Judges- the people we depend upon to make our justice system work fairly.
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