If You Have Your Mind Made Up

Dear Readers,

Have any of you visited a career counselor? These folks take a look at your personality via long questionnaires and make career recommendations based upon the results. Let’s say you have no personality and don’t like people–you could become a doctor. I’ve encountered several with rather poor bedside manners. I’ve had friends whose fantasy career path involves gynecology, and these guys are the very folks you do not want to see on the other end of those stirrups. (I know what you’re thinking, a few worn out cliches this early in the article? Sorry)

I’m pretending to not enjoy bawdy humor because that’s the classy thing to do, but really, Eddie Murphy’s Delirious and RAW are timeless classics, and you can throw early Chris Rock into this mix as well. Unfortunately, my “guy friends” have worn out one liners like “That’s What She Said”. Who could possibly be more annoying than that friend who adds “In Bed” to everything you say? The friend who knows everything. Like a politician who can solve every problem facing humanity, I’m annoyed by people who think they’ve got it all figured out. I’m not just annoyed, I find it boring, and boring is worse than annoying. For those of you who have it all figured out–where’s your sense of adventure? What’s worse than someone who has it all figured out? Someone whose body language exudes such. Often, knowing it all radiates a certain condescension, the likes of which you only see when male models flare their nostrils as they strike a pose.

Anyway, my career advice to those of you who know it all and have it all figured out — DON’T BECOME A JUDGE.

Yes, this is a free country, and the very people that shouldn’t be in a certain profession do it anyway. What are you gonna do? This is especially true of elected officials–judges in particular. Getting back to my rant about people who have their minds made up already, you may be asking yourself, ‘what’s the harm in having your mind made up in a courtroom?’ Well, our legal process relies on neutral referees who sort out evidence and argument. As a former President once said in his native Arkansas tongue:

“The problem with ideology is if you got an ideology, you already got your mind made up, you know all the answers, and that makes evidence irrelevant and argument a waste of time” William J. Clinton

If your chosen path is “judge”, then I hate to break this to you, but you’ve got to be open to all legal resolutions, even those you don’t personally agree with. (Yes, I’m ending a sentence with a preposition) Such was the issue in Fraser v State, 41 F.L.W. D2362 (4th DCA 10/19/2016).

Fraser violated his probation, and this violation scored him mandatory prison. His defense attorney offered testimony in an attempt to lower this mandatory prison sentence (this is called a downward departure sentence, FYI). Now, without boring you too much on how this is done, let’s just say that Florida law contains several factors that permit a judge to “depart” from a mandatory prison sentence. One such factor involves the mental health of a defendant. Should a defendant need special mental health treatment, a court may impose a lighter sentence than the “mandatory”. That’s right, “mandatory” doesn’t really mean mandatory. It’s a shocking revelation that legal words don’t really “mean” what you think they “mean”. Of course, this is true not just of the law, but also of philosophy, religion, relationships, politics.

So, Fraser’s defense attorney presents a legally sufficient reason for a lighter sentence based upon his mental health. In response, the judge launches into a fairly detailed rant on how mental defects account for the vast majority of criminal behavior, and as such, if we give Fraser a mental health discount on his sentence, we’d be undermining “the very heart of how law operates”. By the way, as a defense attorney, you can hear these rants coming a mile away. It’s no fun to hear a rant that leads to your client being punished, on top of having to hear the rant. It’s like your parents lecturing you for hours before you’re grounded. Just ground me already, please. Basically, this judge’s rant “implied that he would not, as a general policy, consider a defendant’s mental health needs as a basis for downward departure.” Section 921.0026(2)(d), Fla. Stat. (2014).

I know what you’re thinking. We have a Constitution. We have laws. The law dictates that mental health can permit a judge to impose a lighter sentence, yet this judge has admitted–on the record–that he doesn’t abide by that law. Can judges pick and chose which laws they prefer?

No. The appellate court overturned Fraser’s sentence, finding that this judge’s refusal to consider legally permissible sentencing options constituted fundamental error. The higher court reiterated the long standing rule that a judge must “consider a legislatively authorized sentencing option”, and cannot refuse any sentencing option “as a matter of policy”.

Fraser’s judge isn’t the first to refuse a legal option “as a matter of policy”. The Fraser court cites several other sentences that were overturned on the same grounds:

• a judge’s policy of refusing downward departures after a jury trial was considered fundamental error. Little v. State, 152 So. 3d 770 (Fla. 5th DCA 2014)
• a judge’s policy of never considering a downward departure on a child pornography case violated due process. Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014)
• a courtroom policy which refused to ever consider sentencing a juvenile defendant to boot camp was considered a violation of due process. Pressley v. State, 73 So. 3d 834 (Fla. 1st DCA 2011)

As a practical matter, we defense attorneys know plenty of judges who refuse various legal options “as a matter of policy”–they’re just smart enough not to verbalize such on the record. A clever 5th grader can come up with excuses for actions that fall short of the truth, so the fact that a judge can perform verbal gymnastics that mask the judge’s true feelings is not intellectually impressive. Bottom line is, if you’re not willing to be a fair referee, find another job.