Pubdate: Sat, 06 Jan 2001
Source: Tampa Tribune (FL)
Copyright: 2001, The Tribune Co.
Section: Front page
Contact:  http://www.tampatrib.com/
Forum: http://tampabayonline.net/interact/welcome.htm
Author: Lyda Longa, Tampa Tribune

STATURE, RACE HELP STAVE OFF JAIL TIME

Paul Hamill was a repeat drug offender who couldn't get clean.

He was arrested for possession and delivery of cocaine, then violated 
probation three times. The last time he disappeared for days, court records 
show, while his probation officer tried to find him.

By law, Hamill should now be in the Florida state prison. His offender 
score sheet with the Hillsborough prosecutor's office shows he should have 
been slapped with a mandatory prison sentence of at least three years.

But that's not happening any time soon. The Hillsborough County circuit 
judge presiding over his case thinks the 41-year-old Hamill is too small 
and white to survive in the general prison population.

Instead, Judge Florence Foster sentenced Hamill on Nov. 21 to two years of 
community control, a stringent form of probation. She also remanded him to 
a treatment center known for its exacting rules, tough work standards and 
counseling sessions.

When assistant prosecutor Steve Wetter objected to Foster's ruling and 
asked why Hamill wasn't going to do time, Foster said she believed Hamill 
was amenable to drug treatment, a court transcript shows.

But she had other reasons as well, according to the transcript.

"And when I looked at him, he's a small, thin, white man with curly dark 
hair, and I suspect he would certainly become a sexual target in the 
Florida state prison system. And I've been told they can't protect people 
like that. I'm not going to send a man like this to Florida state prison. 
That is cruel and unusual punishment in my book."

Though no one from the state attorney's office would comment, several 
assistant prosecutors who were in the courtroom - including two who are 
black - said Hamill's race and size shouldn't be a factor.

Foster declined to comment because the case is still pending before her. 
But she said her general goal is to "help people with drug problems, get 
rid of their drug problems."

Her remarks could add to recent controversies already simmering at the 
Hillsborough County Courthouse. During the past several months, two judges 
have been forced to resign and three others have become the targets of 
investigations initiated by special prosecutors or the Judicial 
Qualifications Commission, the panel that monitors Florida judges.

Prosecutors have criticized Foster before, saying she is usually too 
lenient with repeat offenders who would probably benefit from a stint in 
prison.

They are not the only ones who have complained.

Two years ago a group called Mothers Against Judicial Incompetence was 
created for the sole purpose of ousting Foster and at least two of her 
colleagues from the bench.

At the time, Foster worked in the family law division and members of the 
group were angry over several of her rulings affecting child custody and 
divorce cases. Members of the state's Judicial Ethics Advisory Committee 
declined to comment on Foster's remarks.

But the Florida Code of Judicial Conduct prohibits judges from making 
comments about race or gender bias in court.

Susan Rush, a law professor at the University of Florida in Gainesville, 
thinks Foster crossed that line.

"That's a fairly racist comment," Rush said Friday evening. "I can see why 
the prosecutors are mad."

But Foster, though probably politically incorrect, was just being honest, 
said Bruce Rogow, a law professor at Nova Southeastern University in Davie.

"I think it's a statement of great sensitivity; she is probably trying to 
save this man's life," Rogow said. "But I recognize there might be an issue."
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