Pubdate: Sun, 25 Jan 2004
Source: Miami Herald (FL)
Copyright: 2004 The Miami Herald
Contact:  http://www.miami.com/mld/miamiherald/
Details: http://www.mapinc.org/media/262
Authors: Manny Garcia and Jason Grotto of the Herald
Note: First of a Four-Part Series - see the sidebar below.
Bookmark: http://www.mapinc.org/states/fl/ (Florida)
Bookmark: http://www.mapinc.org/racial.htm (Racial Issues)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

JUSTICE WITHHELD - PART I

Courts Are Freely Handing Out 'Withholds Of Adjudication,' A Judicial Break 
That Allows Offenders To Avoid Felony Convictions

In 1941, Florida legislators passed a law that allows judges to quash the 
convictions of felony offenders, sparing them a life of potential economic 
hardship and the scorn associated with being a convicted felon.

The perk is called a withhold of adjudication. Intended to be a one- time 
break to help first-time offenders, it allows people to say they have never 
been convicted of a crime.

But under an overburdened state criminal justice system, the well- 
intentioned law has morphed in the past decade into a handy tool to close 
cases that, in many instances, appears anything but just.

Rapists, child molesters, child abusers, wife beaters, burglars, cocaine 
traffickers, repeat offenders, even corrupt public officials got the break. 
Scores of regular lawbreakers avoided convictions as many as five times.

"It defies all logic. It's used to move cases along. It's handed out for 
crimes where you shouldn't get one," said Sally Heyman, a former state 
representative who unsuccessfully pushed legislation in 1998 to tighten the 
use of withholds in Florida. "There's no common sense behind its use, and 
its use needs to be tightened."

A Herald computer analysis of nearly 800,000 felony cases from 1993 to 2002 
found other unintended consequences:

* White criminal offenders are more likely to get withholds than blacks who 
are charged with the same crime and have similar prior records.

As a result, black offenders are branded convicts and lose their civil 
rights more often than their white counterparts. Without a withhold, 
offenders lose their right to vote, serve on a jury, own a firearm, hold 
public office and obtain many student loans. They often find it harder to 
get a decent-paying job.

* Jared Smith, 21, white, got a withhold despite pleading no contest in 
2001 to aggravated battery. He stabbed a youth with a knife. It was his 
first felony. Smith currently runs a video store and goes to college.

"I want to be a marine biologist," he said.

* Edward Cobbs, 19, black, did not get a withhold. He's a convicted felon, 
imprisoned after his first offense: aggravated battery. He also stabbed a 
youth with a knife. Cobbs said he has filled out 50 job applications since 
his release to no avail.

"All I care about now is getting into school, handling probation and 
keeping a roof over my head," Cobbs said. "I've been trying to find a job."

Withholds are being handed out in increasing numbers, a perk used more and 
more to get offenders to cut deals and unclog a criminal justice system fat 
with cases. Statewide, about one in three people who pleaded to a felony 
got the break.

* Florida courts have nearly decriminalized some felonies for first- time 
offenders. Almost three out of four thieves had their convictions withheld 
following their first arrest. Folks charged with battery got the break more 
than half of the time.

And the list goes on: You have at least a 50-50 shot at getting the break 
if you bribe someone, embezzle from your employer or commit fraud, perjury 
or forgery.

Even people found guilty of charges such as rape and hit-and-run can say 
they have never been convicted of a crime.

In Miami-Dade County, prosecutors say Ira Marc Cohen struck and killed a 
Haitian woman as she crossed Biscayne Boulevard, then drove off. Cohen 
pleaded no contest to leaving the scene of an accident resulting in death. 
He got probation and a withhold, meaning in the eyes of the law, he's not a 
felon and does not lose his civil rights.

Also in Miami-Dade County, Carlos Soloranzo pleaded no contest to sexual 
battery and received a withhold - two months after police say he sprayed 
Mace into a woman's face and raped her.

No Longer One-Time

Thousands Of Offenders Have Received Multiple Withholds

* Although legislators intended withholds to be a one-time break, it has 
become the gift that keeps on giving: The Herald found almost 17,000 
offenders who received two, three, four - and in a handful of cases - even 
five withholds.

"It seems to take an act of God to get a conviction," Hialeah police Sgt. 
Sam Fadel said. "Withholds are a joke. It's used to move cases along. Guys 
get it, and they come right back and do it again."

In Broward County, police arrested Andrew Saggese four times for breaking 
into Jeeps. After every bust, a judge withheld the finding of guilt. That 
means Saggese doesn't have a single felony conviction on his record, even 
though he got caught red-handed all four times.

* In thousands of cases, the courts gave the break to child molesters, 
child pornographers, child abusers and men who had sex with adolescent 
girls. For every 10 offenders who walked into a courtroom charged with 
child abuse, more than half walked out with a withhold, The Herald found. 
The list includes adults arrested for punching a child and beating two 
toddlers over the head with an oak plank.

In Sweetwater, Luis Nicomedes Gallo, 71, maintenance man, registered sexual 
predator, knows the score: "I'm not a convicted felon."

Gallo received a withhold after pleading guilty to sexually assaulting a 
5-year-old girl in 1998. He told The Herald he didn't do it.

"That child was like my daughter," he said. "I never hurt her."

The girl's mother called the punishment criminal.

"I never agreed to anything where Gallo could say he was never convicted of 
a crime," she said.

Everyone Wins

Prosecutors, Offenders Can Both Profit From Deal

Withholds are a win-win for everyone: Prosecutors and judges count them as 
convictions, offenders get the break.

They also provide a way around some of Florida's get-tough-on-crime laws, 
such as mandatory minimum sentences and the state's "three- strikes" law, 
which requires prison time for a third felony conviction. The first felony 
in many cases doesn't count if the judge withheld adjudication.

"The Legislature might create mandatory adjudications, but the key is in 
the packaging - you want a plea that reduces the charge, humanizes your 
client, but doesn't make the judge or prosecutor seem soft on crime," said 
John P. Contini, a South Florida criminal defense lawyer. "It's a win-win 
for all sides.

"Is the system fair? Absolutely not," said Contini, who said he has 
obtained withholds for clients charged with DUI manslaughter, sexual 
assaults and repeat offenses. "Judges, prosecutors, defense lawyers, 
probation officers, we're all human. We see things differently and we all 
make mistakes."

Judges and lawyers acknowledge that withholds are handed out with little 
consistency. One reason, they say, is that criminal cases - even when the 
charges are the same - can be interpreted differently.

"You can take the same fact patterns and present them to Judge A and you'll 
get a different ruling than Judge B," said Lawrence "Chris" Roberts, a 
Broward criminal defense lawyer and former judge.

One Broward judge told The Herald that he would never grant a withhold to a 
cocaine trafficker, but a colleague did just that. A Miami-Dade prosecutor 
told The Herald that he would never offer a withhold to an accused child 
rapist, but a colleague did just that. Judges say in most cases they 
approve a withhold based on input from prosecutors.

"It's always the judge who gets hung out to dry, but you have to trust your 
prosecutors when they make a recommendation," said Chief Judge Donald R. 
Moran Jr., the former president of the Florida Conference of Circuit Court 
Judges whose Northeast Florida circuit includes Clay, Duval and Nassau 
counties.

Judges also say their decision to set aside a conviction is not based on race.

"I think judges are very conscious to make sure race does not affect their 
decisions. No one tells you, 'Hey, Judge, it's a black guy,'," Moran said.

Judges and prosecutors say the disparity is financially driven: More whites 
than blacks can afford to post bail and hire private attorneys.

Moving Cases Ahead

Withholds Are Necessary In Clogged Courts, Lawyers Say

Veteran lawyers say withholds are needed, not just to forgive first- time 
offenders, but to keep an overburdened court system moving along. Withholds 
are commonly used by judges, prosecutors and defense lawyers to persuade 
offenders to take a plea.

Everyone agrees that when used properly, withholds are one of the most 
important tools in the criminal justice system. They save someone who makes 
a one-time mistake from a life of disdain and economic hardship. A 
prominent example: Broward Chief Assistant Public Defender Howard 
Finkelstein, busted in 1987 after he crashed into a cop car while high on 
cocaine, got his job back after going through rehab and getting a withhold 
for his felony.

"I don't have to carry that scarlet 'F' around with me," said Finkelstein, 
who is running for public defender. "I was given a second chance to 
redirect my life. Withholds matter, they matter a lot. In many ways it 
saved not only my life, but the quality of life for my wife and children as 
well."

In Florida, the break is particularly important.

Florida is one of seven states nationally that still strips convicted 
felons of their right to vote after completing their sentences. That loss 
of civil rights continues to be debated in the courts and Tallahassee as 
state legislators and advocates for the convicts push to restore the voting 
rights of an estimated 500,000 convicted felons - about 150,000 of them 
black - who have done their time.

"A conviction makes you a second-class citizen, and it's very difficult to 
crawl out of that hole," said Gary Dorfman, who served five years for 
cocaine trafficking and now runs the prison ministry at the First Baptist 
Church of Fort Lauderdale. "A withhold makes a world of difference. Who you 
gonna hire? The guy who checks off convicted felon on the application or 
the guy who doesn't?"

Legislators, at the behest of prosecutors and judges, have tried to tighten 
the distribution of withholds after realizing there is scant uniformity in 
their use.

A 1998 proposal would have eliminated giving a withhold to an offender who 
once received one and was then charged with a similar offense. But the 
measure died in committee as legislators focused on passing tougher 
mandatory sentencing laws.

"The No. 1 complaint I got was about criminals getting repeat withholds, 
then going out and committing new crimes," said Heyman, a former member of 
the House Committee on Crime Prevention, Corrections and Safety. She is now 
a Miami-Dade County commissioner.

"It was handed out like candy," she said.

[sidebar]

HERALD ANALYZED MILLIONS OF PRISON, PROBATION RECORDS

By Jason Grotto

This series on the use of withholds of adjudication in Florida is the 
result of eight months of computer analysis and research involving millions 
of prison and probation records. Herald reporters also culled through 
hundreds of felony case files and conducted scores of interviews.

The paper began with a Florida Department of Corrections database that 
tracks all felony offenders sentenced to state prison or supervision. The 
data contain basic demographic information about offenders, such as race, 
gender and date of birth, as well as details of their crimes and sentences, 
including whether or not they received a withhold.

The Herald employed a methodology that measured several factors, cited by 
judges and prosecutors, that play into the decision of whether or not to 
withhold adjudication, including severity of the crime, number of counts 
and prior record. The study included nearly 800,000 cases between 1993 and 
2002.

To investigate racial disparity, The Herald used a statistical technique 
called logistic regression. This tool allows an apples-to- apples 
comparison of offenders who were given withholds and those who were not by 
accounting for crime, crime severity, prior record, number of counts, 
county, age and gender.

The results show that whites in Florida were 47 percent more likely than 
blacks to receive a withhold. The Herald also analyzed the data along 
ethnic lines and found no disparity between Hispanics and white non-Hispanics.

The disparity among racial groups is not necessarily the result of racism. 
It could be socio-economic conditions predispose blacks to a higher 
likelihood of being adjudicated, for example, their ability to hire a 
private attorney.

The paper obtained data on felony crimes from Miami-Dade courts in 1999 and 
found the disparity shrinks by 16 percent when the type of defense 
attorney, private, public or specially appointed, is taken into account. 
But whites were still 44 percent more likely to get a withhold than blacks, 
regardless of attorney type.

The Herald was unable to capture other variables that judges and 
prosecutors say play into decisions. For example, there was no data 
available on offenders' demeanor in the courtroom, family support or 
employment status.

Although the DOC database is the most comprehensive statewide source of 
information about withholds of adjudication, felony offenders sentenced to 
county jail are not included. About 22 percent of felony offenders get jail 
time statewide.

To examine the possible impact of the missing jail population, the paper 
reexamined its results, assuming 25 percent more cases were added and that 
they all resulted in adjudications -- even though some felons who go to 
jail get withholds. When those jail cases were added, the percentage of 
withholds statewide during the 10-year period fell from 38 percent to 29 
percent, meaning almost one in three Florida felony offenders got withholds 
as reported in this Herald series.

The missing jail population would only effect the racial analysis if it was 
drastically different than the population sentenced to state prison or 
supervision, for example, if all the jail offenders were white. But The 
Herald found that the populations are nearly identical.

Two criminologists from Florida State University reviewed the Herald's 
analysis and agreed it is sound. Associate professor Bill Bales, former 
bureau chief of Research and Data Analysis at DOC, said: "I don't know a 
researcher who could do it any better."

Professor Gary Kleck, who studies racial disparity in the justice system, 
agreed. "What you've done is very good."

The paper also provided DOC statisticians with copies of its data file and 
programming.

"This is the way we would do it if we were studying this issue," said David 
Ensley, who took over Bales' job at DOC.

PART 2 | JAN. 26

A Herald analysis finds that white felons are more likely to have their 
convictions set aside than blacks charged with the same crime.

PART 3 | JAN. 27

Thousands of criminals in Florida are getting their convictions erased over 
and over again.

PART 4 | JAN. 28

Most adults who peddle child porn or solicit children for sex over the 
Internet are getting a break from Florida courts.
- ---
MAP posted-by: Richard Lake