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June 15, 2017
Letters

Bias on the Bench?
On the 12th Judicial Circuit Court’s website, www.jud12.flcourts.org, we have published our final official response to the Sarasota Herald Tribune’s series of articles, collectively titled: “Bias on the Bench.” That series suggests racial biases are evident in the sentences imposed by criminal courts of this state, including those of the 12th Circuit. We hope the detailed response on our website answers questions the public may have about the implications and accusations of racial bias contained in the “Bias on the Bench” series.

Over the years, the Sarasota Herald Tribune has often and admirably addressed issues of social injustice, serving as an advocate for those without a public voice. As noted in our response, we take no exception to the Sarasota Herald Tribune as a newspaper. We do take exception, however, to the conclusions drawn in the “Bias on the Bench” series.

Our ability to disagree in a civil manner on issues affecting our nation and our communities is one of the hallmarks of our great society. With that said, the articles at issue have an edge to them suggesting anything but impartiality on the part of the authors. From the opening comparisons of our modern judiciary to the Ku Klux Klan, to the descriptions of various judges’ backgrounds, the style of journalism displayed in the series seems at odds with the otherwise laudable and objective journalistic traditions of the Sarasota Herald Tribune.

We do not anticipate our response will go unchallenged. The reporters involved have fought hard over issues associated with their data and methodology, and appear to be firmly entrenched in their positions. The reason for the reporters’ push-back is quite simple: If our position on the role of plea bargaining is correct, then most of their inferences and conclusions fail.

The reality is the vast majority of sentencing outcomes (approximately 98 percent in Sarasota County) are dictated by the parties and result from negotiations that take place outside the courtroom, without any judicial input. It is apparent that the authors of the series, and some of the experts and academics they rely upon, have not properly accounted for this reality, perhaps, in part, because they have no practical experience in this field.

According to one of the reporters’ sources, University of Florida Law Professor Kenneth Nunn, only 10 percent of all pleas involve a “fixed sentence.” Because we know from practical experience, and all credible literature on the subject, that the opposite is essentially true, we contacted Prof. Nunn and asked him to substantiate that claim. Nunn acknowledged speaking with a reporter, but could “not recall giving a precise figure for what you call ‘fixed pleas.’” Though he perplexingly continued to suggest that “fixed pleas” account for a relatively small number of cases, he offered no basis or legal authority for that proposition.
As explained in our response, a court’s ability to control what occurs during the plea process is limited. Plea agreements often contemplate multiple charges, which may be spread across one or more cases, and are influenced by numerous factors, including the relative strength or weakness of the evidence in each case. While judges decide whether to accept a plea tendered by the parties, procedural rules and other legal authority all but preclude judicial involvement in plea negotiations. Significantly, if a judge is unwilling to accept the terms of a negotiated sentencing agreement, the judge must afford the defendant an opportunity to withdraw from the plea. The “Bias on the Bench” series underreports, or fails to account for, many of these facts.

Also lost in the “Bias on the Bench” series is the reality that every criminal case carries with it a unique set of facts and circumstances that do not necessarily lend themselves to side-by-side comparisons. In our response, we identify a number of instances in which the data relied upon in the series fails to capture or contemplate the existence of significant and legitimate facts that might influence a sentencing decision.

Even if we accept the premise of race-based sentencing outcomes as true, the notion that a judge possesses the ability to compare and contrast every criminal case (or collection of criminal charges or cases attributed to a single defendant) for purposes of detecting racial bias within a specific plea agreement is simply unrealistic. The practical reality is that judges lack tools to assess the role of race in plea agreements negotiated by the parties. While we welcome and have suggested funding to implement such a system, no such system presently exists. We have gone on the record in support of meaningful legislation that would combat bias of any kind. However, we object to the introduction of legislation based on the methodology used in the Herald Tribune’s series.

We acknowledge that judges maintain sentencing discretion after the rendition of a verdict in a criminal trial. Judges also decide sentences in relatively rare instances when defendants enter “open pleas.” In both settings, pre-trial prosecutorial decisions may limit a judge’s sentencing discretion.

Reputable criminal justice experts, including those who have generated reports for the U.S. Department of Justice, recognize the tremendous influence law enforcement and prosecutorial decisions have over those subjected to the criminal justice system. Decisions relating to the severity and number of offenses charged, the involvement of statutorily mandated minimum sentences, and the pursuit of other enhancements fall within the exclusive domain of prosecutors.

Finally, though I have not presided over a criminal division since 2004, the reporters involved in this series have, for whatever reason, chosen to focus some of their attention on sentencing records from cases tried before me, and concluded that a comparison of the various sentences I’ve imposed indicates racial bias. In response to this most personal attack on my professional integrity, I have compiled summaries, including case specific information, from all of the felony criminal trials I’ve conducted during my judicial career. We have placed these summaries on our website (and also included them as an exhibit to our formal response) for the public to view and compare. As an aside, though I find it unfortunate and offensive to designate the race of the individuals discussed in these summaries, the designations have nevertheless been provided for purposes of context. We ask that the public, and especially those familiar with the criminal justice system, review these summaries and decide if there is any evidence of bias as suggested by the authors of the series. I would ask that the reviewer note three cases in particular, State v. Dwight Yarn, State v. Reginald Crockett, and State v. Nashon Shannon.

We appreciate the opportunity to share our response, and we hope the response answers any questions the public may have about the integrity of the 12th Circuit as it relates to racial bias in particular, and bias in any other form.

Chief Judge Charles E. Williams
12th Judicial Circuit

Lactation Rooms
I read with great interest the June 1 story on the addition of a lactation room at the Edgecomb Courthouse in Tampa.

I applaud the courthouse’s efforts to provide a private place for lactating mothers — it’s a great benefit to all the families out there that have young children and wish to breastfeed — but I am saddened by how far behind our judicial system is lagging in providing what is an expected benefit in many places of employment.

After returning to work from maternity leave, I was summoned for federal jury service in Orlando. At the time, I had been a member of the Bar for over 10 years and had never served on a jury, so I was excited to see the process from that side of the courtroom. When I went through the juror screening process, I was saddened to learn that there were no facilities to pump in the courthouse (not even a bench in the bathroom), no accommodation for me to bring the pump in to the courthouse, and no accommodations for taking short breaks to pump. The best the judge could do was permit me to leave the courthouse on the short lunch break, walk a few blocks to the parking garage, pump in my car and then go through security to get back to the courtroom. Since I needed to pump more than once a day, I had to get a letter from my doctor stating that I was medically unable to serve as a juror because I was lactating! I was embarrassed and disappointed that our profession made so little accommodation for something that is a natural part of life.

I hope our profession can follow the lead of many employers by supporting lactating mothers with locations for pumping or nursing and greater awareness of the small accommodations needed for short breaks. Everyone will benefit by supporting those that choose to breastfeed and keeping mothers in the workforce during the brief time in their lives when they are lactating.

Melissa Burt DeVriese
Ormond Beach

[Revised: 11-25-2017]