Crap... split decision in Miami...

[WannaJumpMyScooter]

from the blog



Not guilty on disorderly conduct.

Not guilty on unlawful refusal to obey a police officer.

Guilty on resisting arrest without violence.

Guilty of obstructing a public highway.

He’s gonna have to do 100 hours of community service, 1 year probation and pay about $400 in court costs.

The judge got high and mighty saying Carlos was cavalier during the trial and we found out the jury felt that Carlos hurt himself by testifying.

But Carlos was offered time served when he was arraigned. He refused that because he felt he was innocent. He shouldn’t second guess himself because he wanted to tell his side of the story.

[regnaD kciN]

1. As I wrote on his blog...

Well, it’s better than jail time, but that still sucks.

It sounds to me like he was essentially found guilty of not showing proper deference to the police, the actual law be damned.

:grr:

[regnaD kciN]

2. I posted this story to GD...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x3474931

Please kick and recommend!

[Synnical]

6. So Done. n/t

[kay1864]

3. "Guilty of obstructing a public highway" is not even a misdemeanor, it's a TRAFFIC INFRACTION

It's the one "charge" (if you can even call it that) that the jury couldn't rule on, since it's not even a misdemeanor. The judge ruled on that one from the bench.

What a travesty this case is. I hope he decides to appeal and clear his name. But he might not have the $$$ for it.

Assholes.

[Ms. Toad]

5. Under the circumstances

that are described in RIM's blog, it would be pretty hard to win an appeal.

You'd likely have to establish that the jury was improperly instructed (and that the instructions were objected to and the objections improperly overruled by the judge) or that no reasonable jury could have found, based on the evidence presented to it, that every element of the crime (resisting arrest) was proven. Pretty high standard. As far as the sentence is concerned - as long as the sentence is within what is permitted for the crime, generally the judge has pretty wide discretion (regardless of what the prosecutor asked for).

Stinks, but so does the fact that folks sitting in Gitmo for years were grabbed off the streets and haven't (until this week) had any right to challenge that they should not have been grabbed and held in the first place.

The good news is that RIM won on the matters of principle - disorderly conduct and refusing to obey a police order (i.e. he was doing nothing wrong when he took the pictures of the police in the first place). What the jury had trouble with, apparently, was that he didn't act like a nice little boy when the police decided to (unlawfully) arrest him.

[blueraven95]

7. I would think

although I know next to nothing about this sort of law, that he could at least get the sentence reduced. This sounds like a case of a runaway judge, and could probably be reeled in, if by nothing else, then by invoking the "cruel and unusual" clause. Quite frankly, there is no law that you have to be remorseful, even if you did commit the crime, which Carlos did not do. The judge sentenced based on lack of remorse, which I find appalling. I realize that a acquittal on appeal has only a very small chance of succeeding, but a lessening of the sentence could also be viewed as a partial win.

I have a cousin who is dealing with a very long probation sentence, and it's awful. The probation officer basically owns you, and if they decide to make a point with you, trust me, they can make your life incredibly miserable. For Carlos, that would mean probably not even being able to go 100 miles away from his home, which could be very detrimental to his career. If that alone could be reduced, it would be huge.

[regnaD kciN]

8. I'm also wondering...

...whether, even if an appeal is not practicable, it would be possible to make an issue of the judge's (mis)conduct with some judicial commission. While it's true that a judge has discretion in sentencing, said judge is also supposed to decide impartially, without letting his own (non-judicial) opinions get in the way. It seems all-too-clear that Judge Fernandez based the severity of his sentence largely on his personal dislike of RiM's politics, based on his lecture about "heroes" at Arlington. That should be enough, in itself, to raise serious questions about the judge's conduct in this case.

[Ms. Toad]

10. Unfortunately,

as long as the sentence is within the range set forth in the sentencing guidelines, it is generally presumed to be an appropriate sentence. Whether the process is a good one or not, one of the reasons appellate courts are reluctant to reverse lower court sentencing decisions is precisely because the sentencing judge has the opportunity to observe the individual's demeanor. If the sentencing judge perceives that the individual is acting like a smug SOB who believes s/he has gotten away with something, the judge is likely to impose a harsher sentence - and that's part of the judicial system currently works that I would hope Carlos' attorney explained to him ahead of time. (I don't know how Carlos carried himself in court - but it sounds as if that was the judge's perception.) The maximum sentence for resisting arrest without violence is 1 year in jail. Carlos got one year on probation - less than the maximum. On appeal, generally unless the appellate court determines that the judge took leave of his senses on the bench, they don't disturb sentences. I would be very surprised to see it decreased on appeal.

It sounds as if your cousin might benefit from the same kind of information - my brother was a master at gaming the system, and almost always managed to spend the minimum amount of time under penal control (over and over again). Not really the best way to run things, but it is an unfortunate reality. Until it changes - and I'm not holding my breath - everyone trapped in it should know how the system works so they can make informed decisions as to whether to play the game or not. Sometimes the principle is important - and when it is I (personally) might not show remorse (or whatever else the judge expects) - but rather would stand on that principle as long, as I was willing to accept the consequences. Other times, I choose to play the game, since there are more important battles to be fought and accepting the consequences would keep me from more important principles. I'm not making any judgment on the choices Carlos made - I'm just hoping that he was made aware of the likely consequences by his counsel (which would include the judge potentially not accepting the recommendation of the prosecutor) and that Carlos deliberately chose to accept the consequences for the sake of making a principled stand.

Back to the appeal, though, apparently the resisting arrest statute is a problem in Florida
(http://www.floridafirearmslaw.com/mm5/merchant.mvc?Screen=CTGY&Store_Code=FFL&Category_Code=Resisting-Arrest-Battery-On-An-Officer-Florida ) - perhaps some appellate panel will decide it is a good case to make a point with.

[Blue_In_AK]

4. No justice.

This is really wrong.

[CC]

9. Sounds like one of those runaway judges

the repukes like to scream about. Sorry to hear you didn't come out of it with everything dropped like it should of been. Not sure what you can do but I bet you have a good idea of where you can go. It may takes decades to clean Florida up once you finally get rid of the repukes that are in power. It used to be a pretty neat state before they ruined so much about it.

[BrightKnight]

11. Perhaps he could take the offensive and sue for wrongful arrest

In the context "resisting arrest without violence" and "obstructing a public highway" smells like pure bullshit. A civil jury might be more likely to see it for what it is.

I have no legal expertise and I am not giving advice but if it were me I might be asking about this.

[alfredo]

12. Sounds like it was a shotgun prosecution.