Judge Not Solely To Blame For Child Rapist Getting No Jail Time

Yesterday, I wrote about Superior Court Judge Jan Jurden, who made a decision that has resulted in her receiving a number of death threats.  See:  https://www.floridacriminaldefenselawyerblog.com/2014/04/jail-child-rapist.html  Many are demanding her removal from the bench.  As I shared with you in the article, the judge sentenced a man who raped his three year old daughter to probation instead of prison.  The offender was a du Pont family heir.

The outrage stemmed primarily from what the judge wrote in her sentencing order:  “He would not fare well in prison.”  She used that as a mitigator in doling out the very light sentence.  Nowhere in her order did she attempt to justify her sentence by alleging that the prosecution’s evidence was weak in any way.  That fact, in my opinion, would have served as the only possible reason to justify probation in this horrific case.   So, naturally, in yesterday’s blog post, I was very critical of this judge’s judgment.  Additionally, based upon the facts that were available to me when I wrote the article, I put the blame solely on the judge.

Many attorneys, both prosecutors and defense lawyers, are coming to the judge’s defense.  Based upon the facts that just came to my attention, I am now jumping on that band wagon, to some extent.

What I just learned was that the prosecutor handling the case recommended a sentence of probation.  The judge didn’t come up with that on her own.  Prosecutors apparently had challenges proving this case.  For example, there reportedly was no physical evidence to corroborate the child’s claims.  Additionally, prosecutors were concerned about putting a young child witness on the stand where she invariably would have faced vigorous cross-examination and possible further victimization.  It’s important to note that child witnesses can be very unpredictable in front of a jury.  Prosecutors never announced on the record all the reasons why they recommended probation.

In recommending probation, prosecutors thought there was a strong probability that they may lose the case and thought a felony conviction and getting him on the  state sex offenders registry was better than possibly getting nothing as a result of an acquittal.  Additionally, it was prosecutors who initially charged the defendant with second-degree rape, and then lowered the charge to fourth-degree rape.  The recommended sentence for that offense is zero to 30 months in prison.  So the judge did legally sentence du Pont within the guidelines.

Many will read this and think, as did I in yesterday’s article, “While she was legally permitted to sentence him to probation, she morally shouldn’t have.” I will in no way attempt to persuade you otherwise.  What is imperative to point out is how the criminal system will be adversely affected if judge’s routinely ignore sentencing recommendations from prosecutors.  If judge’s don’t follow what the state recommends, then defense attorneys can’t recommend that their clients plead guilty and accept plea bargains.  Instead, they will be forced to tell clients, “This judge is a loose cannon and if you plead guilty, this judge may give you a lot more than what the prosecutor has agreed to recommend.”  If that were to happen, then the system would shut down.  Plea bargains are a necessary evil of the system.  It keeps the system moving.  There’s no way judges can try every case.  That’s what will happen if judges don’t back prosecutors on most pleas.

Could this have been that one case that the judge decided, “No Mr. Prosecutor, I won’t accept that lenient sentence recommendation in this case because the facts are just too abhorrent and he is too much of a danger to the community?”  Possibly.  However, this judge should assume, as most do, that prosecutors know the ins and outs of their case better than anyone.  They know the strengths, weaknesses, mitigators etc. better than anyone.  It was reasonable for this generally experienced and fair judge to rely on the prosecutor for sentencing guidance.

The point of writing this article is to change my position to some extent based upon my new information.  I believe that the judge doesn’t bear full responsibility for the outcome of this case.  Prosecutors made the recommendation for probation.  They did so because of challenges that they faced with their case.  I believe much of this controversy wouldn’t have started if the judge had made that clear in her sentencing order.  I would have had a different opinion had the judge written in her sentencing order, “Additionally, prosecutors recommended that the defendant be sentenced to probation.”