RACE MAY AFFECT SENTENCE OPTIONS

Adjudication Of Guilt

Jared Smith, white, stabbed a Good Samaritan who tried to break up a fight.
A judge called the attack an "isolated incident" and sent the 18- year-old
home without a felony conviction.

Edward Cobbs, black, also stabbed a youth during a fight. A judge convicted
Cobbs of a felony and sent the 16-year-old to state prison for two years.

Neither teen had a prior record two years ago when they were charged as
adults, but their different punishments speak to a larger issue:

White criminal offenders in Florida are nearly 50 percent more likely than
blacks to get a withhold of adjudication, a plea deal that blocks their
felony convictions even though they plead to the crime. White Hispanics are
31 percent more likely than blacks to get a withhold.

The disparity in outcomes has cost thousands of blacks offenders their
civil rights, including the right to vote, serve on juries, hold public
office, own a firearm. And the convictions carry an economic penalty:
Felons can't be hired for many government jobs, and they can't apply for
some student loans.

"Most prosecutors and some judges see the potential for salvation in a
white defendant. With a black defendant, they see the destruction of a
civilized society," said H.T. Smith, a prominent South Florida criminal
defense lawyer who is black. "It's not conscious racism. It's part of their
cultural upbringing."

Prosecutors and many legal experts say the disparity is pure economics:
More white offenders can afford private counsel who get them the break. But
even when blacks and whites had the same type of attorney, the disparity
didn't disappear, The Miami Herald found. An analysis of Miami-Dade County
court data from 1999 shows the disparity dipped from 60 percent to 44
percent when attorney type was taken into account.

Jurists also say that factors not captured in The Herald's analysis -
family support, job security, ability to make bail, appearances and the
circumstances surrounding a case - could sway judges on whether or not to
give a withhold.

Race, they insist, is not a factor.

"There's a million different reasons why cases turn out vastly different,"
said Jeff Marcus, Broward County's chief of the felony trial unit. "The
charges may be the same, but cases can be so different. I'm not aware of
race being a factor. Socio-economics might be an explanation."

Whatever the reason, a Herald computer analysis of nearly 800,000 felony
criminal cases from 1993 to 2002 found a system that is more likely to
punish blacks than whites in the same predicament.

"There is an ideal that this is a race-blind system, but the fact of the
matter is, blacks are less likely to get a withhold. It is not coincidence
that the numbers came out this way," said Gary Kleck, a Florida State
University criminology professor who has published numerous studies on
racial bias in sentencing and examined The Herald's analysis. "To the
extent that there is a pattern, blacks get the short end of the stick."

The greatest disparity shows up in drug crimes. Across Florida, white
offenders arrested for crimes like cocaine possession or drug dealing are
nearly twice as likely to get the break as blacks charged with the same crime.

In 1999, in separate incidents just three months apart, Fort Lauderdale
police stopped Tim Carter and Richard Thomas as they walked along the
Florida East Coast railroad tracks. Police found a cocaine rock on Carter,
who is white. Police found a crack pipe with cocaine residue on Thomas, who
is black.

Both men blamed drug addictions.

Carter said he went to court expecting to get five years in prison, but the
judge took into account that his wife was about to deliver a baby and the
family needed his income. He got a withhold, and the judge sent him to drug
rehabilitation.

Thomas got convicted and sent to prison.

"A lot of times black defendants are viewed as criminals, while the white
defendant is viewed as having a drug problem," said Broward Assistant
Public Defender Ronnie Adili, who represented Thomas.

Howard Finkelstein, Broward's chief assistant public defender, said the
judges he encounters pride themselves on being fair.

"They're not racist," Finkelstein said. "It's more a matter of perception.
You'll get a young white defendant who looks like the judge's kid. He's
dressed well and is respectful, so he's going to resonate better with the
judge than some poor black kid who couldn't make bail, wears baggy clothes
and doesn't say a thing, so he comes across as arrogant."

Other Factors

Assignments, Bail Can Also Affect Case

Some legal experts argue that other factors, such as which judge and
prosecutor are assigned the case, make a big difference. They also note
that indigent offenders may be less likely to make bail, so they accept an
inferior plea offer just to get released.

"Say you've been in jail more than nine months awaiting trial, you get
offered 10 months, you plead guilty and you know you'll be free in a week,"
said Kathleen Hoague, Miami-Dade's chief felony prosecutor.

One veteran judge says he's seen black offenders take a conviction on the chin.

"I've seen a defendant, if he has gold in his mouth, braids in his hair, he
would get adjudicated guilty in front of some judges," said Miami-Dade
Circuit Judge Jerald Bagley, who is black. "It's appalling."

Several national studies on racial disparities in sentencing concluded that
race does factor into the decision to give blacks a harsher punishment,
especially younger defendants.

"When white youth and African-American youth with no prior admissions to
public facilities were charged with the same offense, African- American
youth were six times more likely than white youth to be incarcerated,"
according to an Annie E. Casey Foundation report published in 2002 by the
nonprofit child advocacy group.

To avoid sentencing disparities, Florida created a sentencing guidelines
score sheet in July 1983 in which where prosecutors would total the
charges, injuries (and) prior records by points. Judges have to justify
sentences that are below what the score sheet calls for.

The goal of the law: Equal treatment for the accused.

Yet, even although their score sheets were identical, the sentencing
outcomes were vastly different for Jared Smith and Edward Cobbs, the two
teenagers accused of stabbing other young men.

The white Smith had a support system that included his family, members of
the community and a private trial lawyer who used to be a judge. Cobbs had
no support system, no parents, no community members lobbying for him, just
an overworked public defender.

Coral Springs police arrested Smith on March 6, 2001, four days after he
jammed a knife into the back of Brian Milford, then 19. Milford, the son of
a Coral Springs cop, was breaking up a fight when he got stabbed.

Doctors say the knife barely missed a kidney. Stitches were needed to close
the wound. Milford carries a two-inch scar on his back.

Broward prosecutors decided to try Smith as an adult because of the
severity of the attack. They charged him with aggravated battery and asked
for five years' imprisonment.

His attorney, former Broward Judge Lawrence "Chris" Roberts, asked for
leniency because Smith was a first-time felony offender, recent high school
graduate, about to start university studies and "too young to appreciate
the consequences of his act."

Smith's parents also attended the sentencing. His old boss at Publix wrote
the judge a letter: "I would gladly welcome his return as an employee."

Bonnie Barnett, a member of the Broward Cultural Council, also wrote the
judge: "I strongly urge you to consider this incident, as grievous as it
is, as an anomaly . . . It would be regrettable to see someone so young
starting out without a second chance."

But the victim and his parents asked Broward Circuit Judge Susan Lebow for
a conviction and prison time.

"Your honor, Jared Smith showed no concern for my life," the victim wrote
to the judge. "He stabbed me without any fear of any retribution for his
actions."

Judge Lebow withheld adjudication and gave Smith two years house arrest and
eight years probation, with an allowance to go to school and work. She
declined to comment on the case. (The Herald did not analyze overall racial
patterns in the judge's sentencing because no reliable statistics are
available for individual judges.)

"An amazing deal he got," said James Milford, a Coral Springs police
sergeant and the father of Smith's victim. "My son is lucky to be alive.
This thug should be in prison."

Smith said he is now a supervisor at a video store and is attending Florida
Atlantic University. He said he wants his goal is to become a marine biologist.

Cobbs, the black offender, said he also wants to study. Unlike Smith, he's
a convict and can't find a job. He admits he did wrong - "snapped" - when
his foster brother made fun of him for not having a family.

At age 5, Cobbs and his 11 siblings became state wards because their single
mother could not afford to care for feed and house them. Split apart from
his family, Cobbs said he spent 11 years in Department of Children &
Families custody, passing through more than 100 different foster homes in
Broward.

At 16, he went to live with foster mother Ruby F. Tillman and her two children.

"The whole time I was there, she was a really caring person. I used to call
her Mom," he said.

Cobbs shared a room with his foster brother, Anthony, also 16. "I felt like
he didn't like me because I was in his space," Cobbs said.

Ruby Tillman tried to be the peacekeeper, sitting the boys down to talk it
out. But talk turned to violence on May 11, 2001.

Cobbs claims Anthony began making fun of the fact that he had no family.

"Being in DCF, I was bounced around so much, and I had met so many of these
types of people," Cobbs said. "I just couldn't take it anymore. I snapped."

Cobbs said he went to collect his things and go. Anthony followed. Cobbs
grabbed a kitchen knife and stabbed Anthony once in the back and once in
the arm. The victim ran away, and Cobbs followed and punched him.

"There was so much anger and emotion coming out at one time," Cobbs said.
"When it was over, I was like, 'Damn, I can't believe I did that.' "

Cobbs had been diagnosed with Intermittent Explosive Disorder while in
state care, state records and interviews show. He was supposed to be taking
medication to control his anger. Ruby Tillman told authorities that DCF
never clearly explained the disorder to her.

"Edward was placed with the family without the proper medication," said
Jennifer Estrumsa, his public defender.

Cobbs, charged as an adult, also placed himself at the mercy of the court.
The victims wanted him to get mental health assistance and to be placed in
put into a controlled program.

"They don't want to see him go to prison for his entire adolescence as a
young man," prosecutor Guiseppe Miranda told the judge.

'A Tragedy'

Judge Decides Crime Is Too Violent For Break

Judge Alfred J. Horowitz called Cobb's situation "a tragedy to all ends,"
but said the crime was too violent to withhold adjudication. He gave Cobbs
two years in prison plus four years probation.

"It was an isolated incident, and Edward had no prior record," his lawyer
said. "Now he's a convicted felon, his civil rights are gone and his
chances are a lot slimmer to succeed."

Today, Cobbs is struggling to make it. He earned a GED and applied to
school to become a medical assistant.

He lives alone, on the top floor of a four-story apartment complex in
Lauderdale Lakes. The stench of urine fills broken elevators; the hallways
are riddled with holes.

His one-bedroom apartment is clean but sparsely furnished. The white walls
are bare. Two old couches face drawn blinds in the front room. He sleeps on
in a twin bed. A small television keeps him company.

He has applied for jobs at 50 businesses just a walk from his apartment.

"I applied to Wal-Mart, but my friend who works there said they won't hire
you if you have a record," he said.

Cobbs said he wishes the judge would have spared him the conviction.

"It was a big thing that I did," he said. "I don't see why they couldn't
have given me probation. Was it fair? I'm not sure what that word is
supposed to mean."