JUSTICE WITHHELD - PART 2

Odds Favor Whites For Plea Deals

White criminal offenders in Florida are nearly 50 percent more likely
than blacks to get plea deals that allow them to escape felony
convictions.

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 Smith 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 teenager 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 black
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 lawyers who get
them the break. But even when blacks and whites had the same type of
attorney, private or public, the disparity didn't disappear, The
Herald found. An analysis of Miami-Dade County court data from 1999
shows that 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 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. Socioeconomics 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 drug possession or
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 to 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 has 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 prosecutors total
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.

DIFFERENT OUTCOMES

One had a support system; the other had only a lawyer

Yet, although their score sheets were identical, the
sentencing outcomes were vastly different for Jared Smith and Edward
Cobbs, the 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 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 was breaking up a fight when he was 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 of imprisonment.

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

Smith's parents attended the sentencing. His former boss at
Publix wrote to the judge: ''I would gladly welcome his return as an
employee.''

Bonnie Barnett, a civic leader long involved in the Broward
arts community, also wrote to 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 of
house arrest and eight years of probation, with an allowance to go to
school and work. She declined to comment on the case. (It's important
to note that 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 wants to become a marine
biologist.

Cobbs said he also wants to study. Unlike Smith, he's a felon
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 them. Split
from his family, Cobbs said he spent 11 years in Department of
Children & Families custody, passing through more than 100 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 made 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. Tillman told
authorities that the 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, placed himself at the mercy of
the court. The victim's family wanted him to get mental-health
assistance and to be placed in 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 Cobbs' 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 of
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 a school so he could 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.

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.''