JUSTICE WITHHELD - PART I

Courts Are Freely Handing Out 'Withholds Of Adjudication,' A Judicial Break
That Allows Offenders To Avoid Felony Convictions

In 1941, Florida legislators passed a law that allows judges to quash the
convictions of felony offenders, sparing them a life of potential economic
hardship and the scorn associated with being a convicted felon.

The perk is called a withhold of adjudication. Intended to be a one- time
break to help first-time offenders, it allows people to say they have never
been convicted of a crime.

But under an overburdened state criminal justice system, the well-
intentioned law has morphed in the past decade into a handy tool to close
cases that, in many instances, appears anything but just.

Rapists, child molesters, child abusers, wife beaters, burglars, cocaine
traffickers, repeat offenders, even corrupt public officials got the break.
Scores of regular lawbreakers avoided convictions as many as five times.

"It defies all logic. It's used to move cases along. It's handed out for
crimes where you shouldn't get one," said Sally Heyman, a former state
representative who unsuccessfully pushed legislation in 1998 to tighten the
use of withholds in Florida. "There's no common sense behind its use, and
its use needs to be tightened."

A Herald computer analysis of nearly 800,000 felony cases from 1993 to 2002
found other unintended consequences:

* White criminal offenders are more likely to get withholds than blacks who
are charged with the same crime and have similar prior records.

As a result, black offenders are branded convicts and lose their civil
rights more often than their white counterparts. Without a withhold,
offenders lose their right to vote, serve on a jury, own a firearm, hold
public office and obtain many student loans. They often find it harder to
get a decent-paying job.

* Jared Smith, 21, white, got a withhold despite pleading no contest in
2001 to aggravated battery. He stabbed a youth with a knife. It was his
first felony. Smith currently runs a video store and goes to college.

"I want to be a marine biologist," he said.

* Edward Cobbs, 19, black, did not get a withhold. He's a convicted felon,
imprisoned after his first offense: aggravated battery. He also stabbed a
youth with a knife. Cobbs said he has filled out 50 job applications since
his release to no avail.

"All I care about now is getting into school, handling probation and
keeping a roof over my head," Cobbs said. "I've been trying to find a job."

Withholds are being handed out in increasing numbers, a perk used more and
more to get offenders to cut deals and unclog a criminal justice system fat
with cases. Statewide, about one in three people who pleaded to a felony
got the break.

* Florida courts have nearly decriminalized some felonies for first- time
offenders. Almost three out of four thieves had their convictions withheld
following their first arrest. Folks charged with battery got the break more
than half of the time.

And the list goes on: You have at least a 50-50 shot at getting the break
if you bribe someone, embezzle from your employer or commit fraud, perjury
or forgery.

Even people found guilty of charges such as rape and hit-and-run can say
they have never been convicted of a crime.

In Miami-Dade County, prosecutors say Ira Marc Cohen struck and killed a
Haitian woman as she crossed Biscayne Boulevard, then drove off. Cohen
pleaded no contest to leaving the scene of an accident resulting in death.
He got probation and a withhold, meaning in the eyes of the law, he's not a
felon and does not lose his civil rights.

Also in Miami-Dade County, Carlos Soloranzo pleaded no contest to sexual
battery and received a withhold - two months after police say he sprayed
Mace into a woman's face and raped her.

No Longer One-Time

Thousands Of Offenders Have Received Multiple Withholds

* Although legislators intended withholds to be a one-time break, it has
become the gift that keeps on giving: The Herald found almost 17,000
offenders who received two, three, four - and in a handful of cases - even
five withholds.

"It seems to take an act of God to get a conviction," Hialeah police Sgt.
Sam Fadel said. "Withholds are a joke. It's used to move cases along. Guys
get it, and they come right back and do it again."

In Broward County, police arrested Andrew Saggese four times for breaking
into Jeeps. After every bust, a judge withheld the finding of guilt. That
means Saggese doesn't have a single felony conviction on his record, even
though he got caught red-handed all four times.

* In thousands of cases, the courts gave the break to child molesters,
child pornographers, child abusers and men who had sex with adolescent
girls. For every 10 offenders who walked into a courtroom charged with
child abuse, more than half walked out with a withhold, The Herald found.
The list includes adults arrested for punching a child and beating two
toddlers over the head with an oak plank.

In Sweetwater, Luis Nicomedes Gallo, 71, maintenance man, registered sexual
predator, knows the score: "I'm not a convicted felon."

Gallo received a withhold after pleading guilty to sexually assaulting a
5-year-old girl in 1998. He told The Herald he didn't do it.

"That child was like my daughter," he said. "I never hurt her."

The girl's mother called the punishment criminal.

"I never agreed to anything where Gallo could say he was never convicted of
a crime," she said.

Everyone Wins

Prosecutors, Offenders Can Both Profit From Deal

Withholds are a win-win for everyone: Prosecutors and judges count them as
convictions, offenders get the break.

They also provide a way around some of Florida's get-tough-on-crime laws,
such as mandatory minimum sentences and the state's "three- strikes" law,
which requires prison time for a third felony conviction. The first felony
in many cases doesn't count if the judge withheld adjudication.

"The Legislature might create mandatory adjudications, but the key is in
the packaging - you want a plea that reduces the charge, humanizes your
client, but doesn't make the judge or prosecutor seem soft on crime," said
John P. Contini, a South Florida criminal defense lawyer. "It's a win-win
for all sides.

"Is the system fair? Absolutely not," said Contini, who said he has
obtained withholds for clients charged with DUI manslaughter, sexual
assaults and repeat offenses. "Judges, prosecutors, defense lawyers,
probation officers, we're all human. We see things differently and we all
make mistakes."

Judges and lawyers acknowledge that withholds are handed out with little
consistency. One reason, they say, is that criminal cases - even when the
charges are the same - can be interpreted differently.

"You can take the same fact patterns and present them to Judge A and you'll
get a different ruling than Judge B," said Lawrence "Chris" Roberts, a
Broward criminal defense lawyer and former judge.

One Broward judge told The Herald that he would never grant a withhold to a
cocaine trafficker, but a colleague did just that. A Miami-Dade prosecutor
told The Herald that he would never offer a withhold to an accused child
rapist, but a colleague did just that. Judges say in most cases they
approve a withhold based on input from prosecutors.

"It's always the judge who gets hung out to dry, but you have to trust your
prosecutors when they make a recommendation," said Chief Judge Donald R.
Moran Jr., the former president of the Florida Conference of Circuit Court
Judges whose Northeast Florida circuit includes Clay, Duval and Nassau
counties.

Judges also say their decision to set aside a conviction is not based on race.

"I think judges are very conscious to make sure race does not affect their
decisions. No one tells you, 'Hey, Judge, it's a black guy,'," Moran said.

Judges and prosecutors say the disparity is financially driven: More whites
than blacks can afford to post bail and hire private attorneys.

Moving Cases Ahead

Withholds Are Necessary In Clogged Courts, Lawyers Say

Veteran lawyers say withholds are needed, not just to forgive first- time
offenders, but to keep an overburdened court system moving along. Withholds
are commonly used by judges, prosecutors and defense lawyers to persuade
offenders to take a plea.

Everyone agrees that when used properly, withholds are one of the most
important tools in the criminal justice system. They save someone who makes
a one-time mistake from a life of disdain and economic hardship. A
prominent example: Broward Chief Assistant Public Defender Howard
Finkelstein, busted in 1987 after he crashed into a cop car while high on
cocaine, got his job back after going through rehab and getting a withhold
for his felony.

"I don't have to carry that scarlet 'F' around with me," said Finkelstein,
who is running for public defender. "I was given a second chance to
redirect my life. Withholds matter, they matter a lot. In many ways it
saved not only my life, but the quality of life for my wife and children as
well."

In Florida, the break is particularly important.

Florida is one of seven states nationally that still strips convicted
felons of their right to vote after completing their sentences. That loss
of civil rights continues to be debated in the courts and Tallahassee as
state legislators and advocates for the convicts push to restore the voting
rights of an estimated 500,000 convicted felons - about 150,000 of them
black - who have done their time.

"A conviction makes you a second-class citizen, and it's very difficult to
crawl out of that hole," said Gary Dorfman, who served five years for
cocaine trafficking and now runs the prison ministry at the First Baptist
Church of Fort Lauderdale. "A withhold makes a world of difference. Who you
gonna hire? The guy who checks off convicted felon on the application or
the guy who doesn't?"

Legislators, at the behest of prosecutors and judges, have tried to tighten
the distribution of withholds after realizing there is scant uniformity in
their use.

A 1998 proposal would have eliminated giving a withhold to an offender who
once received one and was then charged with a similar offense. But the
measure died in committee as legislators focused on passing tougher
mandatory sentencing laws.

"The No. 1 complaint I got was about criminals getting repeat withholds,
then going out and committing new crimes," said Heyman, a former member of
the House Committee on Crime Prevention, Corrections and Safety. She is now
a Miami-Dade County commissioner.

"It was handed out like candy," she said.

[sidebar]

HERALD ANALYZED MILLIONS OF PRISON, PROBATION RECORDS

By Jason Grotto

This series on the use of withholds of adjudication in Florida is the
result of eight months of computer analysis and research involving millions
of prison and probation records. Herald reporters also culled through
hundreds of felony case files and conducted scores of interviews.

The paper began with a Florida Department of Corrections database that
tracks all felony offenders sentenced to state prison or supervision. The
data contain basic demographic information about offenders, such as race,
gender and date of birth, as well as details of their crimes and sentences,
including whether or not they received a withhold.

The Herald employed a methodology that measured several factors, cited by
judges and prosecutors, that play into the decision of whether or not to
withhold adjudication, including severity of the crime, number of counts
and prior record. The study included nearly 800,000 cases between 1993 and
2002.

To investigate racial disparity, The Herald used a statistical technique
called logistic regression. This tool allows an apples-to- apples
comparison of offenders who were given withholds and those who were not by
accounting for crime, crime severity, prior record, number of counts,
county, age and gender.

The results show that whites in Florida were 47 percent more likely than
blacks to receive a withhold. The Herald also analyzed the data along
ethnic lines and found no disparity between Hispanics and white non-Hispanics.

The disparity among racial groups is not necessarily the result of racism.
It could be socio-economic conditions predispose blacks to a higher
likelihood of being adjudicated, for example, their ability to hire a
private attorney.

The paper obtained data on felony crimes from Miami-Dade courts in 1999 and
found the disparity shrinks by 16 percent when the type of defense
attorney, private, public or specially appointed, is taken into account.
But whites were still 44 percent more likely to get a withhold than blacks,
regardless of attorney type.

The Herald was unable to capture other variables that judges and
prosecutors say play into decisions. For example, there was no data
available on offenders' demeanor in the courtroom, family support or
employment status.

Although the DOC database is the most comprehensive statewide source of
information about withholds of adjudication, felony offenders sentenced to
county jail are not included. About 22 percent of felony offenders get jail
time statewide.

To examine the possible impact of the missing jail population, the paper
reexamined its results, assuming 25 percent more cases were added and that
they all resulted in adjudications -- even though some felons who go to
jail get withholds. When those jail cases were added, the percentage of
withholds statewide during the 10-year period fell from 38 percent to 29
percent, meaning almost one in three Florida felony offenders got withholds
as reported in this Herald series.

The missing jail population would only effect the racial analysis if it was
drastically different than the population sentenced to state prison or
supervision, for example, if all the jail offenders were white. But The
Herald found that the populations are nearly identical.

Two criminologists from Florida State University reviewed the Herald's
analysis and agreed it is sound. Associate professor Bill Bales, former
bureau chief of Research and Data Analysis at DOC, said: "I don't know a
researcher who could do it any better."

Professor Gary Kleck, who studies racial disparity in the justice system,
agreed. "What you've done is very good."

The paper also provided DOC statisticians with copies of its data file and
programming.

"This is the way we would do it if we were studying this issue," said David
Ensley, who took over Bales' job at DOC.

PART 2 | JAN. 26

A Herald analysis finds that white felons are more likely to have their
convictions set aside than blacks charged with the same crime.

PART 3 | JAN. 27

Thousands of criminals in Florida are getting their convictions erased over
and over again.

PART 4 | JAN. 28

Most adults who peddle child porn or solicit children for sex over the
Internet are getting a break from Florida courts.