There’s been nationwide coverage of the judge who granted probation to a sex offender “because he was too short” to go to prison. Or, at least, that’s how it was covered in the media. Some of the reports about the recent appeal affirming the sentence, like this one by the AP’s Josh Funk, have come closer to hitting the mark:
A judge had valid reasons for sentencing a 5-foot-1 sex offender to probation, even though she cited the offender's height as part of her rationale, the Nebraska Court of Appeals ruled Tuesday.
One important distinction between Funk’s first sentence, and what I remember about the initial coverage, is the addition of the information that the defendant’s height was only part of the judge’s rationale. Other factors?
An examination by a clinical psychologist and the results of a test used to determine the risk that Richard W. Thompson would reoffend both indicated that Thompson, 52, is neither a pedophile nor a sexual predator, the (appellate) court said.
OK. So now we know there’s more to the story.
But wait a minute…it’s still somewhat outrageous, isn’t it? Why would the judge take height into consideration at all? And exactly how did the judge take height into consideration?
"So I'm sitting here thinking this guy has earned his way to prison, but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison," [the judge] said in court, according to a court transcript of the hearing.
1) I understand why this was reported the way it was based on the judge’s words, and 2) I’ll admit I’m speculating here, but that’s the reason for the title of this post: Reporters on the crime beat need to be able to talk to local lawyers, especially in cases like this where it seems like there’s something really out of the ordinary, and even nonsensical going on.
I think (but admit I can’t prove) that this is the missing key to the story:
Judges like to lecture Defendants before putting them on probation.
That’s it. Explains everything really. I don’t know anything about Nebraska’s sentencing procedures, but let’s assume, based on the PSI (pre-sentence investigation) that this defendant qualified for and was very likely to receive probation. I think it’s a reasonable assumption that the judge was trying to scare the defendant, and probably says something similar about the perils and dangers of prison to everyone.
Any good criminal defense lawyer in Austin would be able to tell you that District Court judges in Travis County frequently lecture felony defendants who are going on probation about (a) walking the line (b) staying out of trouble (c) I’ve got you under my thumb…basically just saying “you better behave now”. And I’m sure that is probably true everywhere.
In fact, it’s a good thing. No, not all of my clients need to be ‘scared straight’. But some of the probably do. Probation is not a slap on the wrist. And if the defendant violates the terms of his felony probation, he is looking at the possibility of prison time. Even for so called ‘minor violations’. A reminder from the judge probably doesn’t hurt.
From Doug Berman’s entry over a year ago when the case was first reported, here’s some more of that judge’s lecture:
"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."
That confirms my suspicions about the “controversy”. It fits right into the ‘scared straight’ theory.
As for crime reporters? Well, for those who didn’t want to focus solely on the sensational and almost silly aspects of the story, I believe a call to a defense lawyer who practiced in front of that judge may have elicited a fuller picture of what was going on. And while a defense attorney might not want to be quoted, perhaps a line could have been inserted to the effect of:
“According to some defense attorneys, the judge may simply have been trying to not-so-gently remind the defendant that he would be closely monitored, and that he would regret being sent to prison if he violated his probation.”
After all, while “Judge Loses Her Mind” is a great headline, isn’t the point of journalism to give a complete and accurate picture of the story to the readers?