JUDGE'S DEATH MARKS THE END OF AN ERA BEFORE UNFAIR FLORIDA MINIMUM MANDATORY SENTENCING

Judge Mark McGarry

One of Pinellas County's best judges recently died. Judge Mark McGarry served as a judge from 1968 until his retirement decades later. With him goes a charming era when good judges mentored, trained and helped the lawyers who practiced before them. He often bettered lawyers with wit, charm, care and compassion, always a sly jesting glimmer in his eyes.

After thirty years of practicing law I've found that putting on that black robe often changes folks for the worse. I wonder why. Is the power? No, if anything most of a judge's time is spent in boring ways. Pushing shopping carts full of court documents and files thru the criminal justice system with endless status checks, pretrials, hearings, trials and appeals.

The only way a person of genuine intelligence like Judge McGarry was able to sit still on that bench for hours at a time that became years and then decades was because he spent much of that time dissecting those before him, often drawing New Yorker styled cartoons lampooning the judicial system, witnesses, bailiffs, and hapless lawyers who somehow bungled their way into his courtroom. He was deliciously pleased by the casual inadvertant catastrophy that make trials interesting for spectators and nightmarish for lawyers. The police officer who submitted that wrong evidence, say mislabeled cocaine in the marijuana trial, could happily lay claim to immortality, at least for us - laughing -who later saw the cartoon.

And yes, he could be cruel now and then, especially as retirement drew closer. He didn't like the way one somewhat pretentious, politically well-connected prosecutor treated a witness during a jury trial. The prosecutor's last name was Todd.  Judge McGarry waited for the prosecutor to finish questioning the witness by simply saying, "Mr. Toad, do you have any other witnesses?" I don't recall hearing the judge ever use the correct name again.

Of course, it was a different world then. During most of his time while serving as a Circuit Court Judge in Pinellas County only white men could wear those black robes. Bringing more women and minorities onto the bench should also have brought fresh awareness of how the criminal law should be applied. 

Yet Judge McGarry was ahead of his time in understanding the dynamics of fair sentencing. He understood that harsh minimum mandatory drug sentencing merely takes away the judge's discretion to sentence fairly. He knew sentencing guidelines and sentencing scoresheets were simply wrong and he did everything he could to ensure fairness in the sentencing process.

No wonder Judge McGarry left the bench when he did, head held high, an courageous, honest judge. Not long after he left the bench judges, prosecutors and defense lawyers became little more than calculators - adding machines to compute the scoresheets for Florida sentencing guidelines - as nothing but numbers now mattered. There would be no time for laughter nor for cartoons, it was to be all about punishment.

TIME PERCEPTION & SENTENCING IN TAMPA BAY, FLORIDA

Remember the eternal bliss of summer vacation when you were a child, wearing your new yellow rain hat even on the brightest sunny day in Tampa Bay Florida because you were so proud of it - your favorite Clearwater Criminal Defense Lawyer doesn't remember that either but why should I be expected to remember something from your life as I can hardly recall mine? For your grandmother that summer was a prelude to her lonely gray winter ending as quickly as the bowl of melting ice cream you shared with her (make mine an Italian chocholate macadamia nut, please).

The passage of time is the very measure of our lives. As we age the perception of time passing speeds for each of us as the taper of our lives burns ever faster.

Since people at different times in their lives perceive the passage of time differently, doesn't that imply that say, a five year sentence of jail to a twenty year old man is, if not harsher, certainly felt subjectively as being in actual time longer, than the same five year sentence given to the sixty year old convicted of a white collar crime, scheme to defraud or embezzlement (who happily, unlike the twenty year old, can actually pay me)?

But what if the twenty year old is a new mother? How will those five years be felt by her and by her innocent child? And wouldn't incarceration affect a youthful offender or juvenile much differently than someone of another age. Yet the courts tend to treat everyone alike especially with Florida Sentencing Guidelines and Florida Sentencing Scoresheets controlling what Judge's will sentence and reducing judge's discretion. Shouldn't a judge be able at sentencing to take these factors into account? Don't we want our judges to have the ability to occasionally seek out the best solutions for each Defendant?

But today in St. Petersburg, Clearwater, Largo and Tampa Bay, Florida when a judge sentences a Defendant most of the decision-making process with which the judge ought to be entrusted has already been declared out of bounds by Florida Statutes and Federal law, that have made honest, fair, impartial judges subservient to minimum mandatory sentences, mathematical tables and immoveable sentencing guidelines.

Any civilized and rational legal system that even Clearwater Criminal Defense Attorneys could cherish, would allow a judge at sentencing to take many other considerations in hand with the traditional considerations that include the severity of the misconduct, any prior misconduct, and the likelihood of future misconduct.