Tuesday, May 02, 2006

Rush to judgment.

Based upon my 30 years experience as a criminal defense attorney, I thought I might be able to shed some light on what happened to Rush Limbaugh. Of course, my experience has been exclusively in Alaska, and so it may or may not be the same as Florida. It would be great if someone who has Florida experience could weigh in.

First, there are (in Alaska) suspended sentences, suspended imposition of sentences, (SIS) and deferred prosecutions. They refer to three different outcomes.

A suspended sentence is easiest to understand. The defendant is convicted and sentenced to jail. Then the judge says, I will suspend the sentence, or part of it, on the following conditions: submit to urinalysis, commit no crimes, take a course in anger management, or some other conditions. Usually, the conditions include reporting to a probation officer, and in Alaska, they are the same people who supervise parole. (Parole has to do with release after serving a portion of a jail or prison sentence.) A judge can suspend all or a part of a sentence. The judge can also impose a fine and suspend none, all, or a portion of it.

A suspended imposition of sentence is a more favorable outcome for the defendant. When the judge suspends imposition of sentence, the defendant is convicted, but the judge postpones sentencing, which is the entry of the judgment. Again, the defendant is on probation, but no specific sentence is hanging over him or her. The judge says, at the end of the year (or whatever period she imposes) “instead of sentencing you, I will set aside the conviction, and dismiss the case.” At that point, (like Rush if he is successful) the defendant can say, “there has never been a criminal judgment against me; I have no convictions.” If he fails probation, the judge can impose any legal sentence.

Rush got an even better deal. He got a deferred prosecution. In this case the prosecutor says, I will make a deal: I will hold off prosecution, and if you are good for a year (defined as clean UAs, etc.) I will just let the case go, i.e., I will dismiss it. This is a great deal, because the defendant is never even convicted unless he fouls out of the program. Conditions that are regularly imposed include doing community service such as picking up litter on the highway.

Now if you think about it, Rush was arrested. It is likely that his speedy trial rights are implicated. Obviously, he doesn’t want a speedy trial — he doesn’t want any trial at all. So, if Florida is like Alaska, he would have to give an explicit waiver of his speedy trial rights. This might be in a written agreement in the prosecutor’s office.

Most defendants would do anything to get this deal, including but not limited to signing away their speedy trial rights. There are also due process rights connected with speedy prosecution, and these must be waived, too.

Since there is no conviction, there can be no fine, and so, the defendant sometimes agrees to pay “court costs,” which are the same in all but name. If the prosecution is reinstated, and it results in a conviction, the defendant can be fined up to the maximum amount provided by law. (No automatic credit for the “court costs.”)

In Alaska, the fact that there is no conviction means that there is no probation officer. Sometimes this is called “informal probation.” By way of analogy, the defendant’s situation is like a defendant out on bail, in our state system. (Contra: the federal system where the P.O.s also supervise pre-trial release.) Who might Rush be submitting pee to? In Alaska, he would have a private lab fax the test results to the prosecutor. He can afford it.

Now here’s the really interesting part. In the document in which the defendant waives his speedy trial rights, etc., it is normal for the defendant to also waive the privilege against self-incrimination, and admit that the facts alleged are true. He may also admit that the facts contained in the police report are true, stipulate to their admissibility, and that they are sufficient to sustain a conviction. The defendant also waives the right to a jury. The idea here is that if the prosecutor has to re-instate the prosecution, the trial can be completed in less than 5 minutes.

Therefore, if Florida follows the pattern of Alaska, there is probably a document out there, where Rush Limbaugh admits to a very serious crime. Since this stuff is a tad arcane, I don’t know if any investigative reporters are investigating or reporting.

Get on it, please …

“… and tell ’em Big Mitch sent ya!”

1 comment:

xoites said...

The thing about our friend Rush is that he is an egomaniac. Whether he ever abuses drugs again he will always be an addict. Addicts with large egos are more suseptable to going back to drugs than those who are abit more humble.

Give him time. That's my motto.