Friday, March 18, 2005
A smelly sort of case
The story is quite simple. According to Chris W. Colby of the Naples News [registration required], a Florida attorney, David Szempruch, has ripped off clients and associates in some real estate shenanigans to the tune of $338,000 and pled "No contest." The state judge convicted him of two counts of grand theft and one count of forgery. The defendant worked out a plea agreement with prosecutors to serve a 3-1/2 year prison sentence. Then this past Monday the judge overturned the agreement and has changed the sentence to house arrest plus 12 years of probation. His justification is that "the victim wants her $60,000 back, and that outweighs the need to send the man who stole it to prison."
The prosecution is hopping mad.
Prosecutor Jerry Brock said he would appeal the new sentence, arguing the departure below the minimum under state sentencing guidelines was illegal. Schneider [the judge] had argued state law allows a judge to decide against prison time if the need for restitution outweighs the need for incarceration.
One of the dispossessed, who was not paid a $60,000 real estate commission, went to the sentencing hearing Monday and testified that "she wants her money back, more than she wants Szempruch to go to prison. If he were incarcerated, he couldn't work, and his original sentence didn't include probation, so the court would have had no way to return him to prison if he never paid the restitution, Schneider said."
As the prosecutor noted,
I pointed out (Dooley) wasn't the victim. She's the one who ended up not getting paid, but it's not her money he took, it was the (person) who was going to buy the condominium," Brock said.
There were two other victims, each losing more actual cash than the victim who testified at sentencing (and the reporter, I think, missed an angle by not reporting their views).
But up to this point it looks like a dispute over judicial authority, which will be properly considered by an appellate court.
... Szempruch ... can work as a title examiner or even at minimum-wage jobs to pay back Dooley, Schneider [the judge] said. And he can remain on house arrest at First Assembly of God,1 which frequently works with the courts to house and rehabilitate defendants.
"He seems like a decent guy who just had a problem," Schneider said. [emphasis added]
The judge's action in this case offers an interesting prospect for future defenses of larcenous clients—To avoid jail time the defense should bring in one or more victims to declare that the victim would prefer the money over jail time for the defendant. On that basis alone, we should expect a rush of pleas for restitution.
But with the Religious Right hovering about the fringes, the smell begins to intensify. The Assembly of God is former Attorney General Ashcroft's barque of salvation and displays a number of cultlike features that I will perhaps go into in another post. Some of my questions: Is the judge a member? Is the victim who testified a member? Is the defendant a member? Was he a member at the time of the crime or is he a recent convert? And is the church now implicitly involved in determining sentences in the judge's courtroom?
It will be interesting to see how the appellate court rules, but it is not likely to answer any questions as to the extent of the involvement of the Religious Right in the court system. Oh, and let me add that it can be mighty useful to any organization to have a disbarred attorney sitting around on minimum wage.
Assemblies of God, a large group of churches comprising the second largest Pentecostal organization in the United States, founded at Hot Springs, Ark., in Apr., 1914. In doctrine the Assemblies of God affirm the basic teachings of Pentecostalism (i.e., baptism with the Holy Spirit as evidenced through glossolalia and divine healing, and the daily presence of the charismatic gifts basic to the early church) and of fundamentalism, emphasizing the premillenarian belief in a return of Jesus and his saints to reign over a period of peace and righteousness. The U.S. membership, numbering nearly 2.5 million, is organized into over 10,750 local autonomous churches with a general council and a general presbytery formulating and administering policies, respectively. The churches actively engage in missionary work.[back]