We have been talking about the tragic murder of Police Officer Sean Gannon and his reputed assassin, Thomas Latanowich (hereinafter, the “Defendant”).

Yesterday I shared with you a petition which is online to answer the latest call to penalize judges for the actions certain defendants take.

I think I made my position on that issue relatively clear. Now, let me explain why.

Attorney Sam’s Take On Judges, Powers And Criminal Sentences

First of all, let’s demystify how criminal cases end. There are three options. Either there is an agreement made between the parties, there is a trial or the case gets dismissed for a legal reason…such as there is no evidence that can be presented.

I think you know what a trial is. However, whether the trial is before a judge or a jury, limited pieces of evidence are presented as a result of years and years of case law and statutes which legally regulate issues like Constitutional rights and what we, as a society have chosen to allow. These rights belong to everyone in the country, not just the “guilty”. They are meant to protect all of us.

One of these is the “presumption of innocence”. I have explained many times how this presumption does and does not work. However, it is necessary because we discovered long ago that we cannot assume someone is guilty and punish them for being guilty without the government proving them guilty. Otherwise, we could simply rely on police officers to arrest people when they see fit and go right to the penalty. This is dangerous and one of the things this country was based on to prevent.

The only way to prove that a defendant is guilty is for the fact finder to be presented with enough evidence on the elements of the crime to find the defendant guilty. That’s when we get on to punishment.

The fact finder, judge or jury, does not get to pick and choose which evidence will be presented. That is up to the parties to argue and a judge to decide, based on the law. In some cases, there is no evidence at the time of trial. Perhaps necessary witnesses have not shown up. Maybe the drugs were suppressed because of a mistake made by police officer. When that happens, and the government has no evidence to present, the case gets dismissed.

The court does not dismiss the case based upon some sympathy for the defendant. If there is no evidence, then there is nothing presented upon which a defendant can be found guilty.

“The guy has a bad criminal record” is not an element of most crimes. Therefore, it is not enough to go to trial with only that argument to rely upon. In short, when there is no evidence, nobody has any choice but to follow the law. There is a dismissal.

Yes, my understanding is that the Defendant had some such dismissals, as well as acquittals, in the very long criminal record people are referring to.

At trial, there is one decision for the fact finder to make…guilty or not guilty. There is no “not guilty, but a really bad guy”. Not guilty means the case is over. The fact finder has not been convinced beyond a reasonable doubt of the defendant’s guilty. By law, in such an instance, the defendant must be found not guilty. There is nothing anybody can do about it. It is a staple of our system.

If, however, a fact finder does find a defendant guilty, then there is question of penalty. Most crimes have statutory rules, set by the legislature, which mandate the range of possible sentences. Inside that range, a judge is to decide the proper sentence. A person’s record is considered at this time as are the circumstances of the crime for which the defendant has been convicted.

If a defendant is convicted of a crime for which the maximum possible sentence is 2 ½ years, the judge cannot sentence the defendant to 10 years. The max is 21/2 and so the judge cannot go beyond that.

These are the realities of sentencing in our criminal justice system when a matter goes to trial.

“What about the majority…the ones that plead out?”

Let’s get to that on Monday and, hopefully, put this matter to bed.  I will also explain why react so strongly to these rushed “quickie feel good” actions like the petition I posted yesterday.

In the meantime, have a great, safe and law-abiding weekend!

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