There’s a reason law enforcement and the justice system have to maintain a clear and healthy separation. The two have different missions. Cops enforce the law, and are subservient to it. Judges ensure that laws are followed. Testifying in court or clarifying issues to prosecutors aside, cops’ role ends the moment the case is turned over to the State Attorney’s Office.
The separation is not always clear in Florida. Bad enough that the state attorney’s office and police agencies work more in tandem than as the check and balance that the State Attorney’s office should be on agencies. And considering the number of judges in our circuit who were prosecutors, it’s not a surprise to see defense attorneys doubly on the defensive, more often having to prove their client’s innocence than having the state prove guilt.
Nevertheless, in all the years I’ve been covering the Seventh Judicial Circuit in Flagler, and of course the formerly Roy Moore-wannabe Scott DuPont aside, I’ve not seen ethically challenged judges. Some have better command of the law than others (you can’t fault the Foxmans and Orfingers of the circuit for being as natural with the law as Malamud’s Hobbs was with a baseball, and our current felony judge, Terence Perkins, seems to snack on Blackstone). But I don’t know of any that would be better suited in a different role. Our judges tend to be harsher than not–oh yes, they are–but we’re in a harsh circuit, and their sentences reflect the generally nasty, brutish and short-tempered electorate that sent them to the bench.
So it’s disturbing when an elected sheriff in our circuit meddles in the judiciary to the point of asking the chief judge to overturn another judge’s decision.
That’s what Mike Chitwood, the sheriff of Volusia County, the former Daytona Beach police chief and eternal showman, is doing. It matters, because our own Sheriff Rick Staly take his cues from Chitwood from time to time–not too much, and not lately, but enough that it warrants concern. I’d rather Chitwood take his cues from Staly, who seems to better understand the balance between showmanship and fair policing, and who does adjust his aim when he overshoots.
The Chitwood case comes down to this: In June a jury convicted a former Embry Riddle professor called Mark Fugler of exposing himself to a 7-year-old girl, showing her porn and trying to entice her to touch his genitals. He got a 15-year sentence. But Senior Judge Michael Hutcheson released him on a $200,000 bond with an ankle monitor pending his appeal. It may be unusual, but it’s perfectly within the law. Convicted felons bail out all the time on appeal, if they can afford it. There are obvious differences between a sex criminal and, say, an embezzler or a robber. But the difference is in degrees, not in law.
Chitwood doesn’t know degrees or law. He wrote a letter to Chief Judge Raul Zambrano imploring him to reverse the decision. No one would fault Chitwood for expressing his opinions. But aside from revealing Chitwood’s ignorance about the role of a chief judge, who has no authority to overturn rulings, the letter crosses a line. A sheriff is elected to enforce the law. All laws, including those protecting defendants’ rights. Chitwood doesn’t get to pick and choose, as he’s doing in this case (as he so often does whenever a “scumbag,” his favored verbal tic, is in his line of sight). A sheriff is not a judge, not an executioner, certainly not a legislator. Nor may he presume to be anyone’s moral conscience or pick sides between victim advocacy and defendants’ rights. He’s a law enforcer first and last.
Much of this reflects the continuing overemphasis of victims’ rights, which no one should dispute, but which have been elevated from right to sacrament, at the expense of defendants. The elevation rests on the myth that defendants have more rights than victims–in a state where we have the 13th highest incarceration rate in the nation (and the highest in the world, if Florida were a nation unto itself). Law enforcement must be victims’ advocates, of course, but on an equal footing with their responsibility to protect defendants’ rights, which don’t end with a trial court’s decision.
I am reminded of what our own Judge Perkins told family members on both sides of the aisle Wednesday, just before the jury walked in to render a verdict in a man’s child molestation trial. Seeking to pre-emptively cool tempers just in case, Perkins walked over to the gallery and told both sides that whatever the verdict was, it was only one step in a still long process ahead. There was no finality in the verdict. He might as well have been addressing Chitwood, whose immoderate temper is its own marketing department.
His behavior has consequences well beyond the Embry Riddle defendant. Every defendant in Chitwood’s custody must wonder how safe he or she is, since Chitwood is clearly contemptuous of protecting defendant’s rights under the law. Chitwood sets the tone his ranks follow. It’s a noxious tone. His smear of Judge Hutcheson smears the circuit and exposes the sheriff’s disturbing contempt for courts. Calling the defendant a “scumbag,” he went as far as questioning the man’s right to have his day in court (“This scumbag fought tooth and nail all the way through and made that little girl get up and testify in court,” is what Chitwood told the News-Journal). It makes you wonder who the greater scumbag is in the equation, or at least make you wonder what other corners this sheriff is willing to cut in his pander for votes (he’s up for reelection next year). It’s not the judiciary that’s rogue. It’s Chitwood.
Judge Zambrano put Chitwood in his place. He firmly, elegantly defended Judge Hutcheson’s decision. And this harshest of judges gave Chitwood a lesson in law and ethics, quoting the old saying that “we are a nation of laws and not of men.” I doubt it’s a lesson learned. But I hope all sheriffs are watching, and that they remember that they’ve been sworn to uphold the law, not to be a law unto themselves.