Life as Art: A Judge's Effort to be Wise
King Solomon Sets a Precedent
Many are familiar with the Biblical story of Solomon "who was known for his cleverness as a judge was when two women came to his court with a baby whom both women claimed as their own. Solomon threatened to split the baby in half. One woman was prepared to accept the decision, but the other begged the King to give the live baby to the other woman. Solomon then knew the second woman was the mother". While an impressive story indeed, there are many unsung Solomons sitting on the bench in courthouses all over the country. Everyday, cases come before them requiring them to pronounce sentences that effect people’s lives, require taking many factors into consideration while all the while needing to be fair, if not wise. Enter Judge Stephen Gerst.
Judge Gerst Shows Wisdom in O'Brien Case
Judge Gerst has served Maricopa County Arizona as Superior Court judge for over twenty-one years. Perhaps as never before, his ability to offer fair and impartial sentencing requiring the wisdom of Solomon occurred in the case of O’Brien on March 26, 2004.
In that instance, as Judge Gerst reports in his account of these facts in the American Bar Association Judges Journal Winter 2009, Vol 48, No. 1, there were are no statutory sentencing guidelines in Arizona for a judge to fall back on when trying to decide what factors carry more weight when the District Attorney and Defense Attorney are recommending different considerations for imposing probation after the jury finds a defendant guilty of a crime that calls for probation. The question became whether or not any jail time should be served at all and if so, how much, as a condition of probation.
Defendant's Name Withheld so Reader can Play Solomon
To provide the reader of this article the chance to be as wise as this judge was called to be, who it is that will receive the sentence will remain unknown until the end of this article. In this way, the reader gets a chance to be Solomon. The brief facts of the case are that a driver was coming home from a function at night when he was suddenly aware his car was impacted with something he believed to be a rock or animal. This had the effect of shattering his passenger-side windshield. The driver continued on home, went to meetings the next day and from all evidence was completely unaware that he’d hit a person about to cross the road. The victim subsequently died. The driver was found and arrested some days later and charged with leaving the scene of a fatal accident.
Having to decide between one recommendation of six months jail time as a condition of probation and the other recommendation was for no jail time at all. Recall, that like a jury is instructed, it is improper to merely ‘split the difference’ if justice is to be served. What is to take place is a sentence to fit the crime - period. To find that balance is the judges role in this instance.
Judge Gerst took the due diligence to find that there was no precedence in any of the court files for this type of sentencing in that no appeal had ever been taken to create an appellate record in a case such as this. Thus, not even a transcript of a case where facts might be similar. So, the judge had the administrator pull all cases like this in the entire courthouse. There had been 99. He studied the facts of each case, read the recommendations of both side of all 99 cases, created a list that he broke down into four categories of similarities, understood the legislative intent of proportionality in sentencing though it was not stated in the statutes but understood as a matter of jurisprudence.
Things to Consider when Sentencing a Criminal
Some factors to consider among these cases that were instructive are: prior offenses; the presence of drugs or alcohol; if driver was aware of the nature of who or what was hit when leaving the scene, whether the defendant was charged with multiple offenses or only one etc.
After a power point presentation to a packed courtroom, to help those present understand the sentence, the defendant was made to served supervised probation with no jail time.
Does that seem fair and just to you? Would you have weighed as many things in an effort to overcome the public sentiment against the defendant for being a Bishop of the Catholic Church in a diocese riddled with church sexual scandal (though he was not among the accused but bishop in charge).
What do you think about this article?
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