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March 22, 2014

Florida state judge balks at 50-year proposed sentence for notable child porn downloader

As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:

A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide.  Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.

Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.

Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.

Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.

Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.

Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....

Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.

March 22, 2014 at 10:34 AM | Permalink

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"Schiller noted that Losada rejected a 20-year plea deal before trial. 'So you want me to penalize him for exercising his constitutional right to go to trial?' Miller asked."

Remedy for the prosecutor: Next time, make no offer. If the judge regards Bordenkircher as incorrectly decided, fine. The prosecutor should allow her to live with the consequences of that view. When he does, it won't take long for the view to change.

Posted by: Bill Otis | Mar 22, 2014 1:21:34 PM

I'm no M.I.T. mathematician, but 50 years is pretty close to the term recommended under Florida's guidelines and much much lower than the maximum available.
This isn't some Draconian prosecutor overreaching and untethered to any guidance. Yet, the judge found that the highest sentence imposed for similar cases in that county in the last three years was less than half that amount. Could be that judges are routinely sentencing well below the recommended guidelines, or that this defendant's case presented more aggravating circumstances. He does seem especially dedicated to trading in the documentation of child rape.

A debate can be had as to whether a 50 sentence is greater than necessary in this case, but any perceived injustice is systemic and not the individual prosecutor's contribution here. There's something specious about the judge framing this dilemma as punishment for going to trial. Her beef, if any, ought be with the guidelines.
Perhaps she feels that couching leniency in terms of protecting the right to trial is more palatable than having to admit from the bench that she just isn't so bothered by the defendant's crimes.

Posted by: Wayne-O | Mar 22, 2014 2:29:41 PM

Wayne-O

I have to disagree, the punishment does seem overly severe (50 years for non-contact sex offenses?), crimes which deterrence works about as well as it does for other vices. I am, however unclear how the guidelines are calculated in Florida. Basic possession of CP and enticement of a minor works out to about 187 months in federal for criminal history I, depending on the enhancements. It's once you start stacking distribution and other picture count/type enhancements is where the sentence explodes, but I'm sure most here are now familiar with the criticisms published by the USSC regarding Congress's inflation of CP sentencing and enhancements not properly calibrated to the digital age.

These cases are pretty common, the normal offer is 10-15 years as far as I have seen. However Florida offers an objective entrapment defense, which has evidently resulted in the acquittal of many of the "craigslist / backpage" reverse stings law enforcement have run in Miami and Polk County. I also glanced at a case that led to a successful entrapment defense in a Federal case as well from Florida, and even the brazen Eleventh Circuit wouldn't overturn a jury finding entrapment. One could imagine why he might have wanted to take that charge to trial with no "predisposition" inquiry rebutted by the pornography in state court, but I do not know the facts of his communications.

Posted by: Skeptical | Mar 22, 2014 3:34:52 PM

Wayne-O,

I should say that I agree that the problem is systemic. I think I misread your initial post, sorry.

Posted by: Skeptical | Mar 22, 2014 4:07:31 PM

the problem is in the mind of a person who commits any crime no matter what that is so by just putting them in prison does no good except make the person become more and have more hatred towards the human race, yes they did wrong, if you claim to be a Christian then you should do what Christ did on earth, you punish someone murdered someone and then they get out and do there probation and no one worry's about them, my Aunt and Uncle was murdered and they will never be alive again but yet you are convicting anyone with the word of sex crime in there paperwork and then make them register like that would stop a true ped. and that's for life oh but wait it's a "Civil Duty" oh and can't live within a certain distance from school or park, how stupid are you, if a pedifile wanted to touch your child where he lives don't matter, what you need to do is help them with counceling oh wait you do that but once done you don't trust them but you trust a theif or murderer and so on, you talk about it being civil and not punishment what do you call making them move from a home they own and register where everyone can see not punishment and they can't rent a home because of it and can't get a job because of megan's law, there are kids as young as 9 years old on megan's law, but then you want them to integrate back into to society when you won't let them and then wonder why they won't, this is Germany and Russia all over again, there's one senator who wants to pass a bill to castrate them before they get out of prison, some places shoot convicted sex offenders in a firing squad but murderer's get prison and still alive, I pray and hope you are saved an repent an turn from your way's because if a true to life pedifile repents ask God to forgive him, it is wiped and God see's it no more but you that hate and don't forgive anyone will go to Hell if YOU don't change your way's. May God Bless You

Posted by: mike | Apr 7, 2014 3:50:07 PM

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