STATE OF FLORIDA TWELFTH (CIRCUIT WALT SMITH, COURT ADMINISTRATOR February 1, 2017 Mr. Nicco Mele Director Shorenstein Center on Media, Politics and Public Policy Harvard Kennedy School 79 JFK Street, second floor, Taubman Building Cambridge, MA 02138 VIA: email RE: Goldsmith Award finalist Sarasota Herald Tribune (Please share this letter with Committee members) Dear Mr. Mele: read with interest that the Sarasota Herald Tribune?s (SHT) series on Bias on the Bench was named as a finalist for the Goldsmith Prize for Investigative Reporting finalist-for-goldsmith-prize The series is based upon data (Offender Based Transaction System or OBTS) SHT received from the Office of State Courts Administration (OSCA) and a separate database SHT received from the Florida Department of Corrections (DOC). SHT then supplemented the data with judge-based data such as gender, race, and registered political party affiliation. Judges in Florida run for election in non-partisan races. We take exception to the findings from the SHT series. We are not alone. lam including a few responses with this letter but more can be found at I am also including a response from the 12th Circuit Court as well as a response from our ChiefJudge Charles Williams which discuss in more detail the limited role ofjudges in criminal sentencing due to the fact that close to 98% of felony sentences are the result of negotiated pleas between the defendant and his/her lawyer and the prosecution. The judge?s role is to make sure that the plea is voluntary and the defendant is able to comprehend the plea and its ramifications. If there is racial bias, it cannot originate with judges who in nearly all instances do not pick the sentences but accept the deal as presented by the lawyers with the defendant?s explicit consent. Moreover, the reporters overlooked an important point: Judges are prohibited from intruding in the plea bargaining process. Their only options are to accept the agreed- upon plea or reject it entirely. This is a requirement of the Florida Supreme Court, which allowsjudges to inquire into pleas only when invited to do so by the attorneys. See, State v. Warner, 762 So. 2d 507 Court Administration 0 PO. Box 48927 9 Sarasota, FL 34230 Telephone: 941?861-7800 0 Facsimile: 9411-8611-7904 (Fla. 2000). Apparently, the reporters were unaware of Warner and the prohibition which bars judges from participating in plea negotiations. Even though the SHT reported that they had built a "first-of?its-kind database of Florida judges,? they refused to share the database with the 12th Circuit Court so that we could review the data and their analysis for accuracy. Ironically, as a public agency, according to Florida law we would be obligated to provide SHT the data had we built the same database. As a result of their refusal, we requested from OSCA and DOC the data that they furnished to SHT, but limited to the 12th Judicial Circuit (Desoto, Manatee and Sarasota counties). We started looking at the data and found many problems. For example: a. 40% of the field "judge at sentencing? is either missing data or does not contain a name Division 6, Visiting Judge, etc.). If that missing data is evenly proportioned across all the judges, then the conclusions are based only on the 60% of the sentences where they have a name. Even when the database has a name, those names include Hensley, Silvertooth, Talley, (long ago retired judges) and some judges from out of our circuit that we don?t remember handling any of our cases. b. Sentencing dates go back as far as January 1, 1919 (Judge Williams). Others are in the 19305. c. There is no data on either case number or defendant name. Those fields are populated with unintelligible numbers and letters making it impossible to match sentences to people or cases. d. The database is a database of individual charges (not defendants and not cases as the SHT reports), so if a defendant is sentenced on three charges on one case a first degree felony, a second degree felony and a third degree felony) those account for 3 separate records. If you pull out all third degree sentences for a particularjudge and look at the average sentence, like the SHT did, the analysis does not take into consideration what the same defendant received on the first and second degree felonies he/she was also sentenced for, thus skewing the data considerably for those cases. We have not had the time to review the DOC data, but we have been able to determine that there are no similar data elements in each database that would allow SHT to merge the databases into one database for analysis. Thus, the statements made in the series are based on data from either the OBTS database gthe DOC database which is not clear in the article called "How We Did It.? The OBTS data contains many errors sentencing date ofJudge Williams from 1919; judges who did not sentence defendants during this time period) which are due to errors in data entry by the clerks of court employees. The Office of State Courts Administration (OSCA) freely acknowledges these errors. The DOC database is also problematic as indicated in their latest reportl. DOC has changed the scoresheet compilation over the years (as indicated in the referenced report) and further acknowledges that "Though the Department retrieves and includes in the database omitted information from a scoresheet that is critical, no effort is made to correct preparation error or errors recorded on scoresheets regarding the sentence imposed. The department does not have the authority to amend an official court document. Conversely, there is a responsibility to record the information as received? 11 of same report). 1 Florida?s Punishment Code: A Comparative Assessment, September 2016 (attached). We do not ask you to accept our assessment of the significant flaws in the paper?s methodology. More expert voices in the relevant field expressed their own views. When the first article appeared, it was challenged by Dr. Donal O?Shea, President of New College, Florida?s Honor College. His letter to the editor is enclosed. Dr. O?Shea is a Harvard mathematician with a in mathematics. His concerns are reflected in another letter to the editor, unpublished, from Patrick McDonald, Professor of Mathematics and Director of Data Science at the college. You may contact Dr. O?Shea at to confirm the extent of his misgivings. The college is conducting an independent review of the data. Its conclusions will be shared with us and we will be pleased to share them with you. The Shorenstein Center is respected for honoring ethical and courageousjournalism. However, if New College affirms there are serious flaws in the Herald Tribune?s methodology, a journalism award under such circumstances would be premature, misplaced, and inconsistent with the Center?s principled goals. It is clear that the SHT was trying to sensationalize these findings in its opening paragraphs. The series starts with: "Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.? To compare the black robes of the judiciary with the white robes of the Ku Klux Klan, an American terrorist organization that has a history of kidnapping and murder of African-American men, women and children, is irresponsible and tells us as readers that the article has a singular agenda. We would ask that you consider the fact that there are serious questions about the methodology used in the conclusions reached by the SHT. We will update you when New College of Florida concludes their independent analysis. Let us be clear, we do not doubt there are statewide and nationally, disparate treatment between African-American and white defendants in the criminal justice system. What we do object to is the misinformation and flawed data that this article relies upon in making a singular conclusion about members of the judiciary. Sincerely, MW Walt Smith Court Administrator 12th Judicial Circuit Court Attachments: Response to the SHT from 12th Judicial Circuit Court Admin Response to the SHT from ChiefJudge Charles E. Williams, 12th Judicial Circuit Court Response to the SHT from Kate Alexander, Associate Director, Florida Studio Theatre Response to the SHT from Ashley Cortez, sister of defendant highlighted in series Response to the SHT from Anthony Ryan, President, Sarasota Chapter of Florida Association of Criminal Defense Attorneys Response to the SHT from Dr. Donal O?Shea, President, New College of Florida Response to the SHT from Dr. Patrick McDonald, Director of Data Science New College of Florida Response to the SHT from Mark Miller, Esq.. President of the Martin County Fl. Bar Association Florida?s Punishment Code: A Comparative Assessment, September 2016, Department of Corrections