Attacking A Judge For Using His Discretion: The Case Of Thomas P. Miano


Storm clouds are gathering over the Connecticut General Assembly as lawmakers consider the reappointment of Superior Court Judge Thomas P. Miano. A bitter fight is expected, and the focus of that fight is the judge's sentencing decision in the case of State v. Burke. A good jurist should not be immolated on a smouldering heap of half-truths. Judge Miano should be appointed to another eight-year term.

Edward Burke III was charged with possession of child pornography, a serious charge befitting serious consequences. At the time he was accused, lawmakers had not declared that there was a mandatory minimum prison sentence for a conviction. In other words, a judge had lawful discretion to give a man a suspended sentence if justice so required.

A good lawyer in such a case assesses quickly the character of the state's evidence. If it is looks as though the state has it right, and that is not always the case, a client is told to get treatment immediately. The hope and aim is that the client will be evaluated a low risk to reoffend. If the evidence is lawfully obtained, delay is used to prepare the best possible package for eventual sentencing. This appears to be what Mr. Burke's lawyer, John Maxwell, did.

At the end of the day, both the state and the prosecution agreed that Mr. Burke would face a sentence of up to four years behind bars. Mr. Burke retained the right to argue for a suspended sentence and no prison at the time of sentencing. The state agreed to such a sentence.

On sentencing day, the defense produced evidence that Mr. Burke was genuinely remorseful, that he had been evaluated by experts and was not a risk of reoffending, and that the public was protected by his new status as a sex offender required to seek treatment. The state had an opportunity to argue against the sentence and to present any information it liked to the court.

Judge Miano let the man walk. He found that the purposes of deterrence, rehabilitation and punishment were best served in this way.

The judge was then denounced by the community of Avon. Legions of pretty people in gingham dresses and pressed suits cried foul. Norman Rockewell's peace was disturbed; something needed to be done about this predator in their midst lest lust pollute all that is good, true and beautiful in that the best of all possible worlds.

Federal prosecutors were enticed to prosecute anew. The law states with logic unsalted by any sense of equity or fair play that a different sovereign may charge you with an offense identical to the one to which you just plead before another sovereign. The right hand and the left do not clap in unison.

This was a shocking result, and it sent ripples throughout the defense bar in the state. I was concerned about what the federal prosecutors were up to, and here is what I learned: The federal government prosecuted because prosecutors did not believe that Judge Miano took adequate account of the seriousness of the images in Mr. Burke's possession. These were not mere images of the Coppertone kid sporting a tan. There were films of shocking sado-masochistic violence.

Mr. Burke was prosecuted by the federal government and sentenced to three years imprisonment under federal sentencing guidelines.

Since the time of Mr. Burke's arrest, state lawmakers have deprived judges of discretion to walk folks convicted of most child pornography crimes. Lawmakers have tightened the screws, as is their right.

As lawmakers consider renomination of Judge Miano I fear they will indulge in a species of the retrospective fallacy. They will apply today's lens to yesterday's event and find old news disturbing. It should not be.

Judge Miano imposed a lawful sentence. No one questions that. What he did was exercise discretion given him by lawmakers. The fact that the outcome was unpopular should be of no moment in the renomination fight. Judges are paid to make difficult and sometimes unpopular decisions as they uphold the law in the face of popular passion. When the state tried to keep another sex offender, David Pollitt, behind bars after he had served his sentence, a judge had to say no. That is justice and courage.

Rather than seek to destroy Judge Miano, before whom I have appeared and in whom I detect no bias in favor of defendants, lawmakers should stop and consider a simple truth: The administration of justice knows no rule that one size fits all. Lawmakers make general rules and then give judges the discretion to apply them in particular cases. That is what Judge Miano did.

Any failure in the state case against Mr. Burke, and I am not conceding there was any, is really a failure of advocacy on the state's part. If the images were so shocking and so disturbing as to require prison, it was the state's job to make the necessary record. Apparently, that was not done. The state agreed a walk was potentially appropriate.

The Miano renomination fight is important. We do not want a judiciary ruling in fear of a lawmaker's shadow. Refusing to renominate Judge Miano for an unpopular choice demeans the judiciary and renders all of us more susceptible to the passions of the moment. That is truly terrifying, and has been throughout recorded history.

Judge Miano deserves renomination.

Reprinted courtesy of The Connecticut Law Tribune.

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