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Kim Lamb • LVN photo illustration
Judges: Both are key factors in sentencing
By MICHAEL MARESH
mmaresh@lahontanvalleynews.com
When James Cross stood before a judge for sentencing on drug charges a few years ago, he had no idea what to expect.
He had agreed with prosecutors to go to drug court but knew this plea was not something the court had to go by.
Standing before the judge, his mind began to race on his potential sentence.
"What if something went wrong?" he asked himself, adding he feared prison because of the rumors he had heard of what happens between men in the system.
"You hear the horror stories of men being raped in prison, and that was a big deal," he said.
Losing the right to vote was also something he thought of as he waited for sentencing.
Cross tried to improve his chances for probation by writing an apology letter to the judge.
"I threw myself at the mercy of the court," he said. Cross was given a suspended prison sentence with the mandate he successfully complete drug court.
"You have to show humility. I explained where I had come from and explained to them that I was a broken man," he said.
As the judge sentenced him, the first words he heard out of her mouth was one to four years in the Nevada State Prison. After what seemed like an eternity, Cross then heard the word "suspended."
"It gives you clarity," he said. "I was near the faint system pretty soon. It was like a 3,000-pound gorilla was off my back."
By MICHAEL MARESH
mmaresh@lahontanvalleynews.com
When James Cross stood before a judge for sentencing on drug charges a few years ago, he had no idea what to expect.
He had agreed with prosecutors to go to drug court but knew this plea was not something the court had to go by.
Standing before the judge, his mind began to race on his potential sentence.
"What if something went wrong?" he asked himself, adding he feared prison because of the rumors he had heard of what happens between men in the system.
"You hear the horror stories of men being raped in prison, and that was a big deal," he said.
Losing the right to vote was also something he thought of as he waited for sentencing.
Cross tried to improve his chances for probation by writing an apology letter to the judge.
"I threw myself at the mercy of the court," he said. Cross was given a suspended prison sentence with the mandate he successfully complete drug court.
"You have to show humility. I explained where I had come from and explained to them that I was a broken man," he said.
As the judge sentenced him, the first words he heard out of her mouth was one to four years in the Nevada State Prison. After what seemed like an eternity, Cross then heard the word "suspended."
"It gives you clarity," he said. "I was near the faint system pretty soon. It was like a 3,000-pound gorilla was off my back."
While Cross was able to convince the judge to give him probation, judges in Churchill County juggle who gets probation and who gets sent to prison.
All three district judges - David Huff, Leon Aberasturi and Robert Estes - give a lot of weight to the pre-sentence investigation the Parole and Probation Department conducts.
All three look at how remorseful the defendant is.
As an example, Bruce Homer cried and apologized while addressing the court about a month ago for assaulting two police officers.
Parole and Probation recommended prison, but Aberasturi gave probation to Homer, although he sentenced him to six months in the county jail.
Clothing arguments
Huff said he normally takes into consideration the clothes the person is wearing when he decides on placing a defendant on probation or sending him to prison.
He said if he sees a person facing charges of a crime arrive to court in a sports uniform, he tells them the proceeding is not a game and informs them to dress appropriately for court.
"Dress does give you an insight into their attitude," he said, adding he does not expect a person to show up in a suit.
If a defendant appears before Huff with a bad attitude, chances are he will be sentenced to prison because the district judge thinks the person would not comply with the terms of probation.
Huff looks at the entire picture, including if the person had probation in the past and how it was handled.
There are many times, he said, where his hands are tied such as drug cases with two priors in which the state mandates prison time.
Aberasturi said the first thing he needs to see is the PSI report because it gives him a good starting point.
If the crime is a harsh felony, the punishment is pretty black and white, he said.
The clothes a person wears at sentencing could have an effect, and Aberasturi remembers when he was a prosecutor when a person facing a sentence for possession of marijuana showed up to court wearing a shirt with a marijuana design.
All three district judges - David Huff, Leon Aberasturi and Robert Estes - give a lot of weight to the pre-sentence investigation the Parole and Probation Department conducts.
All three look at how remorseful the defendant is.
As an example, Bruce Homer cried and apologized while addressing the court about a month ago for assaulting two police officers.
Parole and Probation recommended prison, but Aberasturi gave probation to Homer, although he sentenced him to six months in the county jail.
Clothing arguments
Huff said he normally takes into consideration the clothes the person is wearing when he decides on placing a defendant on probation or sending him to prison.
He said if he sees a person facing charges of a crime arrive to court in a sports uniform, he tells them the proceeding is not a game and informs them to dress appropriately for court.
"Dress does give you an insight into their attitude," he said, adding he does not expect a person to show up in a suit.
If a defendant appears before Huff with a bad attitude, chances are he will be sentenced to prison because the district judge thinks the person would not comply with the terms of probation.
Huff looks at the entire picture, including if the person had probation in the past and how it was handled.
There are many times, he said, where his hands are tied such as drug cases with two priors in which the state mandates prison time.
Aberasturi said the first thing he needs to see is the PSI report because it gives him a good starting point.
If the crime is a harsh felony, the punishment is pretty black and white, he said.
The clothes a person wears at sentencing could have an effect, and Aberasturi remembers when he was a prosecutor when a person facing a sentence for possession of marijuana showed up to court wearing a shirt with a marijuana design.
"Judges are human. These messages are clear," he said, adding he was taught at judicial college how to pick up nonverbal clues.
"If you come in wearing gang colors, you are not doing yourself a favor," he said. "I have the PSI with your record."
Sporting an attitude
Attitudes mean a lot to him, and many people are unaware it could be the deciding factor on whether the judge sentences them to prison.
"I have told defense attorneys, 'Your client's actions are not matching your words,'" he said. "If a person shows no respect for the court, I will give them what they are asking for."
As an example, he mentioned a case where Aberasturi said he felt the defendant treated his felony conviction as garbage and that he did not care about the situation.
When Aberasturi sentenced him to prison, he remembers the shocked look on the man's face.
The borderline cases, he said, are where defense attorneys earn their pay.
Aberasturi said a person showing remorse is not something he looks for as almost all people coming before him show it in some form.
"What I really look for is remorse and shame. Are they remorseful because they got caught or because they are being branded a criminal?
"Everyone is remorseful, but when you see the shame, that gives you more certainly," Aberasturi added. "That makes it easier on the judge when considering probation."
Factoring probation
He looks at two factors when probation is an option. What is the risk to the community, and what can be done to help the defendant?
Restitution is a different matter as some people cannot afford to pay it even when employed.
But it cannot be willful, and he said there is no reason a person owing payments should be sitting at home watching television.
"If you come in wearing gang colors, you are not doing yourself a favor," he said. "I have the PSI with your record."
Sporting an attitude
Attitudes mean a lot to him, and many people are unaware it could be the deciding factor on whether the judge sentences them to prison.
"I have told defense attorneys, 'Your client's actions are not matching your words,'" he said. "If a person shows no respect for the court, I will give them what they are asking for."
As an example, he mentioned a case where Aberasturi said he felt the defendant treated his felony conviction as garbage and that he did not care about the situation.
When Aberasturi sentenced him to prison, he remembers the shocked look on the man's face.
The borderline cases, he said, are where defense attorneys earn their pay.
Aberasturi said a person showing remorse is not something he looks for as almost all people coming before him show it in some form.
"What I really look for is remorse and shame. Are they remorseful because they got caught or because they are being branded a criminal?
"Everyone is remorseful, but when you see the shame, that gives you more certainly," Aberasturi added. "That makes it easier on the judge when considering probation."
Factoring probation
He looks at two factors when probation is an option. What is the risk to the community, and what can be done to help the defendant?
Restitution is a different matter as some people cannot afford to pay it even when employed.
But it cannot be willful, and he said there is no reason a person owing payments should be sitting at home watching television.
The goal of every judge, he said, is to be fair.
"Your goal is to be consistent, but every case is different," Aberasturi said.
Estes said people who have pleaded guilty or been found guilty are actually convicts. He looks at the nature of the crime and the victim's hardships because of the act.
Looking at the age of the defendant is another thing he considers before deciding on probation or prison.
"No one wants to inflict pain for pain's sake," he said, adding there are very few victimless crimes.
"Many crimes affects a victim in a personal or painful way," he said.
Attitudes, he added, are hard to read and he tries to discount them because they can mean a variety of different things.
Estes added judges cannot help but notice what a person is wearing when appearing for sentencing, which often relate to attitude.
A person wearing a tank top or shorts, he said, reflects disrespect for the court.
"You do not go to church in a bikini," he said. "These are things you weigh. Judges look for someone who can be rehabilitated."
The district judge said he needs to be convinced a person must go to prison before announcing that sentence. If intentional pain or injury is involved, Estes said defendants need convincing arguments to avoid prison.
District Attorney Art Mallory said what a person wears or how he or she acts before the judge in sentencing does not affect what his office recommends.
"We decide what to do in a meeting (before going to court)," Mallory said.
Overall, judges believe attitude and dress make the difference in defendants lives when they throw themselves on the court for mercy.
"Your goal is to be consistent, but every case is different," Aberasturi said.
Estes said people who have pleaded guilty or been found guilty are actually convicts. He looks at the nature of the crime and the victim's hardships because of the act.
Looking at the age of the defendant is another thing he considers before deciding on probation or prison.
"No one wants to inflict pain for pain's sake," he said, adding there are very few victimless crimes.
"Many crimes affects a victim in a personal or painful way," he said.
Attitudes, he added, are hard to read and he tries to discount them because they can mean a variety of different things.
Estes added judges cannot help but notice what a person is wearing when appearing for sentencing, which often relate to attitude.
A person wearing a tank top or shorts, he said, reflects disrespect for the court.
"You do not go to church in a bikini," he said. "These are things you weigh. Judges look for someone who can be rehabilitated."
The district judge said he needs to be convinced a person must go to prison before announcing that sentence. If intentional pain or injury is involved, Estes said defendants need convincing arguments to avoid prison.
District Attorney Art Mallory said what a person wears or how he or she acts before the judge in sentencing does not affect what his office recommends.
"We decide what to do in a meeting (before going to court)," Mallory said.
Overall, judges believe attitude and dress make the difference in defendants lives when they throw themselves on the court for mercy.
