Friday, July 18, 2008

Michael Gaines sentencing

I really thought that Thursday afternoon would be pretty uneventful. I had a few sentencings and probation violation hearings, no big deal I thought. Was I ever wrong!

Michael Gaines was convicted last month of Battery of a Law Enforcement Officer. During an altercation in the jail clinic he spit on two detention deputies. The officers were extremely concerned because Mr. Gaines is HIV positive.

When I gave Mr. Gaines his opportunity for allocution he was quite agitated, shouting and claiming that he was innocent and that he was attacked by "rogue" deputies. When he was done, as I began to talk to him, make my findings, he began shouting at me and started using some extremely foul language toward me. I won't repeat all of it but he did say that I am nothing but a "bitch in a robe." Nice. I honestly couldn't believe it. Here he was being accused of disrespecting authority and he starts in with the cussing and the insults. Then he started with the verbal attacks on Mr. O'Connor, the Deputy District Attorney. He called him many names, "maggot" is the only one I can type out here, also told him that he should have been still born.

Honestly, the whole thing was so surreal that I actually laughed before I had the court guards remove him from the courtroom. I still was not finished sentencing him and I thought about bringing him back to finish the sentencing but we were all concerned that he would start spitting. I ultimately finished his sentencing by video and he was completely silent throughout.

You never know what will happen when you go into court.


Lyn said...

Good decisions and sound logic, your honor. And, although irrelevant to this blog, i think you have some very biased attorneys after you. The recent "sanction" was based on comments so much less than what I have seen male judges say and do. Keep up the good work. Your record of being sustained on appeal greatly outweighs the egos of the attorneys you have bested. I noticed several candidates for judgship whose ratings were much better than they work product and ethic that I saw when working as a paralegal (and listening to my atty decry laziness and incompetence). Primary examples of the good ole boy network. As for you- keep up the good work! Personally I loved you calling the jury panel on its lack of civic responsibility! Wishing you well in the upcoming elections.

Anonymous said...

As a judge, what are you doing commenting on cases that come before you?

Rebecca said...

I am perfectly free to discuss this case. I think you may be incorrectly referring to Canon 3 of the Code of Judicial Conduct. Paragraph (9) of that canon states: "A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonable be expected to affect its outcome or impair its fairness..."

Obviously this is not a pending matter. Judges often comment about cases when they are over.


Anonymous said...

You do know that HIV cannot be spread through saliva, don't you? So with that being said, why should it matter that Michael Gaines was HIV positive?

What kind of sentence can you give to a person just for spitting on two detenion deputies?

Rebecca said...

I am aware that the risk of spreading HIV through saliva is basically slim to none. However, one deputy had an open cut that was exposed and the other deputy got it in the eye. On doctors' advice, the deputies underwent preventative treatment and testing. It's somewhat akin to a robber holding an empty gun on a gas station cashier. The risk is minor but the victim's fear is very real.

Mr. Gaines was sentenced to approximately 13 years. He was sentenced pursuant to the sentencing guidelines enacted by the legislature. His sentence was based on the severity level of the crime and his criminal history.

Anonymous said...

Judge Pilshaw, doesn't the rule prohibit you commenting as long as the case is pending or impending in any court? Isn't the time period for him to file a notice of appeal still active?

Anonymous said...

I hope you attend her court as a witness to her behavior. It's sounds good in theory, but the reality is she is highly inappropriate in her courtroom. Please attend her courtroom in person before you make any comments.

WWT Va said...

Is that how your courtroom is run? I find it quite comical, hysterical even. The DDA that kept egging Mr. Gaines on, very professional..calling him a tough guy while he is in handcuffs and with armed baiffs standing close a hand. You sir are a pussy and the judge is a pussy too. 13 years for spitting on someone give me a break. The law in Kansas is really quite laughable. hahhahahahahahahahahahahaha

Anonymous said...

wwt, if Gaines were to spit on you, he probably would've received a fine. Unfortunately for Gaines, he spit on the judge's co-worker thus he received 13 years. This is the problem with the system as it's biased to whatever the judge deems fit knowing they have absolute immunity. These judges are not interpreting the law; they make up their own laws. Anyone can interrupt the sky as being green when in reality the sky is blue as this is a sampling of how some judges view the laws. Case in point. There was a judge in Nevada who was unhappy that a defendant didn't show up so what did he do. He threw the defendant's girlfriend in jail to bait him to come to court. She spent 4 hours in jail for doing absolutely nothing. The judge was censored and they ended up reversing this because they felt it was to harsh. BTW, her lawsuit against the judge was thrown out under absolute immunity. In the end, her civil liberties were viewed as the "cost of doing business".

Anonymous said...

The Video is on youtube.. and everywhere else. sure Gaines was a little out of hand but he was somewhat speaking logically. Cops arent the best people in the world you know, and no better than him... he was in the wrong tho, not 13 yrs of it though, watch for yourselves.

and this is an internet news site so, its not inappropriate to share.

Anonymous said...

Youtube link!

Anonymous said...

Watching the video again sure makes me think that the prosecutor was egging it on. At one point, it sounds as if he called the defendant worthless. It sounds like he said, "I don't think I have to take insults from a . . . worthless . . . " Granted, it is hard to tell because much of it is bleeped out. However, the prosecutor then continued to call the defendant a "tough guy" after the defendant was surrounded by deputies. He even said, "Anytime Mr. Gaines." This sounds to me like it was the prosecutor who was trying to be the "tough guy."

Personally, I expect more from my public servants. Prosecutors are supposed to be the better people. This prosecutor, at least on this occasion, was not the better person.

nitrox11 said...

I have just watched this on You Tube and I'm saddened and depressed by what I saw.

Regardless of the ins and outs of the case your management of the courtroom was left seriously wanting. The sarcastic tone of your voice provoked the situation. You allowed the prosecutor to succumb to the baiting and in turn bait the defendant and engage in the same kind of slanging match with no attempt on your behalf to insist on him remaining professional. Your behaviour lost you control of the situation.

Judges are expected to be able to assert authority in a professional manner. You displayed no visible skills which suggest that you are able to do this and as such this raises serious questions about your suitability for the role.

If you are unused to dealing with defendents of this nature, or hearing language of this nature and this in turn affects your professional performance then you should consider your position carefully.

I also note with interest that whilst both you and the prosecutor were able to banter with the defendant during the most part of the recording, neither of you made any comments when he spoke of racism and police brutality. Interesting that there were no wise-ass comebacks there. Was he too close to the truth?

This was akin to watching a FOX News debate, where the sole aim of the host is to provoke an argument and get their point across at the expense of any intellectual debate. That's fine for trash tv, but a higher standard is required from Public Officials such as yourself. The fact that you chose to publish this on your blog, no doubt expecting the responses to be sympathetic shows how out of touch you are.

For you to say:

'Honestly, the whole thing was so surreal that I actually laughed before I had the court guards remove him from the courtroom.'

shows that you are unable to remain professional in a demanding situation. There is nothing remotely amusing about what you had just witnessed. There is no reason to laugh when you are considering evidence and about to sentence someone to lose their liberty. Everyone is equal before the law, unless they appear in your courtroom and you find it amusing - is that how it goes.

Your one truth I agree with:

'You never know what will happen when you go into court.'

Fair. However, as a judge you should always be prepared for whatever that is and act with integrity and professionalism. You failed and therefore you should go.

Anonymous said...

nitrox11, 99.999% of the judges are hypocrites. Judge Pilshaw can throw a tirade in the court but when someone else does it suddenly she has an issue. The problem with Judge Pilshaw is once she makes up her mind which is typically upfront. That's it. If you're on the losing end, she'll manipulate the system to get her desired outcome. She even had the nerve to tell a defendant that she's already made up her mind from the get go. Luckily for the defendant, the appeals court tossed the verdict which once again is a rarity.

Spider Goodlegs said...

Judge Pilshaw said:

"I am aware that the risk of spreading HIV through saliva is basically slim to none but... it's somewhat akin to a robber holding an empty gun on a gas station cashier. The risk is minor but the victim's fear is very real."

But if the fear is based on stupidity then why would you choose to sentence as though the threat were real? That's more akin to someone thinking a robber pointing his unveiled thumb and fore finger might result in a bullet in his head and you sentencing the man as though he were armed. The risk is minor but the victim's fear as well as the sentence is based on Fantasyland.

Additionally, doesn't that also substantiate the "victim's" ignorance as though it has merit? I would think that especially with HIV you'd want to prevent unnecessary fear, not compound it.

And by the way, the assistant D.A. behaved outrageously in the courtroom. Yelling at a man in shackles "anytime! Anytime!" was a clear case of provocation and in layman's terms, the act of real pussybitch, if it please the court.

Rebecca said...

I don't think I really made it clear enough that the sentence I imposed was dictated by the Kansas Sentencing Guidelines. The Kansas legislature has removed a lot of judicial discretion in sentencing matters. Mr. Gaines sentence was based on the severity level of the crime and his criminal history. Those are also set by the legislature.

I realize that spitting is not as serious as hitting someone but a battery is simply touching someone in a rude insolent or angry manner. The spitting is the act of touching and the fact that these were law enforcement officers is what makes it a felony.

I also want to point out that those of you who are basing your opinions of this whole situation on what you saw on TV or Youtube are missing a big part of the picture. Mr. Gaines' allocution went on for about 20 minutes.

If I can figure out how to close the comments on this subject I will do so.

Anonymous said...

I, also anonymous, always admired the way Judge Pilshaw honored the rights of the accused. She has sustained a lot of motions to suppress because she believes that defendants are presumed innocent until proven guilty (contrary to much of the Bush administration policies). This has alienated prosecutors. Then, after conviction, once the presumption of innocence is gone, she becomes the tough sentencing judge, alienating defense attorneys. Apparently the Family Law lawyers didn’t care for her either, since they seem to be the only ones putting up candidates to run against her, after all these years.
And, please, it’s “censure,” not “censor.”