A Florida appellate court has ordered a new sentencing for Percy Edgardo Torres, 44, of Jacksonville in light of a tongue-lashing that he received from Judge Russell Healey who used his sentencing to lecture him on his violation of Catholic principles.
Healey imposed a 30-year maximum sentence after the instruction on good Catholic values on monogamy — a rather curious sticking point for a man convicted of sexual battery. Torres appears to have a few more fundamental moral issues than simply dancing and cavorting with women other than his wife. Yet, that seemed the most pressing thing on the mind of Healey in this exchange:
THE COURT: You were married, weren’t you?
TORRES: Yeah. I was married, but my wife was in my country.
THE COURT: I know that. Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people—that’s not the way anybody with morals should do anything.
TORRES: We was going out like friends. Like go out.
THE COURT: … you’re the one that said you had sex with her before this night.
TORRES: Yeah. Before this night. Yeah. We have sex.
THE COURT: But you’re married.
TORRES: Yeah. I was married.
THE COURT: That wasn’t right, was it?
TORRES: I know. Yes. It is my mistake.
[toward the end of the hearing the Court added] “You should not have been dancing together and by your own testimony you should not have had prior sexual encounters with her under any set of circumstances once you are married,” he said.
The appellate court noted that normally a sentence, even a maximum sentence, is not reviewed if within the statutory range but that an exception exists for consideration of “constitutionally impermissible factors.” The court also noted that “The minimum guidelines sentence was 9 years and 4 months imprisonment. The State did not request a specific number of years, but instead asked the trial court not to downwardly depart.”
For the court, Judge Wolf stressed:
No one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion. Moreover, as we stated in Nawaz, “for justice to be done, it must also appear to be done.” 28 So. 3d at 125. Because the court’s comments could reasonably be construed as basing the sentence, at least in part, on religion, and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of religion, we vacate appellant’s sentence and remand for resentencing before a different judge.
Notably, Judge Makar concurred to note that religious references are not barred from such sentencing hearings:
Thus, it appears that religious references by trial judges in the sentencing context—though potentially risky—are not per se impermissible; they become problematic, however, if they are used—or reasonably appear to be used—as the basis for the sentence itself. See, e.g., Nawaz, 28 So. 3d at 125. The “Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office,” Bakker, 925 F.2d at 741; religious references are made with caution flags aloft.
What do you think? Should a judge ever be able to discuss his or her religious beliefs as part of a sentencing with or without “caution flags aloft”?
Healy is a former prosecutor and was appointed by Jeb Bush. He is a graduated of University of Florida law school and is a graduate of Jesuit High School. Notably, his private practice focused on family law and marital cases — an emphasis that appears to have continued as a judge.
Source: ABA Journal
I wonder if the judge lectures him on the benefits of banging 5 year olds in the b***? you know the way priests do.
Bigfatmike,
You and others who responded to this post make a good argument for sentencing guidelines. Under guidelines, judges’ personal opinions would have limited effect. The more judges have discretion, the more often they will insert their personal opinions and exercise discretion in ways in which the public may deem wrong. Mandatory minimums have the same effect. Moreover, guidelines constrain on the upper as well as the lower side. Torres may not have gotten 30 years if guidelines limited what the judge could give him. Limit the discretion and you limit the personal opinions.
Getting back to the Torres case, reading from the court’s opinion, it is not altogether certain that the judge handed out 30 years because he thought Torres was a fallen Catholic. To me, his remarks sounded more like a lecture than grounds for giving Torres additional time.
@Vincent Jankowski
While bigamy may be a crime and is referred to as a form of marriage, it’s only applicable if the persons is married in question when violating a specific marriage law proscribed by the government. If Torres has been having sex with a married person, that’s adultery. If he has been having sex with a virgin, he’s likely a bigamist. However, it’s likely that he wasn’t interested in being married to this person, which does refer to fornication. Fornication is a word that came up with the word F.U.C.K. which meant fornication under consent of the king.
It’s called fornication for a reason. Fornication categorizes different types of sexual immorality such as adultery, sexual immorality, etc. and so on. Bigamy isn’t listed as sexual immorality because it was defined as a marriage that had sanctity; fornication, on the other hand, is not.
I may not be the greatest writer on grammar and punctuation. I completely understand and no, I don’t practice polygamy but I do intend to practice it. I do intend to employ Jonathan Turley against the State of Texas once my polygamist status is proven in a court of law as violating their proscribed laws. Polygamy in the state of Texas is a misdemeanor; however, according to the Texas Constitution, marriage is defined as a man and a woman, nothing more.
With the anticipation of Waddoups’ resolution on Brown v. Utah, and God knows what happens next, I don’t know exactly where polygamy stands in the entire united states.
As for the judge, I don’t think the judge is in any position to coach the defendant on morality. I’m sure that judges try to teach the person what’s right and what’s wrong; some defendants may have changed but that has never stopped others from ignoring the judges’ warnings.
There is a reason for church and state being separated. When you preach religion in a court, you’re in fact inviting the general government to begin establishing their own religion a la Church of England in the 1600s where polygamists were charged with felony, tried, found guilty and then sentenced to death. Think about that for a second.
I would not want any more judges trying to throw in the religious bit because it violates the freedom of others to believe in their own religion.; Thanks for the chat, Jankowski.
Mr. Polygamist,
Your definition is correct, even if your spelling is not. Actually, I think bigamy is better defined as: where the punishment is the crime. This may surprise you but, if you really practice polygamy, I defend your right to do so. Furthermore, I personally see no difference between the polygamist and the guy who has multiple paramours, notwithstanding that the polygamist is violating the law and the guy with multiple lovers is not. Personally, I cannot see being married to more than one woman at a given time, but I do not seek to impress that view on others. Neither should the government.
The judge is a different story. When sentencing a defendant, a judge pretty much can lecture all he or she wants. It comes with the robes. Judges lecture defendants on morality all the time. They think it works. In rare instances, it does. The fact that this judge phrased his moral lecture in terms of religion should not matter.
Finally, the judge did not exercise his religious beliefs on anyone. He exercised his judicial authority and knocked Torres’ socks off. Torres got a fair trial and by all accounts he got a pretty fair sentence, too.
Bigfatmike,
You misunderstood the subtlety of my remarks. My remarks were not meant to be taken literally. Rather, they were meant to be understood as meaning that, if Mr. Torres had lived a more responsible lifestyle and maybe had a moral compass (through religion or otherwise), he might have been constrained to keep his hands off his girlfriend. Sometimes religion has that effect on a person. Sometimes it comes from other sources. In Torres’ case, it missed him entirely. It was not out of line for the judge to say so.
That being said, faithfulness is a moral principle shared many more people than just the trial judge.
“You misunderstood the subtlety of my remarks… (If Torres).. had lived a more responsible lifestyle he might have been constrained to keep his hands off his girlfriend. ”
Well, maybe I did fail to give proper recognition to the depth of your remarks.
In this case, you seem to be claiming that we should sentence Torres for the crime of violence against another person, and then add on years for moral failing of using violence against another person. To me that seems like double counting.
More generally, you seem to be claiming that a judge should be able to consider as an aggravating factor his own indignation at the defendant’s failure to live up to the judges moral principles.
As a practical matter that may be true.
My question is why would we want it that way.
Most any defendant seems likely to differ from the judge on the basis of outlook and values.
So long as we allow variation from the judges moral precepts to be considered as an aggravating factor, we seem to allow any judge to sentence any defendant to extra years for nothing more than being different from the judge.
Why shouldn’t we require that aggravating factors be limited to elements closely related to the actual crime or specific characteristics of the defendant that are reasonably related to the crime?
I just do not see that unfaithfulness is closely related to this crime. Some unfaithful me beat women and many do not. Some faithful men beat their wives and many do not. The issue of faithfulness just does not seem to get at the issue of violence. So why is it reasonable to allow faithfulness or lack of it to be considered an aggravating factor in a case like this?
“After all, if the defendant hadn’t cheated on his wife and, instead, remained at home and prayed the rosary or read the Torah or watched Pat Robertson, the crime would not have happened.”
The theory seems to be that if the defendant had been with his wife then he would not have abused his girl friend.
If that is the proper interpretation of the reference to monogamy then the moral principal seems to rise to the level of shopping at Walmart.
If only the defendant had been shopping at Walmart he would not have abused his girl friend.
Extra years for not shopping at Walmart!!!
Seriously, the crime is physical abuse of another person. If a judge wants to add years for an aggravating factor that factor should be closely associated with the defendant or the commission of the crime.
I cannot see how failing to live up to one of the judges moral principals, whether based on religion or any other value system, is closely related to the defendant or the commission of the crime.