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Blaming budget cuts is too easy in case of wrongly accused Malenne Joseph

COMMENTARY

Malenne Joseph spent three months in jail for a crime she did not commit. Surprisingly, that doesn't surprise Chief Judge Belvin Perry.

"I've been saying for quite some time stuff like this is going to happen,'' he said.

Law and Order at the Orange County Courthouse is a sausage factory that grinds through 18,000 cases a year. And Malenne got ground up.

"When people get into the system they stop being people and become case numbers,'' said Nicole Benjamin, one of Malenne's two lawyers. "When you get into the griminess of it you see they don't really care.''

Judge Perry wants to understand the dynamic of how the thing he knew would happen actually did happen. And then he will take his findings to the Florida Innocence Commission, a panel of judges, lawyers and others set up to study cases of wrongly convicted people.

Malenne's case should provide them plenty of fodder. She was convicted in June of splashing paint around the interior of a house in retaliation for not being paid for a paint job. She was guilty only of sharing an accent and skin color with the real perpetrator. That was sufficient for a lazy and callous criminal justice system that was operating on the basis of close enough.

Perry admits the case had red flags but said it's getting harder and harder to see them.

"When you have a legal system that undergoes the number of budget cuts this system has undergone, when you have judges with 500 pending cases, speedy trial rules, prosecutors with too many cases, investigators with too many cases, judges with dockets and schedules that are full, stuff like this will happen,'' he said. "The question is what do we put in place now that lets you'' quickly identify the truly innocent.

Blaming this on money is too easy.

Malenne's real problem is that she did not follow the script. When you are busted for a simple, non-violent property crime, the script says you admit you did it and let your attorney plea bargain you down to a sentence of probation.

The script is based on the assumption that almost everybody is guilty, which, in fact, they are.

So nobody wants these piddling cases clogging up precious trial calendars, not with murderers, rapists and drug dealers to prosecute. Only 2.5 percent of cases go to trial. If all defendants demanded their right to a jury trial, the criminal justice system would implode.

That is why judges discourage it. In fact they are required to warn defendants that if they proceed to trial and are found guilty, they could get the book thrown at them. Or they could cut a deal for significantly less than that. You can call it justice, or you can call it strong-arming.

In Malenne's case, she was threatened with five years and deportation to her homeland of Haiti. Or she could admit guilt, take probation and walk.

A guilty person would have jumped at the deal. Malenne did not.

Said Geordany Francois, her partner of 10 years and father of her two young children: "How are you going to take probation for something you didn't do?''

Malenne had no chance at trial, particularly after Judge Walter Komanski allowed the jury to hear testimony that she confessed the crime to a detective. Actually, she did not. The confession came over the phone from a woman the detective wrongly assumed was Malenne.

After the jury's guilty verdict, Komanski sent Malenne to prison pending a pre-sentencing investigation. He refused to release her a week later when her attorney made the request.

Komanski denies Malenne was being punished for going to trial. In an interview last week, he said he was concerned Malenne, who had moved to New Jersey, would skip out on her sentencing hearing.

Nicole Benjamin disputes that. She said Malenne attended every pre-trial hearing, even traveling from New Jersey to do so.

Malenne had her chance to get out of jail on Aug. 6. All she had to do was accept a sentence of probation. But she refused, and asked for a new trial. Her penalty for doing so was a trip back to the jail cell.

Said Francois, "My little girls asked, 'Where' mommy? How come mommy's not here?'''

"I had to lie to them,'' he said. "I told them, 'Mommy is in Haiti helping with the earthquake.' This made me cry. They treated us like animals.''

Komanski said that everybody at the Aug. 6 hearing was so focused on evidence that there was no request to release her.

"Everybody forgot the fact she was locked up in this process,'' he said.

That statement infuriated Malenne's attorneys. They said Komanski had made it abundantly clear that she was going to stay in jail.

And there she stayed, even after Malenne's attorneys produced compelling information indicating her innocence on Aug. 26.

I appreciate Judge Perry's observation about overworked people missing red flags. But somehow the Sentinel's overworked court reporter, Anthony Colarossi, saw them. And even after he reported them on the front page, Malenne stayed in jail almost two more weeks, until Sept. 15.

This was not a money problem. It was an indifference problem, which Perry also acknowledges.

"Any time a citizen who is innocent has to spend one extra minute in jail, no matter how busy someone is, no matter how overburdened they are, there is no way to justify it,'' he said.

Mike Thomas can be reached at 407-420-5525 or mthomas@orlandosentinel.com.

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