By WILLIAM R. LEVESQUE, LEANORA MINAI and CURTIS KRUEGER
Published February 10, 2004
Rapkin
SARASOTA - A Sarasota judge did what most judges would do when he declined to jail Joseph P. Smith on a probation violation a month before Smith was accused of killing 11-year-old Carlie Brucia, legal experts say.
Sarasota Circuit Judge Harry Rapkin refused to jail Smith in December for failing to pay $170 in court costs, a condition of his probation on a drug charge. Rapkin said he needed evidence that the violation was willful.
"We don't have debtor prisons," said Pinellas-Pasco Circuit Judge Michael Andrews. "This judge did what I think most judges would have done. ... The jails are saturated."
Andrews releases those accused of failing to pay costs on their own recognizance if he has no evidence the act is willful.
The backlash to Rapkin's decision heightened Monday with Gov. Jeb Bush saying at a Tampa news conference that lawmakers may need to review whether probation laws should be toughened.
"We're going to review the laws that exist that give judges lots of discretion," Bush said. "I am working with the attorney general. We expect to have some recommended changes very soon."
Also Monday, lawyers for Smith asked a judge to issue a gag order in the case and order prosecutors to provide documents and evidence to build a defense much sooner than usual.
Adam Tebrugge, Smith's public defender, is also asking Judge Andrew Owens to let him interview grand jurors, a rare request.
"Because of the unprecedented level of publicity in this case, counsel for the defendant has good cause to believe that one or more grand jurors may have a state of mind that would prevent them from acting impartially and without prejudice," Tebrugge said in the motion filed Monday.
A hearing is set for 10 a.m. Wednesday in Sarasota on the public defender's requests.
Florida Department of Corrections officials have said Rapkin should have held a hearing to determine whether Smith, who has a record of 13 mostly drug-related arrests, had the ability to pay his costs.
The judge said it was up to probation officials to give him information that Smith had the ability to pay but refused.
Lawyers interviewed about the case defended the judge, saying few judges would jail someone and hold them pending a hearing at some later date.
"It's easy to stigmatize a judge for doing something like that," said Dwight Dudley, a Pinellas criminal defense attorney. "But in truth, the system is not set up to handle throwing everybody in jail for a minor technical violation."
Rapkin's decisions on the bench have previously brought criticism.
In 1995, Rapkin refused to sentence a convicted sex offender to the 15 years in prison prosecutors wanted for a probation violation. Instead, the judge ordered him to to four weekends in jail.
Within weeks, the sex offender became the prime suspect in the killing of a 14-year-old girl. The man was never charged with the crime.
And in 1996, a man faced 19 months in prison for setting his ex-girlfriend's car on fire. After the woman told Rapkin she didn't want the man to go to prison, Rapkin sentenced him to probation.
Rapkin's words to the defendant might be considered prophetic.
"You know what the judge's worst nightmare is?" Rapkin said in court, according to a 1996 story by the Sarasota Herald-Tribune. "If I were to take a chance on you and put you on some type of control release, and I pick up the paper and I find that you've gone and done something stupid, you know who gets the hot seat? Not you, me."
The man was later accused of firing a shot at the ex-girlfriend with a shotgun.
Mark Zimmerman, a Sarasota defense attorney and former prosecutor, said Rapkin is known for putting probation violators in jail without bond, though usually for substantive violations.
"I don't think in this instance Judge Rapkin did anything wrong," said Zimmerman. "I think he was making a reasonable inquiry."
Rapkin could not be reached for comment Monday. DOC Secretary Jim Crosby said he was concerned when he took over the post in February 2003 that probation officers had the latitude to report some violations, or ignore others. So Crosby said he instituted a "Zero Tolerance" policy.
All violations are now reported to a judge, DOC officials say.
"This case will be used as an excuse to change the law and give judges even less discretion," said Tampa attorney G. Bruce Ketcham, who has practiced in front of Rapkin. "And the judge didn't do anything wrong."
- Times staff writer Jeffrey S. Solochek and researcher Kitty Bennett contributed to this report.
Memorial services
- A public memorial service will be held at 5:30 p.m. today at Central Church of Christ, 6221 Proctor Road in Sarasota, where Carlie's body was found.
- A public tribute to Carlie will be held at 7 p.m. Thursday at the Church of the Palms, 3224 Bee Ridge Road in Sarasota, near the carwash where she was abducted. Sarasota Memorial Funeral Home is helping organize the event.[Last modified February 10, 2004, 01:00:27]
