Rumblings in the local legal community are that there’s a change a coming to Tampa’s Courthouse. There is talk that the Sex Crimes Division will soon be dismantled. On June 6, 2014, Judge Chet Tharpe was reversed (en banc) by Florida’s 2nd District Court of Appeals in Barnhill v. State. The 2nd DCA in its opinion stated “the trial court abused its discretion by failing to weigh the totality of the circumstances ….” upon considering a downward departure sentence. The opinion goes on to explain that Judge Tharpe used an incorrect standard during sentencing, using the court’s “perceived general concern about these “types” of crimes rather than the “totality of the circumstances” standard (considering both aggravating and mitigating factors). Peter Barnhill was charged with 22 counts of possessing child pornography. His attorney, Michael Maddux, asked for a downward departure under Florida Statute 921.0026 arguing that his client needed specialized treatment for a mental disorder.
Dr. Peter Bursten testified during the sentencing and stated that Mr. Barnhill was a “low risk sexual offender” and was “clearly amenable to engaging in therapeutic interventions.” Dr. Bursten went on to state that Barnhill was not in denial about his problem, understood the wrongfulness of his actions, was not “an antisocial or criminally predisposed individual, and there was “negligible potential” that he would “engage in future acts of sexually related impropriety.” Peter Barnhill took a polygraph test which indicated that he had been truthful when he denied ever having sexual contact with children. Additional mitigating factors were presented, please read entire opinion, Barnhill v. State.
Judge Tharpe asked Dr. Bursten if Barnhill had the “desire to touch” and Dr. Bursten responded that he could not answer that question. Although the state attorney did not challenge Dr. Bursten’s testimony, the opinion indicates it had the same concern as Judge Tharpe, whether Barnhill had a desire to touch a child. The state attorney asked Judge Tharpe to sentence Barnhill to 30 years. Attorney Michael Maddux asked for 5 years and lengthy probation. Judge Tharpe gave Barnhill 22 years in prison and in doing so stated:
“I just want you to know that I struggle on these cases, not just Mr. Barnhill’s, but these type of cases every single day of my life since I’ve been put into this division, and there’s not one day that goes by, not one, that I don’t think about these cases.”
Judge Tharpe is quoted in the opinion as saying there is a new study saying there is a 50% chance of child pornographers having “hands on contact” and that there is no “magic answer” as to whether Barnhill will re-offend or touch or not touch. The Barnhill decision held Judge Tharpe should have applied the two part process under Banks v. State, not Judge Tharpe’s own standard based on the type of crime.
The 2nd DCA stated that it understood that these cases are disturbing and they are not
“unsympathetic to the difficulty that each trial judge must face when presiding over such cases. However, trial judges are required to rise above the disturbing nature of these and other crimes and to provide every defendant a fair opportunity to be heard by an impartial judge who will consider only the evidence to the court within that case.” The court went on to say that, “it is clear from the rest of the trial judge’s comments that evidence from other hearings factored into his decision not to downwardly depart,” and “the trial judge lumped Barnhill with all similarly charged defendants irrespective of the testimony that Barnhill presented at sentencing.”
Bottom line, according to Barnhill opinion, “even to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge.” Do-over.
Attorney Michael Maddux recently argued before Judge Caroline Tesche at Mr. Barnhill’s resentencing and a decision is pending. Stay tunned. On August 21, 2014, Attorney Maddux wrote a compelling letter to the Chief Judge, Manuel Menendez Jr, requesting that the Sex Crimes Division be dismantled and suggesting a rotation system. Attorney Maddux believes that a system wherein these types of difficult cases are circulated will prevent the type of result as seen in Barnhill.
This evening Tampa Fox 13 , reporter Gloria Gomez , who has been covering this story for some time now after the Barnhill decision, will be providing some follow up developing news. You can visit myfoxtampabay.com to see additional coverage on this story that Gloria Gomez has been reporting on, “Judge Tharpe ‘abused his discretion’ in sentencing, higher court says.” Attorney Michael Maddux will be featured.
TBT also reported on this story back in October: “Claims of bias in child porn cases arise for Hillsborough Judge Chet Tharpe” Anna Phillips
Sidenote: I stumbled upon a blog piece whose author gave high praise to Judge Tharpe for his “no nonsense” style and for distributing “wake up calls” to sexual offenders. The blog piece discusses a sexual offender (a father who molested his children) who was sentenced by Judge Tharpe to 25 years probation. Am I missing something? Touch, probation, No Touch, 22 years prison.
Should the Sex Crimes Division at the Tampa Courthouse be nixed?