When Florida District Court Judge Mary Scriven held that the  state law eliminating mens rea from its narcotics delivery crime was unconstitutional, one looming question was what happens to all the other guys hanging around the jail under the same statute.  Via David Markus at Southern District of Florida Blog, we now have an answer:

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida’s drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

“[F]or there is nothing either good or bad, but thinking makes it so.”

–William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2

Um, that would be Judge Milt Hirsch, formerly of the criminal defense table and one of the smartest guys I know.  Miraculously, Milt managed to get fitted for a robe without having his head and buttucks mistakenly reinstalled in the wrong place.

This was actually a subject of discussion during a wonderful (and free) dinner at Emeril Lagasse’s restaurant, during that hiatus between Milt’s election to the bench and his being sworn in.  It’s a great period, as you know that someone is soon to have more power than anyone deserves, but you can still call him ugly and stupid and get away with it.

Unlike any other judge I know, Milt explained that he designated a lawyer to smack him upside the head if he ever became the typical power-mad, arrogant jurist that he hated for the first 30 years (just an estimate, his mileage may vary) of his career.  Yet there was something about Milt’s intelligence, and consequent disdain for incompetence or ignorance no matter which table it came from, that struck me as having potential for trouble.  What would Milt do in the robe?

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: “If I’d had more time, I could have written you a shorter letter.”

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, “It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.” Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Aside from dismissing unconstitutional charges because they must, if there’s to be any honor of the Constitution, dismissal, Milt makes a point of monumental significance:

…these movants are unworthy, utterly unworthy, of this windfall exoneration.

This is the most difficult, least understood and dangerous thing that law demands, that the unworthy are given the benefit of the Constitution as well as the most worthy. 

If it were left to popular vote, the words etched in granite above the courthouse door would read, “the ends justify the means.”  People want a world divided by good and evil, as they personally perceive it, and fully expect the legal system to provide it to them.  Judges, especially where elected, are often happy to comply,  After all, “these movants are unworthy, utterly unworthy,” of a such a windfall.

Yet 39 defendants whose motions were brought before Milton Hirsch were cut loose, their charges dismissed, everyone one of them undeserving of exoneration as they knew damn well what they were doing.  And yet, Judge Milton Hirsch did what the law required him to do.

Thank you, Your Honor, for doing the job of a judge. You’ve earned the honorific, and no one had to smack you upside the head to remind you that fealty to the Constitution and the law, even when the beneficiary was unworthy, is what you’ve sworn to do.