Sexting Trooper sentenced to 18 months in prison

If he had accepted the State's plea offer, James E. Gilbert could have walked away from Judge Lubet's courtroom a year ago with an 18-month sex offender probation sentence. And no jail time.

But he didn't think he should be labeled a sex offender, so he rejected the offer.

Two months ago, when confronted with going to trial, Gilbert pled no contest to ten counts of Solicitation of a Minor via Computer while he was employed by the Florida Highway Patrol as a State Trooper. For more background info on this case, see our earlier blogs.

Earlier this week, he was sentenced to 18 months in the Department of Corrections, 8 years sex offender probation, ordered to have no contact with the victim and her stepfather (his former supervisor at FHP), undergo mental health evaluation and treatment, and pay restitution.

Neal McShane, attorney for Mr. Gilbert, presented testimony from one psychologist, another psychologist's written report, and the defendant himself, in an effort to provide enough mitigation per Florida Statute 921.0026 as he requested a downward departure before Judge Lubet. Gilbert's 198 sentencing points equated to a lowest permissable sentence (by statute) of 127.5 months in the Department of Corrections.

Per Florida Statute, if the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment, the judge may downward depart.

• One psychologist's report diagnosed Post Traumatic Stress Disorder, and was submitted for consideration.
• Dr. Robert Tango, LMHC, testified that the defendant's motivation wasn't sex but having fun/excitment (in large part because he was bored with his assignment at a Turnpike rest area). Dr. Tango found that Gilbert had bipolar disorder.
• Dr. Tango's assertion that DOC was not equipped to provide the specialized treatment needed was not based on any discussions he had with officials at DOC, but upon the reports of other clients referred to him by DOC after their release.
• Neither psychologist conducted a psychosexual exam.

Another mitigating factor occurs if the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

• Gilbert took the stand and testified that he had never before engaged in texting of a sexual nature.
• The defendant explained that even though some people might think he's shown no remorse (because he hasn't broken down and cried) he felt bad for what he did.
• Gilbert looked directly at the victim, apologized to her for causing stress, humiliation and family separation. He stressed the impact that this entire episode has had on the victim's family, and almost as an afterthought he added, "and of course, yourself."
• He admitted he knew what he did was wrong and said he accepted responsibility for his actions, though he told the prosecutor under cross-examination "I don't think that what I've done rates me registering as a sex offender." And, "For the circumstances that are involved here, I don't think I should have to register as a sex offender." Ultimately, by pleading to the offenses, he has accepted legal responsibility for his behavior.
• The defendant claimed there was never any intention to do anything with the victim or anybody else in her family.  It was all talk. It was all in fun.

Judge Lubet found that the offense was indeed unsophisticated in nature.  As for it being an "isolated incident," much discussion about whether the 10-17 days (no one was sure how many exact days were involved) over which the text messages occurred could be considered as "isolated."

The prosecutor questioned whether or not "great remorse" had been exhibited by the defendant. Case law indicates that when great remorse is evident immediately after an incident, it could be grounds for a downward departure.

The judge noted that Gilbert took 2 years to enter a plea to the offenses. He recognized how difficult it was for a law enforcement officer to admit that he had done something of this nature. Mr. McShane replied that even at the outset, everyone knew that this case would be a plea, but that there were several motions that needed to be filed. The defense complained about the State's handling of this case as well as the victim's mother's involvement in the case (she and the victim's father were conspicuously absent from the proceedings). Mr. McShane also emphasized that the sentencing hearing was his client's first opportunity to apologize to the victim and that all he wanted throughout the process was his day in court.

Mr. Williams reminded the Court that defendants typically have the opportunity at their arraignments (which occur approximately 5-6 weeks after arrest) to accept responsibility and move on. He questioned whether a defendant who hides behind numerous motions really was remorseful.

The disdain between the attorneys for one another was evident.

Mr. McShane asserted that the State Attorney's Office initial plea offer was unreasonable and that it was treating his client more harshly than it would anyone else because he was a law enforcement officer. The State responded that the defendant, by virtue of his job, was in a better position than most to know that his actions were illegal.

Other factors that Mr. McShane presented to the Court for consideration were a dozen letters from FHP personnel, at least one of which bashed the victim and her family and extolled Gilbert's career accomplishments. An additional factor that was presented for consideration was that the victim's mother did not want Gilbert prosecuted. The stepfather has maintained a neutral position about what should happen. The judge was reminded that the defendant had a squeaky clean record and it was argued that he does not pose a future threat to society.

Mr. McShane argued that if ANYONE deserves a significant downward departure, his client is the one.

The victim's attorney, William Jay, provided an impact statement on behalf of his client. He testified that the victim is very afraid of the defendant and wanted him to be incarcerated. She believed that he is not remorseful and seemed angry and resentful during his testimony. She is concerned about Dr. Ming's report which called the defendant a sadist.

She requested what the sentencing guidelines called for (127.5 months in DOC). Mr. McShane objected to the victim asserting that she was afraid of the defendant.

The judge found that Mr. Gilbert had a mental disorder and that he was amenable to treatment, but indicated there was no evidence presented that the Department of Corrections was unable to provide the necessary treatment. Judge Lubet also agreed that the offense was unsophisticated in its commission.

The judge's greatest concern related to the remorse that was, or was not, shown. He believed that it was possible that Mr. Gilbert's personality is that of a hard man who does not express emotion well. The judge was not 100% convinced of Gilbert's level of remorse, and therefore found that Mr. McShane had not proved his client was truly remorseful.

The Court took into consideration Gilbert's exemplary career, that neither parent requested incarceration, the victim (now 18 years old) did request incarceration, the defendant does not pose a future threat, and that he is amenable to treatment that is unrelated to substance abuse.

Judge Lubet found that while this was an extremely distasteful offense, he noted there was no physical abuse involved. The defendant was a friend of the family and violated the family's trust in a dramatic manner. Gilbert knew what he was doing was wrong.

The judge believed that 10 years in prison was too harsh, and sentenced him to 18 months + 8 years probation. He was adjudicated him guilty on all 10 counts, designated as a Sexual Offender, ordered mental health evaluation and treatment, and no contact with the victim or her stepfather. The judge noted that the mother might want to have contact with him.

A supersedeas bond in the amount of $7,500 was granted and he was remanded to custody.  In spite of assertions he had no money, he managed to post the 15% necessary to be out of jail the following day. Judge Lubet ordered GPS monitoring, waived the cost, and ordered him to relinquish his passport before being released.

Was this sentence in line with other cases in Orange County? More to follow in the next blog entry.

"He's 40 - She's 17!"

James Gilbert
2008-CF-018238-A-O
Solicitation of Minor via Computer (10 counts)
Click here for previous CourtWatcher blogs on this case.

Gilbert and his attorney, Neal McShane, were back in court on Friday, scheduled for yet another Motion to Dismiss.  Mr. McShane vigorously tried to convince Judge Lubet for the umpteenth time that the text messages sent to the defendant by the victim (who was 17 at the time) should be retrieved and be admissable at trial.

Mr. McShane wanted the judge to allow his computer expert to examine the victim's parents' home computer where the mother allegedly viewed the messages on their cell phone provider's website. The issue of invasion of privacy was discussed at length.

After listening to the attorneys argue, at times quite heatedly, whether or not the messages could (1) even be retrieved after nearly two years, and (2) even be admissable at trial, Judge Lubet denied McShane's motion. The judge, for the umpteenth time, told Mr. McShane that her texts to the defendant are not relevant because, as he emphatically stated, "He's 40, she's 17! It's still illegal!"

Judge Lubet would not permit a fishing expedition at the expense of the victim's family. He refused to impose sanctions (as requested by defense counsel) on the State for their lack of technical expertise in retrieving her texts when the charges came to light in 2008. As unfair as it might seem to some, because the victim was a minor, anything she wrote to Mr. Gilbert is not admissable at trial.

As the hearing reached the 60 minute mark, Judge Lubet asked Mr. McShane what his client was going to do - go to trial Monday or plead to the charges. When he replied that Mr. Gilbert hadn't decided yet, the judge informed him that "inaction results in other people making decisions for you." It was very clear that there would be no more delays.

Mr. Gilbert and his attorney went out to the hallway to discuss his options.

After taking about an hour while other matters were handled, the defendant returned to the courtroom to enter a plea of "no contest" to all 10 charges (each one could be punishable by up to 5 years in prison). There was no agreement with the State. Judge Lubet did indicate he would be willing to grant a bond for Mr. Gilbert while the case was appealed.

Sentencing was scheduled for April 19th at 1:30pm to give the Department of Corrections time to prepare a pre-sentence investigation.

Gilbert's fate will then rest with the judge.

Lots of Smoke, Not A Lot of Substance

Former FHP Trooper James Gilbert was back in court today for a 3.5-hour hearing relating to numerous motions made by his attorney, Neal McShane, about allegations that were made by him in December regarding a supposed conspiracy within the State Attorney's Office. See our earlier blog about this case here.

After hearing testimony from FHP, the victim's father (who was also Gilbert's supervisor at FHP before he was terminated), the victim's mother, Assistant State Attorney Sarah Freeman (who initially handled the case before ASA Ryan Williams took it over last spring), and Counsel for the victim's family, William Jay, it became abundantly clear that Mr. Gilbert's attorney was throwing numerous allegations and constitutional issues against the wall, hoping something would stick.

Nothing did.

Judge Marc Lubet, occasionally appearing exasperated with some of McShane's arguments, repeatedly tried to keep him focused on the issues he had raised in order to conduct the hearing in a methodical manner. Judge Lubet asked him approximately 6-8 times, "Tell me how your client's due process rights were violated." The reason he had to ask so often was because McShane never did provide an answer that "stuck."

The allegations of prosecutorial misconduct were based solely on the representations of the victim's mother, whom I will not name in order to protect the identity of the victim. McShane claimed that the State Attorney and FHP conspired to prevent a deposition in the civil injunction by telling the mother to dismiss the injunction - something to which McShane and Mr. Jay (Counsel for the victim and her mother) had both stipulated. Once the injunction was dismissed, there was no case to be deposed. At this point, Judge Lubet pointed out that Mr. McShane couldn't have it both ways (dismissing the injunction AND deposing the victim), to which he replied that he believed he could. At this point in time, the criminal case had not yet been filed.

It seemed odd to me throughout the hearing that the mother sat directly behind the defense table, her husband (the victim's father) sat in the last row on the same side, and the victim sat in the last row on the prosecution side of the courtroom.

When the mother took the stand, everything became clear as soon as she broke into tears after praising the defendant's 17-year career with FHP and tearfully telling him from the witness stand that she wished he had accepted the initial plea offer of 18 months probation. She complained to the Court that Mr. Gilbert was now facing the possibility of prison because the State's initial offer of probation, and a subsequent offer of 90 days jail, were now off the table because he had rejected them.

Remember, this is the man who texted her teenage daughter several hundred times in a sexually explicit manner!

She felt that it was not fair that the defendant might have to go to prison for his conduct with her daughter over the course of only 17 days. She minimized his actions by stressing that he never touched the teen. She indicated that the entire situation started when she filed for a civil injunction on behalf of her daughter because it was her husband's intent to have Gilbert transferred out of his unit.

Another spectator in the courtroom turned to me and stated "Appalling."

I would have to agree.

Mr. Williams confronted the mother after her lengthy diatribe about the unfairness of it all and remarked that she never once mentioned her daughter's well-being during her testimony. The mother then expressed a bit of relief that her husband had earlier left the courtroom and didn't hear what she had said. She then expressed anger at Mr. Williams' observation and proceeded to attack her daughter's character by telling the Court that she had tried to protect her child from dating the 24-yr old man with whom she was now living. The victim moved out of the home as soon as she turned 18 in August. Judge Lubet told her none of that was relevant and she stepped down.

Appalling. I don't think this woman will garner any support in a "Mother of the Year" contest.

Judge Lubet permitted Mr. McShane to submit what seemed to be reams of caselaw about the constitutional issues he believes are at issue (many of them dealt with drug cases) and asked him to be concise in his argument (it was already after 5:00pm at this point).

He wasn't.

Judge Lubet was though. All defense motions were denied. He allowed the defense attorney to do what he felt was necessary to preserve the record for an appeal, and stressed that this case would not be granted any more continuances.

I think the defendant would have a good case for replacing his lawyer after today's performance.

Mr. Gilbert's trial is scheduled for to begin during the trial period starting Feburary 15, 2010.

Grasping at Straws

Last Wednesday I had occasion to monitor what was on the docket for a plea, but morphed into a highly unusual hearing in Judge Marc Lubet's courtroom (it seems as though he's gotten more than his fair share of "highly unusual" cases lately).

James Gilbert (2008-CF-018238-A-O) was arrested December, 2008 for ten counts of soliciting a minor via computer. Gilbert was employed by the Florida Highway Patrol at the time of the offenses. The defendant allegedly had sexual conversations and sent over 600 text messages to a 17-year old girl. Gilbert's ex-wife, an Orange County Deputy Sheriff, was later disciplined for conduct unbecoming a member of the OCSO for intimidating the victim's mother at the mother's place of employment.

In the hearing (which started to look a bit like a circus) last week, Defense Counsel Neal McShane made several serious allegations about a cover up within the State Attorney's Office.

• He told the Court that the previous Friday some new information had just come to light about an alleged cover up - claiming that the State and FHP conspired to obstruct justice by tampering with the victim. The victim was allegedly told by the State that she did not need to go to the deposition that had been scheduled in a corresponding injunction case (the parties in that case jointly requested a dismissal, having worked out the issues involved with the assistance of their attorneys).
• McShane also alleged that all of the victim's text messages to the defendant are now missing.  However, Judge Lubet stated that what the underage victim may or may not have texted is not relevant - the defendant is an adult and is therefore still responsible for his messages to her.

Assistant State Attorney Ryan Williams argued that the allegations are without substance because Mr. Gilbert's attorney had no evidence to back them up. His "source" remained unnamed. Mr. McShane requested that Judge Lubet call Assistant State Attorney Sarah Freeman, who handled the case at the time, and William Jay, Counsel for the victim in the injunction case, to testify on the spot. He asserted that if he could just ask them some questions, he could prove his allegations.

Judge Lubet told Mr. McShane that making allegations without knowing the facts is unethical. He would not grant McShane's request at that time.

Ms. Freeman advised that her office will be filing a protective order to prevent her from testifying in the matter and will attempt to quash any subpoena that is issued for a deposition.

Mr. Williams' original offer to the defendant of 90 days jail and 3 years Sex Offender Probation was not withdrawn at this stage of the game (remember, the case was scheduled for a plea - not a hearing where testimony would be taken) because he did not want to punish the defendant because of his attorney's allegations and motions.

Mr. McShane became extremely argumentative with Mr. Williams and angrily yelled at him about some emails he had sent to the State. I couldn't capture it quickly enough in my notes, and must admit that I was a bit stunned to see an attorney behave so badly. I don't remember what else was said.

Judge Lubet, who was in the second day of a jury trial, would not tolerate Mr. McShane's multiple assertions that this was still going to be a plea. He refused to order the victim to be deposed a second time in this case, but granted a second depo of FHP only as it related to the new information.

While waiting for the elevator after the hearing, several observers commented that Mr. McShane's arguments were without merit. I thought he was grasping at straws to further prolong his client's case.

A follow up 90-minute hearing was scheduled for Wednesday, January 6th at 2:00pm.

Click here for WFTV's coverage of the initial arrest.