Though Danastor's brother, Maxime Cherilus, was sentenced to ten years in prison — more than six times the prosecution's recommendation — for selling one gram of crack cocaine for $50, that ruling was reversed by the Fourth District Court of Appeals earlier this week.
At trial, Cherilus swore he had never been involved in drug dealing nor been in trouble before. His lawyer, Michael D. Weinstein, explained that the soft-spoken 22-year-old had only $1.13 in his bank account at the time, was desperate, and needed to make rent.
But Judge Matthew Destry called Cherilus a “cagey, clever drug dealer." The sentence was devastating and would have kept Cherilus, a young man who hoped to one day open his own business, in prison until he was 34 years old. Now, Cherilus will be sentenced again by another judge and will hopefully be released with time served.
Said Weinstein, Cherilus' lawyer: "I'm the happiest lawyer in town!... I'm absolutely thrilled for him. I think the sentence he got before was unjust."
A New Times investigation examined Destry's sentences and found that many are extremely harsh or seemingly random. Destry sentenced a man who raped a middle-school girl to two-and-a-half years and another man who violated his probation to 60. Technically, the judge's sentences are legal and based on a set of guidelines. But last year, an appeals court overturned 11 of his rulings. Howard Finkelstein of the Broward Public Defender’s Office has said, "The problem is that [Destry] doesn't see the humanity of poor people."
Destry is up for re-election this November and has attracted four challengers. The primary is August 30.
In November, Destry made headlines for sentencing 23-year-old Herbert Smith, who had been found guilty of several burglaries and theft charges when he was 19. Smith was considered a youthful offender and served two years in prison for the charges. He was out on four years' probation when cops pulled him over for driving on a suspended license and having ammo in the car. The prosecution recommended 13 years. Destry sentenced him to 60.
Smith's family was outraged and circulated a petition calling for Destry's removal from the bench for oversentencing Broward's youth. It attracted the support of rapper Hot Rod and Oprah Winfrey Network’s educational leader Dr. T. More than 20,000 people signed it. Then, in a last-ditch status hearing two weeks later, Destry shocked everyone again: He let Smith go home that day with no prison time but with 15 years of probation.
It was a move Finkelstein criticized as “doing the right thing for the wrong reasons.” He said that “the takeaway is that justice is random in Broward County.”
In Cherilus' case, the appeals court found that Destry could not give Cherilus a harsher sentence simply because he didn't believe him. In their analysis, the panel of judges explained that a judge may "not rely on a defendant’s lack of truthfulness in imposing a sentence because it ‘would create a Catch-22 — the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial.’”
The appeals court highlighted a handful of Destry's comments that showed the flaw in his sentencing:
[Cherilus] is the type of individual that we do need to lock up...I do not buy for one second that this was entrapment. I do not buy this trial testimony. I don’t accept his testimony on the stand at trial. I do not feel he was truthful there or here. That is just my assessment that I do not mind putting on the record....But I want to be clear here, I based my sentence on his actions that were portrayed at trial and the way he acted during the course of the alleged criminal activity, not his testimony, soto-speak, all right, so we are clear here.
Weinstein explains that in the next few weeks, Cherilus will appear before another judge who will give him another sentence. The lawyer is confident another judge will give him credit for time already served. Though he explains that Cherilus should be punished, Weinstein says that as a first-time nonviolent offender, Cherilus deserves probation — not a ten-year sentence.
"I'm supremely confident that a new judge can look at the facts and give [Cherilus] credit for time served," Weinstein says. "That would really be a just sentence."