'Too Short' for Jail Ruling to Be Appealed

There were valid reasons, an appeals court says, for a Nebraska judge’s perhaps-unprecedented decision to sentence a 52-year-old man who is slightly over five feet tall to probation in a child sexual assault case. So the controversial 10-year probation term she gave Richard W. Thompson, saying that he deserves prison but is too short to serve time, will stand, at least for now.

That may not be the final answer, though. Nebraska’s attorney general says he plans to appeal yesterday’s decision by the Nebraska Court of Appeals, reports the Associated Press.

A probation term was recommended to the judge in a presentence investigation report, and a psychologist determined that Thompson is not likely to re-offend. However, Cheyenne County District Judge Kristine Cecava’s only mistake was that she should have done more to explain her ruling, and instead focused a bit too much on the defendant’s height, the appeals court wrote in its opinion: “Such failure caused the trial judge’s brief mention of Thompson’s small physical stature to become the focus of attention, when in reality it was but a minor point.”

According to a court transcript, Cecava told the defendant at sentencing: “So I’m sitting here thinking, ‘This guy has earned his way to prison,’ but then I look at you, and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don’t think you’ll do well in prison.”

Thompson was convicted of felony charges of having had “sexual contact” over a several-month period with a 13-year-old girl, according to an earlier Associated Press story (it says she was 12, but a more recent AP report says she was 13). A representative of Nebraska chapter of the American Civil Liberties Union told the news agency at that time that she had never before heard of a defendant being spared a jail term due to his height, adding that there is no constitutional protection for defendants based on their size.

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