Thursday, July 17, 2014
Florida Statutes 775.15 (1994), the year Lynne Friend was murdered:
(1) A prosecution for a capital or life felony may be commenced at any time.
(2)(a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.
(5) A prosecution is commenced when either an indictment or information is filed...
Clifford Friend was indicted for first degree murder on March 7, 2012. On July 11, 2014 the State filed an amended information. He was convicted the same day of second degree murder, "a first degree felony punishable by imprisonment for a term of years not exceeding life..." (FS 782.04(2)).
FS 775.15 (1996) and thereafter:
(1) A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time.(emphasis added)
(1) A prosecution for a capital or life felony may be commenced at any time.
(2)(a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.
(5) A prosecution is commenced when either an indictment or information is filed...
Clifford Friend was indicted for first degree murder on March 7, 2012. On July 11, 2014 the State filed an amended information. He was convicted the same day of second degree murder, "a first degree felony punishable by imprisonment for a term of years not exceeding life..." (FS 782.04(2)).
FS 775.15 (1996) and thereafter:
(1) A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time.(emphasis added)
Saturday, July 12, 2014
The Murder Of Lynne Friend.
Congratulations to Michael Von Zamft and Marie Mato, the prosecutors, on the guilty verdict late last night in the Clifford Friend trial. Congratulations also, however, to defense attorney Peter Heller, for the conviction on Second Degree Murder means that Peter has walked his client. The statute of limitations at the time for Second Degree Murder was four years.
Monday, July 7, 2014
A tribute today to Assistant State Attorney Andrew Edwards: An excellent prosecutor, always prepared, hard, hard worker, diligently represents the State's interests, a thinker; the man thinks. Another defense attorney said it better than I have today in court: "Judge, in law school we were told that the prosecutor is fair and does the right thing. Over the years I have come to question that but today he's proved it." That is the finest tribute I've ever heard paid a prosecutor. Andrew deserves it.
Tuesday, July 1, 2014
Hi Ms. Rundle! Thank you so much for this email. Yes! Yes! I want to keep getting your newsletter. Very nice of you, you're looking well.
Swine.
Swine.
On Jul 1, 2014, at 12:42 PM, Katherine Fernandez Rundle <katherinefernandezrundlenews@miamisao.com> wrote:
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Monday, June 30, 2014
Friday, May 30, 2014
Friday, March 7, 2014
The Murder of Lynne Friend.
When I learned that Clifford had strangled Lynne...I don't know how to describe what I felt; I had never felt it before: I felt "light," in the weight sense and I was in bright sunlight. Instantly, there was a specific setting and every time I have thought of the moment I have had this same setting pop into my head: I am looking down on a man, presumably myself, who is in a grass field in the country. He is facing toward me but I cannot make out his facial features. There is a big old tree with branches going every which way, like a fruit tree, off to the viewer's right, to the left of the man, myself also, I think, in the field. The sky is blue and the sun is shining, like on a summer's day in the country.
I do not have the foggiest idea what that imagery is about.
All of us who had ever worked on the case had wondered how Clifford had killed her. Of course, we considered strangulation. There was no blood anywhere: not in Clifford's house, not in Lynne's, not outside either of them, not on the boat. But strangulation was not the theory of choice. At least when I had the case, the theory was not that he had killed her in his house. The theory was that he had rendered her unconscious somehow at his house and that she was transported out to the ocean still alive. I remember there was a stun gun found up on some piece of furniture or something by the front door. I remember meeting with Rundle one time (one of the last times) and she said "Test the contact points of the stun gun for DNA." It wasn't a completely hare-brained idea but it was wrong, we had the contact points tested and there was no DNA.
Why wasn't strangulation the theory of choice? That's bloodless. Part of the reason was that we didn't see other evidence that we assumed we would see if it had been a strangulation: Clifford was photographed a few days after Lynne disappeared. His hands, front and back, and his forearms, front and back, were photographed, precisely because in a bloodless killing, strangulation is one of the first things that comes to mind. I can still see those photographs in my mind's eye. No scratches, I think there was one defect on one of his fingers, almost like a hangnail gone wild. We thought that Lynne would fight like a demon, I don't remember why we thought that, but we did, and we assumed strangulation equaled "struggle" and with a struggle Lynne would have scratched Clifford or marked him up somehow.Yet I have had two homicide cases, one as a prosecutor and one as a defense attorney, where strangulation was the manner of death and there were no scratches. In those cases also there were, like, bodies that could be examined, fingernail clippings that could be taken for DNA testing: There was no foreign DNA found under the fingernails in either case. I have never seen a body so free of external trauma as that of the strangulation victim in the case I tried as a defense attorney. So strangulation does not necessarily equal struggle. I knew, from countless meetings with Medical Examiners over the course of thirty years, that strangulation is an "inefficient" killing mechanism. The pressure has to be sustained, that is the key thing. If the struggling victim is able to relieve the pressure, even for a second or two, then the victim gets another gasp of air, the brain gets another dose of oxygen, and the killer pretty much has to start all over again. The period of sustained pressure does not have to be long but it has to be sustained. Strangling someone can be a physically exhausting experience (I'm told): Whitey Bulger. Bulger was experienced, strangulation was his murder method of choice. Took it out of Whitey, though. Had to go lay down on the floor afterward. Clifford was not a huge guy and Lynne weighed 135 pounds. We thought it would be a struggle for Clifford. He was not experienced as Bulger was. If the strangler reads the physical signs incorrectly, thinks the victim is dead when (s)he is not, well then you've got round two.
We thought Clifford was a p----. We didn't see him having the confidence in his physical capabilities to choose strangulation, we didn't think he would do it alone. We really didn't think he would do it alone. We thought he would have Allan Gold with him, at least as a backup. We thought maybe Gold, who was a big guy, might have killed Lynne as a favor for Clifford.
However, when I learned of strangulation as the manner of Lynne's death, I immediately thought of something else that might explain it: Did Clifford have some martial arts training? Not that I know of, but that was my thought. I thought that because I have a specific, though vague, memory that Christian, his son, took karate or something as a little boy. That wouldn't be unusual, the martial arts are wonderful exercise for a boy, they teach a skill. That's Christian, that's not Clifford. There are plenty of parents who take their children to karate who don't know the first thing about it. I know of nothing to indicate that Clifford knew any of the martial arts. Nearly the same with my client. Never had any martial arts training but knew one move: I forget what it's called but you put your forearm on the neck of the victim and clasp your other forearm with your hand. Your arms form like a square with your chest. Now squeeze. The pressure-forearm compresses the victim's windpipe. It's not physically exhausting to keep sustained pressure on the windpipe with that move and within seconds (it varies depending on how full the lungs are) the victim will be unconscious. Sustain the pressure a little longer, under a minute, and the victim will be dead. My client picked up that technique online. I had him, gently, demonstrate on me when I went to see him in the jail.
We did not think Clifford had the ice water in his veins to personally, physically, kill Lynne himself. Alone. We thought he was a p----. We didn't think he was Whitey Bulger. We were wrong. Apparently. Clifford called Gold only after the murder to help take the body out to the ocean. It was Gold who threw Lynne's body overboard. Tim Stellhorn saw Gold struggling to lift a heavy suitcase-like object onto the side of the go-fast and then push it overboard.
I do not have the foggiest idea what that imagery is about.
All of us who had ever worked on the case had wondered how Clifford had killed her. Of course, we considered strangulation. There was no blood anywhere: not in Clifford's house, not in Lynne's, not outside either of them, not on the boat. But strangulation was not the theory of choice. At least when I had the case, the theory was not that he had killed her in his house. The theory was that he had rendered her unconscious somehow at his house and that she was transported out to the ocean still alive. I remember there was a stun gun found up on some piece of furniture or something by the front door. I remember meeting with Rundle one time (one of the last times) and she said "Test the contact points of the stun gun for DNA." It wasn't a completely hare-brained idea but it was wrong, we had the contact points tested and there was no DNA.
Why wasn't strangulation the theory of choice? That's bloodless. Part of the reason was that we didn't see other evidence that we assumed we would see if it had been a strangulation: Clifford was photographed a few days after Lynne disappeared. His hands, front and back, and his forearms, front and back, were photographed, precisely because in a bloodless killing, strangulation is one of the first things that comes to mind. I can still see those photographs in my mind's eye. No scratches, I think there was one defect on one of his fingers, almost like a hangnail gone wild. We thought that Lynne would fight like a demon, I don't remember why we thought that, but we did, and we assumed strangulation equaled "struggle" and with a struggle Lynne would have scratched Clifford or marked him up somehow.Yet I have had two homicide cases, one as a prosecutor and one as a defense attorney, where strangulation was the manner of death and there were no scratches. In those cases also there were, like, bodies that could be examined, fingernail clippings that could be taken for DNA testing: There was no foreign DNA found under the fingernails in either case. I have never seen a body so free of external trauma as that of the strangulation victim in the case I tried as a defense attorney. So strangulation does not necessarily equal struggle. I knew, from countless meetings with Medical Examiners over the course of thirty years, that strangulation is an "inefficient" killing mechanism. The pressure has to be sustained, that is the key thing. If the struggling victim is able to relieve the pressure, even for a second or two, then the victim gets another gasp of air, the brain gets another dose of oxygen, and the killer pretty much has to start all over again. The period of sustained pressure does not have to be long but it has to be sustained. Strangling someone can be a physically exhausting experience (I'm told): Whitey Bulger. Bulger was experienced, strangulation was his murder method of choice. Took it out of Whitey, though. Had to go lay down on the floor afterward. Clifford was not a huge guy and Lynne weighed 135 pounds. We thought it would be a struggle for Clifford. He was not experienced as Bulger was. If the strangler reads the physical signs incorrectly, thinks the victim is dead when (s)he is not, well then you've got round two.
We thought Clifford was a p----. We didn't see him having the confidence in his physical capabilities to choose strangulation, we didn't think he would do it alone. We really didn't think he would do it alone. We thought he would have Allan Gold with him, at least as a backup. We thought maybe Gold, who was a big guy, might have killed Lynne as a favor for Clifford.
However, when I learned of strangulation as the manner of Lynne's death, I immediately thought of something else that might explain it: Did Clifford have some martial arts training? Not that I know of, but that was my thought. I thought that because I have a specific, though vague, memory that Christian, his son, took karate or something as a little boy. That wouldn't be unusual, the martial arts are wonderful exercise for a boy, they teach a skill. That's Christian, that's not Clifford. There are plenty of parents who take their children to karate who don't know the first thing about it. I know of nothing to indicate that Clifford knew any of the martial arts. Nearly the same with my client. Never had any martial arts training but knew one move: I forget what it's called but you put your forearm on the neck of the victim and clasp your other forearm with your hand. Your arms form like a square with your chest. Now squeeze. The pressure-forearm compresses the victim's windpipe. It's not physically exhausting to keep sustained pressure on the windpipe with that move and within seconds (it varies depending on how full the lungs are) the victim will be unconscious. Sustain the pressure a little longer, under a minute, and the victim will be dead. My client picked up that technique online. I had him, gently, demonstrate on me when I went to see him in the jail.
We did not think Clifford had the ice water in his veins to personally, physically, kill Lynne himself. Alone. We thought he was a p----. We didn't think he was Whitey Bulger. We were wrong. Apparently. Clifford called Gold only after the murder to help take the body out to the ocean. It was Gold who threw Lynne's body overboard. Tim Stellhorn saw Gold struggling to lift a heavy suitcase-like object onto the side of the go-fast and then push it overboard.
Wednesday, March 5, 2014
The Murder of Lynne Friend.
He strangled her. That was the manner of death. Clifford strangled her. Did it alone. Alan Gold involved only in disposal of body. Strangulation is a very personal, inefficient, intimate manner of death. Very cold.
Tuesday, July 30, 2013
I walked into court in Miami this morning to start a jury trial. I had been up since 6:30 working on the case. I had filed a dispositive motion which, after argument, was denied yesterday. Judge Teresa Pooler began by saying "Mr. Ranck, I hope I'm not the kind of judge that cannot admit when I'm wrong. After my ruling yesterday I reconsidered and I am going to grant your motion." I think I clutched my heart. Extraordinary. Capital judge, there. Capital judge.
Friday, July 19, 2013
Monday, July 8, 2013
Monday, January 7, 2013
Oh well.
-----Original Message-----
From: Katherine Fernandez Rundle <KathyRundle@imarcsgroup.com>
To: davidrancklaw <davidrancklaw@aol.com>
Sent: Mon, Jan 7, 2013 7:21 am
Subject: Happy New Year
From: Katherine Fernandez Rundle <KathyRundle@imarcsgroup.com>
To: davidrancklaw <davidrancklaw@aol.com>
Sent: Mon, Jan 7, 2013 7:21 am
Subject: Happy New Year
Dear Colleague,
As lawyers, we know that it is absolutely essential to have a State Attorney’s Office that operates with complete integrity, honesty and a true dedication to achieving justice for all members of our community. Ensuring my office continues to meet this standard will always be my commitment to you.
Today our community and our families enjoy a safer quality of life as a result of smart prosecutorial initiatives and diligent prosecutions. Many of us remember when Miami, then devastated by crime, was declared “Paradise Lost.” This is now a distant memory, in large part because of our efforts.
I am proud of our many accomplishments. Our conviction rates are almost 90%. We lead the State in the prosecution of career criminals and corrupt public officials. Our methods have been adopted as strategies to be followed by prosecutors throughout Florida. Since I became your State Attorney, crime in Miami has declined every year and juvenile crime has dropped by 50%. Crime prevention programs that I created, such as the Second Chance Outreach Program, help first time offenders put their mistakes behind them to begin anew.
As I begin my next term as your State Attorney it is my sincere promise to continue my work to maintain Miami as “Paradise Found,” never again to be devastated by fear and rampant crime and I am grateful to you for your continued support for these efforts. Together we can ensure that our community continues to be a wonderful place for us to live, work and raise our families.
My best wishes to you and your family for a happy, healthy, prosperous and safe New Year!
Sincerely,
Political advertisement paid for and approved by Katherine Fernandez Rundle, Democrat, for State Attorney
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Sunday, November 11, 2012
Supreme Court of Florida
____________
No. SC95422
____________
INQUIRY CONCERNING A JUDGE, NO. 98-347,
RE: ALAN R. SCHWARTZ
[March 30, 2000]
PER CURIAM.
The Judicial Qualifications Commission (JQC) recommends that we publicly
reprimand Judge Alan R. Schwartz, Chief Judge of the Third District Court of
Appeal, for exhibiting intemperate and discourteous behavior during oral argument
in two appellate proceedings. We have jurisdiction. See Art. V, § 12, Fla. Const.
As explained in more detail below, based on the stipulated facts, the JQC’s
recommendation is approved.
On April 26, 1999, the JQC filed in this Court a notice of formal
proceedings against Judge Schwartz, setting forth in pertinent part the following:
PRELIMINARY STATEMENT
Despite repeated warnings and advice from this Commission to
refrain from rude, impatient, and discourteous remarks from the bench
addressed to or about counsel or their clients, or otherwise to refrain
-2-
from verbal abuse of those appearing before you, you have continued
to engage in such conduct as hereafter described. These prior
warnings include those delivered to you in a Rule 6(c) meeting held
with you on or about February 23, 1993, again in a Rule 6(b) hearing
in cases number 92-305 and 93-151 held on or about December 17,
1993, and still again in a conversation with the then vice-chairman of
the Commission in or about June 1996 relating to case number 96-
194. The episodes herein described are particularly serious because
they each involved verbal abuse of law students known to you to be
making initial appearances before your court.
COUNT ONE
1. On or about May 26, 1998, you presided over a threejudge
oral argument panel of your Court sitting in Miami, Florida.
Present in the courtroom was Amy Ronner, Esq. (“Professor Ronner”),
co-author of a legal text relating to Florida appellate practice, and a
member of the law faculty of St. Thomas University. Professor
Ronner was present because she is a special assistant public defender
of Miami-Dade County assigned to assist or observe her students from
St. Thomas University School of [L]aw in connection with their
presentation as certified legal interns of the case for the appellant in
the final case on the docket, A.J.B. v. State, No. 97-3243.
2. During argument of other cases in the first portion of the
docket, on several occasions you needlessly and rudely asked sarcastic
and irrelevant questions of counsel in those cases followed by
derogatory comments designed to embarrass Professor Ronner and to
denigrate her text. For example, and not by way of limitation, you
asked one lawyer if the podium had “appellee” or “appellant” written
on it, and upon receiving an answer you said, “Ms. Ronner will be
glad to hear that.” On another occasion you asked an attorney if the
attorney knew the time at which the second portion of the calendar
began, and when the lawyer said “10 o’clock,” you said, “Well, Ms.
Ronner says it is 10:30.”
3. A.J.B. v. State was to be argued by legal intern Kelly
Lynch, a student of Professor Ronner. Before Ms. Lynch began to
speak for the appellant, you stated that “There is one case which no
-3-
one has mentioned, which is dispositive of this case.” Without
identifying a case dealing with the merits of A.J.B., you asked Ms.
Lynch, “have you ever heard of the Anders case?” This was an
obvious reference to Anders v. California, 386 U.S. 738 [(1967)], a
case relating to the appropriate action to be taken by appellate counsel
in a cause in which the counsel in good faith believes that there is no
justiciable issue. In response to the question regarding the Anders
case, Ms. Lynch said, “Yes, but . . .” She was interrupted, by your
asking, “Are you aware I can sanction legal interns?”
4. Again Ms. Lynch began to speak, only to be interrupted
by you again. You asked, “Doesn’t the writer of the treatise teach you
that it is wrong to argue frivolous appeals?” As Ms. Lynch sought
once more to answer, you stood up and walked out of the courtroom.
The other panel members then walked out after you. The case was
affirmed per curiam on June 3, 1998[. See A.J.B. v. State, 717 So. 2d
1020 (Fla. 3d DCA 1998) (table decision).]
5. Your actions needlessly reflected upon Professor Ronner
and prevented Ms. Lynch (or the assistant attorney general who was
present) from either explaining why they had overlooked a case on the
merits, why it might not be relevant, or why a good faith argument
could not be made for a change in the law. Further, your actions in
effect deprived the appellant of an oral argument in support of his
appeal. Your conduct also appeared to demonstrate unacceptable bias
and prejudice toward the certified legal intern program or its mentor.
COUNT TWO
6. On or about December 14, 1998, you presided over a
three-judge oral argument panel sitting in Miami, Florida, in the case
of K.D.D. v. State, No. 98-1545. Professor Ronner was again present
in the courtroom.
7. This case was to be argued for the appellant by certified
legal intern Annabel C. Majewski, also a student of Professor Ronner.
As soon as Ms. Majewski began her argument, you interrupted and
began berating her with questions and comments deriding her
position. For example, you asked Ms. Majewski whether Professor
Ronner had ever filed an Anders brief in any case. Ms. Majewski
1Canon 1 of the Code of Judicial Conduct provides in pertinent part: “A judge should
participate in establishing, maintaining, and enforcing high standards of conduct, and shall
personally observe those standards so that the integrity and independence of the judiciary may be
preserved.” Canon 2A provides: “A judge shall respect and comply with the law and shall act at
all times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.” Fla. Code Jud. Conduct, Canon 2A. Finally, various sections of Canon 3 establish
that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,
and others with whom the judge deals in an official capacity” and that “[a] judge shall accord to
every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard
according to law.” Fla. Code Jud. Conduct, Canon 3B(4), (7).
-4-
responded, “Not that I know of.” You then asked, “Do you think it is
appropriate for frivolous cases to be argued to the court and for any
law school program to waste this court’s time?” When Ms. Majewski
tried to explain why her position was not frivolous and to cite cases
which supported it, you again interrupted her and told her to save the
rest of the time for rebuttal “if there is rebuttal.” The State then rested
on its brief, and therefore there was not opportunity for the appellant
to be further heard. The case was later summarily affirmed. [See
K.D.D. v. State, 727 So. 2d 933 (Fla. 3d DCA 1998) (table decision).]
8. When the last case had been called, Professor Ronner and
the clinic students began to leave the courtroom. As she left you
spoke loudly to Ms. Ronner to gain her attention by stating, “Ms.
Ronner . . . Ms. Ronner.” When she acknowledged your call to her,
you said in a sarcastic manner, “So this is what you call training?”, or
words to that effect.
9. Your actions again needlessly reflected upon Professor
Ronner, prevented Ms. Majewski from effectively representing the
appellant, and deprived the appellant of an oral argument in support of
his appeal. Your conduct appeared to demonstrate unacceptable bias
and prejudice toward the certified legal intern program or its mentor.
The JQC asserted that the facts set forth in the notice, if true, would establish that
Judge Schwartz engaged in conduct unbecoming a member of the judiciary in
violation of Canons 1, 2, and 3 of the Code of Judicial Conduct.1
-5-
Subsequent to receiving the notice, Judge Schwartz entered into a stipulation
with the JQC. In the stipulation, the parties accepted as true the facts set forth in
the notice. Concomitantly, Judge Schwartz waived his right to a hearing and
agreed to submit no further evidence or pleadings in the proceedings against him.
Further, the parties acknowledged that Judge Schwartz, without prior request by the
JQC, voluntarily had: (1) apologized in writing to the individuals subject to his
intemperate and discourteous conduct; (2) undertaken a program of personal
counseling and stress management; (3) expressed a willingness for other members
of the Third District, in his stead, to preside over routine matters heard by threejudge
panels; and (4) sought and obtained the agreement of his fellow judges for all
oral arguments to be recorded by audio and video means in order to make such
arguments readily reviewable. The parties also summarized Judge Schwartz’ legal
career:
Following his legal education, Harvard Law School, L.L.B.
1958 (cum laude), Judge Schwartz practiced for approximately fifteen
(15) years. He was appointed Circuit Judge by Governor Reubin
Askew in 1973; was reelected without opposition, 1974. Appointed to
the Third District Court of Appeal Judge by Governor Askew, 1978.
Retained in office, 1980, 1986, 1992, 1998. Elected Chief Judge,
January, 1983, and reelected in April 1999 to ninth consecutive term.
Finally, the stipulation concluded with the following remarks:
Judge Schwartz apologizes to the public and the Bench and Bar
-6-
of this state, and expresses his sincere regrets at the events prompting
these proceedings. Further, his concerns have enabled him to gain
advantageous insights into possible causative factors, culminating in
his firm conviction that he will not engage in similar conduct in the
future.
Subsequent to the stipulation being executed, the JQC filed with this Court
its recommendation that Judge Schwartz be issued a public reprimand in a manner
similar to that issued in In re Wood, 720 So. 2d 506, 509 (Fla. 1998), wherein we
called Judge Leonard V. Wood before this Court to be publicly reprimanded for,
among other things, exhibiting intemperate and discourteous behavior in the
courtroom. In recommending this disciplinary measure for Judge Schwartz, the
JQC considered five factors. First, the JQC considered that Judge Schwartz failed
to heed previous JQC warnings and advice concerning similar intemperate and
discourteous behavior. Second, the JQC considered that Judge Schwartz’ actions
were directed towards young legal interns as well as a professor who was not in a
position to respond to Judge Schwartz’ “unprovoked criticism” of her textbook or
teaching. Third, the JQC considered Judge Schwartz’ voluntary attempts to
apologize for his actions and prevent similar actions from occurring in the future.
Fourth, the JQC considered Judge Schwartz’ lengthy and distinguished career as a
member of Florida's judiciary. Finally, the JQC considered Judge Schwartz’
acceptance of personal responsibility for his actions. After reviewing the stipulated
-7-
facts in this case as well as relevant case law, we approve the JQC’s
recommendation that Judge Schwartz be publicly reprimanded because of this
cumulative misconduct, which is in violation of Canons 1, 2(A), and 3(B)(4) and
(7) of the Code of Judicial Conduct. Further, consistent with the in-person
reprimand administered in In re Wood, and in accordance with the policy we
recently announced in In re Frank, 25 Fla. L. Weekly S147, S152 (Fla. Feb. 17,
2000) (“We have . . . come to conclude that when the conduct of a jurist is so
egregious as to require a public reprimand, such reprimand should be issued in
person with the defaulting jurist appearing before this Court.”), we require Judge
Schwartz to appear before this Court to receive his public reprimand.
Importantly, the stipulated facts in this case show that the JQC or a member
thereof warned and advised Judge Schwartz on three separate occasions–twice in
1993 and once in 1996–to refrain from making “rude, impatient, and discourteous
remarks from the bench.” The fact that these warnings and advice were
administered privately does not negate the fact that warnings were required because
of similar misconduct in the past. Notwithstanding these prior warnings and
advice, it is clear that Judge Schwartz continued to make rude, impatient, and
discourteous remarks from the bench. Judge Schwartz admits this. Specifically, in
this case, Judge Schwartz not only berated two legal interns who were presenting
-8-
argument before the Third District, he also cut short both interns' oral argument
presentations: the first time by walking off the bench before the oral argument had
concluded; the second by interrupting the intern and telling her to save the rest of
the time for rebuttal, “if there is rebuttal.” Further, Judge Schwartz needlessly
directed discourteous and irrelevant remarks toward Professor Ronner, who was
present in court to supervise the legal interns’ arguments, not to present argument
to the Third District.
Certainly, the fact that the legal arguments of the legal interns may have, in
Judge Schwartz’ opinion, lacked merit is no excuse for violating Canon 3 of the
Code of Judicial Conduct. Once having determined to grant oral argument, this
canon unequivocally and without caveat states that a “judge shall be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers and other with
whom the judge deals in an official capacity.”
For an appellate judge, oral argument is the only time when the appellate
court deals publicly with the lawyers and the litigants with regard to the resolution
of the appeal, and, thus, one of the few times when this important canon even
comes into consideration for an appellate judge. As observed by Judge Richard
Arnold of the United States Court of Appeals for the Eighth Circuit, “oral
argument . . . is the only time that all of the members of the court and all of the
-9-
lawyers are together to discuss the case.” See Myron H. Bright & Richard S.
Arnold, Oral Argument? It May Be Crucial!, A.B.A. J., Sept. 1984, at 68, 69. The
limited time that an appellate judge is in oral argument makes compliance with
Canon 3 even more critical in order to promote public confidence in the judiciary.
The sum of this conduct is in direct violation of this Court’s requirements for
judges stated in In re Turner, 421 So. 2d 1077, 1081 (Fla. 1982):
We judges must always be mindful that it is our responsibility to serve
the public interest by promoting justice and to avoid, in official
conduct, any impropriety or appearance of impropriety. We must
administer our offices with due regard to the system of law itself,
remembering that we are not depositories of arbitrary power, but
judges under the sanction of law. Judges are expected to be
temperate, attentive, patient and impartial, diligent in ascertaining
facts, and prompt in the performance of a judge’s duties. Common
courtesy and considerate treatment of jurors, witnesses, court
personnel, and lawyers are traits properly expected of judges. Court
proceedings and all other judicial acts must be conducted with fitting
dignity and decorum, reflecting the importance and seriousness of the
inquiry to ascertain the truth.
This Court has accepted recommendations from the Judicial Qualifications
Commission for public reprimands for conduct in violation of Canons 1, 2(A), and
3(B)(4) and (7). See, e.g., In re Wright, 694 So. 2d 734, 734-36 (Fla. 1997)
(involving judge who conducted himself in two separate cases in rude, abusive,
insulting, and inappropriate manner); In re Perry, 641 So. 2d 366, 367-69 (Fla.
1994) (involving judge who unnecessarily berated army recruiter for wearing dress
-10-
uniform in courtroom and exercised his contempt powers in an arbitrary and
improper manner); In re Marko, 595 So. 2d 46, 46 (Fla. 1992) (involving judge
who made “rude, improper, and inappropriate” remarks during dissolution of
marriage hearing); In re Carr, 593 So. 2d 1044, 1045 (Fla. 1992) (involving judge
who made rude and improper remarks regarding ethnicity during a court hearing);
cf. In re Zack, 570 So. 2d 938, 939 (Fla. 1990) (involving judge who used “very
profane language” in reference to the Broward County Sheriff, although the judge
did not use such language in open court). Further, in In re Wood, we required
Judge Wood to appear in person before this Court to be publicly reprimanded
based on his repeated display of inappropriate behavior from the bench. See 720
So. 2d at 509 (involving judge’s inappropriate behavior on the bench); cf. In re
Wilson, 24 Fla. L. Weekly S511, S512 (Fla. Oct. 28, 1999) (requiring that judge
appear in person to receive public reprimand based on various acts of misconduct);
In re Alley, 699 So. 2d 1369, 1369-70 (Fla. 1997) (same); In re Sturgis, 529 So. 2d
281, 281-86 (Fla. 1988) (same); In re Block, 496 So. 2d 133, 134-35 (Fla. 1986)
(same).
In accordance with the policy recently announced in In re Frank, we call
Judge Schwartz to appear before this Court to be publicly reprimanded because of
the seriousness of our concern about his breaches of acceptable conduct. Judge
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Schwartz, in his position as Chief Judge of the Third District Court of Appeal,
performs in a position which demands the very highest in trust and confidence
from the people who are served by our court system. Nothing less than the rule of
law is jeopardized when a person in such a high position breaches that trust and
reduces the people’s confidence that justice will be fairly administered in an
impartial manner. Judge Schwartz is a leader of appellate judges, and we must and
do expect conduct of him that is commensurate with the awesome responsibility
that has been entrusted to him. Therefore, we accept the recommendation of the
Judicial Qualifications Commission and will publicly reprimand Judge Schwartz in
a public appearance by him before this Court.
Accordingly, we hereby command Judge Alan R. Schwartz to appear before
this Court at 9 a.m. on Wednesday, May 10, 2000, for the administration of a
public reprimand for the actions noted above.
It is so ordered.
HARDING, C.J., and WELLS, PARIENTE and QUINCE, JJ., concur.
SHAW and LEWIS, JJ., concur in result only.
ANSTEAD, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
FILED, DETERMINED.
Original Proceeding - Judicial Qualifications Commission
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Miette K. Burnstein, Chair, Tallahassee, Florida, Thomas C. MacDonald, Jr., General
Counsel, Tampa, Florida, and Gary R. Trombley, Special Counsel for the Florida
Judicial Qualification Commission, Tampa, Florida,
for Petitioner
Robert J. Beckham and Raymond Ehrlich of Holland & Knight LLP, Jacksonville,
Florida,
for Respondent, Alan R. Schwartz
Wednesday, March 14, 2012
Howard Pohl.
Howard Pohl was forced out of the State Attorney's Office for inappropriate conduct against a female prosecutor, Kathleen Pautler. And Don L. Horn did ignore his legal public records request obligations in not turning over any information related to the complaint made by Ms. Pautler against Pohl. In addition, the materials that Horn did turn over were misleading in including a "resignation" letter by Pohl, giving the impression that he resigned completely voluntarily. And Horn did not comply with his legal obligations pursuant to a public records request in not turning over the "Mandarin Penthouse" memo, an inappropriate email sent by Pohl to Lorna Salomon.
Thursday, February 16, 2012
Received the following email:
A vote by readers: should I volunteer to host a fundraiser? Wine and cheese? What, pizza and beer? Oh, you're just a bad person.
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A vote by readers: should I volunteer to host a fundraiser? Wine and cheese? What, pizza and beer? Oh, you're just a bad person.
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