Supreme Court of Florida
____________
No. SC95422
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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
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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
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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).
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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
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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
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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
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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
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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
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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
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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

I know of no human being who is a bigger fool.

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.

Received the following email:

OR mail a check made payable to "Katherine Fernandez Rundle Campaign" to: Katherine Fernandez Rundle Campaign PO Box 013077 Miami, FL 33101 State election law limits contributions from each person, business or organization to $500 per election and each person under 18 to $100 per election. Dear Colleague: As an attorney, you know more intimately then most how important it is to have a criminal justice system led by people that you can depend upon – consistently, independently and with integrity. I have worked diligently to fulfill those ideals and goals, and I believe that my dedication to justice and fairness has resulted in my winning re-election as your State Attorney many times – several of which came after hard fought campaigns. I would greatly appreciate your support. If you have already contributed to my campaign I sincerely thank you for your vote of confidence. If you have not yet done so I would gratefully and humbly request your assistance at this time. With your help, I hope to continue to lead the State in the prosecution of corrupt public officials and career criminals and make our vibrant and diverse community a safer place for us all. Sincerely, * Leads the State in prosecution of corrupt public officials * Leads the State in prosecution of career criminals * Crime rate down by 33% since 2000 * Robberies down by 35% * Sexual Battery (rapes) down by 51% * Burglaries down by 24% If you would like to host a fundraiser CLICK HERE. Political advertisement paid for and approved by Katherine Fernandez Rundle, Democrat, for State Attorney

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.

Eeeeeck!

The Murder of Lynne Friend

So was it white smoke or black smoke coming out of the top of the Miami-Dade County Courthouse this morning?

The Murder of Lynne Friend

There is a new date for the indictments. I-Day is now September 28. This is the truth--as I am told it.

Eighteen years. This case is the Jarndyce and Jarndyce of the Miami criminal justice system.

My goodness gracious, we have a follower here. Cathy Tetreault, welcome and thank you.

-David

The Murder of Lynne Friend

Alan Gold will be indicted for first degree murder along with Clifford Friend. Mr. Gold is cooperating with police and prosecutors and will enter a plea to a reduced sentence in return for his cooperation. The case will go to the grand jury this week.

David Ovalle nee David Cisneros

David Ovalle changed his name from David Cisneros while working at The Miami Herald. He graduated from the University of Southern California with a degree in jock-sniffing under the name of Cisneros.

In photo, Dave after a hard workout at Dunkin' Donuts, tugging on the jersey of his man-crush to show off his breast implants.

David Ovalle

Look at this! This is how Ovalle see his job. He's a total cop jock-sniffer:

“Be visible,” Ovalle said over the phone. “Put the time in, constantly be there, show that you actually care, go on ride-alongs, go through reports … I would go to the officer-of-the-month luncheons, law enforcement awards banquets … just to make yourself visible and to understand more what working as a cop entails.”

This is the guy! Ovalle is the guy who wrote the hatchet jobs on me a couple years ago. He is a complete police/SAO plant!

David Ovalle

OMG, he was a jock-sniffer!:

It’s something David Ovalle learned while covering sports at the University of Southern California. Then, it meant going to practice, talking to trainers, knowing the coaches’ names – something his college editors insisted on. Go to practice even if you’re not going to write about it, they told him. And now he puts that advice to use in his new job as The Miami Herald’s sole police reporter.

http://www.poynter.org/uncategorized/72312/leaving-fingerprints-inside-the-police-beat/

Received an email, edited below. I was assigned the Barquin police shooting as a prosecutor and was then removed because of police pressure. As a defense attorney I was retained to work on the Shehada and McCoy cases as a homicide consultant in 2009. That consultancy ended in (from memory) sometime in the fall of 2009 and I have had no further involvement.

Hello Mr. Ranck,

I am looking into the Leonardo Barquin and Shehada and McCoy police shootings. Barquin seems like a cover up based on your internal memo. They are stone-walling me by not complying with public records requests in both cases [i.e. the Barquin killing and the Shehada/McCoy killings]…

Tavss [former Miami Beach Officer Adam Tavss] killed both Shehada and McCoy four days apart…The killings were covered nationally by The New York Times and CNN among others. But not The Miami Herald. Jose Pagliery was covering the story but the Herald pulled him because of pressure. They then put a much more police-friendly reporter, David Ovalle, on the story, the same reporter they put on the Barquin case after taking Jay Weaver off…

The Murder of Lynne Friend

This case did not go to the grand jury in April--or May.

Below is an email exchange with a reader from a few months ago beginning after the pleasantries:

(1-Q) Thank you much, David. The wheels of justice (Justice?) seem to grind

very slowly. I wonder if the case, against the "husband" and father

of Lynne Friend's son, is based solely on witnesses seeing the dumping

of "something" overboard out at sea. If so, is that likely to be

enough to convict??

Or do you think there is more evidence?

…………..

(1-A) I KNOW there is more evidence, I was assigned the case. You have

suggested to me a good idea though, to look to see if I still have a

copy of the Grand Jury memo I prepared in 2004. If I do, I will just

post it on Politics & Justice.

It is my personal, gut hunch from having reviewed all of the

evidence that Lynne's body was not thrown overboard. I do not know

what they did with it though. But that is one of the ways this

investigation got thrown off-track because it doesn't matter. Under

the law a person who has disappeared without explanation for a

certain length of time is legally presumed dead. That certain period

of time has long past. Lynne is dead, and is legally presumed so. So

the two ocean searches were a waste of time and money. I met with an

oceanography expert at the University of Miami when I had the case.

If the body was dumped in the vicinity of where the go-fast was

stopped, it was dumped in the gulf stream. I'll never forget the UM

professor telling me that after a few weeks, "the body could have

washed ashore on an island off Nova Scotia."

………………………..

(2-Q) David - I got the impression that the "something" was weighted down.

Wouldn't a heavy enough weight have made it sink to the bottom even in

the Gulf Stream? I wonder, if the body was not dumped overboard and

it doesn't matter anyway, what does matter and what can be used to

convict?

…………………

(2-A) That was the first thing I asked the oceanography expert: he said it

takes, now I'm doing this from memory so it may be a little off, 8-8

1/2 times a person's body weight in that depth ocean water to take her

to the bottom. Lynne weighed (memory) 135. So 1,080-1,147 lbs to take

her to the bottom. That may have sunk the boat. It sure wouldn't have

been a go-fast w/ all that weight. When he told me that (1) I got

disgusted that no one had asked him that BEFORE the two marine searches,

and (2) I asked him how far down the body would have gone and where it

would have ended up, and that's when he told me "Nova Scotia."

(3-Q) Geez. Proving the body was dumped and/or finding was futile. So.

what evidence is there to convict without a body -or- a witness who

saw the murder and would come forward to testify against the murderer.

Makes me wonder if the buddy of the "husband" is still in touch . . .

maybe he's had a change of heart or is ready to break his Allegiance to

silence.

I also wonder, and I may be repeating myself, if the either killer or

accomplice have been convicted (or accused) of any other crime. The

son should be all grown up now; what about him.....could he have an

insight that he has gleaned from his dad or that buddy of his dad?

…………………..

(3-A) The ocean searches were really ridiculous, especially the last one.

The case is a very strong one circumstantially. When lay people hear

"circumstantial evidence" they equate it with "not enough." That's not

accurate. Some of the best cases are circumstantial. In addition,

there's a witness, a friend of Cliff's, who met with Cliff two weeks

before and will testify that Cliff told him that Christian (son)

wasn't going anywhere, and that Lynne was "going to take a boat ride

and not come back." That (and the dump itself) is where the theory of

the ocean body dump came from. The ocean searches were stupid and threw

the investigation off track, in my opinion, and as I've said, I have

come to doubt the ocean dump theory itself. So it would follow that I

have doubts about this witness. And I do, all of us, prosecutors, cops,

everyone who has ever touched this case has doubts about this witness.

This is the point though: it's our jobs to have doubts about witnesses,

and nearly every witness has doubts attached to him/her, so you don't

just throw overboard, to use an apt metaphor, a witness who you have

legitimate doubts about. You look for "corroboration" and there is

plenty, in my opinion, with regard to this witness, and for the entire

case for guilt.

I do not know if Clifford or Allan Gold (friend) have had any other

run-ins with the law. Both had some priors but they weren't career

criminals or the like. They could have had a falling out. Friends

become ex-friends just like spouses become ex-spouses. The case could

get stronger after arrest but it could also get weaker. Witnesses die

after 17 years, or get arrested themselves, as one of the police

officers did. My point is and always has been that the case is plenty

good right now to make an arrest and nothing should have delayed it

this long.

Christian was never interviewed. Mistake. When I had the case what we

were going to do is take a statement from him right before the

arrest(s). The last time I talked to Det. Butchko, that was still the

plan.

…………..

(4-Q) David - Holy Cow! Lynne was "going to take a boat ride and not come

back." !! Makes you wonder where the body could be if not in the

ocean. If Allan Gold has split with Cliff maybe he is willing to

testify if he gets immunity???

I may be using the wrong term here but, what about a statute of

limitations? Isn't there a period after which a person cannot be

prosecuted? Does that apply here? Otherwise, I hope you or someone

does pursue this case.

……………………

(4-A) Ahh, so you see that as pretty significant evidence too, huh :)

Me too! And everyone else. Concerns about this witness are not what's

holding this case up, not from my last conversation with Det.Butchko

most importantly, and not when I had the case.

There's a long, long history to this case that I haven't gotten into. I

will but just very generally right now everything that could derail

this case has derailed it and some things, like the last team of cops

pulling the plug, that I don't have answers for.

This witness wore a wire on a number of occasions in the 1990's and

tape-recorded conversations with Cliff.

Now the technology then was not good compared to today and the quality

of the tapes is fair to poor. But I listened to every one of them and

got what I could out of them. A significant conversation concerns the

boat ride. An ocean search was in the works and had been publicized and

the witness brings it up. I can still hear Cliff now saying as calm as

can be, "I'm all for it. I heard on the news they can find a tin can on

the bottom. Let 'em go ahead."

To me, Cliff did not seem to be "talking for the wire" there, in other

words, he didn't suspect he was being taped. Those were his true

feelings. That was one of the things that made me doubt the ocean dump

theory. So where'd they dump the body and what did they dump in the

ocean, because they were caught in the act of dumping something. Good

questions that I have had, anyone would have and everyone has had. I

don't know, I don't know, and it's legally irrelevant, are the answers.

……………

(5-Q) If they were dumping something other than the body as a decoy, does it

really look like Cliff and Allan were trying to get the chase boat to

see them do it? What I originally read made me think Cliff and Allan

were surprised.

…………………..

(5-A) Oh, they were deer-in-the-headlights surprised. That was not some decoy

maneuver. They were throwing something incriminating overboard there is

no doubt of that. Tim Stellhorn, the Marine Patrol ofcr, described one

of the objects as suitcase-sized. Before I got into the case FDLE had

gotten a similar-sized suitcase, then got a secretary Lynne's height

and weight, 5'4", 135 lbs (from memory) to see if she would fit in the

suitcase. She did. Then there was another object thrown overboard, I

don't remember Tim having as distinct a memory of that second object. I

do remember that he thought the two objects might have been chained or

somehow linked together.

Allan Gold was the one who threw them overboard. Tim said Allan was

struggling to lift and then push the first one overboard. Allan's a big

man but anybody is going to struggle to dead (pun intended) lift 135

lbs.

Obviously the first object could have been Lynne's body, the second one

an object to weight it down. Allan and Clifford wouldn't have known of

the 8-8 1/2-1 ratio to body weight needed to put a body on the bottom.

They would have done the best they could. The point is they did very

well! If the first object was Lynne's body, which I doubt, but it

could have been, their intent was to make her disappear. They

accomplished that, but not by sending the body to the bottom.

……………..

(6-Q) Your comments about drifting in the ocean currents makes me wonder if

the suitcase would have eventually descended to the bottom then

tumbled into rocks or other debris on the bottom. I picture the ocean

bottom as a wide open place where the suitcase would have rested as

the body (if that is what was in it) eventually decomposed leaving

only bones behind. The suitcase may also have decomposed, depending

on what the suitcase was made of, scattering the remains. If anything

is ever recovered (e.g. bones), accidently (fisherman's net?) or

otherwise it is possible that DNA testing of bone marrow may be

possible after all these years. If someone pulled up any remains

years later they may not have reported it.

Did I read that the killing may have actually occurred in a house? Or

am I imagining that? I wonder if neighbors heard anything at the time

of the killing (screams? shots?).

I'd love to know what the son really thinks. If he has an idea what

happened he hass probably discussed it with his friends. One of them

could eventually come forward. I don't supposed there's anyway of

tracking any school friends down (high school year book) maybe he was

in HS band or football and band or football buddys or teachers had an

insight. You could spend a LOT of time investigating this and people

may not open up to police.

I also wonder what occupations Cliff and Allan had been in. Maybe

they had access to acid, poison, certain kind of suitcase, weapons,

etc. that would play into this.

The Murder of Lynne Friend

This case is finally going to the Grand Jury for indictment(s) this month.

I am so proud of my children and love them so much. Above is a photograph of my son, Garman, with his girlfriend Tess, which appeared in the Miami Herald last week.

The Murder of Lynne Friend

I got an email yesterday inquiring about this case. I will write here what I wrote in response, nobody has been arrested, I and the whole world would know if that had occurred. Obviously, no one tells me anything (or very little, anyway). Many months ago, after I had first started writing about the case on Public Occurrences, I got a call from the lead detective, John Butchko, an old friend. He told me he had offered to convey a message from Michael Von Zamft, the lead prosecutor, and Michael had told him to go ahead. The message was, and John put it nicely, to please not write about the case as it might jeopardize the investigation. This was back in the summer of 2010. John said he expected an arrest or arrests by September. I agreed, like an idiot, I mean, c'mon, after 17 years??? But, I agreed and told John I would let him know beforehand when I published anything else. I was steamed at myself for agreeing to that too. And then September came and...nothing. So I called John and told him I was going to write about the case again, he understood, and I wrote. That's the last thing I wrote and I never heard anything back from anyone in the S.A.O. or from M.D.P.D.

I do hope I can kick myself in the a** and continue writing about the case in the manner I envisioned, serially, and step-by-step, but I know myself and how much time that takes so I'm going to skip several intervening steps here. I was assigned this case as a prosecutor. This case was ready for presentation to the Grand Jury for Indictment in 2004 (maybe 2005, I don't remember). I prepared the Grand Jury memo, it had been signed off on, it was just a matter of scheduling (the Grand Jury only meets once a week) and then...And then.

And then I came into my office one morning and opened up my computer. I had an email from then lead detective Ramesh (Ram) Nyberg, saying that he and FDLE co-lead Ed Royal had been discussing, and had gotten the approval of their supervisors to tell me that they thought more investigation needed to be done, if I recall correctly, more witnesses needed to be interviewed. This was after I, with the approval of Ms. Rundle, had spent six months doing nothing but work with Nyberg and Royal on this one case. They had agreed with the decision to indict. They had each gotten copies of the Grand Jury memo. I remember Ram and I talking on the phone after we--we--had made the decision. Both of us were almost giddy that it was finally going to happen. And then they pulled the plug. The Miami-Dade Police Department and the Florida Department of Law Enforcement simply pulled the plug.

Howard Pohl

Up until now I have concentrated my fire on Katherine Fernandez-Rundle rather than her underlings. She is the head Private First Class, she takes the credit, she should get the criticism. That has been the thinking. But the Howard Pohl situation has made me rethink that to some extent. Hitler had Eichmann, and Rundle has (or has had) Horn, Hoague, Arrojo, Salomon, Brill, Laeser, Griffith. And Pohl. We will now have a go at them.

I made a Public Records request for Howard Pohl's personnel file based partly on information I had received recently that Pohl had been forced out of the State Attorney's Office because of inappropriate conduct toward a female employee of the S.A.O; partly also because I wanted to see what Rundle/Horn/Brill/Salomon would provide--and what they wouldn't.

I received Pohl's personnel file recently. It was accompanied by the letter at top from Don Horn, the pertinent part of which is "we have redacted confidential exempt information pursuant to Florida law..."

That is a lie. Mr. Horn has redacted information that he, doing Private Rundle's bidding, does not want the public to know. I know that because there are some things I know (and that Horn/Rundle/Salomon, et al know I know) that by law they have to provide in response to a public records request that they have not provided. And have previously refused to provide.

One of those things is the "Mandarin Penthouse" email. One evening when I was dating Lorna Salomon she told me, in some distress, that she had received an inappropriate email from Howard Pohl. Salomon was then, and is now, the (Senior) Employment Counsel for the office. She had sent Pohl an email saying that they needed to discuss an issue related to an employee (if I ever knew who the employee was, I've forgotten). Pohl's response was, "Sure, Let's discuss it at the Mandarin Penthouse!"

I urged Salomon to report the incident. She did. She told me, I don't know whether it was the truth or not, that there was a major investigation as a result, that Rundle called in outside counsel and that the lawyers made it clear to Pohl in no uncertain terms (1) that the "Mandarin Penthouse" email was inappropriate, and (2) nothing of its sort would ever be tolerated again.

The "Mandarin Penthouse" email is not in Pohl's personnel file, nor is there any mention of the investigation, if it was ever conducted. About a year and a half ago I made a specific public records request for the email and directed it to Penny Brill. Her response was that she/the S.A.O. didn't have to turn it over pursuant to law. That is a lie. The State Attorney's Office has deliberately violated Florida's public records law in their responses to these two public records requests.

Why would Horn and Brill--for Rundle--do this? Why would they violate the law? To protect Howard Pohl? No. To protect Rundle. To protect Rundle from a lawsuit that she has tolerated a "hostile work environment" toward female employees. This is not the first time that similar accusations have been made against Pohl, and brought to Rundle's attention.

Howard Pohl

A couple of months ago I received a phone call. “Dave, have you heard anything about Howard Pohl?” (1) I had not. “Because I heard he is very sick with something and has been out indefinitely.” We commiserated together and I asked if my friend knew what hospital Mr. Pohl was in (Based on our conversation it sounded like whatever it was was serious enough to require hospitalization.). He did not. That was the substance of the conversation.

Sometime a little after that I ran into a person who works at the State Attorney’s Office and she also asked if I knew what was wrong with Mr. Pohl (I still did not). She had no idea and told me that the administration was being unusually tight-lipped even for them about the situation. I asked who was taking over Mr. Pohl’s responsibilities and she replied that Ted Manelli had agreed to come back part-time to help out. (2)

Recently I whisked by a prosecutor-friend in the hallways of the courthouse. “Hey.” “Hey.” “Good.” "Good.” Guys talk like that when they whisk. But this time we paused and came to a complete stop (Guys are often lost for additional conversational topics at these moments.). I reached into my vast repertoire of Topics of Conversation and pulled out a sure-fire winner: “How’s the money situation in the Office? (Such situation being the favorite subject of conversation of government employees, and the second favorite, and the third, and fourth.) “Tight. We’re really short-staffed.” (The money situation has been tight and the office has been short-staffed for twenty-eight years at least).

As my sure-fire winner Topic of Conversation was now exhausted and I felt my social anxiety begin to kick in and my mind begin to wander (A.D.D.) I again reached into my bag and asked “How’s Howard, I heard he was sick?” He gave me a look of “Are you a complete mo-ron,” and said, “Where have you been, David?” (this was said sotto voce with his face substantially closer to mine than when we were saying “Hey.” “Hey.” “Good.” “Good.”) Although I have been quite a number of places I knew that’s not what my friend meant (I’m intuitive like that) and so didn’t respond (verbally at least, maybe my face gave away “Lost.”). “They got rid of him.” My attention was now focused as a laser beam (Adderall). “Why, I thought…” “That’s what they’re putting out there. He was ‘inappropriate’ (his word and he did the “in quotes” hand gestures) with a girl…” At this point I interrupted and said “underling?” and my friend said, “Yeah, an underling.” That was an ambiguous word choice on my part because “underling” could mean a junior fellow prosecutor or a support staff member (not that it makes a difference). "Who took his place?" I asked. "Chet Zerlin." (3)

Notice to Readers.

This blog will continue the series Politics & Justice in the Miami-Dade State Attorney's Office formerly published on Public Occurrences, www.publicoccurrenc.blogspot.com. It will also continue what was previously published on my old blog www.transcriptsrecords.documents.blogspot.com. Instead of starting a new blog my intent was to re-start Transcripts. Alas, I do not know how, I can't log in to Transcripts, asked Google for Help! and they didn't.