We all understand the risks of reckless texting.
And we also know that ex parte communications with a judge are improper, especially when said judge is presiding over a murder trial and you’re the prosecuting attorney.
But apparently two members of the Florida bar didn’t get that memo.
In the Sunshine State, a former judge has been disbarred and a prosecutor suspended for conducting a hot-and-heavy cell phone relationship while they were both participating in a high-profile death penalty case.
Ex Parte Communications in the Extreme
The story began in 2007, when the two happened to bump into each other at a restaurant while the trial was in full swing. After dinner they and some others – including, notably, a law student-intern –decided to continue their socializing at a nearby bar.
On the drive there, the law student asked the prosecutor if going out clubbing with the judge was a good idea. Might it raise an “appearance of impropriety?”
According to a referee’s report, this suggestion “upset” the prosecutor, who nonetheless proceeded to the bar but left shortly after arriving. This, in turn, confused the judge, who began calling the prosecutor to find out what was wrong.
What was wrong, of course, was that the vehicle of justice had veered off the high ground and was plunging headlong into the ditch.
Over the next five months, the parties pursued “a significant personal and emotional relationship,” according to the referee, mostly through texts and phone calls. Their communications included:
- 949 cell phone calls
- 471 text messages
- 44 calls and texts on the day before, the day of, and the day after sentencing
None of this was disclosed to the defense or anyone else. Eventually, the jury returned a guilty verdict and the judge imposed a death sentence. But that didn’t put an end to the cyber-relationship. In fact it picked up steam, with more than 3000 phone and text communications flying back and forth in subsequent months.
It was only a matter of time, of course, before all of this came to light. When it did, the State Attorney’s office agreed to a new trial where the defendant was again convicted, but this time sentenced to life in prison.
Discipline Times Two
Both the judge and the prosecutor were brought up on ethics charges. Florida disciplinary authorities found that they had committed misconduct by concealing their relationship and portraying it as “merely professional.” In so doing they had violated the following ethics rules:
- Committing an act that is contrary to honesty and justice;
- Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;
- Engaging in conduct prejudicial to the administration of justice.
This was so even though the relationship apparently never went beyond talking and texting, and despite the fact that in none of their thousands of e-messages did they directly discuss the trial that had brought them together in the first place.
From the disciplinary order: “Even in the absence of evidence that a romantic relationship with an attorney practicing in a judge’s court has influenced the judge’s judgment, the judge’s authority necessarily suffers. First, the intimate relationship itself is contrary to the judge’s role of maintaining detached neutrality as to the litigants and lawyers who appear in his or her courtroom. Second, in continuing to preside over cases in which the lawyer appears during the relationship, the judge necessarily depletes the single most important source of his or her authority—the perception of the legal community and public that the judge is absolutely impartial in deciding cases.”
The judge, who had resigned by the time all this hit the fan, was disbarred. The prosecutor was suspended for two years.
North Carolina Rule 3. - Impartiality and Decorum of the Tribunal
A lawyer shall not:
(1) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;
(2) communicate ex parte with a juror or prospective juror except as permitted by law;
(3) communicate ex parte with a judge or other official except:
(A) in the course of official proceedings;
(B) in writing, if a copy of the writing is furnished simultaneously to the opposing party;
(C) orally, upon adequate notice to opposing party; or
(D) as otherwise permitted by law;
(4) engage in conduct intended to disrupt a tribunal, including:
(A) failing to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply;
(B) engaging in undignified or discourteous conduct that is degrading to a tribunal; or
(C) intentionally or habitually violating any established rule of procedure or evidence.
For more information:
- Florida Bar v. Ana I. Gardiner, No. SC11-2311 (June 5, 2014) http://www.floridasupremecourt.org/decisions/2014/sc11-2311.pdf
- The Florida Bar v. Scheinberg, SC11-1865 (Fla. Supreme Court June 20, 2013) http://www.floridasupremecourt.org/decisions/2013/sc11-1865.pdf
- N.C. State Bar http://www.ncbar.gov/rules/rules.asp?page=3&keywords=communication+judge
- Joseph Corsmeier http://jcorsmeier.wordpress.com/2014/06/16/florida-supreme-court-disbars-former-judge-for-extensive-texting-with-prosecutor-while-presiding-in-murder-trial-and-for-dishonest-conduct/
- Joseph Corsmeier http://jcorsmeier.wordpress.com/2014/06/23/florida-supreme-court-increases-suspension-of-former-prosecutor-to-2-years-for-extensive-texting-and-calls-with-circuit-judge-presiding-over-prosecutors-murder-trial/
Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact firstname.lastname@example.org.