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February 9, 2010 |
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| December 03, 2007 |
By: Jordana Mishory |
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ne of Broward County’s most controversial judges will fight to retain her black robes Tuesday when she goes on trial before the state’s judicial ethics commission.
But beleaguered Broward Circuit Court Judge Cheryl Aleman claims she shouldn’t be on trial at all. Rather, her attorney and others who represent judges before the Judicial Qualifications Commission insist the case against Aleman is the latest example of the commission overstepping its bounds.
Aleman, the subject of criticism since she was sworn in nearly six years ago, is charged with violating state judicial canons that require judges to uphold the integrity of the bench and be patient and courteous.
Her alleged misconduct includes holding or threatening to hold attorneys in contempt and refusing to step down in cases where there were perceptions of conflicts of interest. If the JQC finds her guilty, the Florida Supreme Court could choose from a variety of punishments ranging from a reprimand to removal from the bench.
Aleman’s attorney and others claim the issues she faces are legal matters that belong in the appellate courts. They argue her actions do not rise to the egregious conduct of JQC’ed judges of yesteryear: viewing pornography on a courthouse computer, stalking a litigant at home or sexually harassing court personnel.
“What is driving this case is a disagreement with the way Judge Aleman rules on matters pending in front of her,” said Aleman’s attorney, David Bogenschutz of Fort Lauderdale. “You can make all kinds of legal rulings and be reversed every day, and it is not a violation of the canon of ethics.”
Miami attorney Michael Tein, who has represented judges before the JQC, argues that the commission has evolved into a “super appellate court” that crosses into the territory of an appeals court in order to disrobe judges for controversial rulings.
“The court of appeal has absolutely no problem staying on their side of the line every day,” Tein said. “For some reason, the JQC has a problem keeping themselves on their side.”
But JQC members counter that there is a defined line between its role and that of an appellate court. Although JQC members interviewed for this story wouldn’t comment on the Aleman case, they all noted that a majority of the complaints they receive come from disgruntled litigants who dislike a judge’s ruling. These complaints are immediately dismissed, they say, because they deal directly with appellate issues.
The JQC’s most senior member, Stanley Tate, said the commission is concerned with the manner in which the judge makes a legal ruling — regardless of how the judge ruled.
Miami attorney Lauri Waldman Ross, who has prosecuted JQC cases for 15 years but is not involved in the Aleman case, said Bogenschutz’s jurisdictional defense is nothing new.
“People made those arguments for the last 40 years, as long as the commission has been around,” Ross said. “People are defending — they have to come up with a defense.”
Special counsel Lansing Scriven, who is prosecuting the case for the JQC, did not return calls for comment. Neither did Judge Aleman.
Fort Lauderdale lawyer Bruce Rogow, who is representing a 1st District Court of Appeal judge in an upcoming JQC trial, said the commission “needs some reigning in.” Rogow said the JQC is not doing its job very well.
Tein fears the JQC’s lack of prosecutorial discretion could have far-reaching implications.
“How can we expect to continue to attract the best and brightest to the Broward bench if a judge who makes an erroneous ruling is not only threatened with reversal, but also removal?” Tein asked. “It’s absolutely unfair to expect our judges to make the sacrifices that they do for public service and work under extraordinary pressures only to find themselves on the wrong end of a JQC complaint because [the JQC] has a personality problem with a judge.”
Judge Aleman, a former statewide prosecutor, has been a lightning rod for criticism since Gov. Jeb Bush appointed her in late 2001.
During her robing ceremony, she talked at length about her religious beliefs and asked a Daily Business Review reporter if she prayed.
The 4th DCA has reversed her in several high-profile cases for overstepping the “wide latitude” afforded judges and sentencing a defendant in excess of the statutory maximum. The 4th DCA also reversed her decision to remove children of a low-income couple after they arrived late to a custody hearing because of public transportation delays.
In February, the JQC filed formal charges against Judge Aleman for incidents when she:
• Threatened to hold two assistant public defenders in contempt in a first-degree murder case for not filing a motion quickly enough.
• Held a contempt hearing for a defense attorney when she knew he was out of town, and then sentenced him to 60 days in jail for missing two hearings.
• Refused to release a man allegedly dying of AIDS from jail and then issued an order releasing him once a negative article was published about the incident.
• Served on cases involving a defense attorney with whom she had conflicts.
The JQC’s hearing panel twice dismissed the charges concerning the man with AIDS, most recently last month.
Bruce Raticoff, a Broward assistant public defender, was one of the PDs Aleman threatened contempt charges against for taking longer than her 15-minute time limit to file a motion for disqualification. He said Aleman’s actions chilled his ability to defend a client facing the death penalty.
“Judge Aleman is supposed to maintain courtroom decorum and professionalism and fairness and openness, and instead she engaged in gamesmanship when she had a guy’s life in her hands,” Raticoff said. “She should be excised from ever holding that kind of authority again. She’s a constitutional anti-Christ.”
Aleman does not dispute that the incidents occurred. She does claim the JQC’s allegations don’t reveal the entire story, which, according to court documents, she plans to tell by calling witnesses the prosecution excluded. She also plans to call criminal defense attorneys as character witnesses and several fellow Broward judges, including Chief Judge Victor Tobin, to serve as experts on contempt.
In an interview, Tobin said he had enough information on contempt to hold an all-day course. He declined to comment on his testimony.
In her pleadings, Aleman said in each instance, it was in her power to act the way she did.
“The facts are clear in this case, but whether they constitute a violation of the canon of ethics, I don’t believe that Judge Aleman can agree to that,” her attorney Bogenschutz said.
In filings, Bogenschutz says the JQC’s actions could destroy judicial independence. He noted that a number of these cases have been appealed to the 4th DCA, and several of her decisions have been upheld.
Last August, the 4th DCA ruled that defense attorney Michael Gottlieb, with whom Aleman clashed, filed several motions for disqualification too late.
Attorney Adam Katz, who was sentenced to 60 days in jail, dropped his appeal of Aleman’s decision. The Broward judge who took over his case when Aleman transferred out of the criminal division mitigated his sentence to time served and did not enter a guilty finding.
Former Florida Bar president Burton Young of North Miami Beach said Aleman’s arguments that she was denied due process is “baloney.” Young said that, if the charges stand, Aleman was the one not providing due process — not the one denied it.
“The pattern of conduct that is alleged is so outrageous and so unjudicial — which is the thing that the JQC looks for. It goes to her fitness to serve,” said Young, whose son was a member of the JQC until this summer. “If proven, I don’t think that anybody has a right to sit in judgment of others who manifests such erratic conduct.”
But Tein argued that the charges alleged in the complaint are “frivolous” — as evidenced by the fact that the JQC itself dismissed two of the five counts. He believes Aleman will be vindicated, although her reputation will be sullied.
The court transcripts show that “the truth is 180 degrees opposite from what’s charged in the complaint,” Tein said.
Aleman is one of two Broward judges facing formal charges. County Court Judge Terri-Ann Miller, who won a seat on the bench last November, is accused of campaign violations.
Although Miller’s attorney Michael Catalano did not return calls for comment, he previously said he intends to fight the allegations through to a hearing. Catalano said that the JQC is accusing Miller of wrongdoing for which she has been cleared by the state elections commission.
JQC hearings are rare. Most judges stipulate to the charges, and either resign after formal charges are filed or agree to a punishment less severe than removal.
The Florida Supreme Court removed the last judge who took a case to a hearing. A judge before him who fought the charges resigned following the hearing.
Bogenschutz said Aleman won’t concede because she believes she is correct.
JQC member Stanley Tate said the commission agrees to stipulate when there isn’t enough evidence to get more than a suspension or reprimand. In other cases, the JQC refuses to settle because it feels the judge deserves to be removed. Tate said judges who fight the charges don’t face harsher punishments than their remorseful counterparts.
Yet, a number of the Florida Supreme Court decisions say that judges found guilty by the JQC could face more serious discipline if it weren’t for the fact that he or she acknowledged their bad behavior and expressed regret.
Coral Gables attorney Ervin Gonzalez, a member of the Board of Governors who helps select lawyer representatives on the JQC, said if Aleman didn’t challenge charges in dispute, the JQC would devolve into a “kangaroo court.”
“If it gets to the point where innocent judges are actually agreeing with the charges because they fear the process, that’s bad news,” Gonzalez said.
Some court watchers — while conceding that Aleman has every right to fight back — feel that her decision could be indicative of a personality that landed her in trouble.
Young said if the charges against Aleman are proven, her decision to fight back is “another manifestation of her unfitness to be on the bench. She doesn’t show ‘I’m rehabilitated, I’ve done wrong, I’ve learned my lesson, I won’t do this again.’ There’s no place in the legal profession for people who act like that.”
Jordana Mishory can be reached at jmishory@alm.com or at (954) 468-2616.
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