THE BLOG
06/23/2013 05:47 pm ET Updated Aug 23, 2013

Judge and Prosecutor Secretly Texting During Murder Trial

When a Broward jury convicted Omar Loureiro for murder and his judge sentenced him to death; neither he, his defense lawyers, nor the jury knew that the prosecutor and judge were secretly chatting and texting hundreds of times throughout the course of the trial.

Following the verdict, a complaint was filed against Broward Circuit Judge Ana Gardiner with the Florida's Judicial Qualifications Committee (JQC), which regulates, investigates, and prosecutes Florida's state court judges. In its investigation, the JQC found that over the course of 155 days, she and Broward prosecutor Howard Scheinberg exchanged 471 text messages and 949 cellphone calls, averaging nearly 10 ex parte communications a day.

This week the Florida Supreme Court issued a two-year suspension for the lawyer -- doubling the Bar's recommendation for a one-year suspension, indicating that Gardiner, who was found guilty of perjury during her JQC investigation, will most likely be permanently disbarred.

Who Judges Florida's Judges?

The JQC was created in 1968 as an independent entity apart from the Florida Supreme Court or any other judicial system to regulate the judicial conduct of Florida's Supreme Court, Appellate, State, and County benches; its authority does not extend to federal judges in Florida nor to any other state or jurisdiction.

The JQC is a 15-member panel composed of a combination of appellate, circuit, and county judges plus four lawyers and five non-lawyers. The non-lawyers must be registered voters, and they are appointed by the governor.

In Florida, state court judges are also lawyers and therefore are subject to both the rules regulating the Florida Bar and the Code of Judicial Conduct. The Code for Judicial Conduct provides very precise ethical guidelines for judges for everything to reporting gifts in excess of $100 to recusals for conflicts of interest.

Complaints can be filed online with the JQC but remain confidential until a finding of probable cause is sent in the form of a Notice of Formal Charges to Florida's Supreme Court. In a JQC, half of the panel provides the investigation and presents its findings to the other half of the panel, which will compile its finding and present its recommendations to the Supreme Court.

The penalties for a judge's misconduct in Florida can range from nothing to removal from the Bench, and in the case of Judge Gardiner probable disbarment. Our system of justice depends on the fundamental right and perception of a obtaining a fair trial. As a Board Certified Trial Lawyer, I have tried many civil cases over the last twenty years in the Broward County courthouse, ranging from slip and falls to medical malpractice cases, where justice and verdicts are measured in terms of dollars. However, in this case Mr. Loureiro sat as a defendant charged with murder; his life was literally on the line. The inappropriate relationship the judge and prosecutor shared during his trial deprived not only him but also the people of Broward County and the State of Florida of justice. Mr. Loureiro was given a new trial, was retried with a new judge and prosecutor, and was again found guilty, yet his life was spared as he was sentenced to life in prison rather than death.

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