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April 07, 2009
Broward Circuit Judge Cheryl Aleman was publicly scolded for her refusal last year to remove herself from a murder case which had been defended by an opponent's campaign treasurer.
The public was able to watch the reprimand of Judge Cheryl Aleman for misconduct by the Florida Supreme Court. It was broadcast on the internet for all to see. This is a first.
"This is a very sad day for you, for us and for the entire state judiciary," Supreme Court Chief Judge Peggy Quince told Aleman. "At the most fundamental level, you have damaged the public's trust and confidence in our state courts."
In some trials last year, Aleman made defense lawyers file hand-written motions quickly or face contempt charges, according to the Miami Herald.
The Judicial Qualification Commission concluded that Aleman's actions had violated standards of conduct.
"By your misconduct, you failed to obsevere the high standards of integrity required for your office," Quince said. "You undermined the public confidence in your integrity and impartiality. And you exhibited a lack of patience that was highly discourteous to the lawyers appearing before you."
The seven-minute scolding began at 9 a.m. and was aired live on the Internet.
After she withstood the rebuke in silence, Aleman responded, "God bless you and the court."
It appears that one of the judges who came to Judge Aleman's defense by testifying for her was none other than Judge Eileen O'Connor. (She was the judge who tried to sentence a potential juror to 4 months in jail).
A defense attorney's law license is at risk because he posted an angry description on the Internet of embattled Broward Circuit Judge Cheryl Alemán, calling her an "evil, unfair witch."
Last week, as Alemán was on trial for alleged misconduct before the Judicial Qualifications Commission, The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge's qualifications or integrity.
In the October 2006 posting on the JAAB blog, Conway denounced Alemán for what he said was an "ugly, condescending attitude" and questioned her mental stability after, he says, she unlawfully forced attorneys to choose between unreasonable trial dates or waiving their clients' rights to a speedy trial.
Sometime in October 2006, embattled Circuit Court Judge Cheryl Aleman, “concerned” for the rights of the accused, came up with a Great idea: setting cases for trial within two weeks of the arraignment. The plan forced defendants to either waive their right to speedy trial or proceed to trial without proper time to prepare. In some twisted way, this was seen as a fair and just way of presiding over cases in criminal circuit court.
Mr. Conway previously had filed a written plea of “Not Guilty” for his client at an arraignment on October 18, 2006.
The court later set trial for October 30, 2006. But Mr. Conway asserted the notice setting this trial date had not been mailed until October 24, based on the envelope containing the notice, and that he only received the late notice on October 25, which gave him just three business days to prepare for trial because it had not been timely mailed.
Mr. Conway argued that the defense had not been given a reasonable amount of time to prepare for trial as required by the Florida Rules of Criminal Procedure.
Mr. Conway requested a continuance, asking that the trial date be reset without the necessity of waiving his client's right to a speedy trial.
Judge Alemán did not adopt Mr. Conway's suggestion, and instead sought to have his client waive the right to a speedy trial.
He then posted an article on the Broward Jaablog. (Since removed).
Conway, a former Broward assistant public defender now in private practice, said he feels justified in his comments.
In documenting the exchange that had previously occurred between the Judge and the attorney in court over the new policy, the attorney saw fit to identify Judge Aleman in his transcript as “Evil Unfair Witch”.
"She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it," he said. "And that's why I stand by what I did. Sometimes the language the bar approves of doesn't get the job done."
The Blog post found its way “anonymously” to the Florida Bar which opened an investigation and required the lawyer to respond to the complaint.
Conway also filed a complaint against Alemán with the Judicial Qualifications Commission, citing her "deliberate refusal" to follow the law and insolent behavior. Conway says he hasn't heard from the commission since the May 29th letter acknowledging his complaint.
"She is clearly unfit for her position and knows not what it means to be a neutral arbiter," Conway wrote in his commentary.
That posting on Jaablog, a courthouse weblog created a year ago to examine Broward County judges' performances and legal issues, is protected speech, says Conway's attorney, Fred Haddad.
"There's absolutely no reason that politicians, and that's all judges are here in Broward County, aren't open to criticism," Haddad said. "We've got a [Florida Bar] grievance committee that can't even conceptualize the First Amendment. You're dealing with a group of people that are entrenched in protecting each other."
“All I had left were my words,” Conway said, adding that he decided to use the strongest ones he had.
In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.
Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues.
The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern.
The Florida Supreme Court recently upheld the decision to fine Conway. The judges didn't issue an opinion in the case and Conway had consented to the order.
According to the New York Times:
Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”
But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which a reprimand and a fine for his intemperate blog post.
Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.
Notwithstanding whether Mr. Conway's criticism of Judge Alemán's judicial conduct in his case had any merit, he blogged about it in the heat of the moment using injudicious and inflammatory language. (Mr. Conway used more measured and temperate language when he wrote to the Florida Judicial Qualifications Commission to complain about Judge Alemán).
“When you become an officer of the court, you lose the full ability to criticize the court,” according to Michael Downey who teaches legal ethics at the Washington University law school. Mr. Conway claimed that this “was not about being disrespectful, or just wanting to call someone a name .... [but] about being heard.”
But the desire to be heard above the din of the many voices on social media is a poor justification for name-calling directed at a judicial officer.
Sanctioning a lawyer for rhetorical hyperbole, however, raises unsettling First Amendment issues. Rhetorical hyperboles should not be equated with a reckless disregard of the truth.
The Ninth Circuit has held that statements of “rhetorical hyperbole” are not sanctionable, and an attorney may criticize a judge if the criticism is supported by a reasonable factual basis.
Rather than a formal disciplinary sanction, perhaps a letter of caution from the Florida Bar to Mr. Conway about civility and respect would have been more appropriate.
On the other hand, Mr. Conway's unrepentant attitude in defending his use of “the strongest words in order to be heard” suggests that a letter of caution would have fallen on deaf ears. But even if a state bar's disciplinary sanctions may be too blunt of an instrument to police rhetorical hyperbole and name-calling, that does not mean the norms of civility should be abandoned.
In the words of Supreme Court Justice Potter Stewart, “a lawyer belongs to a profession with inherited standards of propriety and honor ... and must conform to those standards.” A lack of civility could erode the public's respect for the legal system.
While an attorney should not be precluded from criticizing the conduct of a jurist, the standards of civility nonetheless should be kept in mind when on social media or any other public forum.
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