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MARCH 3, 2010
The Judicial Qualifications Commission has filed formal charges against Judge Ana Gardiner.
Gardiner, the first Hispanic woman ever to sit as a Broward Circuit judge, had been accused of exchanging hundreds of phone calls and text messages with then-prosecutor Howard Scheinberg as she oversaw a death penalty case he was arguing before her.
The state Judicial Qualifications Commission launched proceedings that could lead to the Florida Supreme Court stripping Gardiner of her judgeship.
Gardiner has been accused of failing to disclose her relationship with Scheinberg during the 2007 murder case against Omar Loureiro. A jury convicted Loureiro of fatally stabbing a man, and Gardiner sent him to Death Row.
Gardiner and Scheinberg had socialized during the Omar Loureiro murder trial in which Scheinberg was prosecutor and Gardiner judge, and that they laughed about the case together at Timpano's and, after that, the Blue Martini (naturally). They allegedly talked about gory photographs of the murder victim, James Lentry, and joked about the sexuality of both Lentry and Loureiro. This while Gardiner was presiding over the case that sent Loureiro to death row (his conviction has since been overturned because of these revelations, and he will be retried).
Loureiro is set to have a new trial before a Palm Beach County judge in June as a result of the accusations involving Gardiner and Scheinberg. If he is again convicted and sentenced to die, the relationship will become something Loureiro's attorneys intend to mention in future appeals.
Gardiner had essentially lied under oath about it and that she and Scheinberg had numerous phone calls between each other.
JAABlog was the first to report on the charges. Here's what they posted out of the charging document, which addresses Gardiner personally:
During the period between March 23, 2007, when you began your close personal relationship with Mr. Scheinberg, and August 24, 2007, the date you imposed the death penalty on Mr. Loureiro, your phone records reveal, and you do not dispute, that you had 949 telephone calls with Mr. Scheinberg and 471 text messages, for a total of 1,450 separate communications over a period of 155 calendar days. That averages 9.35 communications per day between you and Mr. Scheinberg, 7 days a week ...
... On April 30 and May 1, 2007, during the penalty phase of the trial, you had a total of 12 communications with Mr. Scheinberg, including 10 telephone and 2 text messages ...
... On August 23-25, 2007, which included the date before, the date of and the date after the sentencing, you had 19 telephone conversations and 25 text messages with Mr. Scheinberg, for a total of 44 communications on those three days ...
... Your relationship with Mr. Scheinberg continued beyond the sentencing date of Mr. Loureiro. For example, during the period March 31, 2008, through the end of August, 2008, you had 1,166 telephone calls with Mr. Scheinberg and 2,222 text messages, for a total number of communications of 3,388. During that 154 day period, you averaged 22 communications per day with Mr. Scheinberg, which is almost one communication per hour for each 24 hour day ...
... a (JQC) Panel member asked you: "Could you explain the relationship with Howard Scheinberg since 1987?" This question called for an explanation of your relationship with Mr. Scheinberg from 1987 to the date the question was asked, November 13, 2008. Your answer to the question made no mention of your close personal relationship and the high volume of telephone communications and text messages between you and Mr. Scheinberg after March 23, 2007. Your answer was therefore misleading and demonstrates a lack of candor toward the Commission...
... The same Panel member asked this follow-up question: "Again, just to clarify, my understanding is that you - - during the time your were a judge and he was a prosecutor, you did not have any kind of social relationship with Howard Scheinberg?" And your answer was: "If I saw him maybe at one retirement - - they gave they give plaquings [sic] to the younger prosecutors when they leave after three years. He could have been at a plaquing [sic] where the attorneys and the judges go. But I don't ever remember even sitting with him and socializing." This was a misleading answer because it failed to reveal the personal relationship and the thousands of calls and text messages between you and Mr. Scheinberg between March 23, 2007, and the date of the November 13, 2008, hearing before the Investigative Panel. Your answer demonstrates a lack of candor toward the Commission…
Gardiner apparently not only engaged in gross judicial misconduct but essentially lied about it under oath.
Remember this is the same deposition in which Gardiner lashed out at the whistleblower in the case, state prosecutor and Sunrise Commissioner Sheila Alu, who was there at Timpano's that night to witness the improper ex parte communication between Gardiner and Scheinberg.
APRIL 22, 2010
Broward Circuit Judge Ana Gardiner has resigned her seat on the bench and is joining a private law firm.
In return for her leaving the bench, the Judicial Qualifications Commission investigation involving ex parte communication with former prosecutor Howard Scheinberg during a death penalty trial and her alleged untruthfulness about the relationship will be dropped.
Gardiner's attorney, David Bogenschutz, said she did not want to continue moving forward with the Judicial Qualifications Commission proceedings.
She resigned in a three-sentence letter to Gov. Charlie Crist, saying that her last day on the bench will be May 28.
"It is with a combination of sadness, yet excitement, that I leave the Broward County Circuit Court bench," she wrote.
In a written statement released, she said she was leaving to take a job with the law firm of Cole, Scott & Kissane. The Miami based law firm of former U.S. Attorney Thomas Scott.
Scott worked as a private attorney with Gardiner's lawyer, David Bogenschutz, on the plea deal involving former Broward Sheriff Ken Jenne's federal corruption charges.
Gardiner and Jenne, are also longtime friends and political allies.
He said his firm has no concerns about the JQC investigation.
"We looked into it and we're completely satisfied with the judge's explanation," Cole said. "It's something that is behind her and us."
While her resignation ends the JQC proceedings, it may not be the last time she has to deal with her alleged conduct during Loureiro case.
Once she leaves the bench, Gardiner will fall under the jurisdiction of the Florida Bar, which could open its own inquiry, said Karen Kirksey, a Bar spokeswoman.
Any such action would be confidential unless the Bar filed a complaint with the state Supreme Court.
Legal ethics experts say Gardiner's alleged conduct, if proven, could still have serious consequences for her as an attorney, including the possible removal of her license to practice law, according to Bob Jarvis, a law professor at Nova Southeastern University.
Steven Lubet, a law professor at Northwestern University in Chicago and author of "Judicial Conduct and Ethics," said it is "unusual but not unheard of" for a judge to resign while a JQC inquiry is under way. He agreed that Gardiner could still face disciplinary action by the Florida Bar.
"These allegations of improper communications during a trial and lack of candor in an investigation could be considered misconduct by an attorney, too," Lubet said.
Gardiner, a former divorce attorney, was appointed to the bench in 1998 by then-Gov. Lawton Chiles.
June 5, 2014
Because then-Judge Ana Gardiner, of the 17th Judicial Circuit, intentionally chose not to disclose to the defense her “significant emotional relationship” with the lead prosecutor and did not disclose the “true nature of the relationship” to the Judicial Qualifications Commission during its investigation in 2008, she deserves to be disbarred, said the Florida Supreme Court in a per curiam opinion on June 5 in Case No. SC11-2311.
“Considering Gardiner’s dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction,” the justices agreed.
In a separate disciplinary case, the lead prosecutor was suspended from practicing law for two years.
Gardiner’s testimony during the JQC proceedings, the referee found, was “a deliberate act of dishonesty and deceitfulness.”
Gardiner received an admonishment based on the appearance of impropriety.
The referee recommended that Gardiner be found guilty of violating three Bar rules: Rule 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline); Rule 4-8.49(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).
The referee found two aggravating factors (multiple offenses and substantial experience in the practice of law), and considered seven mitigating factors (no prior disciplinary record, displayed significant personal or emotional problems, testified freely and openly and cooperated, demonstrated good character and has a good reputation, at the time suffered from clinical depression, other sanctions had been imposed, and she demonstrated remorse).
The referee recommended a one-year suspension, but The Florida Bar disagreed and urged the Supreme Court to disbar Gardiner
“Significantly, we note that Loureiro was a capital first-degree murder case, in which Gardiner could and did impose the ultimate sentence of death,” the Supreme Court said, in agreeing with the Bar.
“The referee found that Gardiner’s failure to disclose her emotional relationship with [the lead prosecutor] tainted the entire legal process. In all cases, due process requires that proceedings must both be and appear to be fundamentally fair. Personal conduct of a judge suggesting a bias in favor of the prosecutor is an extraordinarily serious matter in a death penalty proceeding. ...
The special prosecutor concluded that Gardiner’s misconduct tainted the proceeding to such an extent that Gardiner’s decision to impose the death penalty could not stand.
“Given these facts, we believe that Gardiner’s misconduct warrants a severe sanction. . . . Considering Gardiner’s dishonest conduct during the trial and in her subsequent testimony before the JQC and the impact of her actions on the administration of justice in a death penalty case, we conclude that disbarment is the appropriate sanction.”
While the justices described testimony about Gardiner’s good character and reputation “overwhelming,” they said: “Nonetheless, we conclude that these mitigating factors do not outweigh Gardiner’s serious ethical misconduct.”
After the relationship between judge and prosecutor became known, Loureiro got a new trial and his sentence was reduced from death to life in prison.
Sources: Florida Bar, Florida JQC, Florida Supreme Court.
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