In Re Aleman

995 So. 2d 395, 2008 WL 4379591
CourtSupreme Court of Florida
DecidedSeptember 29, 2008
DocketSC07-198
StatusPublished
Cited by4 cases

This text of 995 So. 2d 395 (In Re Aleman) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Aleman, 995 So. 2d 395, 2008 WL 4379591 (Fla. 2008).

Opinion

995 So.2d 395 (2008)

Inquiry Concerning a Judge, No. 06-52, re Cheryl ALEMAN.

No. SC07-198.

Supreme Court of Florida.

September 29, 2008.
Rehearing Denied November 20, 2008.

Lansing C. Scriven of Lansing C. Scriven, P.A., Special Counsel, Tampa, FL, *396 Michael Louis Schneider, General Counsel, Tallahassee, FL, and Marvin E. Barkin, Special Consulting Counsel, Tampa, FL, for Judicial Qualifications Commission, Petitioner.

J. David Bogenshutz, of Bogenschutz, Dutko, and Kroll, P.A., Fort Lauderdale, FL, and Perry W. Hodges, Jr. of Rogers, Morris and Ziegler, LLP, Fort Lauderdale, FL, for Respondent.

PER CURIAM.

In this case we review the determination by the Judicial Qualifications Commission (JQC) that Seventeenth Judicial Circuit Judge Cheryl Aleman violated the Code of Judicial Conduct and its recommendation that Judge Aleman be publicly reprimanded and charged the costs of investigation and prosecution. For the reasons discussed below, we approve the JQC's determination and recommendation.

I. FACTS AND PROCEDURAL HISTORY

The charges stem from Judge Aleman's behavior in response to three motions to disqualify her made by Assistant Public Defenders Sandra Perlman and Bruce Raticoff on January 24, 2006, the second day of jury selection in State v. Braynen, a first-degree murder case.[1] On the morning of January 24, Perlman sought to disqualify Judge Aleman based on what Perlman perceived to be Judge Aleman's aggressive and intimidating questioning of prospective jurors during voir dire the previous afternoon. Because the motion was oral, Perlman requested a reasonable amount of time to reduce the motion to writing as required by Rogers v. State, 630 So.2d 513 (Fla.1993).[2] Judge Aleman denied the request for additional time and immediately denied the motion on its merits.

The second motion to disqualify related to Judge Aleman's allegedly preferential treatment of Assistant State Attorney Peter Holden. Judge Aleman had granted Holden a fifteen-minute delay in the start of the afternoon proceedings while denying a similar request from Perlman. When Perlman requested "at least an hour" to reduce this second oral motion to writing, Judge Aleman responded that the court would be in recess for five minutes. During this time, Judge Aleman conferred with another jurist, who suggested that defense counsel be given a pad of paper and a pen to prepare a written motion. When the proceeding resumed at 2:20 p.m., Judge Aleman did just that; she gave Perlman paper and pen and stated that, if defense counsel subsequently wished to substitute a typed motion, she would allow it. But rather than giving counsel an hour, Judge Aleman gave the defense attorneys fifteen minutes to transcribe *397 the motion, stating that the court would adjourn until 2:35 p.m.

Intending to research and type the motion, Perlman and Raticoff left the courtroom to return to their office. In their haste, they ran past a number of prospective jurors who were sitting and standing in the hallway. At 2:42 p.m., when the proceeding reconvened, neither assistant public defender was in the courtroom. Judge Aleman took a recess until defense counsel returned.

By 2:48 p.m., Raticoff had returned, but Perlman had not. At that point, Judge Aleman mentioned the prospect of holding both public defenders in contempt:

The Court: The Court's go[ing] to issue a rule to show cause, and we'll hold this in abeyance until conclusion of the trial. The Court had [given] counsel 15 additional minutes to handwrite a motion, provided a paper and pen for counsel to do so, and when the Court returned back neither Defense Counsel was here, and now it's 2:49 and we're still missing one of defense counsel.
Again, good grounds for the rule to show cause is failure to abide by the Court's order with respect, and we'll hold that in abeyance until the concluding of the proceeding.
Mr. Raticoff: Judge, just so the record —
The Court: Directly to both Counsel, Mr. Raticoff and Ms. Perlman. And we'll be in recess until Ms. Perlman arrives.

Upon returning to the courtroom at 2:57 p.m., Perlman inquired into the status of the contempt charge. There was some confusion as to whether Judge Aleman actually issued the order to show cause. At first, Judge Aleman suggested that she did not. Upon further inquiry by defense counsel, however, Judge Aleman indicated that she had, in fact, issued the order.

Raticoff then moved to withdraw from the case, citing the conflict between defending his client on one hand and defending himself on the other. In addition, Raticoff expressed his concern that he would not be able to represent Braynen effectively. Judge Aleman denied the motion, finding no reason to believe that the defendant had not received effective assistance of counsel. Judge Aleman eventually denied the second motion to disqualify, finding it legally insufficient.

Judge Aleman's order to show cause triggered defense counsel's third motion to disqualify. Again, Perlman requested a reasonable time to reduce the motion to writing, and again Judge Aleman granted fifteen minutes. When Perlman objected, reminding Judge Aleman that fifteen minutes was previously insufficient, Judge Aleman instead granted twelve minutes. Once again, Perlman objected, and Judge Aleman eventually gave defense counsel twenty-two minutes to prepare the written motion.

This time, when the court reconvened, both Public Defenders were present—but the motion was not. Afraid to violate the court's order, Perlman had returned to the courtroom without finishing the motion and requested an additional five minutes to do so. Judge Aleman expressed her concern for the jurors who had been sitting in the hallway since 1:30 p.m., but agreed. When presented with this third motion, Judge Aleman denied it as well.

The next day, when Raticoff asked Judge Aleman to reconsider or vacate her order to show cause, Judge Aleman declined to hold a hearing on the matter, stating instead that "I believe everyone is entitled to due process." Ultimately, Judge Aleman never issued a written order to show cause, and the issue of contempt was never acted upon.

*398 Based on these events, an Investigative Panel of the JQC charged Judge Aleman with violating Canons 1, 2A and 3B(4) of the Code of Judicial Conduct. A Hearing Panel of the JQC heard testimony from several witnesses, including Public Defenders Perlman and Raticoff, Assistant State Attorney Holden, and Judge Aleman. The JQC concluded that:

Judge Aleman's conduct involving her denial of the motions for disqualifications [sic] without giving counsel a reasonable time to prepare the motions in writing and in threatening contempt by announcing entry of an order to show cause and then refusing to vacate the order to show cause constituted conduct which was arrogant, discourteous, and impatient to the lawyers appearing before her and others appearing in the Braynen case. . . . She acted in a manner that erodes public confidence in the integrity and impartiality of the judiciary.

More specifically, the JQC Hearing Panel found that Judge Aleman "did not give the Public Defender adequate time to prepare [the first] motion in writing before denying it," "it was . . .

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Cite This Page — Counsel Stack

Bluebook (online)
995 So. 2d 395, 2008 WL 4379591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aleman-fla-2008.