IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT STATE OF FLORIDA, CASE NO. 4D Petitioner, v. CHRISTOPHER HULSKAMPER, et al., Respondents. PETITIONER'S SUPPLEMENT TO THE PETITION FOR WRIT OF PROHIBITION Petitioner, the State of Florida, submits the following supplemental ground in support of its request for the issuance of a writ of prohibition directed to Broward County Circuit Judge John Patrick Contini: 3. Judge Contini's Recent Public Comments, Prohibited By The Code Of Judicial Conduct and the Rules of Judicial Administration, Vitiate His Neutrality In Criminal Proceedings. Judge Contini has recently made a series of inflammatory and shocking public statements accusing the State and its agents of intentional misconduct with respect to the pending litigation in this Court (App. H, I and J. The State has not excerpted portions of the transcripts attached in the Appendix because the outrageousness of Judge Contini's comments is best demonstrated when they are viewed in the full

2 context of the proceedings in which they were made. However, in the most shocking of the comments, Judge Contini repeatedly asserts that the undersigned is telling "lies from the pit of Hell" (App. H at pp. 5, 7; Exh. I at p. 15, that the State is traveling "over the bones" of criminal defendants (App. J at p. 9, and most appallingly, that he encourages this Court to "spank" the undersigned (App. I at p. 4. These comments, and numerous others describing the State as perpetrating an intentional fraud on this Court, show Judge Contini's deep prejudice and animosity against the State and are prohibited by both the Code of Judicial Conduct and the Rules of Judicial Administration. In the State's Original Petition (see 2 of that pleading and its Reply (see 7 of that pleading, the State discussed at length that Judge Contini displayed an outward bias in favor of downward departure sentences. Now, Judge Contini has made numerous public comments displaying his prejudice and hostility against the State and its representatives. Under the totality of these circumstances, it is more clear than ever that the State cannot receive a fair proceeding before Judge Contini. See Great Am. Ins. Co. v Island Blvd. Condo Ass'n, Inc., 153 So. 3d 384, 385 (Fla. 3d DCA 2014 ("it has long been said in the courts of this state that every litigant is entitled to nothing less than the cold neutrality of an impartial judge". Additionally, Judge Contini's belligerent, aggressive, and outlandish public 2

3 comments, made while proceedings on the State's Petition for Writ of Prohibition is still pending in this court, are strictly prohibited by the Code of Judicial Conduct. Canon 3B. (A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently, provides as follows: (9 A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity. (Emphasis added. The Commentary to this section of the Canon provides that "[t]he requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition" (emphasis added. Judge Contini's public comments, made while prohibition proceedings are still pending in this Court, are clearly improper. The transcripts included in the Appendix show that Judge Contini's statements go far beyond merely commenting on administrative or procedural matters. In sum, Judge Contini publically displayed overwhelming animus towards the representatives of the State. Judge Contini's comments go beyond an expression of mere frustration, admonishment or annoyance 3

4 with the State. Judge Contini has now publicly stated that the State's actions at both the trial and appellate levels are "disingenuous" and "fraudulent," just stopping short of saying that he does not believe the State is serving the people of the State of Florida in any responsible way. By making such statements, Judge Contini has now publicly questioned the professional integrity and ethics of the State's representatives. Judge Contini's comments show that he cannot function as a neutral arbiter of any proceedings where the State is a party. Judge Contini's most recent comments fly in the face of Fla. R. Jud. Admin (f, which commands that "the judge against whom an initial motion to disqualify... is directed... shall not pass on the truth of the facts alleged." In the case at bar, there is nothing supporting Judge Contini's position that the State engaged in any "fraudulent" behavior designed to bring the wheels of justice to a screeching halt, and even if it did, Rule 2.330(f prevents Judge Contini from commenting on the proceeding. In light of his most recent remarks, Judge Contini has a duty to sua sponte disqualify himself from presiding over any criminal proceedings, yet he has refused to do so. See Franco v. State, 777 So. 2d 1138, 1140 (Fla. 4th DCA 2001 (holding that the trial judge should have granted a motion to disqualify where the judge exhibited animosity and disrespect for defense counsel and berated him in front of the jury; Jimenez v. State, 954 So. 2d 706 (Fla. 2d DCA 2007 (trial judge's comments, 4

5 which included stating counsel was indifferent to, or ignorant of, his professional obligations, went beyond expressions of mere frustration, admonishment, or annoyance with counsel's mannerisms, tactics, or abilities, and castigated counsel's personal integrity and honesty; Gates v. State, 784 So. 2d 1235, 1237 (Fla. 2d DCA 2001 (holding that the trial judge should have granted a motion to disqualify where the judge threatened to humiliate defense counsel in front of the jury; Lamendola v. Grossman, 439 So. 2d 960, 961 (Fla. 3d DCA 1983 (holding that the trial judge should have granted a motion to disqualify where the judge told counsel she would deal with him later for going over her head, made derogatory extrajudicial comments about counsel, and displayed antagonism towards counsel. Finally, Judge Contini showed open and obvious contempt for the automatic stay in this case by defying that stay and moving forward in State v. Lewis (App. H. Judge Contini acknowledged that this particular case was stayed by virtue of being on the list of cases and challenged the State to appeal his ruling to this Court: "I want you to take me up to the Fourth... I want you to order this transcript and take me up to the Fourth and see what they say..." (App. H at pp. 5, 6. See State v. Schwartz, 440 So. 2d 446 (Fla. 3d DCA 1983 (recognizing that an appellate court has the power to hold a trial court judge in contempt for failing to respect its orders. These most recent statements highlight Judge Contini's contempt for the State 5

6 and further demonstrate his inability to ever give the State a fair hearing before a neutral and impartial judge. 6 Respectfully submitted, PAMELA JO BONDI Attorney General /s/ Heidi L. Bettendorf HEIDI L. BETTENDORF Assistant Attorney General Florida Bar No North Flagler Drive, Ninth Floor West Palm Beach, FL Tel: ( Fax: ( crimappwpb@myfloridalegal.com Counsel for Petitioner CERTIFICATE OF SERVICE AND ELECTRONIC FILING I HEREBY CERTIFY that on this 14th day of August, 2015, in accordance with Fla. R. Jud. Admin , a.pdf copy of the foregoing with an electronic signature has been ed to The Honorable John Patrick Contini, Broward County Courthouse, 201 S.E. 6th Street, Suite 6790, Ft. Lauderdale, Florida, , at jcontini@17th.flcourts.org; Diane M. Cuddihy, Esquire, Executive Chief Assistant Public Defender, 201 Southeast 6th Street, Suite 655, Ft. Lauderdale, Florida, 33301, at dcuddihy@browarddefender.org, and appeals@browarddefender.org; Melanie L. Casper, Esquire, Assistant Regional Counsel, 401 South Dixie Highway, Second

7 Floor, West Palm Beach, Florida, 33401, at and Patricia J. Jones, Esquire, P.O. Box 23201, Ft. Lauderdale, Florida, 33307, at H. Dohn Williams, Jr., Esquire, 990 N.W. 5th Street, Boca Raton, Florida, 33486, at Marcos Beaton, Jr. Esquire, 201 South Biscayne Blvd., Suite 1300, Miami, Florida, 33131, at Jason B. Blank, Esquire, 888 South Andrews Avenue, Suite 201, Ft. Lauderdale, Florida, 33316, at James S. Benjamin, Esquire, One Financial Plaza, Suite 1615, Ft. Lauderdale, Florida, 33394, at Daniel R. Aaronson, Esquire, One Financial Plaza, Suite 1615, Ft. Lauderdale, Florida, 33394, Peter Patanzo, Esquire, One Financial Plaza, Suite 1615, Ft. Lauderdale, Florida, 33394, Carter Hillstrom, Esquire, 629 S.E. 5th Avenue, Ft. Lauderdale, Florida, 33301; and to all other attorneys on the list of cases originally attached to the State's Petition for Writ of Prohibition. Additionally, in accordance with Administrative Order of the Fourth District Court of Appeal, a.pdf copy of the foregoing with an electronic signature has been electronically filed at /s/ Heidi L. Bettendorf HEIDI L. BETTENDORF 7