IN THE SUPREME COURT OF FLORIDA NO. SC ROBERT RIMMER, STATE OF FLORIDA,

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1 IN THE SUPREME COURT OF FLORIDA NO. SC ROBERT RIMMER, Petitioner, v. STATE OF FLORIDA, Respondent. PETITION FOR EXTRAORDINARY RELIEF, FOR A WRIT OF PROHIBITION, AND FOR A WRIT OF MANDAMUS NEAL A. DUPREE Capital Collateral Regional Counsel - Southern Region Florida Bar No LINDA McDERMOTT Special Assistant CCSR-SR Florida Bar No CELESTE BACCHI Assistant CCSR-SR Florida Bar No ANDREA HARRINGTON Assistant CCSR-SR Florida Bar No OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL - SOUTHERN REGION 101 N.E. 3 RD Avenue, Suite 400 Ft. Lauderdale, Florida (954) Attorneys for Petitioner

2 PETITIONER, ROBERT RIMMER, through undersigned counsel, petitions this Court for a writ of prohibition prohibiting the Honorable Ana I. Gardiner, Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, from hearing any further post-conviction proceedings in the matter of State of Florida v. Robert Rimmer, Case No CF10B. This petition is premised on the Florida Rules of Judicial Administration, Florida Statutes, and Code of Judicial Conduct, all of which require that a judge disqualify herself if she is not fair and impartial. See Fla. R. Jud. Admin ; Fla. Stat , 38.10; Fla. Code Jud. Conduct, Canon 3-B(7) and E. As grounds for this relief, Petitioner alleges: INTRODUCTION Petitioner, Robert Rimmer, is an indigent individual incarcerated at Union Correctional Institution under sentence of death. Pursuant to Rules 9.030(a)(3) and of the Florida Rules of Appellate Procedure, Petitioner respectfully urges that this Court enter an order to show cause, and thereafter order that the chief judge of the Seventeenth Judicial Circuit randomly assign a different judge to hear Mr. Rimmer's case. I. JURISDICTION This is an original action under Rule 9.100(a) of the Florida Rules of Appellate Procedure. This Court has original jurisdiction pursuant to 9.030(a)(3) thereof and art V, sec. 3(b)(8), Fla. Const. See Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978)(granting writ where circuit court erroneously denied motion to recuse judge). 2

3 II. STATUS OF PETITIONER Mr. Rimmer was tried and convicted in the circuit court in and for Broward County in The Honorable James I. Cohn presided at Mr. Rimmer s trial and sentenced Mr. Rimmer to death. Following Mr. Rimmer s trial, Judge Cohn left the circuit court bench for another judicial appointment. Due to Judge Cohn s departure, Judge Ana I. Gardiner became the judge who would preside over Mr. Rimmer s postconviction proceedings. Mr. Rimmer has never moved to disqualify any judge presiding over his case, until now. On September 30, 2004, undersigned counsel was told that the Office of the Public Defender for the Seventeenth Judicial Circuit had filed numerous motions to disqualify Judge Gardiner based upon a memorandum that she had written concerning a recent district court of appeals case. The following day, undersigned made efforts to secure a copy of the memorandum. On Monday, October 4, 2004, undersigned first received a copy of the memo and had the opportunity to review it. The memorandum authored by Judge Gardiner is dated September 17, 2004, and was sent to all criminal judges in the Seventeenth Judicial Circuit. See Appendix 1. The memo concerns the recent decision in Washington v. State, 29 Fla. Law Weekly D 2001 (Fla. 4 th DCA September 10, 2004). 1 The memorandum demonstrates Judge Gardiner s bias against criminal defendants. The memorandum also 1 The decision from the Fourth District Court of Appeals is attached to the memo. 3

4 demonstrates Judge Gardiner s desire to assist the State in its prosecutions. Furthermore, the memorandum demonstrates that Judge Gardiner has engaged in improper ex parte communications with the State in order to assist them in circumventing the law to obtain harsh sentences for defendants. Based on these circumstances, undersigned informed the court and the State of her intent to file a motion to disqualify at a discovery hearing on October 6, Undersigned requested that the court take no further action in the case until the motion had been ruled upon and the court agreed with that course of action. Undersigned informed the court that she would have the motion filed on Thursday, October 7, in the morning. Undersigned made arrangements to speak to Mr. Rimmer by telephone on Wednesday, October 6, 2004, and an attorney was scheduled to meet with Mr. Rimmer that same afternoon to take his affidavit. On October 6, 2004, Mr. Rimmer refused to leave his cell for the arranged phone call because he did not want to be handcuffed. Later that afternoon, he again refused to leave his cell for the legal visit. Thus, counsel was unable to secure his signature for the motion on October 6. As a result, Mr. Rimmer filed a Motion to File Motion to Disqualify Judge and Supporting Memorandum of Law Without Affidavit to disqualify Judge Gardiner on or about October 7, See Appendix 2. This Motion explained that counsel was still working to obtain Mr. Rimmer s affidavit to attach to the motion as is required by Rule of the Florida Rules of Judicial Administration (2004). 4

5 An attorney known to Mr. Rimmer visited Mr. Rimmer on October 7, 2004 and was able to obtain his affidavit. Undersigned counsel re-filed Mr. Rimmer s complete Motion to Disqualify Judge and Supporting Memorandum of Law with Mr. Rimmer s affidavit on October 8, See Appendix 3. The motion to disqualify was timely. 2 The State filed a response on October 8, See Appendix 4. 3 On October 8, 2004 Judge Gardiner entered an order denying Mr. Rimmer s Motion to Disqualify, even though Mr. Rimmer did not receive this Order until October 14, See Appendix Judge 5. Gardiner s Order held that Defendant s Motion to Disqualify was legally insufficient. See id. Judge Gardiner s Order does not cite any cases or elaborate any further as to how Mr. Rimmer s motion is facially insufficient. Judge Gardiner did orally announce her ruling at a Status Conference on October 11, Having established a basis for disqualification in the motions filed on October 7, 2004, and October 8, 2004, Mr. Rimmer now petitions this Court for a writ of prohibition to prohibit Judge 2 Judicial Administration Rule (e) states: A motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. In Mr. Rimmer s case, counsel filed the motion within eight (8) days of learning of Judge Gardiner s memorandum. The motion was timely. 3 Postconviction counsel believes that the State s response was unnecessary and improper. Because this was Mr. Rimmer s first motion to disqualify, the court was obligated only to consider whether the motion was legally sufficient. The State argued facts to the court. Postconviction counsel is unsure if Judge Gardiner considered the State s Motion in denying Mr. Rimmer, but asserts that if she did, that her actions were improper. 5

6 Gardiner from proceeding on this case. See Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978)(petition for a writ of prohibition appropriate and necessary remedy once a basis for disqualification has been established). III. MR. RIMMER S PETITION IS LEGALLY SUFFICIENT AND SHOULD BE GRANTED BECAUSE MR. RIMMER FEARS HE WILL NOT RECEIVE A FAIR HEARING FROM JUDGE GARDINER BECAUSE OF JUDGE GARDINER S BIAS OR PREJUDICE DEMONSTRATED BY HER MEMORANDUM AND EX PARTE COMMUNICATIONS WITH THE STATE. Mr. Rimmer requests that this Court issue a writ of prohibition against Judge Gardiner because Mr. Rimmer reasonably fears he will not receive a fair hearing due to a bias or prejudice held by Judge Gardiner against defendants, as is demonstrated by her memorandum and her ex parte communications with the State. Judge Gardiner s September 17, 2004 memorandum concerns the recent decision in Washington v. State, 29 Fla. Law Weekly D 2001 (Fla. 4 th DCA September 10, 2004). 4 In Washington, the district court reversed a habitual offender sentence based upon a finding that the State s notice, which included all of the enhancements listed in Florida Statute , was tantamount to no notice. The district court instructed that the trial court impose a guidelines sentence on the defendant upon remand. The memorandum demonstrates Judge Gardiner s bias against criminal defendants. The memorandum also demonstrates Judge Gardiner s desire to assist the State in its prosecutions. 4 The decision from the Fourth District Court of Appeals is attached to Judge Gardiner s Memorandum. 6

7 Furthermore, the memorandum demonstrates that Judge Gardiner has engaged in improper ex parte communications with the State in order to assist them in: 1) attempting to convince the district court to reverse its decision and 2) dealing with the specific issues that have been addressed by the Washington court. Specifically, the memorandum states: a. The potential danger of this opinion is not limited to the number of cases that we might be encountering for resentencing. In Washington v. State, the appellate court vacated the sentence because of lack of proper notice and remanded the case for resentencing. The appellate court cited McCray v. State, 765 So. 2d 82, 93 (Fla. 4 th DCA 2000) to support the concept of a guideline sentence on remand. Therefore, the SAO is not allowed upon resentencing to correct the problem with the notice. Imagine the consequences of this opinion. b. A motion for Rehearing is being filed Friday 9/17/04. The arguments include that SAO should be able to correct the Notice at resentencing and that the trial court should not be limited to a guideline sentence. Also, it is being argued that the defendant failed to show prejudice in that he was assigned to Repeat Offender Court and neither the defendant nor attorney ever argued that they were not prepared for sentencing due to lack of proper notice as to potential sentence as HFO. c. There is nothing we can do about cases where defendants have pled or were sentenced. However, we can act proactively. d. I am of the belief and opinion that the lack of proper written notice can be considered cured or harmless error if the record reflects that the defendant was orally informed of the State s attempt to designate him for a specific enhanced sentence... Appendix 1 (emphasis added). No defense counsel was provided with the memorandum. Undersigned has learned that the memorandum came to light when an assistant public defender requested the memo from an assistant state attorney. 7

8 The memorandum illustrates Judge Gardiner s predisposition to impose the harshest sentences against defendants, her desire to assist the State Attorney s Office, and her disregard for the appellate court s decision. By developing a strategy to cure or render harmless the issues present in Washington, Judge Gardiner has taken on the role of prosecutor. 5 The language in the memorandum also indicates that Judge Gardiner engaged in improper ex parte communications with someone in the Office of the Attorney General and exchanged information and opinions about the strategy to be used to circumvent the opinion. A. THE MOTION TO DISQUALIFY IS LEGALLY SUFFICIENT, BASED UPON MR. RIMMER S REASONABLE FEAR THAT JUDGE GARDINER IS BIASED AGAINST DEFENDANTS BASED ON HER MEMORANDUM Contrary to Judge Gardiner s Order, the facts Mr. Rimmer alleges in his Motion to Disqualify are legally sufficient to warrant her disqualification under Florida law. A judge must immediately grant an initial motion to disqualify and proceed no further [i]f the motion is legally sufficient. Jud. Admin. Rule (f). The test for determining the legal sufficiency of a motion for disqualification is an objective one which asks whether the facts 5 It is the State s responsibility to cure its improper actions, not the court s. The court certainly did not strategize or communicate with defense counsel as to how the defense could utilize the arguments in opposition to the motion for rehearing with defense counsel. 8

9 alleged in the motion would place a reasonably prudent person in fear of not receiving a fair and impartial trial. See Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). The facts alleged do not need to be so specific that it notes the exact time and place of the judge s expressed prejudice. See State ex rel. Aguiar v. Chappell, 344 So. 2d 925 (Fla. 3d DCA 1977). Further, it is elementary that sworn facts set forth in a motion for disqualification must be taken as true. Lewis v. State, 530 So. 2d 449, 450 (Fla. 1 st DCA 1988) citing Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978). Based on her memo, as well as her ex parte communications with the State, it is reasonable for Mr. Rimmer to fear that Judge Gardiner rules on her own pre-conceived notions of defendants as opposed to the law. Rule of the Florida Rules of Judicial Administration (2004), sections and 38.10, Florida Statutes (2002) and the Fourteenth and Eighth Amendments to the United States Constitution are intended to protect parties from judges who rule based on prejudice and bias rather than the law. See Hayes v. State, 686 So. 2d 694, 695 (Fla. 4 th DCA 1996). The facts alleged by Mr. Rimmer in his Motion to Disqualify Judge Gardiner meet the standard for disqualification articulated in Livingston. A reasonably prudent person would fear that he would not receive a fair and impartial hearing before a judge that has a demonstrated bias against defendants and seeks to aid the State in its prosecutions. A defendant may be put in a reasonable fear of a prejudiced or biased judge where a judge informs defendants that she will seek the 9

10 harshest possible sentences against the defendant prior to hearing the evidence. For example, in Lewis v. State, 530 So. 2d 449, 450 (Fla. 1 st DCA 1988), the trial judge informed defense counsel, prior to jury selection, that he would order a sentence exceeding the sentencing guidelines upon the defendant s conviction. This judge was found to be prejudiced based on this statement and was disqualified. Similarly, Judge Gardiner s memorandum indicates her desire to impose the harshest sentences on defendants prior to hearing the evidence against them. It is reasonable as that is defined by Lewis for Mr. Rimmer to feel that he will not receive a fair and impartial hearing before Judge Gardiner. A defendant may be put in reasonable fear of judicial bias where a judge provides legal advice to the prosecutor. In State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3 rd DCA 1977), the Third District Court of Appeals found a defendant s motion legally sufficient where the defendant alleged that the trial judge advised police officers to add additional charges against them which were not on the original complaint affidavit. In the instant case, Judge Gardiner provided advice to the State Attorney s Office on how to obtain harsh sentences for defendants and advice to the Attorney General s office regarding the motion for rehearing, just as the judge in Aguiar provided advice to the police on adding additional charges. Judge Gardiner s actions are even more egregious than those of the Aguiar judge in that she developed a strategy to impose harsh sentences and shared this strategy with all the judges in her circuit and the State Attorney s Office, but not the Public Defender s 10

11 Office. These actions were irrespective of defendants constitutional rights which the Washington decision sought to protect. See also Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4 th DCA 1993) (disqualifying judge for giving cross-examination tips to the prosecutor). It is not a requirement that a judge demonstrate bias towards the particular defendant seeking disqualification; a judge who demonstrates bias against general classes of defendants merits disqualification. In Hayes v. State, 686 So. 2d 694, 695 (Fla. 4 th DCA 1996), a judge was disqualified based on his stating that he would never sentence a defendant to time served on a violation of probation. The judge was disqualified even though he did not make this alleged statement in direct reference to the defendant. Instead, the statement was made during a conversation between the judge and a public defender who was representing another defendant. Impartial judges are fundamental to our system of justice. See State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3 rd DCA 1977). It is reasonable for Mr. Rimmer, a death-sentenced individual, to fear that he will not receive a fair hearing from a judge whose rulings are based on her own pre-conceived notions that defendants deserve the harshest possible sentences irrespective of their constitutional rights and before she even hears the evidence. 6 This Court should be deeply concerned when a criminal circuit court judge seeks to enlist the efforts of the entire criminal circuit and 6 In Mr. Rimmer s case this means the difference between life and death. 11

12 the State Attorney s Office in acting in unison against the interests of defendants. The State s argument below that Mr. Rimmer s Motion is based on facts that are too speculative to be legally sufficient has no basis in law or fact. Mr. Rimmer relies on Judge Gardiner s very own memorandum, which clearly expresses her dismay over the interference that Washington creates for judges seeking to impose the harshest sentences on defendants, and offers her advice to judges and prosecutors on ways of circumventing Washington. These facts are not speculative; they are written by Judge Gardiner s own hand. Further, it is elementary that sworn facts set forth in a motion for disqualification must be taken as true. Lewis v. State, 530 So. 2d 449, 450 (Fla. 1988) (citing Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978)). Contrary to the State Attorney s assertions, the allegation that Judge Gardiner had ex parte communications with the Attorney General s Office is far from speculative, as Judge Gardiner clearly states in her memorandum that the AG is filing a motion for rehearing on Washington and she continues by explaining what arguments the AG will be making. It is obvious that Judge Gardiner must have obtained this information from a knowledgeable source. 7 These facts are not speculative, unlike those contained in the five (5) cases the State cites to support its argument that the facts Mr. Rimmer alleges in his Motion are speculative as a matter of law. It is telling that 7 A judge is not supposed to discuss pending cases, especially with one of the parties. Yet, that is exactly what Gardiner did. See Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992). 12

13 the State does not even attempt to draw a clear parallel between Mr. Rimmer s case and the cited cases. See State s Response, p. 3. The Motions to Disqualify in the cited cases are all easily distinguishable from the present case, as they all contain mere allegations with no underlying facts to support those allegations. 8 In addition, the State s argument that Judge Gardiner s Memorandum does not demonstrate her bias against defendants and favoritism towards the State because it is merely a permissible expression of her personal views of the law is a gross mischaracterization of the facts and the law. Florida case law distinguishes between judges expressing their personal views on the law, see State ex rel. Sagonias v. Bird, 67 So. 2d 678 (Fla. 1953)(basing the decision not to disqualify a judge who stated that the search and seizure case law would make it difficult to enforce 8 Moore v. State of Florida, 820 So. 2d 199, 206 (Fla. 2002)(holding that defendant s motion to disqualify the judge was legally insufficient because it is well settled that an adverse decision does not warrant disqualification); Arbelaez v. State, 775 So. 2d 909, 916 (Fla. 2000) (finding that a judge s former occupation as a prosecutor alone is legally insufficient for disqualification where defendant presents no other facts demonstrating that judge s bias); 5-H Corp. v. Padavano, 708 So. 2d 244, (Fla. 1997) (stating that appellant s mere speculation that the district court judges may have been embarrassed, humiliated and even outraged by attorney s un-professionalism without supporting facts demonstrating such was legally insufficient to warrant exclusion); Willacy v. State, 696 So. 2d 693, 695 n. 5 (Fla. 1997) (holding grounds speculative where consist only of the fact that the trial judge sat at first trial where defendant was convicted and sentenced to death); and Jernigan v. State, 608 So. 2d 569 (Fla. 1 st DCA 1992)(finding speculative basis where defendant was accused of child-abuse and judge rejected plea agreement and where judge asked the state attorney to investigate a father who the judge saw strike his child at the court house). 13

14 gaming laws on the fact that the judge s statement clearly indicated that he intended to follow the principles of the gaming laws)(emphasis mine); see also State ex rel. Gerstein v. Stedman, 238 So. 2d 615 (Fla. 1970)(refusing to disqualify a judge who stated grand jury indictments are bad and who was philosophically opposed to immunized witnesses based on the reasoning that the statements placed in context demonstrated the judges philosophy as opposed to his personalized prejudice), and judges who rule based on pre-determined notions, see Hayes v. State, 686 So. 2d 694, 696 (Fla. 4 th DCA 1996)(disqualifying a judge who stated that he will refuse to consider certain sentencing options as it demonstrates prejudice as opposed to judicial philosophy). Like the judge in Hayes, Judge Gardiner s memorandum goes well beyond a mere expression of judicial philosophy. Judge Gardiner s memorandum is more egregious than the conduct of the judge in Hayes because she not only demonstrates her desire to obtain the harshest sentences for defendants, but works in concert with the State to obtain harsh sentences for defendants prior to even hearing the evidence. Such personal bias in favor of the State and against defendants mandates disqualification. The State s assertion that no bias exists, and that Mr. Rimmer s Motion is inconsistent with the free exchange of ideas at the heart of our legal system, relies on a mischaracterization of Judge Gardiner s memorandum and completely ignores the law. B.JUDGE GARDINER S EX PARTE COMMUNICATIONS WITH THE STATE 14

15 It is improper for Judge Gardiner to have ex parte contact with the Attorney General s Office. Matters were discussed and considered outside the presence of defendants and their counsel which would certainly result in an unlevel playing field for defendants. Judge Gardiner attempted to assist the State in obtaining harsh sentences for defendants without defendants knowledge. The contact constitutes impermissible ex parte communication. Judge Gardiner's conduct has also demonstrated her bias against Mr. Rimmer and/or his counsel and a disregard for the duty of the court to avoid the appearance of impropriety. See Chastine v. Broome, 629 So.2d 293 (Fla. 4 th DCA 1993) (passing of a note by the trial judge to the prosecutor, advising the prosecution not to crossexamine a witness that was sympathetic to the defendant, was an impermissible ex parte communication requiring the disqualification of the trial judge). This ex parte communication and demonstration of bias is violative of Mr. Rimmer s right to due process and the right to be represented by counsel provided by the constitutions of the State of Florida and the United States. Canon 3B (7) of Florida's Code of Judicial Conduct states:a judge should accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: (a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided: (I) The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communications, and 15

16 (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communications and allows an opportunity to respond. Fla. Code Jud. Conduct, Canon 3B (7)(a)(I-ii)(1995)(emphasis added). Judge Gardiner s conduct, under the circumstances presented herein, was clearly prohibited by the Canon. This Court explained in In re Inquiry Concerning a Judge: Clayton, 504 So. 2d 394 (Fla. 1987), that the intent of Canon 3 was to exclude all ex parte communications except those authorized by statute or rules. It "implements a fundamental requirement for all judicial proceedings under our form of government. Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all interest parties". Id. at 395. In In re Inquiry Concerning a Judge: Robert R. Perry, 586 So. 2nd 1054 (Fla. 1991), this Court found that improper ex parte conduct by a judge was grounds for discipline. Further, this Court has stated that, "a judge should not engage in any conversation about a pending case with one of the parties participating in that conversation". Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992). This Court explained: We are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. Id. (Emphasis added). Furthermore: 16

17 [E]x parte communication between a trial judge and a [representative of the State] concerning a pending criminal case is totally inappropriate and will mandate reversal if: 1) The defense has requested the judge to recuse himself, or has requested a mistrial which is denied; 2) where the defendant can demonstrate that there was prejudice as a result of the improper communication; 3) the judge is sitting as the trier of fact." Love v. State, 569 So. 2d 807, 810 (Fla. 1st DCA 1990). An ex parte communication is prejudicial per se. It is "[t]he essence of due process is that fair notice and reasonable opportunity to be heard must be given to interested parties before judgment is rendered." Huff v. State, 622 So. 2d 982 (Fla. 1993), quoting Scull v. State 568 So. 2d 1251, 1252 (Fla. 1990). As this Court has observed regarding a similar ex parte communication in a postconviction proceeding: No matter how pure the intent of the party who engages in such contacts, without the benefit of a reply, a judge is placed in the position of possibly receiving inaccurate information or being unduly swayed by unrebutted remarks about the other side's case. The other party should not have to bear the risk of factual oversights or inadvertent negative impressions that might easily be corrected by the chance to present counter arguments. Rose, 601 So. 2d at 1183 (emphasis added). Judge Gardiner s ex parte communications with the Attorney General s Office in her efforts to circumvent Washington has led Mr. Rimmer to have a reasonable fear that Judge Gardiner favors the State at the expense of Defendants and that he cannot obtain a fair hearing in Judge Gardiner s court. Moreover, defense counsel was not notified of the ex parte contact as required. Judge Gardiner demonstrated bias toward Mr. Rimmer and/or his attorney sufficient to require this Court to grant this Petition. As a result of the above facts, Mr. Rimmer fears that 17

18 he will not receive a fair hearing before Judge Gardiner. A writ of prohibition at this stage is appropriate and vital for the interests of justice. Only random re-assignment to a judge will ensure a fair and impartial hearing. C. LEGAL ANALYSIS Mr. Rimmer has a reasonable fear that he will not receive a fair hearing before Judge Gardiner because of the aforementioned circumstances. The facts alleged in this motion are "sufficient to warrant fear on [Mr. Rimmer's] part that he would not receive a fair hearing by the assigned judge." Suarez v. State, 527 So. 2d 190, 192 (Fla. 1988). Because of Judge Gardiner s inappropriate behavior, "a shadow is cast upon judicial neutrality so that disqualification is required." Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). Mr. Rimmer is a death sentenced prisoner attempting to overturn both his conviction and sentence. He is entitled to due process and a fair tribunal. In order to achieve fairness it is required that his proceedings occur before a judge who is not predisposed in favor of the State, not acting as an advocate for the State in strategizing against Mr. Rimmer, and not attempting to circumvent caselaw that is beneficial to Mr. Rimmer s claims. The purpose of the disqualification rules direct that a judge must avoid even the appearance of impropriety: It is the established law of this State that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to 18

19 refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice. Crosby v. State, 97 So.2d 181 (Fla. 1957); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So (1930). * * * The prejudice of a judge is a delicate question for a litigant to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge in question should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause who neutrality is shadowed or even questioned. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977). State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977). Mr. Rimmer is entitled to full and fair Rule proceedings, see Holland v. State, 503 So. 2d 1250 (Fla. 1987); see also Easter v. Endell, 37 F. 3d 1343 (8th Cir. 1994). This includes the fair determination of the issues by a neutral, detached judge. The aforementioned circumstances of this case are of such a nature that they are "sufficient to warrant fear on [Mr. Rimmer's] part that he would not receive a fair hearing by the assigned judge." Suarez v. Dugger, 527 So. 2d 191, 192 (Fla. 1988). The proper focus of this inquiry is on "matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his [or her] ability to act fairly and impartially." Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983); Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993). In capital cases, the trial judge 19

20 "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stake, and the judge's sentencing decision is in fact a life or death matter." Livingston, 441 So. 2d at 1086 (emphasis added). Canon 3E of the Florida Code of Judicial Conduct and Rule of the Florida Rules of Judicial Administration mandate that a judge disqualify him or herself in any proceeding "in which the judge's impartiality might reasonably be questioned," including but not limited to instances where the judge has a personal bias or prejudice concerning a party or a party's lawyer, personal knowledge of disputed evidentiary facts concerning the proceeding, or where the judge has been a material witness concerning the matter in controversy. Fla. Code Jud. Conduct, Canon 3E(1)(a) & (b); Fla. R. Jud. Admin (d)(1) & (2). The situation in this case mandates recusal. Judge Gardiner s conduct demonstrates her clear bias against Mr. Rimmer and his counsel. Because this motion is legally sufficient, the judge should not consider the facts of the motion; she should take no action other than reassigning the case. Fla. R. Jud. Admin (f) (emphasis added). Recusal at this stage is appropriate and vital for the interests of justice. Random assignment will help ensure a fair impartial hearing. A party may present a motion to disqualify at any point in the proceedings as long as there remains some action for the judge to take. If the motion is legally sufficient "the judge shall proceed no further." 38.10, Fla. Stat. (1995); see also Lake v. Edwards, 20

21 501 So. 2d 759, 760 (Fla. 5th DCA 1987) (holding that ruling on a motion for new trial is an action "further" to the filing of a motion to and therefore improper). Rule of the Rules of Judicial Administration similarly provides that, "[i]f the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action." Fla. R. Jud. Admin (f). Florida courts have repeatedly held that where a movant meets these requirements and demonstrates, on the face of the motion, a basis for relief, a judge who is presented with a motion for disqualification "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification." Suarez v. Dugger, 527 So. 2d 191 (Fla. 1988) (emphasis added). Livingston v. State, 441 So. 2d 1083 (Fla. 1983); Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978); Digeronimo v. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988); Ryon v. Reasbeck, 525 So. 2d 1025 (Fla. 4th DCA 1988); Fruhe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988); Lake v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987); Davis v. Nutaro, 510 So. 2d 304 (Fla. 4th DCA 1986); ATS Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); Management Corp. v. Grossman, 396 So. 2d 1169 (Fla. 3rd DCA 1981). See also Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993). To establish a basis for relief a movant: need only show "a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides 21

22 in the affiant's mind and the basis for such feeling." State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, (1938). See also Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially. Livingston, 441 So. 2d at 1086 (emphasis added). The United States Supreme Court has also recognized the basic constitutional precept of a neutral, detached judiciary: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. See Carey v. Piphus, 435 U.S. 247, , , 98 S.Ct. 1042, 1043, , 1053, 1054, 55 L.Ed.2d 252, (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Matthews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951)(Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). Similarly, as the Eleventh Circuit Court of Appeals explained: The Commentary to Canon 3E(1) [Code of Judicial Conduct] provides that a judge should disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification. We conclude that both litigants and attorneys should be able to rely upon judges to comply with their own Canons of Ethics. A contrary rule would presume that litigants and counsel cannot rely upon an unbiased judiciary, and that counsel, in discharging their Sixth Amendment obligation to provide their clients effective professional assistance, must investigate the impartiality of the judges before whom they appear. Such 22

23 investigations, of course, would undermine public confidence in the judiciary and hinder, if not disrupt, the judicial process -- all to the detriment of the fair administration of justice. Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1995). Due process guarantees the right to a neutral, detached judiciary in order "to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests." Carey v. Piphus, 425 U.S. 247, 262 (1978). The United States Supreme Court has explained that in deciding whether a particular judge cannot preside over a litigant's trial: the inquiry must be not only whether there was actual bias on respondent's part, but also whether there was "such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties," but due process of law requires no less. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Taylor v. Hayes, 418 U.S. 488, 501 (1974). The appearance of impropriety violates state and federal constitutional rights to due process. A fair hearing before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133 (1955). "Every litigant[] is entitled to nothing less than the cold neutrality of an impartial judge." State ex rel. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930). Absent a fair tribunal there is no full and fair hearing. Suarez teaches that even the appearance of impartiality is sufficient to warrant reversal. 23

24 In capital cases, judicial scrutiny must be more stringent than it is in non-capital cases. The impartiality of the judiciary is particularly important in "this first-degree murder case in which [Mr. Rimmer's] life is at stake and in which the circuit judge's sentencing decision is so important". Livingston v. State 441 So. 2d 1083, 1087 (1983). In the instant case, Mr. Rimmer has a reasonable fear that he will not receive a fair hearing before Judge Gardiner because of the aforementioned circumstances. For these reasons, counsel urges this Court to order the Chief Judge of the Seventeenth Judicial Circuit appoint another judge to hear this case and requests that Mr. Rimmer's case be randomly reassigned. WHEREFORE, Petitioner, Robert Rimmer, by and through the undersigned counsel, respectfully urges that the Court enter an order issuing an order to show cause against the Respondent, and thereafter enter a writ prohibiting Judge Ana I. Gardiner from hearing any further proceedings in this case, and directing the Chief Judge of the Fourth Judicial Circuit to randomly assign Mr. Rimmer s case to another judge. CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing Petition for Extraordinary Relief has been furnished by United States Mail, first class postage prepaid, to The Honorable 24

25 Ana I. Gardiner, Circuit Court Judge, 17 th Circuit, Broward County Courthouse, 201 S.E. 6 th Street, Suite #4910, Ft. Lauderdale, FL 33301; Leslie Campbell, Assistant Attorney General, Office of the Attorney General, 1515 North Flagler Drive, Suite 900, West Palm Beach, FL 33401; Susan Bailey, Assistant State Attorney, Office of the State Attorney, Broward County Courthouse, 201 S.E. 6 th Street, Suite 660, Ft. Lauderdale, FL 33301; on October,

26 CERTIFICATE OF TYPE SIZE AND STYLE This is to certify that the foregoing Petition for Extraordinary Relief has been produced in a 12 point Courier type, a font that is not proportionately spaced. NEAL A. DUPREE Capital Collateral Regional Counsel - Southern Region Florida Bar No LINDA McDERMOTT Special Assistant CCSR-SR Florida Bar No CELESTE BACCHI Assistant CCSR-SR Florida Bar No ANDREA HARRINGTON Assistant CCSR-SR Florida Bar No OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL - SOUTHERN REGION 101 N.E. 3 RD Avenue, Suite 400 Ft. Lauderdale, FL (954) Attorneys for Petitioner 26