BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE, RE: JUDGE DALE C. COHEN CASE NO. SC10-348 / RESPONSE TO MOTION TO QUASH SUBPOENA AND MOTION FOR ATTORNEY S FEES The Honorable Judge Dale C. Cohen, by and through undersigned counsel, hereby files his Response to the Motion To Quash Subpoena etc. and a motion for attorney s fees with the Honorable Hearing Panel, and states: THE MOTION TO QUASH MUST BE DENIED: 1. The JQC has charged Judge Cohen with misconduct for his investigation into State v. Steven Gibbs and others. The JQC appears to be uninterested in the truth of what happened in Judge Cohen s court when Judge Cohen was dealing with Attorney Melnick and his client Steven Gibbs. The motion to quash has no basis in law or fact. It is hard to understand how Mr. Pope could have made the motion to quash in good faith. Clearly, Mr. Gibbs is a material witness and he does not want 1
to appear for deposition or trial of this matter. Simply moving to quash a subpoena of a material witness simply because the moving party may not like to hear what he has to say is absolutely ridiculous. 2. The motion to quash cites a few rules worth mentioning. Rule 1.280(c) authorizes protective orders and make a cross reference to Rule 1.380 (a)(4). Rule 1.280(c) contains a list of legal reasons why a protective order should be granted, i.e., annoyance, embarrassment, oppression or undue burden or expense. None of the grounds alleged by Mr. Pope are mentioned as legal reasons to grant a protective order. Actually, nowhere in the motion to quash does it actually give a real reason WHY the JQC wants to keep Mr. Gibbs from telling the truth! Additionally, the party moving for the protective order has the burden to show good cause. See Sabol v. Bennett, 672 So.2d 93 (Fla. 3d DCA 1996) and they have not even alleged in the motion a valid reason for granting the motion to quash. 3. The JQC motion starts out with allegations that Judge Cohen conducted hearings solely for the purpose of abusing his judicial power and for the benefit of himself and his wife. After numerous depositions were taken last month, we now know that the JQC cannot call a single witness who will verify that. To the contrary, all witnesses verified that Judge Cohen 2
did the opposite. Judge Cohen was watching a lawyer stand before him and misrepresent facts and improperly forum shop. He had a duty to do something about it. Granted, Judge Cohen made a mistake when he called his wife to testify but, he has apologized for that mistake and that should have been the end of all of this. 4. This entire problem started when Mr. Melnick filed numerous boilerplate motions to recuse Judge Cohen from presiding over his client s criminal matters. In the motions he made it sound as if he was heavily involved in a law suit against Judge Cohen s wife. When asked under oath at deposition, Melnick admitted that his involvement was simply to look in a computer for a few minutes to see if Judge Cohen s wife violated any Bar rules. Concluding that she did not, he then did absolutely NOTHING more about the issue and had absolutely NOTHING to do with the law suits that were in fact filed that involved Judge Cohen s wife and the election. 5. Counsel below is personally insulted by the ridiculous statements made by Mr. Pope in his motion. In paragraph 6 he said: The attempt here is to compel Mr. Gibbs to discredit attorney Melnick as a witness in this proceeding. Later in paragraph 10, Mr. Pope says that we (Counsel below) are trying to intimidate Mr. Gibbs to get him to improperly 3
discredit his former counsel. Nothing could be further from the truth. In paragraph 9 he said that we (Counsel below) used a subpoena and letter as a transparent attempt to intimidate Mr. Gibbs into discrediting his form counsel, Mr. Melnick. That is a highly improper attack on counsel below. Maybe Mr. Pope did not carefully read the letter to Mr. Gibbs. It was clear that we were trying to get him to come to the deposition and tell the truth and NOT to intimidate him to lie and discredit his former lawyer. We have to believe that the hearing panel in this matter wants to know the truth and not just the JCQ version of what happened in Judge Cohen s courtroom. 6. Most importantly, Mr. Pope can cite no law, rule or statute that says a lawyer cannot call a witness to discredit what another witness says. It is axiomatic in the law that a lawyer can call witnesses to discredit the witnesses from the other side. In this case, the only witness Mr. Pope can call that might even possibly cause Judge Cohen to be found in violation of JQC cannons is Attorney Melnick. We believe that many things Mr. Melnick told us under oath are simply not true. We need to take the deposition of Mr. Gibbs to prepare for trial. If Mr. Gibbs tells what we think will be the truth, it will show that Judge Cohen was correct when he asked questions and looked into the matter. 4
7. Mr. Gibbs is street criminal, currently on probation for multiple felony convictions and is a material witness in this matter. He has been hiding from our process server for months. We have tried to take his deposition before but, were not able to get service of process. Mr. Pope did not move to quash his subpoena last time we attempted service. We finally found him and when served with the subpoena for deposition, he ran inside his house and slammed the door on the process server and told him he did not want to get involved and would not come to the deposition. He was in court when material issues took place that resulted in the instant charges against Judge Cohen. Judge Cohen had figured out that Mr. Gibbs and Mr. Melnick were engaged in illegal and improper forum shopping. Mr. Melnick did not know it but, his client at the time, Mr. Gibbs, was recorded on the jail phone system telling a relative that he paid Mr. Melnick $4,000.00 cash or a stack to have Melnick do only one thing. That was to get a recusal so that he could get a bond once his case was sent to another judge who was one of Melnick s friends. He even told the relative to not cancel his upcoming flight as he would get out soon thanks to Melnick. This was ridiculous as Gibbs was on felony probation when he was arrested and charged with new felonies and misdemeanors. 99.999 % of people in such a situation are held with no 5
bond. There is even a statute that mandates a hold with no bond. See F.S. 948.06. The tapes are public record and are admissible evidence as jail inmates are told their conversations are being recorded. By making public records requests, we found out that the police and State Attorney were, at the time, secretly investigating this as they heard the tape and were disturbed by what Gibbs and Melnick were saying and doing. The existence of the tapes has been disclosed to Mr. Pope in June, 2010. We also have evidence that Melnick lied to a prosecutor at the time about the recusal issues. In any event, At Mr. Melnick s deposition last month, he agreed to turn over his entire files on the clients at issue before the JQC. Now, he has changed his mind and does not want to turn over his financial records about the clients on relevancy grounds. He also worked with Mr. Pope to come up with the language he used in his motion as we noted that Mr. Pope had sent us an email with the exact same quote and somehow, that unique quote ended up in Mr. Melnick s motion objecting to us seeing his complete files on Mr. Gibbs and the other clients involved. He did in fact turn over the other parts of the file and it is clear that he was paid for one thing only, a recusal and transfer to another judge who would have given Gibbs a bond. His file contains ONLY the written pleas and his motions for recusal, all boilerplate motions that he 6
had filed before. It is hard to imagine how Mr. Melnick earned a $4,000.00 cash fee for preparing a motion that took 5 minutes to prepare. That could be construed as a serious Florida Bar rules violation. 8. Judge Cohen did grant recusal but, voiced his concerns about what Melnick appeared to have been doing. He also did this on another case. 9. If Mr. Melnick was illegally forum shopping then, Judge Cohen was not violating any Canons or rules by asking questions about the situation as a judge has a duty pursuant to Canon 3(d)(2) to take appropriate action where a violation of the Florida Bar ethics rules occurs. See Fla. Bar Rule 4.8.4. As it turns out, Mr. Melnick did get a recusal, the case when to another judge who then sent it back because Mr. Melnick was upset that his client fired him and hired another lawyer to actually do the work on the case so, Melnick begged the next judge to send it back to Judge Cohen and he did. Mr. Gibbs can verify all of that and tell us the rest of this story. We ask that the motion to quash the subpoena be denied and that the chair of the hearing panel find that it was a frivolous motion. WE SEEK ATTORNEY S FEES AND COSTS: 10. We seek sanctions for the time in dealing with the instant issues. Because we received this motion shortly before the hearing had to be held, counsel had to work well into the night to respond on an emergency 7
basis. The motion is frivolous and we asked Mr. Pope to withdraw it on 8/10/10 in the afternoon, and he refused. An award of attorney's fees based on Rule 1.380(a)(4) is discretionary with the trial judge. Knight v. Alachua County, 396 So.2d 846 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 467 (Fla.1982). Therefore, we ask for sanctions including attorney s fees and costs paid by Mr. Pope and not the JQC. WHEREFORE, Judge Cohen respectfully requests that the Hearing Panel of the Judicial Qualifications Commission deny the motion to quash the subpoena of Mr. Gibbs and grant this request for attorney s fees and costs. Dated this 10 th day of August, 2010. Respectfully submitted: /s/ Michael A. Catalano, Esq. Fla. Bar No.: 371221 Michael A. Catalano, P.A. Attorney for Judge Dale Cohen 1531 N.W. 13 th Court Miami, Florida 33125 Telephone: (305) 325-9818 Fax: (305) 325-8759 mclawyer@bellsouth.net CERTIFICATE OF SERVICE 8
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished as listed below this 10 th day of August, 2010, to the following: Michael L. Schneider General Counsel Judicial Qualifications Commission Florida Bar No. 525049 1110 Thomasville Road Tallahassee, FL 32303 Counsel for the Judicial Qualifications Commission, by email by agreement to: michaelschneider@floridajqc.com Also, per Rules 9, and 10 of the Florida Judicial Qualifications Commission, all of our pleadings are being filed as follows: Original and one copy to the Clerk of the Florida Supreme Court by US Mail. An electronic copy will be sent in Word 2003 format to the Clerk of the Court per Supreme Court Rule: AOSC04-84. Email to: e-file@flcourts.org Florida Supreme Court Attn: Clerk s Office 500 South Duval Street Tallahassee, Florida 32399-1927 By agreement (by email only) to the following two lawyers: F. Wallace Pope, Jr. Johnson, Pope, Et al. Special Counsel for Florida Judicial Qualifications Commission P.O. BOX 1368 Clearwater, Florida 33757 Email: wallyp@jpfirm.com And: Laurie Waldman Ross Attorney for the Hearing Panel 9
Ross and Girten 9130 S. Dadeland Blvd. Suite 1612 Miami, FL 33156 Email: lauri@laurilaw.com We are not sending a copy directly to Mr. Coxe, the chairman of the hearing panel as we have been informed that Ms. Ross will communicate with him. By: /s/ Michael A. Catalano, Esq. 10