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A Florida prosecutor has been suspended from practicing law for two years following a ruling of the Florida Supreme Court that he is guilty of having improper communications with a judge during a death penalty trial.

Howard Scheinberg was the lead prosecutor in a capital murder case that went to trial in 2007: State of Florida v. Omar Loureiro. Judge Ana Gardiner, who was presiding over Loureiro’s case, exchanged phone calls and text messages with Scheinberg throughout the trial. Specifically, the Florida Supreme Court opinion discloses:

During the period of time from March 23, 2007, four days before the jury returned its guilty verdict in Loureiro, to August 24, 2007, the day that former Judge Gardiner imposed the death penalty, Scheinberg and Gardiner engaged in substantial personal communications by phone or text message. Specifically, Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages during that period. Scheinberg did not disclose these communications to the attorney representing Loureiro.

While all parties agree that the communications between Scheinberg and Gardiner were “personal in nature and did not pertain to the Loureiro case,” the Supreme Court found that the “numerous personal communications with former Judge Gardiner similarly served to damage the perception of judicial impartiality.”

The Broward State Attorney’s office agreed to a retrial in the case once the communications between the trial prosecutor and judge were discovered by Louriero’s defense counsel on direct appeal. The State Attorney’s office said it wanted to dispel any public misconception that there was any denial of due process.

The Florida bar filed a complaint against Scheinberg in September 2011. It alleged that Scheinberg engaged in misconduct in violation of Bar Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law this is prejudicial to the administration of justice). A referee who was subsequently appointed to conduct an investigation found three aggravating factors in Scheinberg’s conduct: (1) a pattern of misconduct; (2) multiple offenses; and (3) substantial experience in the practice of law.

While the referee only recommended that Scheniberg be suspended for one year, the Florida Supreme Court went further, suspending his license for two years. The Court stated:

Although Scheinberg did present compelling evidence to show his good character and reputation in the legal community, such evidence does not outweigh the seriousness of his misconduct in this case… Given the seriousness of Scheinberg’s misconduct and the harm it caused to the administration of justice in the Loureiro case, together with the aggravating and mitigating factors found by the referee, we hold that a two-year suspension is the appropriate discipline.

The SunSentinal reports that Judge Gardiner is also battling to keep hold of her law license:

Scheinberg’s suspension does not bode well for Gardiner, who was found guilty of lying to the Judicial Qualifications Commission after a hearing last year. The referee in her case also recommended a one-year suspension, but the Florida Bar wants her license taken away permanently.
A decision on her case is pending before the Supreme Court.

You can read the Florida Supreme Court’s decision in Scheinberg’s case here.

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