Some appalling cases of judicial and prosecutorial misconduct out of Texas and Florida involving ex parte communications between judges and prosecutors during murder trials in recent years suggests some prosecutors might need some back-to-basics ethics training about not texting-and-prosecuting.
Last week we followed up on the Kaycee Jones case out of Texas in which a prosecutor who texted throughout a murder trial with the sitting judge in the case (and passed suggestions from the judge onto trial counsel) received a public reprimand from the Texas State Bar.
But it seems that Jones and her judge were not the only pair engaging in this method of improper communication.
A Broward County prosecutor and former Broward County judge exchanged more than 1,400 phone calls and text messages during the 2007 death penalty trial of Omar Loureiro in Florida.
Like in the Jones case, it was a member of the prosecution’s team that noticed the misconduct and was prepared to speak up about it. Local10.com reports:
Prosecutor Sheila Alu first came forward about [Judge Ana] Gardiner’s improper relationship with homicide prosecutor Howard Scheinberg during a murder trial in her courtroom, alleging they discussed the trial while partying together.
According to The Daily Mail, the Court found that Gardiner and Scheinberg met at a social function during the trial and then continued to talk via phone and text throughout:
“The court said Gardiner had a chance meeting with Scheinberg at a restaurant during the murder trial of Omar Loureiro in 2007, and they joined some others at a bar after dinner.
Between March 23, several days before a jury returned a guilty verdict against Loureiro, and August 24, when she sentenced him to death, the court said Gardiner and Scheinberg exchanged 949 cell phone calls and 471 text messages.”
According to the Sun Sentinel, Howard Scheinberg was a 25-year member of the Florida Bar with no previous history of discipline when the Supreme Court added an extra year to his punishment. The Bar had recommended a 1 year suspension but the Court gave him 2, saying that a harsh punishment was required for such a serious series of infractions:
“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. The serious nature of his misconduct, and the harm it caused to the administration of justice in the Loureiro case, warrants a severe sanction.”
Legal experts quoted in The Houston Chronicle on the Jones case said this sort of misconduct is a violation of “one of the fundamental rules of American criminal justice: the prohibition against one side getting to talk to the judge without the other side knowing about it.” Thankfully, the Florida Supreme Court has taken more serious action against the offending prosecutor to deter future misconduct than the Texas State Bar did.