- . __ ........-- -.-_.-- ORIGINAL / _._ •• _ •• _. M •• _ •• + ••••••- •• _ ••••••• BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE CASE NO. SCIO-348 RE: JUDGE DALE C. COHEN, #09-524 ....... _ <" _ -.-:.. ______________-'--_----:1 S:' ::: ... '''''''::'''''','; \;'" (.::.::. ,,:,}, .' .", <"'J 1..:", 'i<) •.•. ."'.\ \ JQC'S REPLY TO JUDGE COHEN'S RESPONSE TO ':-':.', .. ORDER TO SHOW CAUSE \ r ',;,,:\ (,,)', . " ....... \ \ \ (;J 'J The Florida Judicial Qualifications Commission (JQG}; \py its' , \ undersigned counsel, files this reply to Judge Dale C. Cohen's response to this Court's order to show cause issued April 6, 2011. We will use the following reference symbols: T-_ refers to the transcript of the hearing. C-_ refers to Judge Cohen's response to this Court's Order to Show Cause. S-_ refers to the parties Stipulation of Facts and Documents. F- refers to the JQC's Findings, Conclusions and Recommendations. INTRODUCTION The JQC Hearing Panel found that Judge Cohen committed three separate violations of the Code of Judicial Conduct (the Code):
BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA
INQUIRY CONCERNING A JUDGE CASE NO SCIO-348
RE JUDGE DALE C COHEN 09-524
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JQCS REPLY TO JUDGE COHENS RESPONSE TO - s~ ~~ ~ ORDER TO SHOW CAUSE J~~ ~~r ()
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The Florida Judicial Qualifications Commission (JQG py its ~
undersigned counsel files this reply to Judge Dale C Cohens response to
this Courts order to show cause issued April 6 2011
We will use the following reference symbols
T-_ refers to the transcript of the hearing
C-_ refers to Judge Cohens response to this Courts Order to Show
Cause
S-_ refers to the parties Stipulation ofFacts and Documents
F- refers to the JQCs Findings Conclusions and
Recommendations
INTRODUCTION
The JQC Hearing Panel found that Judge Cohen committed three
separate violations ofthe Code of Judicial Conduct (the Code)
1 It was a violation of the Code when Judge Cohen exercised
poor judgment and acted inappropriately in calling his wife as a witness at a
recusal hearing in which Judge Cohen acted as an inquisitor He did so to
embarrass and intimidate Attorney Steve Melnick and to prevent him from
filing more recusal motions reflecting poorly on Judge Cohens wife Mardi
Levey Cohen when she was engaged in another election campaign This
conduct violated the Code Canons 1 2A 2B 3B(1) 3B(2) 3B(7) and
3E(l)(b) (F-4 19)
2 In the cases of State v Gibbs and State v Butler Judge Cohen
violated the Code when he exercised poor judgment and placed both Gibbs
and Butler under oath and interrogated them about the recusal motions that
their attorney Steve Melnick filed These proceedings had the appearance
of impropriety and Judge Cohen used them to convey the public impression
that his wife a judicial candidate was right and attorney Steve Melnick
was wrong (F-6 19-20)
3 In Judge Cohens written submission to the Investigative Panel
dated December 10 2009 Judge Cohen was guilty of a misplaced personal
attack on Attorney Steve Melnick (F-6)
The Hearing Panel found Judge Cohen not guilty of misleading the
Investigative Panel (F-6) not guilty of an improper submission to the JQC
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of photographs of Attorney Steve Melnick to embarrass and intimidate Mr
Melnick (F-7) not guilty failing to mention the State v Butler case to the
Investigative Panel at his initial appearance before the Investigative Panel
(F-7) and not guilty of a pattern and practice of wrongdoing (F-8)
Thus the Hearing Panel found Judge Cohen guilty of three separate
violations of the Code but found that these violations did not collectively
constitute a pattern and practice of wrongdoing
ARGUMENT
Although Judge Cohen states that he accepts the JQCs rendition of
facts to the extent that they are non-argumentative and non-conc1usory
(C-I-2) Judge Cohen then launches a serious challenge to the Hearing
Panels findings of fact even challenging facts that the parties agreed to by
stipulation
It is well-settled that a stipulation is binding on the parties and the
court unless it was made because of fraud misrepresentation or mistake
EGYB Inc v First Union Natl Bank ofFla 630 So2d 1216 1217 (Fla 5th
DCA 1994) see also Gunn Plumbing Inc v The Dania Bank 252 So2d 1
(Fla 1971) (holding a proper stipulation is binding of parties courts and
may in some circumstances be recognized in another action or proceeding)
When a case is tried upon stipulated facts the stipulation is binding not only
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upon the parties but also upon the trial and appellate courts and further that
no other or different facts will be presumed to exist Troup v Bird 53
So2d 717 721 (Fla 1951)
The Florida Supreme Court is unable to modify a stipulation between
the JQC and a judge In re Inquiry Concerning Judge Downey III 937
So2d 643 650 (Fla 2006) In cases where a judge admits to wrongdoing
and the JQCs findings are undisputed this Court will ordinarily conclude
that the JQCs findings are supported by clear and convinc~ng evidence
Id citing In re Diaz 908 So2d 334 337 (Fla 2005) We have also
recognized that a judges own admissions of the misconduct and
impropriety of that conduct bolster the JQCs findings which we give great
weight as we consider it recommendation of discipline Id In re Angel
867 So2d 379 382-83 (Fla 2004) In these cases the judge stipulated to
violations of both the charges and the disciplinary action
In In re Graziano 696 So2d 744753 (Fla 1992) the Supreme Court
summarized the entire process of JQC fact-fmding and Supreme Court
reVIew
Before reporting findings of fact to this Court the JQC must conclude that they are established by clear and convincing evidence In re McAllister 646 So2d 173 177 (Fla 1994) This Court must then review the findings and determine whether they meet this quantum of proof a standard which requires more proof than a preponderance of the evidence but
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the less than beyond and to the exclusion of a reasonable doubt In re Davey 645 So2d 398 404 (Fla 1994) If the findings meet this intermediate standard then they are of persuasive force and are given great weight by this Court See In re LaMotte 341 So2d 513 516 (Fla 1977) This is so because the JQC is in a position to evaluate the testimony and evidence first-hand See In re Crewell 379 So2d 107 (Fla 1979) However the ultimate power and responsibility III
making a determination rests with this Court Id
The Parties Stipulation
To facilitate the trial the JQC and Judge Cohen stipulated to ten pages
of facts and to the authenticity of 17 different documents compilations of
documents and transcripts (S-1-10) A fact established by stipulation
achieves a certitude that exceeds beyond a reasonable doubt Tribunals
consider such facts to be absolute and beyond dispute Furthermore fact-
finders are entitled to draw reasonable inferences from such stipulated facts I
But in his argument Judge Cohen attacks some of the very facts to which he
stipulated and he attacks the reasonable inferences drawn from those facts
For example Judge Cohen states on page 2 ofhis response
Attorney Stephen Melnick was notmiddot actively involved in Mardi Levey Cohens judicial candidacy in 2006 He had sent a small check in support and posted a sign at this office (T -159-150 246 14)
The Court in McCloud v Swanson 681 So2d 898 900 (Fla 4th DCA 1996) held In determining the facts the fact-finder may draw reasonable inferences from the evidence Fla Std Jury Instr (Civ) 21) Consequently the reasonable factual deductions drawn from the testimony become positive evidence of those facts within the meaning of Tozir v Jarvis [emphasis in the original]
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Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
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an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
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bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
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absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
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stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
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Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
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566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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694 J
middotmiddot
whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
---- ----------------------
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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(
168
might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
( ~
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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660
theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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662
conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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663
dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
1 It was a violation of the Code when Judge Cohen exercised
poor judgment and acted inappropriately in calling his wife as a witness at a
recusal hearing in which Judge Cohen acted as an inquisitor He did so to
embarrass and intimidate Attorney Steve Melnick and to prevent him from
filing more recusal motions reflecting poorly on Judge Cohens wife Mardi
Levey Cohen when she was engaged in another election campaign This
conduct violated the Code Canons 1 2A 2B 3B(1) 3B(2) 3B(7) and
3E(l)(b) (F-4 19)
2 In the cases of State v Gibbs and State v Butler Judge Cohen
violated the Code when he exercised poor judgment and placed both Gibbs
and Butler under oath and interrogated them about the recusal motions that
their attorney Steve Melnick filed These proceedings had the appearance
of impropriety and Judge Cohen used them to convey the public impression
that his wife a judicial candidate was right and attorney Steve Melnick
was wrong (F-6 19-20)
3 In Judge Cohens written submission to the Investigative Panel
dated December 10 2009 Judge Cohen was guilty of a misplaced personal
attack on Attorney Steve Melnick (F-6)
The Hearing Panel found Judge Cohen not guilty of misleading the
Investigative Panel (F-6) not guilty of an improper submission to the JQC
2
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of photographs of Attorney Steve Melnick to embarrass and intimidate Mr
Melnick (F-7) not guilty failing to mention the State v Butler case to the
Investigative Panel at his initial appearance before the Investigative Panel
(F-7) and not guilty of a pattern and practice of wrongdoing (F-8)
Thus the Hearing Panel found Judge Cohen guilty of three separate
violations of the Code but found that these violations did not collectively
constitute a pattern and practice of wrongdoing
ARGUMENT
Although Judge Cohen states that he accepts the JQCs rendition of
facts to the extent that they are non-argumentative and non-conc1usory
(C-I-2) Judge Cohen then launches a serious challenge to the Hearing
Panels findings of fact even challenging facts that the parties agreed to by
stipulation
It is well-settled that a stipulation is binding on the parties and the
court unless it was made because of fraud misrepresentation or mistake
EGYB Inc v First Union Natl Bank ofFla 630 So2d 1216 1217 (Fla 5th
DCA 1994) see also Gunn Plumbing Inc v The Dania Bank 252 So2d 1
(Fla 1971) (holding a proper stipulation is binding of parties courts and
may in some circumstances be recognized in another action or proceeding)
When a case is tried upon stipulated facts the stipulation is binding not only
3
upon the parties but also upon the trial and appellate courts and further that
no other or different facts will be presumed to exist Troup v Bird 53
So2d 717 721 (Fla 1951)
The Florida Supreme Court is unable to modify a stipulation between
the JQC and a judge In re Inquiry Concerning Judge Downey III 937
So2d 643 650 (Fla 2006) In cases where a judge admits to wrongdoing
and the JQCs findings are undisputed this Court will ordinarily conclude
that the JQCs findings are supported by clear and convinc~ng evidence
Id citing In re Diaz 908 So2d 334 337 (Fla 2005) We have also
recognized that a judges own admissions of the misconduct and
impropriety of that conduct bolster the JQCs findings which we give great
weight as we consider it recommendation of discipline Id In re Angel
867 So2d 379 382-83 (Fla 2004) In these cases the judge stipulated to
violations of both the charges and the disciplinary action
In In re Graziano 696 So2d 744753 (Fla 1992) the Supreme Court
summarized the entire process of JQC fact-fmding and Supreme Court
reVIew
Before reporting findings of fact to this Court the JQC must conclude that they are established by clear and convincing evidence In re McAllister 646 So2d 173 177 (Fla 1994) This Court must then review the findings and determine whether they meet this quantum of proof a standard which requires more proof than a preponderance of the evidence but
4
the less than beyond and to the exclusion of a reasonable doubt In re Davey 645 So2d 398 404 (Fla 1994) If the findings meet this intermediate standard then they are of persuasive force and are given great weight by this Court See In re LaMotte 341 So2d 513 516 (Fla 1977) This is so because the JQC is in a position to evaluate the testimony and evidence first-hand See In re Crewell 379 So2d 107 (Fla 1979) However the ultimate power and responsibility III
making a determination rests with this Court Id
The Parties Stipulation
To facilitate the trial the JQC and Judge Cohen stipulated to ten pages
of facts and to the authenticity of 17 different documents compilations of
documents and transcripts (S-1-10) A fact established by stipulation
achieves a certitude that exceeds beyond a reasonable doubt Tribunals
consider such facts to be absolute and beyond dispute Furthermore fact-
finders are entitled to draw reasonable inferences from such stipulated facts I
But in his argument Judge Cohen attacks some of the very facts to which he
stipulated and he attacks the reasonable inferences drawn from those facts
For example Judge Cohen states on page 2 ofhis response
Attorney Stephen Melnick was notmiddot actively involved in Mardi Levey Cohens judicial candidacy in 2006 He had sent a small check in support and posted a sign at this office (T -159-150 246 14)
The Court in McCloud v Swanson 681 So2d 898 900 (Fla 4th DCA 1996) held In determining the facts the fact-finder may draw reasonable inferences from the evidence Fla Std Jury Instr (Civ) 21) Consequently the reasonable factual deductions drawn from the testimony become positive evidence of those facts within the meaning of Tozir v Jarvis [emphasis in the original]
5
Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
6
an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
7
--
lt
bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
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stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
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566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
-----------------~============~~~~=====-====
of photographs of Attorney Steve Melnick to embarrass and intimidate Mr
Melnick (F-7) not guilty failing to mention the State v Butler case to the
Investigative Panel at his initial appearance before the Investigative Panel
(F-7) and not guilty of a pattern and practice of wrongdoing (F-8)
Thus the Hearing Panel found Judge Cohen guilty of three separate
violations of the Code but found that these violations did not collectively
constitute a pattern and practice of wrongdoing
ARGUMENT
Although Judge Cohen states that he accepts the JQCs rendition of
facts to the extent that they are non-argumentative and non-conc1usory
(C-I-2) Judge Cohen then launches a serious challenge to the Hearing
Panels findings of fact even challenging facts that the parties agreed to by
stipulation
It is well-settled that a stipulation is binding on the parties and the
court unless it was made because of fraud misrepresentation or mistake
EGYB Inc v First Union Natl Bank ofFla 630 So2d 1216 1217 (Fla 5th
DCA 1994) see also Gunn Plumbing Inc v The Dania Bank 252 So2d 1
(Fla 1971) (holding a proper stipulation is binding of parties courts and
may in some circumstances be recognized in another action or proceeding)
When a case is tried upon stipulated facts the stipulation is binding not only
3
upon the parties but also upon the trial and appellate courts and further that
no other or different facts will be presumed to exist Troup v Bird 53
So2d 717 721 (Fla 1951)
The Florida Supreme Court is unable to modify a stipulation between
the JQC and a judge In re Inquiry Concerning Judge Downey III 937
So2d 643 650 (Fla 2006) In cases where a judge admits to wrongdoing
and the JQCs findings are undisputed this Court will ordinarily conclude
that the JQCs findings are supported by clear and convinc~ng evidence
Id citing In re Diaz 908 So2d 334 337 (Fla 2005) We have also
recognized that a judges own admissions of the misconduct and
impropriety of that conduct bolster the JQCs findings which we give great
weight as we consider it recommendation of discipline Id In re Angel
867 So2d 379 382-83 (Fla 2004) In these cases the judge stipulated to
violations of both the charges and the disciplinary action
In In re Graziano 696 So2d 744753 (Fla 1992) the Supreme Court
summarized the entire process of JQC fact-fmding and Supreme Court
reVIew
Before reporting findings of fact to this Court the JQC must conclude that they are established by clear and convincing evidence In re McAllister 646 So2d 173 177 (Fla 1994) This Court must then review the findings and determine whether they meet this quantum of proof a standard which requires more proof than a preponderance of the evidence but
4
the less than beyond and to the exclusion of a reasonable doubt In re Davey 645 So2d 398 404 (Fla 1994) If the findings meet this intermediate standard then they are of persuasive force and are given great weight by this Court See In re LaMotte 341 So2d 513 516 (Fla 1977) This is so because the JQC is in a position to evaluate the testimony and evidence first-hand See In re Crewell 379 So2d 107 (Fla 1979) However the ultimate power and responsibility III
making a determination rests with this Court Id
The Parties Stipulation
To facilitate the trial the JQC and Judge Cohen stipulated to ten pages
of facts and to the authenticity of 17 different documents compilations of
documents and transcripts (S-1-10) A fact established by stipulation
achieves a certitude that exceeds beyond a reasonable doubt Tribunals
consider such facts to be absolute and beyond dispute Furthermore fact-
finders are entitled to draw reasonable inferences from such stipulated facts I
But in his argument Judge Cohen attacks some of the very facts to which he
stipulated and he attacks the reasonable inferences drawn from those facts
For example Judge Cohen states on page 2 ofhis response
Attorney Stephen Melnick was notmiddot actively involved in Mardi Levey Cohens judicial candidacy in 2006 He had sent a small check in support and posted a sign at this office (T -159-150 246 14)
The Court in McCloud v Swanson 681 So2d 898 900 (Fla 4th DCA 1996) held In determining the facts the fact-finder may draw reasonable inferences from the evidence Fla Std Jury Instr (Civ) 21) Consequently the reasonable factual deductions drawn from the testimony become positive evidence of those facts within the meaning of Tozir v Jarvis [emphasis in the original]
5
Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
6
an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
7
--
lt
bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
-----~-----------------
stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
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566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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634
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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(
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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662
conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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663
dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
upon the parties but also upon the trial and appellate courts and further that
no other or different facts will be presumed to exist Troup v Bird 53
So2d 717 721 (Fla 1951)
The Florida Supreme Court is unable to modify a stipulation between
the JQC and a judge In re Inquiry Concerning Judge Downey III 937
So2d 643 650 (Fla 2006) In cases where a judge admits to wrongdoing
and the JQCs findings are undisputed this Court will ordinarily conclude
that the JQCs findings are supported by clear and convinc~ng evidence
Id citing In re Diaz 908 So2d 334 337 (Fla 2005) We have also
recognized that a judges own admissions of the misconduct and
impropriety of that conduct bolster the JQCs findings which we give great
weight as we consider it recommendation of discipline Id In re Angel
867 So2d 379 382-83 (Fla 2004) In these cases the judge stipulated to
violations of both the charges and the disciplinary action
In In re Graziano 696 So2d 744753 (Fla 1992) the Supreme Court
summarized the entire process of JQC fact-fmding and Supreme Court
reVIew
Before reporting findings of fact to this Court the JQC must conclude that they are established by clear and convincing evidence In re McAllister 646 So2d 173 177 (Fla 1994) This Court must then review the findings and determine whether they meet this quantum of proof a standard which requires more proof than a preponderance of the evidence but
4
the less than beyond and to the exclusion of a reasonable doubt In re Davey 645 So2d 398 404 (Fla 1994) If the findings meet this intermediate standard then they are of persuasive force and are given great weight by this Court See In re LaMotte 341 So2d 513 516 (Fla 1977) This is so because the JQC is in a position to evaluate the testimony and evidence first-hand See In re Crewell 379 So2d 107 (Fla 1979) However the ultimate power and responsibility III
making a determination rests with this Court Id
The Parties Stipulation
To facilitate the trial the JQC and Judge Cohen stipulated to ten pages
of facts and to the authenticity of 17 different documents compilations of
documents and transcripts (S-1-10) A fact established by stipulation
achieves a certitude that exceeds beyond a reasonable doubt Tribunals
consider such facts to be absolute and beyond dispute Furthermore fact-
finders are entitled to draw reasonable inferences from such stipulated facts I
But in his argument Judge Cohen attacks some of the very facts to which he
stipulated and he attacks the reasonable inferences drawn from those facts
For example Judge Cohen states on page 2 ofhis response
Attorney Stephen Melnick was notmiddot actively involved in Mardi Levey Cohens judicial candidacy in 2006 He had sent a small check in support and posted a sign at this office (T -159-150 246 14)
The Court in McCloud v Swanson 681 So2d 898 900 (Fla 4th DCA 1996) held In determining the facts the fact-finder may draw reasonable inferences from the evidence Fla Std Jury Instr (Civ) 21) Consequently the reasonable factual deductions drawn from the testimony become positive evidence of those facts within the meaning of Tozir v Jarvis [emphasis in the original]
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Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
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an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
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bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
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absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
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stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
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566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
the less than beyond and to the exclusion of a reasonable doubt In re Davey 645 So2d 398 404 (Fla 1994) If the findings meet this intermediate standard then they are of persuasive force and are given great weight by this Court See In re LaMotte 341 So2d 513 516 (Fla 1977) This is so because the JQC is in a position to evaluate the testimony and evidence first-hand See In re Crewell 379 So2d 107 (Fla 1979) However the ultimate power and responsibility III
making a determination rests with this Court Id
The Parties Stipulation
To facilitate the trial the JQC and Judge Cohen stipulated to ten pages
of facts and to the authenticity of 17 different documents compilations of
documents and transcripts (S-1-10) A fact established by stipulation
achieves a certitude that exceeds beyond a reasonable doubt Tribunals
consider such facts to be absolute and beyond dispute Furthermore fact-
finders are entitled to draw reasonable inferences from such stipulated facts I
But in his argument Judge Cohen attacks some of the very facts to which he
stipulated and he attacks the reasonable inferences drawn from those facts
For example Judge Cohen states on page 2 ofhis response
Attorney Stephen Melnick was notmiddot actively involved in Mardi Levey Cohens judicial candidacy in 2006 He had sent a small check in support and posted a sign at this office (T -159-150 246 14)
The Court in McCloud v Swanson 681 So2d 898 900 (Fla 4th DCA 1996) held In determining the facts the fact-finder may draw reasonable inferences from the evidence Fla Std Jury Instr (Civ) 21) Consequently the reasonable factual deductions drawn from the testimony become positive evidence of those facts within the meaning of Tozir v Jarvis [emphasis in the original]
5
Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
6
an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
7
--
lt
bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
-----~-----------------
stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
12
566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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634
(
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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694 J
middotmiddot
whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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(
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
( ~
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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(
660
theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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661
A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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662
conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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663
dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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(---
Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
Yet Judge Cohen stipulated as follows regarding Mr Melnicks involvement
in his wifes judicial campaign (S-2-3 -r6)
In the Broward County judicial election of 2006 Attorney Stephen Melnick actively supported and worked for the election of Mardi Cohen a candidate for a Broward County circuit judgeship and the wife of Judge Dale C Cohen
On pages 2-7 of his response Judge Cohen argues facts that the
Hearing Panel disregarded rej ected or found immaterial in reaching its
findings and conclusions about Judge Cohen
Judge Cohen takes particular issue (C-6) with the Hearing Panels fact
findings on pages 19-20 of the Hearing Panels Findings and Conclusions
(F-19-20) The Hearing Panels facts found on pages 19-20 consist of the
following facts and reasonable inferences that a fact-fmder is allowed to
draw from those facts
bull [Judge Cohen] made a misplaced personal attack on the character of
Attorney Melnick thinking that Melnick was the source of the
charges and that a good offense was better than simply responding
(F-19) [The Hearing Panel relied upon Judge Cohens own testimony
at pages 611 634-35 and 694 of the transcript Copies of those pages
are attached for the Courts convenience as composite Exhibit A]
bull Judge Cohen exercised poor judgment and acted inappropriately in
calling his wife as a witness at a recusal hearing in which he acted as
6
an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
7
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bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
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stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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middotmiddot
whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
an inquisitor He did so to embarrass and intimate Melnick and to
prevent him from filing more recusal motions reflecting poorly on
Levey Cohen when she was engaged in another election campaign
[The Hearing Panel supports this conclusion by referring to Exhibit
H2 which is the transcript of the 6(b) hearing before the Investigative
Panel Copies of the referenced pages from the transcript are attached
for the Courts convenience as composite Exhibit B]3
bull Assertions that the Cohens had no discussions of Melnicks recusal
motions before the August 6 2009 Gibbs recusal hearing (T -167 -68)
strain credulity particularly in light of the detailed questions and
answers on this subject before the JQC Investigate Committee [The
Hearing Panel supported this finding based upon trial Exhibit H
which is the transcript of Judge Cohens appearance before the JQC
Investigative Committee where Judge Cohen testified under oath
together with pages 657-63 of the trial transcript Copies of these
excerpts of testimony are attached as Composite Exhibit C]
2 In its Findings and Conclusions the Hearing Panel refers to Exhibit D but we believe that this is an error and the reference should be to Exhibit H the transcript of the 6(b) hearing The reference to Exhibit D was to the transcript of the State v Gibbs hearing which was only 18 pages long which has led us to conclude that the reference should be to Exhibit H 3 At Judge Cohens 6(b) hearing before the JQCs Investigative Panel Judge Cohen admitted that he violated the Code (8-6 ~20 8-8 Ex H pp 40-4149-50 and 69) (8ee composite Exhibit D)
7
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bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
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stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
12
566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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634
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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694 J
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whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
( ~
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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(---
Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
4middotiojmiddotamiddottemiddot Camiddotnons f or reasons thmiddotat_ r~did~~notthiDk-
--
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bull Judge Cohen continued to exercise poor judgment when he placed
Gibbs and Butler under oath and interrogated them about the recusal
motions filed by Attorney Melnick Judge Cohen may not have
intended to retaliate against Attorney Melnick but these proceedings
had the appearance of impropriety and were used by the Judge to
convey the public impression that his wife was right and Melnick
wrong
Judge Cohen challenges these facts with this argument (C-6)
The facts found on page 19 through 20 of the JQCs Findings Conclusions and Recommendations are argumentative and conclusory and Judge Cohen does not agree to that rendition of the facts Specifically Judge Cohen did not make a misplaced personal attack on Stephen Melnick Judge Cohen did not intend to embarrass and intimidate Melnick to prevent him from filing recusal moti~ns that would reflect poorly on Mardi Levey Cohen
Unfortunately for Judge Cohen the Hearing Panels Findings of Fact
are based upon stipulated evidence together with Judge Cohens own
testimony and admissions That evidence is beyond clear and convincing
These factual conclusions are permissible inferences drawn from the
foregoing clear and convincing evidence
Issue I The Pattern and Practice Issue (C-7)
Judge Cohen advances a contorted argument that the Hearing Panel
was required to find a pattern and practice of wrongdoing and in the
8
absence of such a finding there can be no finding that Judge Cohen violated
the Code
This argument falls of its own weight Essentially the JQC alleged
Code violations arising from two separate legal matters State v Gibbs and
State v Butler The Hearing Panel found violations arising from each of
those hearings and also found that it was a violation of the Code for Judge
Cohen to make a personal attack on Attorney Melnick before the
Investigative Panel Those are three separate violations Each stands on its
own That the Hearing Panel did not find that those three separate violations
constituted a pattern and practice does not negate the finding that each of
those findings constituted a separate violation
On page 10 of his reply Judge Cohen argues that the JQC must
prove all elements of an offense or the cause of action There is no cause of
action here Instead facts are alleged and facts are proven and the Hearing
Panel reaches a conclusion as to whether those facts transgress one or more
provisions of the Code Judge Cohens efforts to compare this JQC
proceeding to an ordinary civil or criminal case fails
Issue II - Whether the Hearing Panel Made Factual Findings that Are not Supported by Clear and Convincing Evidence (C-14)
This argument is already refuted above But again the short answer
is that the JQCs findings are based on the parties stipulated facts and
9
-----~-----------------
stipulated documents and on Judge Cohens own sworn testimony and
admissions both before the Investigative Panel and at the trial The
stipulated evidence and the admissions out of the respondents own mouth
clearly exceed the clear and convincing standard and even exceed beyond
a reasonable doubt because the evidence consists of facts the parties agreed
were true and admissions that Judge Cohen made himself under oath On
pages 14-29 of his reply Judge Cohen merely re-argues facts that have
already been found against him based on evidence that is far more
conclusive than evidence that merely meets the clear and convincing
standard
Issue Ill Whether the Court Should Reduce the Sanction to Admonishment Because the Hearing Panel Found no Pattern and
Practice of Misconduct (C-37)
We have already addressed the pattern and practice issue Even
though the Hearing Panel found that the three violations that occurred did
not constitute a pattern and practice of wrongdoing the Panel nevertheless
found three separate serious violations of the Code In recommending a
public reprimand the Hearing Panel found that each of the violations arose
from Judge Cohens use of office in efforts to vindicate his wife (F-2S)
The Pan~l compared Judge Cohens offense to judges using the prestige of
their office to obtain favorable treatment for relatives or friends (F-2S) The
10
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Panel properly concluded that a public reprimand would be the appropriate
discipline However if the Court is inclined to alter the discipline the Court
should consider whether the discipline should be enhanced to include a
suspension andor a fine because of the unique circumstances of Judge
Cohens violations
CONCLUSION
Judge Cohen admitted under oath that calling his wife as a witness in
a recusal hearing was wrong (S-Ex H ppAO 4149 50 69) As this Court
reiterated in In re Eriksson 36 So3d 580 (Fla 2010) if the Hearing Panels
findings meet the clear and convincing evidentiary test those findings are
of persuasive force and are given great weight by this Court This Court
also pointed out that the JQC is in a position to evaluate the testimony and
evidence first-hand The findings of the Hearing Panel in this matter are
based upon stipulated evidence admissions from Judge Cohen in his sworn
testimony and reasonable inferences drawn from such evidence This Court
should affirm the Hearing Panels Findings and Conclusions
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by regular US mail to Michael A Catalano Esq
11
Michael A Catalano PA 1531 NW 13th Court Miami FL 33125middot
Laurie Waldman Ross Esq Ross and Girten 9130 S Dadeland Blvd Suite
1612 Miami FL 33156 and Henry M Coxe III Esq Chairman JQC
Hearing Panel Bedell Dittmar DeVault Pillans amp Coxe PA 101 East
Adams Street Jacksonville FL 32202-3303 this 23day o~~
WALLACE POPE FBN 124449 JOHNSON POPE BOKOR
RUPPEL amp BURNS LLP PO Box 1368 Clearwater FL 33757 727-461-1818 727-462-0365 - fax Special Counsel for Florida Judicial Qualifications Commission
and
JUDICIAL QUALIFICATIONS COMMISSION
By Michael L Schneider General Counsel Florida Bar No 525049 1110 Thomasville Road Tallahassee FL 32303 (850) 488-1581
12
566081
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wife Holding that hearing did not benefit my wife
in any way whatsoever
Q Did it benefit you
A It didnt benefit me It wasnt part of
my thought process The reason I had the hearing
was the reason that I said -- was just trying to
clear things up When I called Melnick in his
office I just said Im just trying to clear
things up I never said anything bad about
Melnick other than when I responded to JQC because
I think there were issues of credibility I think
they had accused me of some very -- they were way
off in their accusations on their notice of
investigation And I just assumed that some of
those accusations came from Melnick And I just
wanted to paint a little better picture for them of
who Mr Melnick is Hes not the height of
credibility I like him Hes not a bad guy You
know socially hes a good guy I cant explain
Professionally I have problems Socially I have
no problem wi th Steve Melnick
Q Anything else you want to tell the panel
A I need a bathroom break
Q And are you feeling okay now
A Yeah
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634
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representing one of these people -- and Im wrong on
this assumption Im just telling you I assumed
that he had some -- someone else was representing
these people and Melnick just came in and got me off
the case
Q Okay So this is your assumption for
which you have not a scintilla of evidence and that
is that Melnick was doing a favor for somebody else
bumping you off the case so that other lawyer could
represent these people before another judge
A That was the only thing I could think of
why he would file a motion to recuse
Q But you dont have an ounce of proof that
that was the case do you
A And it wasnt the case it
Q It wasnt the case
A It wasnt the case
Q Okay
A Im telling you what my thought process
was August of 2009
Q Okay Now we got that cleared up
A One of the lawyers in his office Valerie
Small-Williams and she had been working very hard
to get me off one of her cases but she had no
grounds And I had thought that this was one of
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those cases But I was wrong
Q You were wrong
A I was wrong No question
Q Were admitting on the stand right now
that this is pure speculation on your part and
theres not a bit of truth to it
A Theres no truth to it And that was my
thought process was that he was just trying to get
me off the case for one of his friends but that -shy
that turned out not to be the case
Q All right Judge Cohen can you
understand why a lawyer in the shoes ofmiddot Mr Melnick
who perceives himself as having gotten into an
adversarial relationship with your wife that
involved what he characterizes as a hostile
telephone conversation ending with a hang-up that
he had at least peripheral involvement in a lawsuit
in which your wife was the named defendant and he
was involved in an adversary -- with an adversarial
election person and the lawsuit actually resulted in
your wifes name being stricken from the ballot and
may have cost her the election that that whole
imbroglio might make him wonder if he should be
bringing clients before you her husband for you to
be the judge on it Do you understand how he might
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694 J
middotmiddot
whether it was made private My question to you
were those photographs sent to the Judicial
Qualifications Investigative Panel for the sole
purpose of trying to persuade them there was
something bad about Melnick and therefore you must
be telling the truth as to how you handled this
matter
A Theres no question that theres some
type of credibility issue Ther~ were allegations
in the notice of investigation that had been made by
Mr Melnick and I wanted the JQC to understand that
it isa credibility i$sue and that your -- number
one I want you to know about my credibility and I
want you to understand about Steve Melnick so you
can make an intelligent decision I obviously
didnt want the JQC to file charges against me I
was put in a position where I had to defend myself
Q Can I assume Judge Cohen as we sit here
now that you understand that the reason for Rule
2330 saying you dont get into the truthfulness or
lack of truthfulness of whats in front of you is so
the public can have confidence that a judge is not
pitting himself or herself against somebody in front
of them
A Correct I agree with that And I try L
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tbey iere exaggerated And I thought well if
h~~erd my wife he would realize what he was
writing wasnt true and we would get past it
be wouldn t file them anymore and this would
clear it up I thought whatever disagreement
he had I thought if he heard from my wife and
he got to speak that would be it and it would
go
And we actually had the hearing And
heres where Im stupid because I actually
thought after thishearing I thought it was
cleared up But apparently ~ot because he
went to the chief criminal administrative judge
and complained that I had a hearing So I had
a hearing with the chief criminal
administrative judge who told me You cant
have hearings if somebody files a motion to
recuse II
And I told Ilona Holmes thats not what
were taught in judicial college Im going to
get to that argument I do have a right to have
a hearing
In any event once I found out he was
upset I called Melnicks office
apologized I told hirq the only reason that I
I
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~
~
r -shy
24
I didnt say one word at that recount I
didnt open my mouth at that recount I was
there to watch and support my wife who was
going through a very difficult time in her
life I mean I dont know if you have any
idea how tough it is to be involved in a
recount I mean it turned into a circus And
she had nobody And I was there at the recount
with her
I did not open my mouth once I didnt
talk to anybody at that recount I was just
physically there with her And thats all I
did
I understand about ~erception I handled
this badly I know I handled this badly I
understand its perception I dont think
legally I did anything wrong and thats why I
gave you the cases Its not - Im not an
expert on the area of disqualification Ive
only filed one motion to disqualify in 20 years
as a lawyer
I know its bad And Ive granted every
single one I just -- and I got frustrated
He carne into court and gave me three at once
and I just wanted to clear it up so that he
I
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wouldnt file them in the future It really
had nothing to do with my wife it was more
just clearing up steve why are you doing
this Im your friend I dont understand
And thats where I was coming from It
really had nothing to do with my wife
THE CHAIR Dr Haber
Judge Wolf
JUDGE WOLF I cant let a couple of
things go You know you came in here saying
you were trying to hold this hearing SO you
could get over the friendship -- or get your
friendship back with this guy And thats not
true It is directly in conflict with what you
just said I held a hearing to get him t6
stop filing these motions That was the
reason you held this hearing And that is
inappropriate for getting someone to stop
filing motions So youre digging yourself a
bigger grave
THE RESPONDENT Can I respond
JUDGE WOLF No
All I want to -- well Ill let you
respond The reason you held that hearing was
to get him to s~op filing motions wasnt it
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Now you can respond
THE RESPONDENT Okay I thought that
the reason he was filing the motions was
because he was afraid that I would retaliate
against him And we were friends and if he
understood that we had a friendship and maybe
he misunderstood what was going on between him
and my wife that he wouldnt -- that it would
be okay
And thats what I thought when I left the
hearing its all cleared up he heard her
side she heard his IIAnd now you dont have
to be afraid that I couldnt be fair in your
case II
I thought that Honestly I -- I dont
have a problem recusing myself on cases I
dont own these cases I have no stake in
these cases I just its just frustrating
when somebodys your friend and thinks that you
cant be fair You know Im sure thats
happened to you And its just frustrating
And I was friends with Steve Melnick so
but youre right I mean I didnt want him
to continually file them But the reason he
was filing them wa~ because he didnt think I
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THE RESPONDENT Correct
JUDGE SILBERMAN 3(a) of the code A
judge shall hear -- Im sorry 3(b) (1) A
~udge shall hear and decide matters assigned to
the judge except those in which
disqualification is required
Do you understand that sentence
THE RESPONDENT I do
JUDGE SILBERMAN So why dont you
describe for the commission how those two
provisions fit together and support your
conducting an evidentiary hearing in which your
wife is a witness
THE RESPONDENT It doesnt Although
the only thing I could say is that I did
disqualify myself from the hearing There was
no harm well theres harm to the dommunity
I dont want to say that theres no harm but
I mean but Mr Melnick wanted
disqualification I granted his
disqualification I mean my mi~take obviously
was h~ving the hearing But that doesnt
JPPG~ ~ILBE~~~ Couldn t a p~r$on
looking at this say or conclude that you
conducted the hearing in order to intimidate
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telling you that -shy
JUDGE SILBERMAN- Andmiddot your reo$middotpon~libility
as a judge is not to put Y01rself or the
judiciary in that position r isnt it
THE RESPONDENT Yes
JUDGE SILBERMAN Why wasmiddot your wifemiddot at
THE RESPONDENT I asked her to be there
JUDGE SILBERMAN So you provided for a
witness to attend an evidentiary hearing that
you were going to conduct
THE RESPONDENT (Moving head up amiddotnd
~UDGE SILBERMAN I canthear you
THEmiddot RESmiddotPO~NDENT Yes Yes
J-UDGE SILBEmiddotR~AN She was nomiddott under
sulgtpoena
THE RESPONDENT No
JUDGE SILBERMAN This is an evidentiary
hearing on a motion to disqualify in the ca~e
of State versus Gibbs Wheres the prosecutor
in this hearing
THE RESPONDENT They were in the
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courtroom They might not have announced but
they were in the courtroom
JUDGE SILBERMAN Did you invite them to
participate
THE RESPONDENT They were just sitting
at the prosecutors table
JUDGE SILBERMAN -Did you ask them if
they had any questions of the witness
THE RESPONDENT No
JUDGE SILBERMAN You start out the
hearing by asking your wife if she had the
opportunity to read the motion Correct
THE RESPONDENT Correct
JUDGE SILBERMAN Mr Melnick then
objects relating that-youre going to have to
make -- if you go forward with the hearing
youre going to be making determinations as to
credibility Correct
THE RESPONDENT Correct
JUDGE SILBERMAN And in fact you asked
questions of your wife Is that correct
THE RESPONDENT Thats correct
JUDGE SILBERMAN You indicated that you
knew you were supposed to recuse in this
matter
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THE RESPONDENT correct
Well can I just -- I knew once I held
the hearing I was required to recuse
didnt -- and I knew that the whole purpose of
having the hearing again was to flush things
out But once I started the hearing I knew I
had to recuse
JUDGE SILBERMAN Was the motion legally
sufficient to require your recusal
THE RESPONDENT No
JUDGE SILBERMAN Why didnt you deny it
THE RESPONDENT At the time I thought
I thought it was legal~y sufficient at the
time I also thought I hadnt done anything
wrong at the time When I got this complaint
the notice of investigation I read the rule of
judicial administration which I wasnt aware
and I saw that I couldnt have the hearing
And I realized at that point that I made a
mistake But then in preparing for this
hearing I did some research Im more
familiar with disqualification now And now my
opinion is that the motion is not legally
sufficient At the time my opinion was that it
was legally sufficient
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JUDGE SILBERM~N At the time you
concluded it was legally sufficient
THE RESPONDENT (Moving head up and
down )
JUDGE SILBERMAN I cant hear you
THE RESPONDENT Yes At the time - shy
JUDGE SILBERMAN So why - shy
THE RESPONDENT At the time I thought it
wasmiddotlegally sufficient
JUDGE SILBER~AN I~ you thought it was
legally sufficientwhy didnt you recuse
yourself on the spot
THE RESPONDENT Because I thought that I
had the right to hold a hearing based on the
disqualification disclosure packet from the
judicial college I didnt know that it was
required ~nder the Rule of Judicial
Administratioh I was looking at -- you know~
again Do not hold a hearing because it
doesnt require a hearing which means its
discretionary And then it says If you do
h~ld a hearing you must assume the facts are
true and that just by holding a hearing that
alone will require you to disqualify yourself
And thats why I held the hearing
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JUDGE SILBERMAN Well you said you
believed it to be legally sufficient
THE RESPONDENT Correct
JUDGE SILBERMAN In which case
I dont understand the purpose of the
hearing other than look at page seven 4(a)
Expressing displeasure with attorney for
bringing motion to disqualify may be considered
intimidation
THE RESPONDENT Right I didn t express
any displeasure
JUDGE SILBERMAN Conducting a hearing on
a matter that you already determined required
yoti to disqualify yourself is not intimidation
THE RESPONDENT It could be And I
tried to be -- you have to understand I tried
to be nice to him during this hearing I
wasnt going after him and making him feel bad
because he was filing the motion I was just
~rying to flush otit the facts And I said that
in the hearing Im just trying to flush
everything out so that everybody knows
Because we were friends before we can still be
friends And thats why I did it
I didnt study -- you have to understand
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JUDGE SILBERMAN On page 13 of the
transcript after theres a dialogue again with
Mr Melnick you then state I dont think I
have to make any kind of ruling as to the
factual dispute Is that correct
THE RESPONDENT Correct
JUDGE SILBERMAN In which case again
there was no legally justifiable purpose for
this hearing Is that correct
THE RESPONDENT Yes Yeah theres no
legalJy justifiable purpose correct It wasmiddot
more a moral thing
JUDGE SILBERMAN I was
THE RESPONDENT It was personal It
wasnt -- but it wasnt personal in a negative
way I wasnt attacking the man I was
friends with the man Its hard to explain
when youre a judge and youre friends with
people and then because of an election that
has nothing to do with you now people are
attacking you
But I realize I had no business holding
that hearing And if it looks like because I
held the hearing that alone is intimidation
that really wasnt -- that thought never
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dont know what else
Q Thats fine Ill -- Ill get you back
to where we want to go
A Okay
Q Now it was a little after noon I
believe you said when you arrived in your husbands
courtroom
A Correct
Q Okay And at about 1230 your husband
adjourned and told everyone to come back at 130
Correct
A Correct
Q Okay And then you went to lunch with
him
A Correct
Q All right Just the two of you at lunchZ
A Right
Q All right And your husband asked you to
return to the courtroom with him at 130 Correct
A No He asked me if I was coming back to
the courthouse And I told him that I had hearing
at 130 And he asked me if when I was done if I
would come back into -- come back to his courtroom
A lot of times he would ask me to do that because
there was maybe a closing argument that he thought I L
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might find interesting or a motion to suppress or
an attorneys arguments are interesting or
whatever -- just for interest So he would let me
know ahead of time And so thats why when he said
you know Will you come back after your hearing I
had agreed I would
Q So during your hour long lunch with your
husband you did not discuss the motion -- the
recusal motion that Mr Melnick had filed in the
Gibbs case
A No
Q No discussion of that whatsoever
A No
Q And you did not -- he did not even tell
you that he was going to -- planning to call you as
a wi tness did he
A No
Q Just came as a total shock to you
A Yes
Q Okay And we do have a transcript I
believe thats in the record here of that and
weve been through that already and I dont need to
belabor that with you All right Now-shy
A Im not sure I understand I just want
to be really clear on everything What do you mean
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the back door because my office would be on the
other side of the back door And when were leaving
the courtroom I just asked her Can you corne back
at 130 She told me she had a hearing with Judge
Gates at 130 and then she said she would corne by
as soon as that hearing with Judge Gates was over
JUDGE MENENDEZ Could I corne back and
ask a question now
THE CHAIR Okay with you
JUDGE WARREN Yeah Go ahead
EXAMINATION
BY JUDGE MENENDEZ
Q Did you have any discussions with your
wife over the fact that this lawyer Mr Melnick
was filing all these motions when he was alleging
that she had threatened him during a phone call
A If I did it would have been -shy
Q At anytime
A a year and a half earlier when he
fir s t f i led it
Q Okay And did that concern her at all
as far as expressing any concern to you about it
A This was a very minor instance Like my
wife said this was like middota meaningless event She
had run two campaigns where theres serious issues
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with serious candidates violating rules that really
needed attention This was -- she called Melnick
up she said You cant have re-elect You
cant ~- you need to say retain He changed it
and that was it I mean Melnick corrected it right
away My wife called him right away and said you
know Youre violating the rules It was
corrected and that was the end of it
Q There was apparently a disagreement at
the hearing between Mr Melnick and your wife where
I thought that her initial testimony at the hearing
before you was that she had called him because there
was a disclaimer missing from some advertisement for
Judge Dijols and then Mr Melnick contradicted her
on that and said No it didnt deal with the
disclaimer It dealt with the re-elect versus
retain
A Exactly The disclaimer on ~very
political advertisement says This ad has been
approved by the candidate This shows that my wife
and I didnt discuss it Because my wife didnt
ev~n get the issue right If I had discussed this
with my wife she would have known what the issue
was and she would have been correct ~n her
testimony
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Q So you credited Mr Melnicks credibility
rather than hers
A Melnick was right Hey look you
know
Q All right
A But if my wife and I talked about it she
would have gotten it right she came to court and
she had no idea and
Q Well she had some idea didnt she that
you were going
A She knew she was coming to a hearing
Q About the motions to recuse
A About Melnick
Q And his motions to recuse
A Yes
Q Okay You did tell her that ahead of
time In fact Mr Schneider phrased it says We
got another one of those Would you mind coming and
testifying And you said That was probably
exactly what was said
A Well I -- I didnt remember
QPage 62
A I asked her can you -- can you come
back I dont know that my wife knew that Melnick
had filed -- theres no way she didnt know
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theres no way she knew because I dont discuss
these things with her I just sign them and go on
I dont give my wife a recount of everything I do
every day
Q I thought a minute ago you said you had
some discussions with her -shy
A Maybe when he first filed it a year and a
half earlier but since then I never
Q Well she was aware that he had accused
her of threatening him in at least one motion to
recuse
A Yeah
Q Okay
A Yeah Yeah
Q And that - - the way Mr Schneider phrased
it he said Was there communication to the fact
that quote unquote weve got another one of
those Would you mind coming to testify
A Well those arent my words Those are
Mr Schneiders
Q They are but you said that was probably
exactly what was said
A The substance You know its -- I -- I
dont know
Q Seems like you adopted his words there
cmiddot ---
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A Those arent my words I mean I dont
use those words But I said Can you come back
You know Im doing a hearing on Melnicks motion to
recuse
Q But you did ask her to come to court and
she did know that she was coming to court to talk
about the motion
A I dont think she knew that she was going
to be testifying but she knew she was coming to
court and it was on Melnicks motion
JUDGE WARREN Nothing r
EXAMINATION
BY MR DUNKINSON
Q I want to continue with that before I ask
my other questions I apologize because Im the
layperson here so I have a lot of -shy
THE CHAIR Mr Catalano has pointed that
out
Q I want to make sure I understand this
because I just -- Im very confused about the
conversation with you and your wife and what the
judges have asked Page 61 this is your quote not
Schneiders I probably told her -- I may have
told her that you know Steves filed a motion to
recuse based on that conversation What L
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662
conversation are we talking about Is that not the
phone conversation that were talking about
A Right That would have been the phone
conversation
Q So at that point which is at your lunch
or before your lunch your wife knew what you were
going to be asking her to do Because you then
say -- or Mr Schneider says on 62 There was a
communication of the fact that quote Weve got
another one of these Would you mind coming to
testify And you again said That was probably
exactly what was saiq
A I didnt remember specifically what I had
told her I mean if you look at Line 17 on 61 I
say I probably told her and then I say I may have
told her I didnt remember exactly what I told
her I just know that I told her I was doing a
motion to recuse at 130 and if she could come back
and specifically I didnt remember
Q All right So those statements you -shy
are you now saying that those statements are not
correct Is that what youre saying
A No Im saying -shy
Q Are you retracting those
A -- I may have told her I probably -- I
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663
dont remember specifically Certainly today I
dont remember specifically what I told her a year
and a half ago
Q I understand
A But when this happened when I gave this
statement and I think it was November -- yeah
November I wasnt a hundred percent what I told
her August 6th
Q All right Well the only point is you
know in her testimony yesterday as well as yours
both of you denied that you had any conversation
about it
A No I asked her to come back at 130
Q She claimed she knew nothing about what
it was about
A She didnt know I was going to be calling
her as
Q Implied that she did
A -- a witness
THE CHAIR Lets each of you finish
talking and the other can answer
Q All right Question the motion to
recuse again I dont know this but I have a
limited understanding -- can it not be the lawyer
that has an issue with you in addition to the
)
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I didnt study this disquaiification and
disclosure I justwent by what I learned at
judicial college two years earlier You know
I -- its impossible to know everything they
teach you at judicial college They give you
2000 pages worth of material for Session A
they give you 2000 pages of material for
Session B and were going to make mistakes
THE CHAIR I hate to interrupt When
did you go to judicial college
THE RE$PONDENT I went March I guess
2007 and -shy
THE CHAIR Did you just put these in a
closet and not read them
I mean I dont want to hear 2000
pages
Im sorry Judge
JUDGE SILBERMAN As ~e sit heremiddot today
do you agree that you violated Canons 3 3 (b)
the provisions that we went through
THE RESPONDENT Ye~
JUDGE SILBERMAN Canon 2(a) A Judge
sha-lmiddotl relJpect and aomply wi-th the Lawmiddot and sha]l
public conpoundidence and the integrity and ~
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(---
Ta~ ~~SmiddotP-ONDENT I am since - - yes
JUDGE SILBERMAN Do you believe t~a t
yqur conduct is in violation of Canon 2(a)
THE RESPONDENT yemiddots bull
don t believe was on the nmiddototice of
investigation but I do think it s pertinent i
UA judge smiddothall not allow f amily smiddotocial
pcgtlitical or other relationshipmiddotsmiddot to influente
t~e judges judicial conduct or judgmenmiddott II
Do you think that someone cmiddotould look at
Y9u r conduct and say 11 Sounds like there s a
pzolgtlem with 2 (b) as wellmiddot II
THE RESPONDENT You know I just -- Im
going to say yes I just -- you know I made
it very careful that I would not -- I didnt
comment on my wifes testimony I didnt say
liMy wife is right and youre wrong I believe
my wife II I just -- I didnt go anywhere near
there I just backed off and said IIIm not
making any rulings Your motions granted
I just tried to clear this matter up We
were friends before And thats what I did
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JUDGE FREEMAN So they were not trying
to participate Right
THE RESPONDENT No No they werent
trying to participate
JUDGE FREEMAN Had the State Attorneys
Office ever request that you have that hearing
THE RESPONDENT No
JUDGE FREEMAN Had the State Attorneys
Office ever objected to the motion to recuse
THE RESPONDENT No
JUDGE FREEMAN Thank you
THE CHAIR Mr Morales
MR MORALES Your Honor one thing
Obviously whats legally sufficient for a
layperson I dont -- Ill leave that to the
judges and the lawyers but the fact that you
happened to go t~lunch with your wife that day
and you said Oh why dont you come on by
Were going to have this little hearing do
you think thats appropriate
THE RESPONDENT I didnt I dont -shy
its not -- the whole thing is not appropriate
The fact that I had the hearing I know is not
appropriate Probably not
MR MORALES Have you ever heard of
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amiddotnother judge seeing someone at lunch and say
