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Prosecution Rests in Trial of The News-Press and news-press.com are following the ethics and perjury trial of 1st District Court of Appeal Judge Michael Allen. TALLAHASSEE — The prosecution has
rested in the ethics and perjury trial of 1st District Court of
Appeal Judge Michael Allen.
Fla.
Appeals Judge Faces New Charges By Martha Neil Asked to explain why he had criticized a fellow appellate court jurist in a written opinion, Judge Michael E. Allen reportedly told the Florida Judicial Qualifications Commission that he had no personal animosity against Judge Charles J. Kahn Jr. But the commission apparently didn't believe Allen, and has now filed perjury charges against the 18-year judge, too, because of this testimony, according to the St. Petersburg Times. Initially, Allen was facing only charges of conduct unbecoming a judge, which remain unresolved, concerning his criticism of Kahn. As discussed in previous ABAJournal.com posts, the unusual judicial ethics complaint has led to spirited courtroom debate in the case. Allen's lawyer contends a judge has a right to express his opinion in a case, and says the ethics charge against him is unprecedented. But the attorney representing the commission argued that this right is subject to legal ethics standards, and said Allen's comments undermined public confidence in the judiciary and were based on unverified newspaper articles. Allen sits on the state's 1st District Court of Appeal, as does Kahn. His tenure there has been controversial, as the St. Pete Times reports in an earlier article, leading him to step down as chief judge, although he did not resign from the court. A trial in the case made against Allen by the commission's original ethics complaint (PDF) had been scheduled for March, but the parties agreed to postpone it while the new charges are addressed. Judgment Lacking in Ethics Case A Times Editorial Put aside, for a moment, the possible motivations. An appellate judge who blew the whistle on a jarring conflict of judicial interest is now being punished by the Florida Judicial Qualifications Commission, and its selective prosecution is indefensible. The commission, which has shown undue tolerance in recent years for many judges' misdeeds, is all but throwing the book at 1st District Court of Appeal Judge Michael E. Allen. His crime is that he questioned whether the court's then-chief judge, Charles J. Kahn Jr., should have recused himself in a high-profile corruption case that was defended by his former law partner. "We should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions," Allen wrote in joining other judges who rejected the appeal of former Escambia County Commissioner W.D. Childers. "Yet I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration in this case." Rather than pursue Kahn for a clear ethical violation and for well-founded charges of sexual harassment and workplace intimidation, the commission has instead set its sights on Allen. It is claiming he, not Kahn, has damaged the judiciary's image and, further, that Allen was pursuing some vendetta. The case so far borders on farce. First, the stain on the judiciary is entirely Kahn's making. He not only voted to overturn the Childers conviction, but now has admitted to calling former law partner Fred Levin to warn him about the release of Allen's opinion. Kahn even admits he baited Levin's son into filing the ethics complaint against Allen. It doesn't end there. In a series of sworn depositions of other judges and court personnel, Kahn has been described as "volatile," "duplicitous" and "schizoid." Current Chief Judge Edwin B. Browning Jr. said that Kahn, when told about public records requests by the Times, "went schizoid - bouncing off the walls, he was totally irrational and started screaming and hollering he was going to report me to the JQC. He threatened to sue me, too." Another judge said Kahn, when asked about the case, told him to "get the f--- out of my office." A longtime court marshal said Kahn "didn't seem to be stable, it was scary." If personal animosity is at the core of this case, as the JQC suggests, then it clearly has the wrong angry man. By selecting Allen alone
for prosecution, the JQC has essentially told judges in Florida to
keep their mouths shut if they see bad judicial behavior. That's the
unmistakable and unacceptable message from this prosecution, and the
Florida Supreme Court ought to be asking questions. If the JQC
thinks whistleblowers are the problem, it defends the judiciary's
longstanding code of silence. Times Online Perjury
Charge Looming for District Judge By Lucy Morgan
Facing initial charges of
conduct unbecoming a judge in the fall, Allen appeared before the
commission in October to explain Bruce Rogow, the Fort Lauderdale lawyer who represents Allen, said in a prehearing statement filed Thursday that other judges and court officials will testify that Allen's concern over the Childers opinion was based on his concern for the integrity of the court and not personal animus. The new charges indicate the level of hostility toward Allen has dramatically escalated since members of the court were questioned last week in preparation for Allen's trial. Several of Allen's fellow judges labeled Kahn as mentally unstable and given to temper tantrums as they described life inside a 15-member court where collegiality seems to have vanished. Thirteen of the 15 judges filed a formal complaint against Kahn for having extra marital affairs with court employees, but the commission dismissed the charges against Kahn and voted to pursue Allen because he criticized Kahn. Several of the judges have expressed outrage over the commission's decision to charge Allen with wrongdoing while exonerating Kahn. Testifying last month, Kahn admitted making a telephone call to Levin on the day Allen's opinion was released. The call apparently led Levin's son, Martin, to file the formal complaint against Allen. In a written request filed with the commission Thursday, Rogow said he needs time to explore the conversations between Kahn and Levin, especially since lawyers for the commission have asked the commission to prohibit any testimony about wrongdoing by Kahn or any other judges. http://www.sptimes.com/2008/02/08/State/Perjury_charge_loomin.shtml Misdeeds of Other Judges off Limits? By Lucy Morgan TALLAHASSEE - Lawyers for the Judicial Qualifications Commission want to block testimony about the misdeeds of other judges when it puts 1st District Court of Appeal Judge Michael E. Allen on trial for conduct unbecoming a judge. Allen faces charges because he questioned the conduct of fellow Judge Charles Kahn Jr. in a June 2006 opinion upholding the conviction and prison sentence of former Sen. W.D. Childers. Allen, in his written opinion, was responding to Kahn's accusation that the court was acting illegally. Allen said he was concerned about the public's perception of the court, on which he has served since 1990. He questioned Kahn's attempt to overturn the criminal charges against Childers, noting that Kahn was a former law partner of Fred Levin's, a Pensacola lawyer and longtime Childers friend. Last week, as several judges of the court were questioned in preparation for a trial next month, Kahn was described as a mentally unstable judge who has frequent temper tantrums and had extramarital affairs with two employees of the state court system. "Whether Judge Kahn is 'Peck's bad boy' is simply irrelevant to the question of Judge Allen's animosity," JQC lawyer F. Wallace Pope said in a motion filed Wednesday. The motion asks that the panel that will hear Allen's trial, scheduled March 10, not allow the testimony. The panel can recommend that the Florida Supreme Court reprimand or remove him from office. The JQC contends that Allen is guilty of "character assassination" of a colleague in a situation where there is no evidence of corruption. Bruce Rogow, the attorney representing Allen, said the JQC is "hoisted on its own petard of its own misguided effort to punish the judge who dared to criticize a judge whose own colleagues said that he exhibited dishonesty, duplicity and untrustworthiness." Allen was concerned about the integrity of the court, Rogow said, and it is the JQC that has put Kahn's character at issue by bringing the charges. Thirteen of the 15 judges on the court filed a formal complaint against Kahn for having affairs with court clerks, but the JQC voted against bringing charges against Kahn. Instead, the JQC decided to pursue the complaint against Allen, which was filed by Fred Levin's son, Martin. February 6, 2008
JQC'S MOTION IN
LIMINE TO EXCLUDE EVIDENCE OF The JQC, by its undersigned counsel, moves the
Hearing Panel to exclude evidence of the purported misconduct of
others that the JQC believes respondent will offer at the final
hearing in this matter, and submits the following memorandum in
support of this motion. I. The JQC's Case Against Judge Allen. On June 28, 2006, Judge Michael Allen issued a concurring opinion based on innuendo and supposition that accused his fellow judge, Charles Kahn, of corruption. The concurring opinion speaks for itself, but at bottom, is nothing more than respondent's character assassination of his colleague, Judge Kahn. There is no evidence that the purported corruption existed in fact. The issue before the Hearing Panel is whether Judge Allen's attack on Judge Kahn arose from Judge Allen's personal feelings of animosity, hostility and ill will toward Judge Kahn. II. The Standards the Hearing Panel Must Apply to Judge Allen's Concurring Opinion. In Re Richard A. Kelly, Circuit Judge, 238
So.2d 565 (Fla. 1970): * * * * * * * * * III. The Evidence the JQC Seeks to Exclude. At the depositions taken in this cause, Judge Allen continued the public character assassination of Judge Kahn that he began when he published his concurring opinion. He questioned each witness about any derogatory information they might conceivably have about Judge Kahn. For example, he sought testimony that Judge Kahn is "volatile," and "duplicitous," and that he has temper tantrums. The questioning also sought information about Judge Kahn's sexual activities and any JQC investigation relating to those activities. In general, the questions focused on purported misbehavior by Judge Kahn. IV. A Judge May Not Introduce Evidence of the Misconduct of Others to Justify Violations of the Code of Judicial Conduct. In In Re Shea, 759 So. 2d 631 (Fla. 2000) Judge Shea justified his conduct as "an attempt to improve the administration of justice in the Upper Keys and to improve access to mental health resources in the community." The court held: In Graham, [In Re Graham, 620 So.2d 1273 (Fla. 1993)] this Court removed a judge who abused his judicial power but attempted to justify his conduct as an effort to rid the county of what the judge perceived as political favoritism and corruption. The Court found that the alleged misconduct of others did not justify the judge's departure from the guidelines established in the Code of Judicial Conduct. Id. at 1275. Similarly, Judge Shea's allegations of improper conduct on the part of others do not excuse his abuse of his judicial office. In In Re Graham, 620 So.2d 1273 (Fla. 1993), one of the charges against Judge Graham was that he used his position as judge to make allegations of official misconduct and improper criticism against fellow judges, elected officials and others without reasonable factual basis or due regard for their personal and professional reputations. Graham viewed his activities as "a valiant effort at ridding Citrus County of the political favoritism and government corruption that caused the demise of his predecessor." The Florida Supreme Court held: His zealous pursuit of a pure society apparently clouded his ability to impartially adjudicate the matters before him. His motives are acceptable, but his methods are not. Unfortunately, Graham fails to recognize that the alleged misconduct of others does not justify his repeated departure from the guidelines established in the Code of Judicial Conduct. To go beyond those duties, as Graham has done, amounts to an abuse of power that threatens the integrity of the judicial branch. (id. at 1275) (emphasis added). In In Re McMillan, 797 So.2d 560 (Fla. 2001), Judge McMillan attempted to justify his conduct based on a conspiracy in Manatee County to prevent his election and that his election was necessary to break up such conspiracies of power. The Florida Supreme Court held: As in Shea and Graham, we reject Judge McMillan's rationalization for his campaign misconduct. When any person, and most especially a lawyer or judge, has reason to believe that public corruption exists at any level of government, that person is obligated to disclose such information to the appropriate authority without hesitation. However, when charges are leveled without basis in fact, enormous harm is inflicted upon our public institutions by loss of confidence among a public little equipped to sort out the valid from the invalid and campaign rhetoric from fact. In this instance when the smoke has cleared and the evidence is examined, there appears to be absolutely no credible factual basis for Judge McMillan's assaults on the local justice system and a sitting county judge. Nevertheless, the harm to the system will linger. In In Re Graziano, 696 So.2d 744 (Fla. 1997), the Florida Supreme Court specifically upheld the JQC's granting of a motion in limine precluding the questioning of any witness about alleged improprieties by judges other than the respondent. Specifically, the Court held: Next, we consider and find no merit to the contention that respondent's due- process rights were prejudiced by the JQC's ruling on a motion in limine, in which the JQC precluded questioning of any witness about alleged improprieties by judges other than respondent. We find the information sought in respect to other judges was beyond the scope of permissible inquiry in this proceeding. V. Argument. The issue before the Hearing Panel is whether Judge Allen's concurring opinion arose from the intense animosity, hostility and ill will that he has long harbored toward Judge Kahn. Whether Judge Kahn is "Peck's bad boy" is simply irrelevant to the question of Judge Allen's animosity, hostility and ill will. And even if Judge Allen contends that his intense animosity, hostility and ill will toward Judge Kahn was provoked by Judge Kahn's misbehavior, such a contention provides no basis for admitting evidence of purported misconduct by Judge Kahn. The issue is the existence of ill will – not its cause. The authorities cited above make it clear that a judge may not excuse his departure from the Code of Judicial Conduct by introducing evidence of the misconduct of others, and the Graziano opinion provides full support for an order prohibiting the introduction of such evidence at the hearing in this matter. CONCLUSION For the reasons set forth above, the Hearing Panel should grant the JQC's motion in limine and prohibit the respondent from introducing evidence of the purported misconduct of others. Lust,
Lies and Disorder in Court By Lucy Morgan TALLAHASSEE -- Rarely do outsiders get an inside peek at how judges work together. But last week, judges on the state's biggest and most powerful appeal court testified about one another. It was not a pretty sight. They described a court where judges of the 1st District Court of Appeal have accused each other of lying, having affairs with court employees, threats and playing games of "chicken." Former Chief Judge Charles J. Kahn Jr. was described as "volatile," "duplicitous" and "schizoid." They called him a liar, given to temper tantrums. The marshal who has provided court security for more than 25 years testified that he arranged to have extra law enforcement officers attend a ceremonial event after they heard that Kahn was getting a concealed weapons permit and a handgun. The marshal said two other judges decided to get guns at the same time. Kahn says he never did get a gun permit but did learn how to shoot at a pistol range in Sopchoppy. As acrimony between the judges spiraled out of control, the marshal put a lock on the judge's robing room to keep Kahn from getting in during the ceremony. And Kahn is not even the one on trial. * * * That honor goes to Judge Michael E. Allen. The Judicial Qualifications Commission has accused him of conduct unbecoming a judge for acting with animus and hostility when he made disparaging comments about Kahn in a written opinion. Allen's lawyer says it marks the first time in judicial history that a judge has been charged with wrongdoing for something he wrote in a formal opinion. Allen wrote that Kahn should have disqualified himself from a case because a close associate of the defendant was Kahn's former law partner. "We should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions," he wrote. Allen denies that hostility toward Kahn motivated his opinion. Trial is scheduled March 10. Court members were questioned under oath last week by F. Wallace Pope, a Clearwater lawyer specially appointed as a JQC prosecutor in the case, and Bruce Rogow, the Fort Lauderdale lawyer who represents Allen. Allen's written opinion came in the case of former Sen. President W.D. Childers, a major player on the state's political stage for more than 30 years before term limits chased him out of the Senate in 2000. Childers loved the behind the scenes intrigue and once conspired with Gov. Lawton Chiles to secretly pass a law that allowed the state to sue major tobacco companies. The plot was cooked up by Pensacola lawyer Fred Levin, a former law partner of Kahn's and longtime friend of Childers. After leaving the Senate, Childers won a seat on the Escambia County Commission, where he delivered a cooking pot filled with cash to a fellow commissioner to buy his vote on a $4.1-million land deal. When Childers' bribery conviction and 3-1/2-year prison sentence came up on appeal in 2004, Kahn wrote an opinion in a 2-1 vote overturning the case. But a majority of the court's 15 judges decided to let the full court rule. They voted 10-4 to uphold Childers' conviction. When lawyers for Childers asked the court to send the case to the Florida Supreme Court, Allen wrote the opinion that said Kahn should have disqualified himself because of his close ties to Levin. Levin's son, Martin, filed a JQC complaint against Allen. Thirteen of the other judges on the appeals court filed a JQC complaint against Kahn over his affairs with court employees. * * * An employee who keeps the court's computer systems running complained to several court officials that Kahn was having an affair with the same court clerk he was dating. The computer specialist "bought her birthday gifts, valentines, sprinkled her desk with rose petals one morning, all at the same time she was having an affair with Kahn," according to testimony last week from current Chief Judge Edwin B. Browning Jr. Confronted by Browning and others on the court about the affair, Kahn lied to them, Browning said. When the computer specialist produced photographs of Kahn and his girlfriend in a South Florida hotel, Browning went back to Kahn. He said he took along Judge James R. Wolf. "Kahn has a bad temper and I didn't want to go in by myself. I was going to step on his toes and wanted a witness with me," Browning testified. "Judge Kahn had a trip hair temper and could go off the deep end and be irrational." Kahn helped the woman get a job in the Office of the State Court Administrator. (The judges say Kahn also had an affair with another state court administrative employee.) Browning called the affair with the court clerk a breach of judicial ethics that "exposes the court to liability" and "dishonor." He said other problems arose when Kahn surreptitiously distributed pay raises to some employees using a double set of books. The judges forced Kahn to resign as chief judge. A majority of the court's 15 judges filed a JQC complaint against him in 2006. The JQC dismissed it. Browning said that when Kahn was advised that the court was about to produce public records in response to a request from the St. Petersburg Times, Kahn "went schizoid -- bouncing off the walls, he was totally irrational and started screaming and hollering he was going to report me to the JQC. He threatened to sue me, too." Don Brannon, marshal at the court for 27 years, described other tantrums Kahn threw, over a parking place and travel reimbursements. "He didn't seem to be stable, it was scary," Brannon said as he described Kahn's request to take a gun course required for a concealed weapons permit. "More than one person had come to me with concerns." Judge Brad Thomas had been on the appellate court only about 10 days back in January 2005 when he asked to speak to Kahn about a draft of the chief judge's opinion that would have overturned Childers' conviction. Thomas, a former prosecutor and legislative expert on criminal law who once worked in Childers' Senate, thought Kahn's opinion was wrongly decided. Instead of discussing the case, Kahn told Thomas "to get out of my f------ office," and sent him on his way. Testifying last week, Kahn was asked about his encounter with Thomas. He admitted losing his temper. "I had been on the court 14 or 15 years and he had been on the court a week or two." He would not answer questions about the affairs. He accused his fellow judges of acting illegally when they took the Childers case away from him and has denied any conflict of interest because of his friendship with Levin. Kahn testified that he called the elder Levin the day Allen's court opinion was released. He said Levin brought his son into one telephone call to discuss the situation. Kahn said he told them he would not file a complaint against a fellow judge himself, but noted that the JQC was there for that purpose. Martin Levin subsequently filed a complaint. Several of the judges testified that they did not believe Allen's opinion violated any ethical rule and questioned the JQC decision to file charges against him. "I thought it was outrageous that the JQC proceeded against Judge Allen and not Judge Kahn," said Judge Peter D. Webster. "What Judge Kahn did reflected badly on our court as an institution and was the kind of thing for which judges ought to be disciplined." Childers remains in prison. Allen and Kahn remain on the court. Lucy Morgan can be
reached at
lmorgan@sptimes.com
or (850) 224-7263) To read opinions in
1D-03-2154 Wyon Dale Childers v. State of Florida, 936 So. 2d
619 (Fla. 1st DCA 2006)
click on below:
By Lucy Morgan TALLAHASSEE - For daring to question the ethics of a fellow judge, 1st District Court of Appeal Judge Michael E. Allen is facing formal misconduct charges. The state Judicial Qualifications Commission filed charges against Allen on Thursday that could lead to his removal from office. In charges filed with the Florida Supreme Court, the commission said that by criticizing Judge Charles J. Kahn Jr. in a written court opinion, Allen could "impair the confidence of the citizens of this state in the integrity of the judicial system." Said Bruce Rogow, one of Allen's attorneys: "It is unprecedented, not just here, but anywhere in the country, " for a judge to face disciplinary charges based on a written opinion. "This is all about judicial independence, " Rogow said. "Can an appellate court judge write an opinion seen by all the members of the court before it goes out and still have to fear that the JQC will seek to punish him for that opinion?" Historically, charges against judges are based on personal or professional misconduct or the alleged mistreatment of lawyers and litigants. "All Judge Allen did was be candid about his reasons for thinking Judge Kahn should have recused himself, and he had the integrity to share it, " Rogow said. Even Talbot "Sandy" D'Alemberte, who represented Kahn before the JQC, said he questions the decision to pursue charges against Allen. "I really hope this thing disappears; it just isn't helpful to anybody, " D'Alemberte said. "I think judges should be disciplined because they've caused some kind of corruption or embarrassment to the judicial system. I like it better when the JQC sticks to that task." The charges likely will further disrupt relations among the 15 judges at Florida's largest district court of appeal, where virtually all litigation involving state government is reviewed. The charges against Allen stem from a June 28, 2006, court decision affirming the bribery conviction and prison sentence given former Sen. W.D. Childers. At the time, Kahn was chief judge, but the uproar over the Childers case and questions raised about extramarital affairs Kahn had with two court employees led his fellow judges to replace him and file a complaint against him with the JQC. The JQC rejected the complaint involving Kahn but accepted one filed against Allen by Martin Levin, son of Pensacola lawyer Fred Levin, a former law partner of Kahn's and a longtime friend of Childers'. After leaving the state Senate in 2000, Childers won election to the Escambia County Commission and landed in trouble. He was charged with delivering a cooking pot filled with cash to fellow Commissioner Willie Junior in return for his vote on a $4.1-million land purchase. Junior testified against Childers, who was convicted of bribery. Before Childers' appeal was decided, Junior was found dead under a house. The coroner attributed his death to drinking antifreeze. Childers appealed the conviction and 3 1/2 year sentence to the district court. A three-judge panel headed by Kahn voted 2-1 to overturn the conviction. Had that decision stood and with the key witness dead, Childers might not have faced another trial. Over Kahn's vehement objections, the full appeal court reconsidered the case and voted 10-4 to uphold the conviction. Judge Allen's opinion was issued after Childers' lawyers asked the court to reconsider. Allen wrote: "We should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions. Yet I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration in this case." Oddly, Allen's concerns are almost precisely what the JQC now accuses him of doing: causing citizens to question the integrity of the court. The formal charges criticize Allen for quoting from newspaper articles that described the longtime friendship and political influence wielded by Levin and Childers and former Gov. Lawton Chiles, who appointed Kahn to the court. "In expressing your 'doubt' about what the 'public' would believe and not believe, you conveyed your own, personal belief in the truth of the matters, " the commission charged. Allen's "attack on Judge Kahn, " the JQC said, was "unnecessary, unjustified and motivated by ill will." Instead of criticizing Kahn publicly, the JQC said, Allen should have followed the rules and reported his belief to the JQC. Complaints filed with the JQC are generally secret unless formal charges are brought. In addition to Rogow, Allen is being defended by former JQC Chairman Richard McFarlain.
http://www.sptimes.com/2007/05/04/State/For_stating_opinion__.shtml ALLEN, J., concurring. This opinion is not written in an effort to dissuade the supreme court from reviewing this case. Whether the supreme court sees fit to review this case and address the issue of this court’s vote in favor of en banc consideration is obviously the prerogative of that court, and I would not presume to advise the supreme court on how that prerogative should be exercised. But if this issue is to be addressed by the supreme court, I believe the supreme court should be made aware of more than the accusations of Judges Kahn and Wolf and the non-specific response previously provided. This opinion is also not written because I believe an appellate court or any appellate judge is obligated to articulate reasons for considering a case en banc. Florida Rule of Appellate Procedure 9.331 (the en banc rule) contains no such requirement, and I am aware of no decisional law indicating that this is required. For my part, I have never questioned a judge’s reason for voting for en banc consideration of a case, opting instead to simply accept the vote of a fellow judge as the expression of his or her honest and thoughtful view as to the fitness of a particular case for en banc consideration. I express my reason for voting in favor of en banc consideration in this case because some members of this court do not extend the same deference to me and other members of this court, and because there is at least a possibility that the supreme court will accept review in this case and assume from the accusations of Judges Kahn and Wolf and the absence of a specifically articulated justification for en banc consideration that none exists, and most importantly, because these accusations have the potential of raising a question in the minds of members of the public as to this court’s commitment to the rule of law. I observed in my original concurring opinion that the restitution issue addressed by the court would amply satisfy the demanding standard of judges who would require an issue of exceptional importance before voting for en banc consideration of a case based upon "exceptional importance." Contrary to Judge Wolf’s accusation, my original opinion contained no "implication that the restitution issue had anything to do with the vote of the court to go en banc." I do not know why each of the various judges cast their votes as they did on the en banc question. But I do know that the restitution issue had nothing to do with my own vote. Although the restitution issue does seem to me to provide an appropriate basis for en banc consideration, my favorable vote on the en banc motion was not based on the restitution issue. In fact, none of the issues involved in the case had an impact upon my vote. As I explained in my earlier opinion, I believe there are circumstances in which considerations external to the particular issues presented in the parties briefs will cause a case to be of exceptional importance. I voted in favor of en banc consideration of this case in accordance with my belief that this case involved such circumstances. My vote in favor of en banc consideration was based upon my concern that participation by a particular judge of this court in the panel decision would have led to public perceptions of partiality by this court. Because public perceptions are involved here, I begin by outlining some background information that has been presented to the general public through the news media. Although numerous news articles have been written regarding the relationship between Mr. Childers and Pensacola attorney Fred Levin, I quote in full only three of these articles in order to provide a flavor for what the public has been told about their relationship. These articles also reference the close personal relationship both Mr. Childers and Mr. Levin enjoyed with Governor Lawton Chiles. (Because I lack personal knowledge as to the matters discussed in the articles, I do not vouch for the accuracy of the information contained therein. Whether completely accurate or not, the significant point here is that these articles reflect what the public has been told.) The first article is from the March 23, 1998, edition of the Miami Herald, the second is from the May 4, 2002, edition of the St. Petersburg Times, and the third is from the June 23, 2002, edition of the St. Petersburg Times. Chiles Under Fire for Tobacco Deal TALLAHASSEE – (AP) – Hailed as a hero last summer Nearly every facet of the agreement is now being Chiles and some longtime cronies – former inspector "There must have been something to keep secret for it not Chiles rejected an invitation to appear on the ABC program Only later did lawmakers learn that the changes made it Then lawmakers were ignored when Chiles named a group "Why do we have an attorney general for crying out loud?" But Chiles chose former law school acquaintance, West "Most everybody is excluded unless you’re the buddy of A Career in Dark, Brought to Light TALLAHASSEE – (By Steve Bousquet) – His official W.D. Childers. Dubya Dee. The Banty Rooster. Dean of If not for term limits, he’d still be there, strutting around, Childers was suspended this week from his position as the Law that prohibits local government officials from Five times, the grand jury said, Childers "did unlawfully Childers may have a novel defense: his 30 years in the The Sunshine Law that Childers is accused of violating In the Capitol, Childers became an iconic figure, his legend With open government seemingly under assault from all The man displayed a contempt for open government. He "All we did was snooker the bastards," Childers said The tobacco liability law was cited as a case of the ends Childers’ roguish behavior generated more humor than Childers would have been especially proud of the House Even ol’ W.D. wouldn’t dare pull anything like that. In Trial, Suspended Official Asks Help of Old Ally PENSACOLA – W.D. Childers has an old friend by his Their friendship figured in a power struggle that resulted in Levin represented Childers in a grand jury investigation. Now facing the most serious predicament of his political No trial date has been set on those charges. Childers, 68, was effusive about Levin in a 1999 interview. In a recent interview, Levin, 65, was equally enthusiastic in Levin said Childers did not knowingly violate the Sunshine "Unfortunately, I think he’s getting a little older," Levin Former Gov. Reubin Askew was a partner in Levin’s law Neither Askew nor Levin saw eye-to-eye with Childers in A candidate who unsuccessfully tried to unseat Childers in Their relationship took a turn when Levin testified against Childers, impressed by Levin’s presentation, deserted the Levin recalled being relieved as he got up to leave because Their friendship was cemented in 1980 when Levin Jurors found that Childers had done nothing wrong in Childers rose to the presidency due largely to his friendship Barron, an insurance company lawyer from Panama City, Childers refused. The bill passed, but Barron forged a coalition of Four years later, Childers teamed with Levin and Gov. Lawyers on the state’s case, including Levin, made Levin denied that Childers had helped him benefit from the "I never dreamed that there was ever going to be any Instead, he recruited the lawyers that represented the state. It is possible that some members of the public might believe that Mr. Levin’s good fortune in making millions of dollars on the tobacco litigation—actually "a third of a billion dollars" according to a May 2, 2002, column in the Northwest Florida Daily News—had nothing to do with his personal relationship with Mr. Childers, or with his personal relationship with Governor Chiles, or with the fact that he was allowed to recruit the lawyers who would represent the state in the tobacco litigation. But I doubt that many members of the public would have such beliefs after reading news accounts such as those quoted above. At the very least, after reading those accounts, most members of the public would believe that Mr. Childers and Mr. Levin are extremely close personal and political allies, that they both had a close personal 20 and political relationship with Governor Chiles, that their close relationship with one another and with Governor Chiles ultimately resulted in Mr. Levin’s firm receiving hundreds of millions of dollars from litigation made possible by a law adopted as a result of a legislative "scam" orchestrated by the three of them, that Mr. Levin was Mr. Childers’s long-time personal attorney, and that Mr. Levin was personally representing Mr. Childers on various criminal charges growing out of his actions as an Escambia County commissioner when—and for some period of time after—the indictment was handed down in the present case. During his tenure as governor, Lawton Chiles appointed nine judges to this court. The very first of these appointments went to Fred Levin’s 39 year-old law partner, Charles Kahn. It is certainly possible that neither Judge Kahn’s senior law partner, Mr. Levin, nor Mr. Levin’s well-placed friend, Senator Childers, exercised their reputed considerable influence with their friend, Governor Chiles, in seeking Judge Kahn’s appointment to this court. It is even possible that Judge Kahn’s relationship with the governor’s friend, Mr. Levin, had nothing to do with the governor’s decision to appoint Judge Kahn. But a member of the public familiar with the reported relationships between these persons, and also familiar with the realities of the political process, would not be considered unduly cynical to doubt these possibilities. When Mr. Childers’s appeal from his convictions in this case was assigned to a panel of this court, Judge Kahn was a member of that panel. Oral argument was heard by the panel on November 9, 2004, and it was apparent from Judge Kahn’s persistent questioning of the assistant attorney general assigned to the appeal that Judge Kahn found merit in Mr. Childers’s argument that he had been denied the opportunity to fully develop, through cross-examination, critical state witness Willie Junior’s bias and motive to testify falsely. (A video of the oral argument can be viewed at this court’s website.) At the time of the oral argument, a reversal on the cross-examination issue would likely have resulted in a new trial for Mr. Childers, but subsequent developments revealed that reversal on the cross-examination issue might result in Mr. Childers not being required to further answer for the crimes for which he had been convicted. News reports contained in the Pensacola News Journal revealed that Willie Junior disappeared on the evening of November 9, 2004, and that his body was found in the crawl space beneath a house in Pensacola a month later, dead from ingestion of a lethal quantity of antifreeze. Mr. Junior’s death seemingly added additional significance to Mr. Childers’s appeal because Mr. Junior would be unavailable to testify in a new trial. In light of the recent decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), it appears unlikely that evidence of Mr. Junior’s former trial testimony would be admissible in a new trial following a holding by this court that the defense had not been afforded an adequate opportunity to cross-examine Mr. Junior. And in light of the importance of Mr. Junior’s testimony to the state’s case, it also appears unlikely that the state would be able to prove its case upon a retrial without this testimony. (Mr. Junior’s death obviously had no impact upon this court’s en banc decision. His death and its likely legal implications are recounted here only to reflect the resulting heightened importance of this court’s decision, from the perspective of Mr. Childers and his friends.) In June 2005, a divided panel reached its proposed decision in this case. The majority opinion, authored by Judge Kahn, proposed to reverse Mr. Childers’s convictions based upon the argument that Mr. Childers had been denied an adequate opportunity to cross-examine Mr. Junior. A dissenting judge disagreed, concluding that the cross-examination issue should be decided in accordance with the reasoning later reflected in the en banc majority opinion. Accordingly, if this panel decision had stood, Mr. Childers’s convictions would have been reversed on a ground making retrial unlikely—thus likely extricating Mr. Childers from what the June 23, 2002, St. Petersburg Times article called "the most serious predicament of his political career." And the deciding vote on this decision would have been cast by Fred Levin’s former law partner. Less suspicious members of the public familiar with the information contained in the articles quoted above and also familiar with Judge Kahn’s former association with Mr. Levin and his firm would have found it inappropriate for Judge Kahn to have participated in the case. And more suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers, thus allowing them, once again, to "snooker the bastards." Before the proposed panel decision was filed, another judge of this court moved for en banc consideration of this case. I cast my vote in favor of the motion. One of my mentors was Circuit Judge Ben Willis, who served for many years as the chief judge of the Second Judicial Circuit. I was honored to have him speak at my investiture as a judge of this court many years ago. Judge Willis’s remarks included a story with a concluding observation. He told the audience that he had himself been invested as a circuit judge on the very day this court came into existence, July 1, 1957, and that after Governor Collins spoke at the investiture of the first judges of this court he then walked over to the Leon County Courthouse to speak at Judge Willis’s investiture. Judge Willis explained that it was especially meaningful to him that his judicial service and that of this court’s first judges had begun on the same day, because he so greatly admired this court. After naming and praising the work and integrity of a number of this court’s former judges he particularly admired, he concluded with this observation: "I don’t know of this court ever having been the subject of a breath of scandal." Although Judge Willis’s comments might seem unremarkable to some, they have special meaning for me. I was honored to become a member of a court respected by the public for its integrity, honor, and impartiality, and possessed of a record unblemished by public suspicion. This court is still deserving of this reputation. It is comprised of dedicated judges who, from my perspective, work very hard to impartially decide the cases assigned to them in accordance with the requirements of law. But this reputation will not survive if we are oblivious to public perceptions. The law sometimes requires us to decide cases in ways that displease members of the public. There is nothing that we can do about that. It is an occupational hazard required by the oath we take. But we should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions. Yet, I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration of this case. If the public’s perception of Judge Kahn’s commitment to impartiality were the only concern here, I might not have voted for en banc consideration of this case. But far more is involved. In light of the composition of the original panel, the proposed panel decision would have been a reflection upon this entire court and would have provoked far more than a mere "breath of scandal." Because I dearly value the respect this court rightly deserves for the integrity of its judges and for the impartiality of its decisions, I cast my vote for consideration of this case by the full court, not to affect the outcome of the ultimate decision but to see that the ultimate decision of this court is made by judges unblemished by public suspicion. The threat this case presented to the reputation of this court, in my judgment, made it a case of exceptional importance.
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TALLAHASSEE -
District Court Judge Michael E. Allen is now facing perjury charges
for telling the Florida Judicial Qualifications Commission he held
no animosity for a fellow judge he criticized in a written opinion
last year. 
Now the commission is
accusing Allen of lying during that appearance and ordered him to
appear before it Feb. 28 to face the new charges. Allen had been
scheduled to face trial on the original charges March 10 but lawyers
for both sides have agreed to postpone the trial until the new
charges are considered. |
A Feast
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