THOMPSON v. TUNIS

We received this remarkable document in an email from Jack Thompson, Esq., and we reprint it in its entirety:

IN THE SUPREME COURT OF THE STATE OF FLORIDA
THE FLORIDA BAR,
Complainant,
v. Case Numbers SC 07 - 80 and 07- 354
JOHN B. THOMPSON,
Respondent.
RESPONDENT’S VERIFIED PETITION FOR WRIT OF PROHIBITION
TO DISQUALIFY REFEREE TUNIS

COMES NOW Bar disciplinary respondent Thompson and petitions this court for a writ of prohibition to disqualify and immediately remove Dava Tunis (Tunis) as referee herein, stating:

Any lay person, knowing the facts stated herein, would reasonably believe that Thompson could not possibly receive a fair trial presided over by Tunis, who is, in a bar proceeding, both the finder of fact and applier of the law. The standard for recusal is more fully delineated by Florida Statute, 38.10, and if Tunis does not, by her antics, qualify for recusal, then there should be no such remedy for any judicial misconduct.

Thompson has previously raised the propriety of recusal of Judge Tunis. She denied Thompson a continuance while his wife was facing life-threatening cancer surgery and arduous chemotherapy. She refused, for ten months to allow discovery sought by Thompson, even refusing to comply with Florida law that mandates subpoenas “shall” be issued upon the mere oral request of a party or attorney. Tunis, remarkably, even went so far as to deny Thompson’s simple request to look at The Bar’s own files it has on Thompson. Tunis upheld The Bar’s demand that Thompson pay $4000 up front simply to look at the files. No such payment by a party is imaginable under Florida law, as it violates Article I, Section 21 of the Florida Constitution.

This is a judge, acting as a referee, who afforded far more due process to the criminal defendants in orange jumpsuits in her courtroom than she did a lawyer in continuous good standing for 31 years with The Florida Bar. Thompson has been under attack from the porn industry with its SLAPP Bar complaints filed against him in order to “shoot the messenger” rather than defend their clients’ criminal activities on the merits.

But yesterday, eclipsing all that she had done before this, Tunis revealed herself to be either unwilling or incapable of acting like a judge. When Thompson made the point that the Preamble to Section 4 of the Rules allows for a harmonization of our roles in society with the role of lawyer, Tunis recoiled, stating derisively, Don’t enlist me into your culture war! It was a non sequitur revealing her bias.

Tunis had refused at the start of the trial on November 26, 2007, to conduct a hearing on jurisdiction. She had denied that hearing for months. As a result, The Bar had to admit, in the last hour of proceedings, after the nine-day trial itself was over, that the court never had jurisdiction over certain charges in the complaint.

When this revelation of fraud “hit the fan,” Tunis ran out of the courtroom for no apparent reason. It now appears that she did so in order to consult with someone, as she returned to the courtroom with a new and utterly contrived legal argument that was completely inapposite to the issue before the court. Tunis had taken on the demeanor and the function of a third Bar prosecutor.

Then it really hit the fan. One of The Bar’s prosecutors then asserted, again after all testimony had been given and long after The Bar had rested its case, that Tunis could, entertain and convict Thompson on new, never disclosed charges, despite testimony limited to the specific charge brought against him in the complaint at the behest of the Howard Stern Show shock radio law firm, Tew Cardenas—an alleged violation of Rule 4-8.4 (d). Tunis was told she could, in the months ahead, comb through 3000 pages of testimony and all of the Bar Rules and come up with new charges, conduct a trial on her own, with no witnesses, and convict Thompson of violations of undisclosed Rules with which he had never been charged and which were not even mentioned during the course of the trial.

How could The Bar do such a thing? Answer: The Bar, in the last hour of the proceedings, raised the notion that Rule 4-8.4(a) allows The Bar to have the referee conduct a trial all on her own, because the Rule states
“A lawyer shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;”

The Bar, however, in the charging document, the complaint, chopped off the last two items in the above series, and charged Thompson with “a violation of the Rules of Conduct” with no other Rules specified. Clearly, any sentient being knows that the above Rule 4-8.4 (a), in its entirety, is a rule against conspiracies to violate Bar Rules; namely, Thompson or any lawyer cannot either through surrogates, or acting as a surrogate on behalf of others, violate or attempt to violate, vicariously or through others, Bar Rules. In other words, Rule 4-8.4 (a) says that a lawyer cannot do indirectly what he cannot do directly.

But The Bar took only the first of the three in the series listed in Bar Rule 4-8.4 (a) and actually stated to the court that it means what is noted above, that Tunis could come up with any Bar Rule violations on her own and convict him, after trial, on the basis of what she thought Thompson might have done, with no input, of course, from him by way of a defense.

Tunis, upon Thompson’s protesting this ambush after the trial was over, again fled the courtroom. She returned to then lead The Bar’s prosecutor, from the bench, as if he were a child trying to ride a two-wheeled bicycle for the first time, through the tortured reasoning that would enable The Bar to have a referee indict, try, and convict a lawyer, in absentia, on charges of which he has never been apprised, in the privacy of her own home.

In the middle of the trial, with the Tew Cardenas porn lawyers on the stand and their having to admit that Thompson had no client, had not impacted a judicial proceeding, and was not engaged in the practice of law in his dealings with them (thereby making a Rule 4-8.4 (d) prosecution impossible), Tunis helpfully intoned, out of the blue, that Mr. Thompson had been also charged with a violation of Rule 4-8.4 (a). We, on the defense side, had no idea what she meant when she said this. But in the last minutes of the proceedings, yesterday, it became clear: The intention all along was to spring this “you can charge him and convict him of new offenses without any notice” surprise on him when the trial was over. Tunis had inadvertently tipped her hand that she was somehow in on the ruse.

It is so clear that Tunis may have been coached by someone during the trial, with her unexplained sprints from the courtroom as if she had a plane to catch, only to return with contrived legal arguments that no one had made previously, that Thompson has had to subpoena her phone records in the state court proceeding he has brought against the State of Florida for this regulatory assault upon the First Amendment that violates Florida’s Anti-SLAPP and RFRA statutes.

But Dava Tunis’ world late yesterday got even weirder. Earlier in the trial, The Bar’s counsel stood up in open court and announced that he had psychiatric records proving that Thompson’s co-counsel was mentally ill. The medical records waved by Mr. Bryk consisted of a favorite shrink used by The Bar’s FLA who claimed that this lawyer’s execution of an affidavit on Thompson’s behalf in Thompson’s federal civil rights action proved he, Thompson’s lawyer, was a “paranoid.” In other words, assisting Thompson shows mental illness. Mr. Bryk claimed all he was trying to do was apprise Mr. Thompson that his co-counsel was incompetent. If that were The Bar’s real desire, the whole issue , of course, would have been handled privately, discreetly, and not in open court. Thompson explained patiently to the court that Mr. Bryk could have shared the information with Thompson’s co-counsel and asked him to share it with Thompson, and then confirm that Thompson felt he had no problem. But, that, of course, was not what The Bar wanted to do. The Bar wanted to smear both his attorney and Thompson in open court. Judge Tunis held onto the stolen medical records in her possession. The co-counsel had never given a release allowing The Bar to have these records.

At the very end of the proceedings yesterday, Tunis asked what Thompson and his co-counsel would want her to do with the confidential, stolen medical records she held. It should be noted that the medical records are stolen, there having been no release of medical records form signed by co-counsel. Thompson’s co-counsel and Thompson asked and in fact demanded that the stolen medical records be returned to The Bar, as Tunis had absolutely no right to hold onto them, as they were not admitted into evidence. She was holding stolen property.

Co-counsel forcefully and emotionally stated that The Bar had committed a wrongful act in procuring these medical records without authorization, and they then compounded the offense by parading them in open court. Tunis then ordered co-counsel not to shout. He was forcefully and cogently identifying a wrong that had been committed against him by The Bar, and for an ulterior purpose.

Whereupon, Tunis, got to her feet, commenced shouting from behind her bench, and started flailing her arms wildly as if she were a Dutch windmill caught in a thermal inversion. It was the most bizarre, outlandish, odd, and embarrassing thing the undersigned has ever seen a jurist engage in during his 31 years of practicing law in Florida. Tunis made the “Crying Judge” Larry Seidlin in the Ana Nicole Smith case look like Supreme Court Justice Kennedy. She was out of control. She went from a jurist to a prosecutor to raving, shouting loose cannon in mere minutes.

When Thompson then referred to his co-counsel as his client in this medical records matter, she shouted from the bench He’s not your client! Is the court reporter your client, too???!!! With her meltdown, Tunis did more to harm the judiciary than anything Thompson is even alleged to have done.

She now sets off to prepare her Referee’s Report in a matter in which she displayed animus, bias, and a lack of judicial temperment. She has so tainted the proceedings with her pettiness and her injudicious comments and actions that no finding she could ever enter against Thompson can possibly be considered valid. This Bar must disqualify her immediately.

I SOLEMNLY AFFIRM, under penalty of perjury, that the foregoing facts are true, correct, and complete, so help me God.

I HEREBY CERTIFY that a copy of this pleading has been provided by mail and fax to Sheila Tuma, The Florida Bar, Orlando Bar Office, and to Dava Tunis, 1351 NW 12 Street, Miami, Florida, this December 7, 2007.
_____________________________
JOHN B. THOMPSON, Attorney
Florida Bar #231665
1172 South Dixie Hwy., Suite 111
Coral Gables, Florida 33146