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Wednesday, January 20, 2016

AND NOW A JUDGE COMMITS A CRIME?

We received the below stated email from a source who was present in embattled Judge Seraphin's courtroom today. We've been waiting for this situation to arise for some time. 

Judges, by virtue of the threatening signs that they post in their courtrooms, often threaten to confiscate the phone of a person in their courtroom. 

By what right and authority can a judge take a piece of personal property of another person? 

None that we're aware of. 

Florida's Forfeiture statutes state (in part)

(1) It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes.
§ 932.704, Fla. Stat. Ann.

(1)(a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.
§ 932.703, Fla. Stat. Ann.

Judge's aren't (as surprised as some of them may be to read this) law enforcement officers or agencies. Using a phone in court is not a violation of Florida's Contraband Act (unless you're using the phone to commit a crime). 
As such Judges have no authority to seize the personal property of another individual, even if that person has the temerity to ignore the judge and play candy crush while sitting in court and eating a bucket of popcorn (there is no law against eating in court either). 

So with the law being firmly established we turn to the kerfuffle in Seraphin's court on Wednesday:

A wild scene in Judge Seraphin's Courtroom today...

Judge Seraphin's bailiff took away some guy's cell phone because the guy was texting while he was sitting in the gallery. Instead of asking the guy to leave to text outside the courtroom, Judge Seraphin took the phone from his bailiff and started looking through it. He was not a happy camper. The Judge then decided to hold the guy in contempt. All the while the morning calendar was supposed to be going on. 

The Judge decided to hold a mini rule to show cause hearing for why the guy shouldn't be thrown in jail. Pretty sure a Judge can't do that without going through the proper procedures for notice and whatnot, but Judge Seraphin had it out for this guy. The Judge must've realized he couldn't just throw the guy in jail on the spot...so he appointed the PD to represent him. The PDs advised the guy not to say anything--as any good attorney would advise his client to do--but the guy's silence made Judge Seraphin even madder. The Judge then demanded the guy apologize, on the record. The PDs told him just to do it and he did. The Judge was then satisfied with himself. And he gave the guy his phone back and let him sit back down in the gallery. All in the middle of the morning calendar. 

Rumpole notes ominously, as near as we can tell, depriving the personal property of another individual without legal justification, even temporarily, is theft under Florida law. If the phone was worth more then $300, then it could be grand theft. Directing another to do it could well constitute a  plan to conspire, combine and confederate to commit a crime. Not smart. 

It's probably not a good idea to steal a phone while sitting on the bench when you have already alienated most of the female voters in Miami-Dade County with Neanderthal like views about breast-feeding. We mean, we're not Donald Trump or Karl Rove, but still, this can't help a candidate vying for re-election, unless the Judge subscribes to the view that any publicity, no matter how bad, is good publicity. 

See You In Court, where it's not polite to play Candy Crush on your phone in court, but it's not against the law. 

18 comments:

Anonymous said...

Milena Abru is running against him for a reason. This guy was a jerk when I was a public defender. Always arrogant and dumb as a bag of hammers.

Anonymous said...

Yet no one reports this behavior to the JQC. Why?

Anonymous said...

He loves taking poor people's phones. Get em now, you're out of office soon buddy.

Anonymous said...

Fred doesn't get it. That's why he will get beat in the next election.

Anonymous said...

As a former defense attorney, I can tell you that he was horrible to appear before. His arrogance coupled with lack of intelligence make him dangerous. He's also got the biggest douche of a bailiff ever. I was also a former colleague on the bench and I can tell you he's not pleasant.

The Professor said...

He is authorized to ban the usage under Rule 2.451 Florida Rules of Judicial Administration, which states:

"(1) The use of electronic devices in a courtroom is subject at all times to the authority of the presiding judge or quasi-judicial officer to:

(A) control the conduct of proceedings before the court;

(B) ensure decorum and prevent distractions; and

(C) ensure the fair administration of justice in the pending cause"

There are two kinds of contempt at play here. First is indirect criminal contempt. It is mainly used in instances where a person refuses to obey a written order of the judge outside the judge's absence. The second is direct criminal contempt where the person disobeys the judges order in the courtroom and within the court's hearing or eyesight.

Here Fred did not observe the conduct, but relied upon the bailiff's information the the phone was being used in the courtroom, in direct violation of the published prohibition. He then used the information found in the phone to substantiate the bailiff's version of the events, and using the direct criminal contempt powers, verbally demanded that the owner show cause why he should not be held in contempt of court. (Which is permissible in direct criminal contempt matters. The proceedings are summary in nature.) There are multiple problems with this procedure in this instance.

First, Fred did not see or hear the conduct personally. Therefore he is required to issue a written Rule to Show Cause, serve it on the person, and if that person pleads not guilty, he is entitled to a trial, and a jury trial if he demands it.

Second, and more clearly, under Smallwood v. State, 113 So3d 724 (Fla 2013), Fred had no right to look through the owners cell phone to obtain evidence to be used in a contempt of court proceeding. He is, in this instance, a state actor. The owner could file a motion to suppress, and based upon the facts presented in the post, that motion would be granted. It would come down to the bailiff vs. the owner of the phone.

Thirdly, is the legality of the order. The owner of the phone can argue, and, if convicted, appeal the conviction based upon the legality of the order. That is whether Fred has the right to ban cell phone usage in his courtroom by the posting of the sign(s), or is he required to verbally announce, himself, at the start of every session that all phones are to be either turned off or silenced, and their use is prohibited in the courtroom. That makes the order a direct order of the court to all who are present and subject to direct criminal contempt.

All in all, Fred is not wrong for banning their use in court. Where he went wrong is how he went about doing that, and the procedure he used for contempt proceedings.

Anonymous said...

Judge Seraphin gives a good trial - voir dire is on par with Judge William Thomas. He often finds pro se Defendants not guilty in bench trials. He runs a tight ship in his courtroom and makes the State come prepared. Not sure where all this hatred from the defense bar is coming from - he is much better for defendants than all these ex-prosecutors on the bench. Rumpole you should confess error here given what the professor just posted. Or are you working for Milena?

Anonymous said...

Professor, in direct contempt appeals what scrutiny is given to the basis of the judge's order? Could a COA find that the judge issued a clear order, the defendant disobeyed the order in direct view of the judge, but that the order itself was inappropriate or without grounds?

Also, what is the standard of proof in contempt hearings?

Claude Erskine- Browne said...

How is looking at your phone, texting quietly or playing candy crush ( without notice) interrupting court or disrupting - interfering with court procedures, so that it is contemptuous?

Rumpole said...

Let's assume the good professor is correct. The remedy is to quietly ask the person to put away their phone.
Under what authority does the judge confiscate private property?

Rumpole said...

BTW I never confess error. Never never never never never surrender.

Anonymous said...

I'm with Claude on this one. I think it's ridiculous that judges prohibit people from looking at their phones while in court. It's not remotely disruptive if the sound is off (the fact that the judge didn't notice the conduct himself is proof positive that the proceedings weren't disrupted in my book). Some of these judges (and bailiffs) need to get over themselves.

BTDT

Anonymous said...

Burden of proof in any criminal contempt is beyond a reasonable doubt and judge must follow Fla. R. Crim P. 3.830/3.840 and must specifically find intent to disobey order.

Anonymous said...

LOOKS LIKE ELECTRONIC LYNCHING TO ME??? THIS AINT ABOUT PHONE...I REMEMBER THE OLD DAYS AND THOSE GUYS DIDNT PLAY..FREDDY AINT NOTHING COMPARED TO NESBITT, ROBINETTE...WHO REMEMBERS???FREDDY IS NO WHERE NEAR THESE GUYS...WHAT ABOUT DAVA..NOBODY WRITING ABOUT HER??

Anonymous said...

Judge Ward routinely confiscates phones and never gives them back. I've seen phones taken by at least a dozen judges at the justice building without a peep from you. 10:10 is correct, this a bullshit underhanded political attack. Seraphin is a tough taskmaster on decorum but a great judge for matters of fairness to defendants and guilt or innocence. I like Milena but I doubt she we rule in favor of defendants in the face of asshole cops as Seraphin has done whenever appropriate.

Anonymous said...

Seraphin had no signs prohibiting their use last time I was in that courtroom (if you could call it that). I've even seen him take an attorneys cell phone while in line waiting to call a case. As far as a good trial, maybe if he doesn't bully your client into a plea first.

The Professor said...

A COA could find the order illegal but still sustain the contempt finding. The issue is whether the order clearly and explicitly advises the defendant of his/her obligations under the order. There are other remedies, but direct disobedience of a court order is never excusable, like resisting without violence is never excusable.

The standard of proof is different depending on the type of contempt. I direct criminal contempt of court it is the to the satisfaction of the court. (Remember it is a summary proceeding based upon the contempt occurring before the court and the Rule to Show Cause is a mere question as to why not based upon the court's own observations.) In an indirect criminal contempt, where there is a trial it is beyond a reasonable doubt that the defendant intended to disobey the court.

By the way Rump, based upon Thomas v. State, 752 So2d 679 (Fla. 2nd DCA 2000) it would appear that the signs on the wall or the door are not sufficient. And I agree at least one warning before action is taken by the judge is appropriate.

Anonymous said...

I hope that's not true about Ward. I've always liked and respected her and think that permanently taking a cell phone is beneath her.

BTDT