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February 15, 2010 Letters

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Facebooking Judges

Florida’s Judicial Ethics Advisory Committee recently issued an opinion regarding judges’ online social networking activities. When asked whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as a “friend,” the JEAC answered, “No.” (You can be fans of judges you appear before, you just can’t be their friends, January 1 News. )

The committee explained that when a judge calls a lawyer a “friend” in everyday conversation it does not mean that the lawyer is in a special position to influence the judge. Yet in the eyes of the committee, listing lawyers who may appear before the judge as “friends” on a judge’s social networking page conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.

This opinion makes the assumption that when a judge clicks “accept friend” for a lawyer, the judge is defining the relationship more meaningfully than the judge would by saying aloud that the lawyer is a friend.

But lawyers and judges are friends with each other. They exercise at the same gyms, work together, attend and teach school together, and share membership in clubs or religious groups or even families. They share true friendships, forged over years. These true friendships, based on common interests or time spent together, neither place lawyers in a special position to influence judges in the eyes of the committee nor convey the impression that lawyers have such a position in the judge’s favor. Meanwhile, the act of clicking “accept friend” is seen to convey a position of influence.

However, no special position of influence is conveyed by lawyers hosting fundraising events for incumbent judges in election years. Lawyers may chair committees to elect judges without reproach. Lawyers may individually contribute up to $500 per judicial campaign, and may even hand a check over in the morning and appear before the same judge in the afternoon.

Regular users of social networking sites recognize the superficiality of their online “friendships.” Online “friends” merely agree to broadcast their posted information in exchange for the information you broadcast. No such impression of undue influence on a judge can be conveyed by such a superficial connection. Those who lack true friendships with judges, such as starting lawyers or lawyers from outside the locality, are at a disadvantage when they are barred from establishing online connections.

Jane Muir
Miami

Disappearing Civil Trials

I read with interest the article in the January 15 News in relation to the paucity of civil jury trials in this day and age.

Apparently, there was a concern about the decrease in trials. I find this ironic, in that just a decade ago there was a great concern about the “litigation explosion.”

As a board certified civil trial lawyer having practiced personal injury law for 30 years, I never saw such evidence of an explosion. However, between mediation encouraging settlements and the so-called “loser’s pay rule” discouraging litigation, they have had the ultimate effect of very few civil cases going to trial anymore in this day and age.

I don’t think that this gives us a black eye in the eyes of the citizens, since they are oblivious as to whether or not cases are settled or migrate through our court system.

Terence A. Gross
Pensacola

Lawyers for Children

I read, with interest, the notice in the January 15 News concerning the position adopted by the Board of Governors to recommend that children in dependency court be provided lawyers. I am writing in strong support of that legislative position.

I have had the privilege of acting as a pro bono attorney for the guardian ad litem in dependency cases. Most of the cases I was given involved egregious facts and circumstances. I can unequivocally state from my experience that the children’s needs and best interests were not being adequately represented by the Department of Children and Families or the state attorney’s office.

All of the case workers were overworked, many were woefully inept, and some did not seem very concerned. I can cite numerous examples where the outcome for the child would have been unacceptable but for the dedication of the Guardian ad Litem Program. These children are helpless and being placed in unacceptable situations with no one to advocate for them.

Despite the current funding limitations the state and courts are experiencing, I can’t think of a more important issue. These children simply can’t protect themselves, and we are their only lifeline. I hope the board will push hard for this program, and I feel certain that, with adequate publicity and education to members, this laudable goal can be achieved with pro bono attorneys. I would certainly be willing to participate in that program and motivate my colleagues to get involved.

James A. Helinger, Jr.
St. Petersburg

Gay Adoption

Many may be growing tired of the argument over gay adoption in the News, but wasn’t this prolonged dispute to be expected when the Board of Governors authorized the Family Law Section to file an amicus brief taking sides against the statute and the views of a sizable portion of the Bar?

That a section with permission of, but not the Board of Governors itself, filed the brief, seems a distinction without much of a difference, at least as it appears to the public, unaccustomed to such legalistic hairsplitting. So the whole Bar gets dragged in.

This controversy may exemplify the wrong in activist courts’ attempting to accomplish what is not achievable through the Legislature. Florida has been down this road several times already. Only six years ago in Lofton v. Secretary, 358 F. 3d. 804, the U.S. 11th Circuit Court of Appeals in a case out of Miami ruled that homosexuals do not have the constitutional right to adopt, holding that the state has a legitimate interest in placing adoptive children in a nuclear family, “in a home anchored by both a father and a mother.” The court concluded, “Any argument that the Florida Legislature was misguided in its decision is one of legislative policy, not constitutional law. The Legislature is the proper forum for this debate, and we do not sit as a superlegislature ‘to award by judicial decree what was not achievable by political consensus.’”

In the interim, the people have amended the Florida Constitution to provide that marriage, the foundation of the family, can only be between a man and a woman. What aim, then, can there be in starting this up again in the courts, if not the hope of ultimately thwarting the considered judgment of the people?

In these pages, some advocates of gay adoption have labeled opponents “bigots” and “Bible Taliban.” The objective truth of the scriptures has been questioned. The Christian religion itself has been impugned. Let these views be presented to the Legislature, where they can be properly weighed. Let us see what reception they are given there.

J.G. Halisky
Clearwater

___________________________

In his January 15 letter, James Altman takes issue with some of my points with respect to the Bible’s views on homosexuality as relates to adoption.

I must disagree with his observation that nothing in the New Testament indicates that some Old Testament proscriptions are no longer binding. I mentioned Mark 7:19 and Acts 10:9-15 in my December 15 letter. See also Acts 15:1-11 as to circumcision no longer being required. In Galatians 3:24-25, Paul says: “Wherefore the law was our schoolmaster to bring us unto Christ, that we might be justified by faith. But after that faith is come, we are no longer under a schoolmaster.” But that is not to say that we cannot learn anything from the old “schoolmaster.”

The primary thrust of Mr. Altman’s letter is that because the New Testament does not prohibit slavery, and we all know slavery to be evil, then we should not accept New Testament passages as to homosexuality either. This somewhat overlooks the fact that the New Testament was not intended to mend every social ill, as opposed to stating how a person should respond to the various situations in which one finds himself to reflect a Christ-like nature. See Luke 22:27 (“But I am among you as one who serves.”). Nonetheless, the New Testament does not advocate slavery as a preferable social arrangement. See 1 Corinthians 7:21 (“Were you a slave when you were called? Don’t let it trouble you — although if you can gain your freedom, do so.”).

Thomas F. Harkins, Jr.
Ft. Worth, Texas

___________________________

I cannot recall a single controversy that has generated as many passionate letters to the News as the ongoing one that has arisen over whether The Florida Bar should maintain official neutrality or support a principled stand in the matter of the statutory exclusion of homosexuals from eligibility as adoptive parents in our state.

Clearly, this debate has distilled the surface issue to a single query: whether Florida attorneys are willing to condone the singular exclusion of all homosexuals in this state from ever adopting children. A basic principle of American law hangs in the balance. It is whether we are willing to deny a discrete class of persons, indistinguishable from the body politic except in a specific sexual preference, from the rights granted to all others by law and by the constitutional principles that underlie the ideals upon which our republic stands.

Are homosexuals, as a discrete group or class, entitled to share in the panoply of rights of the citizenry at large? If not, must there not be a relevant and articulable basis for the disparate treatment?

Chris Keith of Boca Raton, in his January 1 letter, argues in support of §63.042(3) that “gay adoption is a political issue,” and that courts must defer to the Legislature in such matters. This is the type of states’ rights argument that gained so much momentum in opposition to the civil rights movement and the application of the 14th Amendment to the states by the federal courts. Without belaboring the point further, every Florida lawyer should recognize a losing legal argument when he/she sees one. The assertion that the statute has achieved exalted status, and is therefore unassailable and impervious to judicial scrutiny by virtue of its longevity, is so specious that it would not merit any response, save for its usefulness as an example of how far afield a few lawyers are willing to venture in order to convince themselves that thinly disguised homophobia is the best way to “ hate the sin but love the sinner, ” and maintaining an implacable position on this issue relieves them of any moral responsibility to examine or question any of their other beliefs, attitudes, and ways of thinking about life.

This debate has revealed an assortment of religious beliefs among attorneys, at least those who have written on this subject. It’s one thing for an attorney to recognize and understand the role of traditional religious values in the evolution of law in the Western world, and quite another thing to present those religious values, beliefs, and their sacred scriptures and writing in support of a legal argument.

As a trial lawyer for 26 years, I more than once quoted or paraphrased the Bible, mainly to give my argument familiar context in order to persuade judge or jury of the rectitude of my client’s cause. But I never cited a Upanishad, Bible verse, or Sutra, as the dispositive legal basis for summary judgment or a verdict. While many religious values have become merged into our jurisprudence, just as often history also teaches that we have turned to the law to protect us from religion.

Felix Michael Mosca
Sarasota

Innocence Commission

When I read the January 1 article about the efforts to establish an “innocence commission,” it put me in mind of my first interview for the position as an assistant state attorney 29 years ago.

I was asked why I wanted to be a prosecutor, and I gave what I have learned in the intervening years was a very unusual answer. I told my interviewer I felt, as a prosecutor, I was in the best position to assure that innocent people were protected from wrongful prosecution. It didn’t seem to me at the time that my answer was so radical. In the last 29 years that I have worked as a prosecutor, I have found that, though it’s not fashionable to say it and it is not the public’s perception, most good prosecutors would agree.

There are few things as tragic as an innocent life that is taken, either in whole by an act of violence, or in part by an erroneous prosecution. A wrongful incarceration, even after all participants in the system have acted with diligence and good faith, is a tragedy.

I personally would like to see a serious examination of the wrongful prosecution cases by some type of innocence commission. There is, however, a regrettable tendency to throw the baby out with the bath water. An examination which only looks at the cases where innocence was later proven will not be enough. Without comparing the cases where the system got it right to the cases where the system got it wrong, meaningful conclusions are not possible.

Consider eyewitness identification for example. We will learn little, by focusing on the cases where the witness is later proven wrong, if we ignore the fact that in the vast majority of criminal cases forensic and other evidence corroborates the witnesses’ identification. Why did these witnesses get it right and others did not? Was it the circumstances of the events they viewed? Was it the lighting? Was it an early impression that they knew the suspect? Was it the lineup procedure? All of the studies thus far, by those in academia, have failed to take advantage of the wealth of empirical data, focused only on proving the eyewitness ID is unreliable, in laboratory situations, instead of trying to figure out why it is correct so frequently.

Only by comparing these cases and asking right questions can we learn lessons that will help prosecutors in the future. I don’t know a prosecutor on earth who would not like to have some reliable way of telling a good ID from a bad one. An innocence commission properly focused and balanced will be an unrivaled benefit to our system of criminal justice.

I still believe, as I did 29 years ago, that our best defense against wrongful prosecutions is the experienced and ethical prosecutor who sees himself or herself, at least in part, as a shield for the innocent against both acts of violence and the danger of wrongful prosecution.

Jeffery L. Ashton
Orlando

JNCs and the Bar

I was privileged to serve on a JNC for four years as a direct appointee of the governor. I have been a proud member of The Florida Bar for 40 years.

My view is that the Bar should have little role in the JNC process, except to provide an allocated, limited, diverse number of suggested JNC nominees to the governor. The Bar is simply another group, among many other groups, that has an interest in the nomination of judges. The Bar is not responsible to the electorate and cannot be run out of office or recalled. It is the governor who is an elected official. No matter how important the Bar believes it is to the nomination process, it is unregulated by the people — at least at this point.

The governor needs to have the maximum flexibility to appoint the nominators and to reject or accept both JNC nominees and the product of the nomination process, the judicial nominees. Otherwise, the people cannot hold the governor responsible if the JNCs produce inadequate and nondiverse judicial nominees.

The Bar leadership is a mini-political body with its own agendas. To inject that process into the important role of appointing judges may lead to demands by the public that it have a role in the Bar’s business. Recent events have given some currency to that idea. As to diversity in the process and product, it is absolutely essential — and we should start with the Bar. The Board of Governors should be reorganized so that the ethnic and gender quotas rightly demanded by the Bar of the state governor be applied to the Bar Board of Governors and every Bar-appointed body. The Bar needs to set the example it demands. The circuit seat system now ensures a lack of diversity. It needs to be abolished and a new system, guaranteeing diversity, created.

Thomas R. Spencer
Coral Gables

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