Sunday, January 17, 2016

A Recap and Result of the Judicial Viral Video of 2014

In June 2014, the Internet erupted with video from a county court in Brevard county, which is the Titusville and Cape Canaveral area of Florida. Last fall I noted that the age of "big brother" is here and perhaps we should all presume we are being watched. As the following was discussed and the video reviewed, I wondered if it is possible this judge did not know that camera was in his courtroom.

As depicted in the video, Judge John Murphy became perturbed with an Assistant Public Defender ("APD") who refused to "waive" speedy trial for one of the APD's clients in court that day. I have many times said that an APD is likely among the best defenders of accused criminals. These attorneys get a great deal of practice, appearing in court daily. They appear overworked, but they have skills.

The judge was frustrated, and so threatened the APD: "if I had a rock I would throw it at you right now." Then the judge gave the APD an instruction: "stop pi#$ing me off. Just sit down." The APD did not sit. The judge then escalated the verbal abuse: "I said, sit down! If you want to fight, let's go out back and I'll just beat your &%s (rear")."

As an aside, this kind of suggestion might be a clue not to follow this judge anywhere. In fact, if anyone angrily suggests going "out back" at a restaurant, a bar, a coffee shop, or anywhere else, it might be best to politely decline. You may still be assaulted or battered without gooing "out back," but the witness pool will likely be larger. 

Lacking the benefit of my foregoing advice, Judge Murphy left the court room, and the APD preceded him into the hall. Unfortunately the hallway did not have a video camera, as the court room did, and so there is no video evidence from the hallway, but some of the audio from the hallway was picked up. Judge Murphy said "all right you, you want to f___ with me."

Without the advantage of a modern day persistent surveillance, the story at that point becomes dependent upon various perspectives of eyewitnesses. Judge Murphy has a story, the APD has a story, Deputy Martinez has a story, and Deputy Griffin has a story. Judge Murphy claimed that the APD assaulted him. The APD claimed Judge Murphy punched him twice, and unsuccessfully asked to have the judge arrested. The deputies testified that they did not see hitting, and they visually perceived no bruises consistent with hitting.

Obviously the judge and the APD witnessed the entire exchange, but both were in the heat of the situation and each has some self-interest in the story. Deputy Griffin was the first of the others on the scene, and his testimony was that he saw physical contact, but neither the APD nor the judge hit each other. Deputy Martinez arrived moments later, having departed a different court room after hearing shouting. She only witnessed judge Murphy and the PD "screaming at each other with two hands each on the other's collar."

After this bizarre spectacle circulated on the Internet, I had several opportunities in meeting settings to discuss the Florida judiciary with national thought leaders from the workers' compensation industry and adjudication systems. Several who viewed the video doubted it it's authenticity. Their incredulous reaction was that it could only be a satirical production. One prominent adjudicator explained to me that "no one is stupid enough to behave in that manner knowing there's a camera present."

The recitation of fact regarding this interaction and altercation is disturbing on a variety of levels. What occurred next, however, is more troubling. According to The Florida Bar News, Judge Murphy returned to the courtroom and resumed normal operations. The APD did not return.

Some might applaud the judge's work-ethic, but the defendants in the eight cases the judge thereafter called had been represented by counsel, the APD. The APD had not returned to the courtroom after the hallway scuffle or fight. The eight defendants were without counsel. 

Anyone who has watched any television over the last four decades will recognize that people accused of criminal offense have "the right to an attorney." This Miranda v. Arizona warning has long been the unwavering fodder of pulp fiction and Hollywood alike.

The judge asked one defendant, accused of DUI, how he wished to proceed. The defendant replied that he "had no idea what to do in this situation." The defendant complained that he had not "had a chance to speak to my public defender and now I don't have a public defender."

The judge offered this defendant "a chance to talk to a public defender if he waved speedy trial," (emphasis added) a fundamental constitutional right, which the defendant therefore did waive. You may speak to your attorney if you waive some other rights? That is an interesting offer. All eight of the cases the judge called after the event are discussed in the Court's decision

The Florida Judicial Qualifications Commission ("JQC") investigated this exchange and the aftermath. It is notable that the JQC "indicated a trial judge's duties frequently include periods of significant stress." That is an understatement. trial work can be very stressful. However, I would note that this is true for parties, attorneys, witnesses and judges.

Judge Murphy testified during the JQC investigation. He said that "he regretted his words and actions." During the JQC investigation, Judge Murphy claimed that proceeding with those 8 cases after the altercation, without the defendants having benefit of counsel, was appropriate because the PD's "clients were also his (the Judge's) clients." However, he "also admitted that resuming with the defendant's cases was clearly wrong and waiting for a new public defender to arrive before proceeding would have been a better course."

Following the investigation, the Florida JQC recommended a conclusion of probable cause, and asked the Florida Supreme Court to impose "a public reprimand, suspension without pay for 120 days (a loss of about $45,000), a $50,000 fine plus costs, and continued participation in a mental health therapy program," according the The Florida Bar News. That would ,have been a significant penalty.

It is noteworthy that Judge Murphy served this country in the military and that he has a service-related disability. I have, and encourage, great respect for those who wear or have worn this countries uniforms. It is also noteworthy that medical issues may have played some role in the escalation leading to the viral video.  I am appreciative of his service and sympathetic to his situation. The details are in the Court's order. 

The Court reviewed the JQC findings and recommendation. It noted that "there were 45 letters of support submitted to the JQC on Judge Murphy's behalf." Following the incident the judge apologized for his conduct in letters to the legal and local communities and to the APD involved. The JQC and Judge stipulated that some witnesses, if called by the JQC, would have testified in support of this APD's "reputation as difficult an unprofessional." 

After consideration of all of the facts, mitigation, and explanation, the Court rejected the JQC recommendation. The Court found that the "egregious conduct demonstrates his present unfitness to remain in office," that his "grievous misconduct became a national spectacle and an embarrassment to Florida's judicial system."

In describing its logic for the removal of Judge Murphy, the Court cited the use of "profanity in an open courtroom" and the threat of "violence against an attorney." These, the Court said, "erode the public's confidence" in the judge and the judicial system. Finding that the "total lack of control became a national spectacle," and that the behavior was "appalling," the Court concluded "removal is an appropriate sanction." 

There has been no conjecture regarding whether Judge Murphy might face further investigation by The Florida Bar, as has been seen in some other instances of judicial removal. The Court's opinion specifies violation of various Canons of the Code of Judicial Conduct, and "Rule of Professional Conduct 4-1.1." The Professional Conduct Rules govern the behavior of attorneys. As of January 17, 2016 Judge Murphy was listed by The Florida Bar as a "Member of the Judiciary," with no recent (10 years) history of discipline.

Judge Murphy filed for a rehearing (asked that the Court reconsider its decision) and had asked the Court to clarify that his removal from the bench was due to his medical disability and not his "appalling" behavior. Judge Murphy argued that the discipline, as imposed, "tainted his sterling reputation," according to Law360. He had asked instead that the Court involuntarily retire him from the bench based upon his disability, which played some role in his behavior. On January 13, 2016 the Florida Supreme Court denied Judge Murphy's motion for rehearing, according to Law360.

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