We have previously discussed of former Broward Circuit Judge Ana Gardiner who had a secret intimate relations with a prosecutor trying a capital murder case in her court in 2007. She has now been disbarred despite her earlier resignation from the court. That is far harsher punishment than what was received by former assistant state attorney Howard Scheinberg, who was suspended for two years due to the relationship.
In its decision, the Florida Supreme Court lays out the factual background:
During the period of time at issue in this case, Gardiner served as a circuit court judge in the Seventeenth Judicial Circuit, in and for Broward County, Florida. In 2007, she was the presiding judge in State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.), a capital first-degree murder case. Former Assistant State Attorney Howard Scheinberg was the lead prosecutor in the case.1 On March 27, 2007, the jury returned a verdict finding Loureiro guilty of first-degree murder. Thereafter, on April 30 and May 1, 2007, Gardiner presided over the penalty phase of the case, and following those proceedings, the jury recommended the death penalty. On August 24, 2007, Gardiner entered an order sentencing Loureiro to death.
On Friday, March 23, 2007, several days before the jury returned its guilty verdict in Loureiro, Gardiner was eating dinner at a restaurant when she encountered Scheinberg. The referee noted that by all accounts, the meeting at the restaurant was accidental and not planned. However, after dinner, Gardiner, Scheinberg, and others decided to continue the evening at a bar. Scheinberg drove to the bar with one member of the group, who was then a law student. During the drive, this person raised with Scheinberg the possible appearance of impropriety that might arise from the judge and the lead prosecutor in a pending murder trial socializing while the case was ongoing. Scheinberg was upset by the conversation, and he left the bar shortly after arriving. The referee found that Gardiner attempted to learn what had upset Scheinberg and that she spoke with him on the phone several times over the course of that weekend.
The Loureiro trial resumed on Monday, March 26, and Gardiner did not disclose her social interaction with Scheinberg. Subsequently, on March 27, after the jury returned its guilty verdict, Gardiner and Scheinberg had a lengthy phone conversation, during which Scheinberg told Gardiner about his discussion with the law student on the way to the bar. The referee found that Gardiner assured Scheinberg there was nothing for him to be concerned about and that she made a “conscious decision” not to disclose or make known her social interaction and phone calls with Scheinberg.
Beginning with their conversation on March 27, the referee found that Gardiner and Scheinberg commenced a “significant personal and emotional relationship.” Between March 23 and August 24, 2007, the day that Gardiner imposed a sentence of death, she and Scheinberg exchanged 949 cell phone calls and 471 text messages. In particular, on the day before, the day of, and the day following Gardiner’s actual imposition of the death sentence, she and Scheinberg communicated by phone and text 44 times. The referee further found that Gardiner deliberately and knowingly chose not to disclose this emotional relationship to the defense, despite her clear duty to do so.
So it was law student who first and most clearly saw the conflict. To make matters worse, she not only failed to reveal the relationship but the Court notes that Gardiner’s testimony in 2008 before a Judicial Qualifications Commission panel “failed to disclose the honest and true nature of her relationship with Scheinberg.” When the scandal below up, she resigned from the bench and cut short any judicial discipline. However, was charged in an attorney ethics complaint in 2011 over her conduct while on the bench.
Despite mitigating factors, the Supreme Court lowered the boom:
As mitigation, the referee found that Gardiner did not have a prior – 11 –
disciplinary record; she displayed significant personal or emotional problems; Gardiner testified freely and openly, and cooperated in the disciplinary proceedings; she has demonstrated good character and has a good reputation; at the time of the circumstances involved in the instant case, she suffered from clinical depression; other penalties or sanctions have been imposed against Gardiner; and she has demonstrated remorse in her testimony and courtroom admissions. Indeed, the referee found that other than the circumstances involved in this case, the testimony as to Gardiner’s good character and reputation was overwhelming. Nonetheless, we conclude that these mitigating factors do not outweigh Gardiner’s serious ethical misconduct.
As for Loureiro, he was accused of fatally stabbing James Lentry, 57, in Lighthouse Point. The case has proven a total embarrassment for the Florida bar. He was granted a new trial after the relationship was revealed. He was then convicted a second time and sentenced to life. However, he was again granted a new trial last year after an appellate court ruled that his confession should have been suppressed because the violation of Miranda.
Here is the opinion.
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