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September 10, 2018

Prosecutors are some of the most powerful elected officials in our country. They decide what charges to file or dismiss, how severe the charges will be whether to seek cash bail, and what plea offers are made. Through their lobbying associations, they also shape criminal statutes to their benefit, often blocking reforms that the community supports.

But while prosecutors wield immense control over the direction of our criminal justice system, they certainly can’t handpick the judges who hear their criminal cases.

Or can they?

In Marion County, Florida, Brad King — the elected state attorney and the county’s top prosecutor — believed he was losing too often in the criminal cases his office was prosecuting. Instead of upping his game, he managed to shift it in his favor, with the help of a judge whose job it is to guard the integrity of the judicial process.              

On July 12, King sent a scathing letter to the administrative judge of Marion County, Judge James McCune, complaining about two of McCune’s colleagues, before whom King and his staff regularly appeared: Judge Robert Landt and Judge Thomas Thompson III. That letter was obtained by the ACLU of Florida through a public records request, and is being publicly released in full here for the first time.

King’s complaints were brazenly self-serving. Of Judge Landt, King asserted that his “rulings on such things as motions to dismiss, motions to suppress evidence, and motions to set bond, and his sentencings, are consistently more favorable to the defense than other judges.” King threatened to assign fewer prosecutors to Landt’s docket, because “we expect little in the way of punishment for those defendants.” As for Judge Thompson, King complained that he “grants continuance after continuance to defendants,” in reference to a tool commonly used by judges to postpone proceedings and requested by both sides to allow proper preparation for trial. In his letter, King also formally demanded that the number of judges in the Marion County Criminal Court be reduced.

After sending his letter, King claimed that his issues with Landt relate to allegations of harassment of King’s female attorneys. However, these allegations were investigated and closed years ago. Moreover, King’s letter makes clear that adverse rulings, not those claims, are the reason King sought Landt’s removal.

Within days of receiving the letter, Chief Judge Sue Robbins, who oversees Judge McCune, gave King exactly what he wanted. Without consulting defense attorneys, whose clients’ cases are directly impacted by these changes, Robbins reduced the numbers of judges in the Marion County Criminal Court from four to two. Specifically, she removed Landt and Thompson — the judges King had criticized in his letter.

The two remaining county judges on the criminal docket both used to work as prosecutors for King. The judges who were removed — Landt and Thompson — were both up for re-election, with primaries on August 28. Landt ran against a current assistant state attorney working under King. That candidate proudly posted Landt’s reassignment letter on his campaign website, boasting that his competitor has been removed from the criminal bench.

It remains a mystery why a chief judge, who is charged with neutral oversight of a judicial district the size of Connecticut, took such an action after receiving King’s letter. Ruling for the defense, or not doling out sufficient “punishment,” is not legitimate grounds for removal. This would be true even if the judges were consistently getting it wrong on the facts or the law — but they weren’t. Florida’s appellate courts regularly affirmed these judges over King’s objections.

Going forward, how can people who appear in Marion County Criminal Court feel they are getting a fair hearing or trial — knowing their judges have effectively been selected by the prosecution, or that they might fear removal if they rule on behalf of the defense?

What State Attorney Brad King did — seeking to influence who is on the criminal bench by sending a scornful demand letter to judges — is highly irregular, to say the least. On Robbins’ part, accepting the unreasonable demands of a state attorney is even more inappropriate. Her decision, shortly following King’s request, gives the appearance, at the very least, that she is easily pressured and, at worst, that she is biased toward the prosecution over the accused.

A prosecutor’s grievance should never become policy. Prosecutors aren’t kings and they don’t get to issue decrees. They — and the judges who oversee their cases — are public servants, accountable to us all. 
 

Co-authored by Somil Trivedi, Staff Attorney, ACLU Trone Center for Justice and Equality

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