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An appeals court says Circuit Judge Brandt Downey III didn't follow directions for a jury selection. Now a murder case will be tried again.
By WILLIAM R. LEVESQUE, Times Staff Writer
© St. Petersburg Times, published January 10, 2002
LARGO -- A Largo man serving life for killing his 3-month-old son by slamming him into the floor won a new trial because of a judge's "blatant disregard" for a higher court's directions on how to pick a jury, an appeals court ruled Wednesday.
The 2nd District Court of Appeal reversed the first-degree murder conviction of Jared L. Dougherty because Pinellas-Pasco Circuit Judge Brandt Downey III failed to follow directions he had been given by the appeals court before Dougherty's trial.
"We recognize that all those involved must relive the terrible events surrounding the death of Mr. Dougherty's infant son," the court said in its ruling. "But we will not shirk our responsibility to follow the rule of law, even in unpleasant circumstances.
"This responsibility, had it been followed by the trial judge, could have rendered a new trial unnecessary."
The appeals court ruled in tossing the life sentence that Downey must step aside at the retrial, allowing another judge to preside.
The 2nd DCA said, "We make no determination whether Judge Downey's conduct rises to a level warranting ... intervention" by the Judicial Qualifications Commission, the state agency that oversees judicial behavior.
Downey said he has expected the ruling but said he had not seen it and could not comment about it. The dead child's family could not immediately be reached for comment.
Downey, 56, served as a Pinellas County judge beginning in 1984. In 1988, he won a seat on the Circuit Court, where he has served mostly on the criminal bench, and now serves as criminal administrative judge.
The court's ruling stems from Downey's comments in July 1999 to a jury that had acquitted a man accused of dealing crack cocaine. Downey told jurors in that case that he was "disappointed" by their verdict.
He told jurors that they should have believed a police officer who had testified about an alleged drug deal and convicted the defendant.
After his comments, Pinellas-Pasco Public Defender Bob Dillinger sought to have Downey step aside as the judge in Dougherty's trial, arguing that Downey was generally biased in favor of law enforcement.
Downey refused to step aside. Dillinger appealed to the 2nd DCA. The appeals court ruled that Downey could stay on the case.
But it ordered Downey to allow defense attorneys to question potential jurors in Dougherty's case to see whether they were aware of Downey's much-publicized comments to the jury that acquitted the defendant in the drug trial. If jurors were aware of Downey's comments, lawyers could ask them whether his comments would have any affect on their ability to render a fair verdict in Dougherty's case.
The court said Downey should follow the same procedure for all cases he heard for the next 90 days. But it ordered that he do it in Dougherty's case regardless of when it came to trial.
But when Dougherty went to trial, the judge refused to follow the 2nd DCA's instructions and didn't allow attorneys for the Public Defender's Office to question potential jurors about his comments, the ruling said.
By doing so, Downey "infringed upon Mr. Dougherty's constitutional right to an impartial jury," the appeals court said.
Attorneys in Dillinger's office declined to comment on the decision.
Pinellas prosecutors said at Dougherty's trial that Dougherty grabbed his son, Brennan, out of his high chair in March 1999 and slammed the boy into the floor of a Largo apartment he shared with his girlfriend.
Defense attorneys acknowledged that Dougherty, now 25, killed the child after a night of drinking and taking drugs. But they said that Dougherty, immature and unable to understand his actions, was guilty of manslaughter, not murder.
Defense attorneys said he had argued with his girlfriend, who was the boy's mother, before the killing and thought if he slightly harmed the child she would return to him to care for Brennan.
The 2nd DCA opinion in Dougherty's case is the court's second in recent months that is critical of Downey.
In October, the court criticized Downey's decision to jail a woman for contempt after she failed to show up as a witness in a trial.
The woman said she hadn't received a subpoena to testify. But Downey didn't believe her and sentenced her to four months.
The appeals court ruled that he did so without appointing her a lawyer or telling her the charge that she faced.