Supreme Court wants details on judge's deal
A meeting is called to determine if Brandt Downey's punishment was too lenient. Meanwhile, another judge says Downey didn't tell the truth to the court.
By CHRIS TISCH
Published June 30, 2006
TALLAHASSEE - Gray-bearded and gaunt, Judge Brandt Downey smoked a cigarette and held a cup of coffee outside the Florida Supreme Court on Thursday morning. His shoulder bones poked from his suit jacket like a coat rack.
The embattled judge hoped the court would allow him to keep his job until December, then retire.
But several justices said they have a problem with that plan.
They aggressively questioned whether Downey had paid a sufficient price for allegations that he sexually harassed two lawyers.
And Downey raised more questions with one of his statements.
He told the justices he never asked another judge to assign one of the harassed lawyers to his courtroom.
But that's exactly what Downey did, fellow Pinellas-Pasco Circuit Judge Linda Allan said.
Allan, reached after the hearing, said Downey constantly pestered her during court hearings with instant computer messages, urging her to pass the female prosecutor's cases to him. The messages were not saved.
"He either lied or his memory is so impaired that he has no recollection of the actual events," Allan said. "It happened on an almost daily basis. He sent me messages ... commenting on the 'beautiful so and so' and what she was wearing that day and if she had any trials that day."
Downey told a reporter after the hearing: "That might be her recollection. My recollection is different."
The justices, who made no decision Thursday, wondered why the commission overseeing Florida judges did not demand more punishment.
"What kind of a message do we send ... (if) we're going to let you hear cases for the next six months?" asked Justice R. Fred Lewis.
The Judicial Qualifications Commission charged Downey in December with violating judicial canons by trolling pornographic Web sites on his office computer, making suggestive comments to the two lawyers and making several errors during a murder trial in which a juror reportedly fell asleep.
On a late Friday afternoon five months later, the JQC released an agreement in which Downey admitted to the pornography charge and denied the other charges. He agreed to write a letter of apology, face a public reprimand from the Florida Supreme Court and never seek judicial office again.
The agreement called for Downey to serve as a judge until Dec. 31, when he would retire.
The Supreme Court justices must give the JQC's recommendation great weight, but ultimately they have the final say on Downey's punishment. Downey also could pull out of the agreement if the court wants to impose a tougher punishment.
The justices summoned the judge and the JQC's counsel to appear before them Thursday to answer questions about the agreement. It was the first time the justices have done that since 1996, when Florida voters empowered them to modify JQC recommendations of punishment for judges.
Some justices seemed distressed that Downey would serve another six months when litigants, including female lawyers, will appear before him.
"It seems to me that the total function of the JQC is to ensure to the public that when they walk into a courtroom that they have a judicial officer who is behaving as a judicial officer ought to behave," said Lewis, who takes over as chief justice today.
The court has rejected a JQC recommendation in favor of harsher punishment only once, involving Pinellas-Pasco Judge John Renke III. The JQC recommended Renke, who violated campaign regulations in 2002, be fined, reprimanded and suspended. But the justices removed him from office in May.
As the oral arguments began Thursday, Justice Charles T. Wells hardly allowed JQC counsel E. Lanny Russell to introduce himself before interrupting with a question. Wells seemed irked that the agreement essentially dropped the charges involving the two female lawyers.
"Extremely serious charges ... are just vanishing in the air," he said. "And what does that do as far as other members of the judiciary? Are we not going to send a signal to them that that type of conduct we are not really going to prosecute?"
Russell at one point responded: "It is everything short of the immediate removal of the judge."
Downey later addressed the justices. He acknowledged that he asked one female prosecutor to lunch in 2003 and sent e-mails to a second female lawyer that praised her looks. In one, he made a sexually suggestive comment.
Downey told the justices such contact with the lawyers was inappropriate. "While I was in the Army Reserve I was a lecturer in the area of sensitivity training and sexual harassment as it relates to the Army. Unfortunately, I forgot part of that training as it relates to these two women," Downey told the justices. "I deeply regret it."
Judge Allan eventually reported Downey's behavior toward one prosecutor to Chief Judge David Demers. He confronted Downey, who denied harassing the woman but agreed not to speak with her anymore. Months later, Downey was showing the same kind of interest in another female lawyer, this time sending inappropriate e-mails.
The situation snowballed when computer viruses on his computer alerted staff that he was accessing pornographic Web sites in his chambers. At about the same time, sexual harassment allegations involving the second female lawyer came to light.
Downey took a leave of absence, entered counseling and was transferred from his criminal bench to a civil division. The JQC charges followed months later.
When quizzed by the justices Thursday, Downey said he was an "overactive mentor" to one of the women. As for the second lawyer, he said: "I was trying to get to know this attorney better on a social level, which was certainly inappropriate on my part ... while she had cases that were pending in front of me."
Justice Peggy Quince said Downey seemed to "downplay his whole involvement in this."
Russell told the justices that Downey didn't deny having the contact with the female lawyers, but denied that he intended to sexually harass them. The female lawyers also have signed affidavits saying they never had a problem with Downey.
Downey also told the justices Thursday that the case had caused him great embarrassment and financial ruin.
Russell said removing Downey from the bench now would cause problems because other judges would have to pick up his cases.
Pinellas-Pasco Public Defender Bob Dillinger, an outspoken critic of Downey, said the justices may want to make an example out of Downey.
"From the tone of the questioning, it appears they are very focused on making sure that judges don't have inappropriate contact or comments with the attorneys who are appearing in front of them," Dillinger said.