Objection raised over judicial relationship

Circuit Judge Florence Foster's brother-in-law, a lawyer, has represented clients in her court. No more, says the state attorney.

By DAVID KARP

© St. Petersburg Times,
published August 18, 2001

TAMPA -- Ever since Circuit Judge Florence Foster began presiding over drug cases last year, a familiar lawyer has appeared in her court:

Her brother-in-law, Donald Foster.

About every two months, Donald Foster has represented a defendant in his sister-in-law's courtroom. No one seemed to mind, he said.

Judge Foster would tell all sides about their relationship and ask if prosecutors objected. They never did.

But now, that's going to stop.

"Our ethical obligation is not only to avoid actual impropriety, but to avoid the appearance of impropriety," State Attorney Mark Ober said this week. "I can assure you in the future, we will object."

Ober said he didn't know his prosecutors had not raised questions about the arrangement.

Foster has a history of being at odds with prosecutors. Last year, she refused to send a defendant to prison because he was small and white and, she said, more likely to be sexually assaulted. In May, she sentenced former Yankee slugger Darryl Strawberry to probation rather than prison for violating probation a fifth time.

Donald Foster said he appeared before her a handful of times since 2000. Court records show that Judge Foster was scheduled to preside over nine of his cases since February 2000. It's not clear what role the judge played in all nine cases.

Prosecutors say the judge didn't cut Donald Foster any deals. In two recent cases, the judge put defendants on probation, but that's not unusual for Judge Foster.

In an interview Friday, Judge Foster at first said she doesn't preside over her brother-in-law's cases. "I am not going to have a family member appear in front of me," the judge said. "That can't happen."

She said she entered a standing order 10 years ago recusing herself from all cases involving Donald Foster and other relatives. But Foster's 1992 recusal order, on file with the clerk's office, doesn't mention Donald Foster.

Judge Foster said she was surprised that Donald Foster told the St. Petersburg Times he appeared in front of her periodically. She then acknowledged that it could have happened.

"In general, he does not appear in front of me," she said.

The clerk's office might have accidentally scheduled a case, she said. "I can see how it can happen."

Regardless, Foster didn't see anything wrong with what she did. Her decisions were largely ministerial in cases where "there is no discretion involved," she said.

But that's not what court records show. In some cases, the judge accepted plea deals and set bail. Both require a judge to make a decision.

"I am not seeking favoritism in front of my sister-in-law," Donald Foster said.

Maybe, but the practice doesn't look good, legal experts said.

"It really is a no-brainer," said Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale.

"I think even if it is completely ministerial, your brother-in-law shouldn't be practicing in front of you if you are a judge," Rogow said. "I think it's the judge's duty to create an atmosphere where no one can even raise an eyebrow."

It doesn't matter that prosecutors didn't object, he said.

"One might wonder if they didn't want to offend the judge," Rogow said. "So keeping quiet is the best approach. Again, I think it's the judge's duty."

The Canons of Judicial Conduct say a judge shall disqualify herself from a case if a lawyer on it is a relative "within the third degree of separation" from the judge or the judge's spouse.

The Canons also allow a judge to handle cases with relatives if she announces the conflict on the record, and then asks both sides to consider -- outside of the judge's presence -- if they want her on the case. If both sides agree without the judge's participation, she can stay.

Even so, Donald Foster said he will end the practice.

"I don't want to cause Florence any headaches," he said.

- David Karp can be reached at (813) 226-3376 or karp@sptimes.com.

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