Should judges be permitted to call prosecutors appearing before them to request case documents without notifying the defense?

Should the State hand over prosecution records to a requesting judge, some of which may not yet be in the defense’s possession, without notifying defense counsel?

Have defendants rights been impacted if either question is answered in the negative?  If it’s been a routine occurrence over months or years impacting long closed cases, what is the remedy?

And if a judge notes the review of discovery documents in a written order denying depositions, does it count as full disclosure?

These are a few of the questions presented by Jason Blank’s Motion For Disqualification Of Judge, filed in State v. Zahariev.  The motion is found here.

At issue is Chris Pole’s habit of requesting things like medical records, crash reports, and supplements as background information before ruling on requests to allow depositions in misdemeanor cases.  Pole, the chief judge over the county criminal courts, is well-known for precluding depositions on cases in his division.

Florida Rule of Criminal Procedure 3.220 (h)(1)(D) provides in part:

In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition

Does Rule 3.220 authorize Pole to contact the State on his own and request additional information, or is Blank’s contention that impartiality has been breached accurate, to the point a new judge should be assigned?

From the motion:

… on January 24, 2018, the Court entered an order denying Defendant’s motion and citing to a litany of items it reviewed in coming to its decision … (Blank) was perplexed as to how the Court obtained the documents that it purports to have reviewed, including documents which had not yet been disclosed to Defense in any State’s discovery submission, namely Defendant’s medical records.  (Blank) immediately contacted the assigned State Attorney for this matter and inquired further about how the Court came into possession of these documents … (Blank) was advised that the Court had requested the Sate’s discovery ex parte, via telephone … The Court was then party to a second ex parte communication when the State complied with the Court’s request and provided a slew of documents to the Court … (Blank) was also advised by the assigned State Attorney that it is the Court’s normal practice to make these ex parte requests to the State when motions for depositions are received by the Court … (Blank) then spoke with the Chief Assistant State Attorney who confirmed the ex parte communication in this matter had occurred and agreed to address the Court regarding this matter together with (Blank) … on February 9, 2018 … (the parties addressed the Court) … and the Court not only promptly confirmed that the ex parte requests in the instant matter was made, but that it is the Court’s regular practice to request ex parte from the State, without any notice to the Defense, all discovery materials provided to the Defense … 



Jack Tuter’s war on the jail cap continues unabated -the hotly anticipated Administrative Order implementing the Alternative Sanctions Program for probation violations was issued yesterday for felony offenders and misdemeanor offenders Click on the links to study the specifics.

Adam Goldberg, chief of the Public Defender’s Early Representation Unit, told us in January that the statutorily authorized program is already in place in numerous judicial circuits throughout Florida, and should have the effect of clearing a large amount of non-violent probationers away from jail stays when a technical is presented to a judge.  The judges retain discretion on each case, so warrants could still be forthcoming, as with the request for reprimand letters in lieu of warrants process, which has been in place for some time.  With Tuter leading the way, however, it’s hoped judges won’t interfere with alternative sanctions, and allow the Department of Corrections to handle technical violations in house.

Wait and see …

Constitutional Revision Commission Chris Smith spoke to us this morning regarding an update on the CRC and judicial issues.

The push to get the retirement age up to 75, and doubling the qualifying minimum years of legal experience before becoming a judge from five to ten years, may still make the ballot.

However, merit retention for all county and circuit judges, after having to face one contested election, seems dead.

Smith says he supports merit retention for seasoned judges because he’s unhappy with the current system for electing judges.  He doesn’t think they should have to hustle all over the county without being able to say much of anything after surviving their first election, but mostly wanted to start a discussion about changing the way judges are elected.  After facing strong resistance from the other commissioners, Smith said the next step may be to try and alter the restrictive speech rules governing judicial elections, so candidates for the bench can at least have substantive discussions on the campaign trail …


We’re told Michael Davis, previously slated to take over for Kim Mollica in County Criminal, now resides full-time in South Satellite, inheriting Claudia Robinson’s former division.  Kim Mollica’s old County Criminal division is currently being covered by other judges after her reassignment to full-time First Appearances, and County judges will also be asked to rotate through to pick up the slack in Davis’ former Domestic Violence division until further notice.

Please post a comment if you know who is slated to take over the vacant County Criminal division full-time …


Claudia Robinson has resigned her position as county court judge, effective February 12th …

From: Jack Tuter

Date: 2/1/18 4:10 PM

This is to advise Judge Claudia Robinson resigned today effective February 12, 2018. Judges Lee, Pole and Kanner are working on a plan to assure full coverage in Hollywood.
Thanks JT


Oh Joel! click here for the letter from Howard Finkelstein to Jack Tuter regarding Joel Lazarus’ comments during First Appearances court on January 19th.

The Public Defender is looking to have Lazarus stricken from any further criminal matters, after the senior judge was caught on tape stating “I’ll double the bond … [the alleged incident] took place in my neighborhood. Closer to my house, the higher the bond. That was always Lazarus’ Rule.”


Additionally, Finkelstein highlights what he calls “two policy statements (as to bonds and as to sentencing) that would place any reasonable defendant appearing before him in fear of not receiving a fair and impartial hearing“.

From the letter:

During the afternoon 2nd look docket, Judge Lazarus further showed his lack of impartiality when dealing with a defendant facing a misdemeanor cannabis allegation … Even though the case had not been filed, the defendant wished to resolve his case so he could be released from custody. Judge Lazarus offered to resolve the case for an adjudication and time served. When asked if he would withhold adjudication, Judge Lazarus stated “absolutely not, I don’t do that.” When challenged with the information that other judges typically withhold adjudication in misdemeanor cannabis cases, Judge Lazarus advised that he does not, and that he would “treat him consistent with the way I treat other defendants.” These additional policy statements evidence an antiquated sentencing approach to cannabis that is at odds with our county, state, and nation’s evolving attitude and show that with him, criminal conviction is the only resolution.”

Now all eyes are on Tuter to see how he handles a seemingly out of touch senior judge who has, for whatever reason, been permitted to work pretty much full-time since retiring many years ago …

From the DBR – speaking of Tuter, after many strides into the modern era since taking over as chief judge, he still shares one thing in common with his predecessors: he hates this blog!

The Daily Business review quotes him boasting from the State of the Circuit address on January 19th, ironically the same day Lazarus was stuffing foot in mouth in bond court:

“And now the chief judge wants to turn his attention to several new initiatives with Broward Clerk of Courts Brenda Forman, Public Defender Howard Finkelstein and State Attorney Michael Satz, despite what he called “malicious and anonymous blogs” that falsely depict a rift among the public officials … “

On the bright side, with our slower rate of posts and news reporting, it’s nice to know he’s still reading, even if it’s not very carefully …

COMING SOON2018 Judicial Races Roundup; This year’s Gulkin Award goes to …

Sarasota Herald-Tribune – Review confirms Broward more punitive toward blacks

Mr. Mojo Fishin’ …


Bill Haury to replace Fred Horowitz in the Family Division.

The new appointment from the crop of candidates currently up before Rick Scott to replace Haury in Criminal.

Kim Mollica to full time First Appearances.  Michael Davis takes over for Mollica in County Criminal.

The First Appearances/Davis swap is old news, while the Haury move is a strong, fresh rumor.  Mike Rothschild had been in the running to take over Horowitz’s division in Family, but it appears he may have to wait until the promised new full time Family Division is created.

Developing …