Smokin' Near the Boys' Room

When a Metro cop spotted a defense attorney sneaking a butt in the Justice Building, it was a clear case of drag erasing

Rarely do police officers assigned to the liaison office at the Richard E. Gerstein Justice Building get to brave the perils faced by their comrades on patrol. Instead liaison officers spend numbing ten-hour shifts shuffling through the nine-story courthouse on NW Twelfth Street near Jackson Memorial Hospital. Metro-Dade Police Officer Carolyn McCullough, however, isn't one to let an uninspiring job description get in the way of civic duty.

This past Tuesday morning when she observed a man slinking furtively near the justice building's fourth-floor restrooms, McCullough sprang into action. It didn't take high-tech surveillance to determine that the man was in flagrant violation of Metro Ordinance 26A-2, which protects Dade citizenry from "sanitary nuisances." Drawing on all of her police training, McCullough reacted immediately, before the evidence -- a smoldering Benson & Hedges -- went up in smoke.

Savoring the pleasure of his first cigarette of the morning, criminal defense attorney Alexander Michaels was taken by surprise. "Out of the blue, this lady came screaming down the hall," he recalls. When McCullough demanded that he extinguish his cigarette immediately, Michaels, a former assistant prosecutor for the Dade State Attorney's Office, took offense. "I said, 'Yeah, I'm going to put it down, but you don't have to scream like this at me,'" he says. "She was being very nasty."

McCullough did what any well-trained officer would do when confronted by a peeved threat to public safety: She radioed for backup. The dispatcher sent four additional liaison officers to the scene, where Michaels was handcuffed and trundled off to the Metro-Dade Court Liaison Office on the third floor. There, he says, he sat for about two hours while officers debated whether to cite him with what would likely be a precedent-setting charge of smoking in the hallway.

According to courthouse policy, violators of Florida Law 386.204, which prohibits smoking in public buildings, "may be asked to leave the building and may be subject to a fine of not more than $100." Asks a bemused Elizabeth Timpson, the courthouse building manager, "He must have been doing more than smoking, no?" Timpson explains that courthouse employees are encouraged to snitch on puffing co-workers by anonymously filling out a "Smoking Complaint Form"; since the policy was adopted in 1992, she says, her office has received half a dozen such complaints. Offenders are usually gently reminded to smoke outside.

Then again Michaels, 44, does have a previous arrest record. Before immigrating to the United States in 1980, the attorney had done time in Romanian jails -- as a political prisoner who was sentenced during the reign of notorious dictator Nicolae Ceausescu.

Michaels says after about an hour and a half of discussion it seemed to him McCullough's fellow officers had persuaded her to release him with either a fine or a verbal warning. But at that moment Judge Carol Gersten, who was scheduled to try one of Michaels's clients for cocaine trafficking, sent word that his presence was required in court. He says the liaison officers offered to accompany him. "I'm not going to go in custody to represent clients," Michaels protested.

At that point, he says, McCullough announced she was transporting him to jail. Without further ado he was hauled away, fingerprinted, mug-shot, and charged with disorderly conduct and violating the county sanitary law (both misdemeanor charges), before being released on his own recognizance.

Except for the part about being released the ordeal undoubtedly awakened memories of Michaels's totalitarian incarceration. "I was humiliated by having to go through the booking process," the attorney reports. "You are degraded, and you lose respect from judges."

Diane V. Ward, a fellow attorney in private practice who knows Michaels from his days in the State Attorney's Office during the mid-Eighties, witnessed the arrest. She says she initially assumed that a vindictive judge had charged her colleague with contempt of court. To have been arrested merely for smoking a cigarette was "outrageous," she fumes. "And to handcuff him behind the back," continues Ward, a nonsmoker, "there was no need for that. That's just another nudge of degradation. The liaison officer knew that she screwed up, and the only way she could avoid some kind of penalty for that is by calling it disorderly conduct. It's a typical police officer trick."

Metro-Dade Police media relations officials assert that their officers are authorized to arrest anyone who is violating any law. McCullough herself declined to be interviewed for this story.

A spokesman for the Florida Bar says that when any lawyer is arrested, the Bar evaluates the incident and makes a decision whether to forward the information to a grievance committee for disciplinary action. In the meantime Michaels has fifteen days to make his case to the Bar. He has hired his own lawyer in an effort to get the charges against him dropped and the arrest expunged from his record. Otherwise the aftertaste of his clandestine cigarette may include up to 60 days in jail and a $500 fine, not to mention the end of any dream of running for a seat on the bench.

"If they decide to drop the charges and issue a citation for smoking, I'll pay the fine," offers the chastised attorney. "I understand that it's not right to smoke [in such a way that it bothers others]. But people like me who are under a lot of stress -- I need one place in the building where I can smoke a cigarette.

 
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