Judge Not

This past August, during the Republican primary for Miami-Dade State Attorney, the Christian Family Coalition asked candidates to sign a form pledging that, if elected, they would use their powers as public officials to oppose gay marriage and support a religious agenda. "Running for a quasi-judicial office, I did not think it was appropriate," says one of those candidates, Al Milian, who declined to sign.

His Republican opponent, Leslie Rothenberg, enthusiastically put pen to paper. She vowed to oppose providing abortion coverage as part of local government's health-care package as well as any zoning laws restricting religious meetings. She supported religious displays on public property. And she promised to oppose gay marriage and domestic partnerships "with my votes, powers, and privileges of public office."

Rothenberg resigned as a circuit court judge to run against Milian. She lost. But as soon as that race was over, her name popped up on a list of candidates to fill three vacancies on the Third District Court of Appeal. By October 25 Rothenberg had made the first cut, from 64 candidates to 18. Gov. Jeb Bush will make the final selections by the end of December.

Now Rothenberg's pledge has come back to haunt her. If vowing to use her public office to pursue the Christian Family Coalition's agenda may have been inappropriate when she was running for State Attorney, it should outright prohibit her from becoming a judge now.

I understand that appealing to our governor on these grounds might not do much good. Jeb Bush is a devout Christian, and his brother used the gay-marriage issue to rally supporters during the presidential election. But he should look at this pragmatically: Because she has revealed her opinion, Rothenberg will have to recuse herself from issues like gay marriage and gay adoption, issues likely to end up in state courts within the next few years.

Then, of course, there is the apolitical reason Rothenberg should remain retired from public office: her long history of pandering and bias in a position that requires decorum and impartiality.

Rothenberg's career as a jurist was baptized in controversy. In 1992 she quit after six years as a prosecutor in the State Attorney's Office to run for judge in the Eleventh Circuit here in Miami-Dade. She trumpeted her experience as a "tough prosecutor" and "crime fighter" so vociferously that local defense attorneys were convinced she was blatantly anti-defendant.

When she won, Robert Scola Jr., chairman of the Miami chapter of the Florida Association of Criminal Defense Lawyers (now a circuit court judge himself), sent a letter to Leonard Rivkind, the Eleventh Circuit's chief judge, asking him to assign Rothenberg to the civil, not criminal, division: "Our directors unanimously expressed grave concerns about her ability to sit fairly and impartially as a criminal court judge," Scola wrote in the September 17, 1992, missive. This was not a knee-jerk reaction. More than twenty prosecutors had become judges before Rothenberg, and the lawyers association had never deemed it necessary to send a letter of concern.

It didn't work. Rothenberg donned her black robes and took a seat in the Richard E. Gerstein Criminal Justice Building. Contention and strife followed. In 1993 two private attorneys forced Rothenberg to recuse herself from their respective cases, claiming she made statements revealing her prejudice against their clients. She denied one of the motions to disqualify her, only to have it overturned by the Third District Court of Appeal -- the very court she now seeks to join.

But her most energetic opponents could be found in the Office of the Public Defender, whose lawyers had more institutional protection to challenge her than attorneys in private practice. Indeed in a single year she cited one pubic defender for contempt and filed bar complaints against two others. Her complaints went nowhere because the public defenders were calling her out on her tactless and injudicious behavior. One of them was Frank Triola.

In the 1993 case of Calvin Andrews, accused of burglary, Triola forced Rothenberg to recuse herself after he cited three instances in which she had ex parte discussions with the prosecutor, meaning she and the prosecutor talked about the case without the defense lawyer present, which is prohibited. Rothenberg denied the accusations but nonetheless stepped aside.

In 1994 Triola twice more forced her to recuse herself, once because she revoked bail for defendant Willie James Jones after he didn't show up in court on a Friday when she claims to have scheduled a hearing. As it turned out she hadn't -- not according to Triola, not according to the court transcripts, and not according to Jones, who showed up on Monday to explain that he never received notice. His presence that day showed he wasn't a flight risk. Yet Rothenberg revoked his bail, insisting that she was right and the records were wrong. She sent Jones to jail until his trial was over. Triola filed a motion to disqualify Rothenberg because she ignored evidence that contradicted her. She had to step aside.

In another case, Triola caught Rothenberg making notes in the margins of her docket sheets regarding a defendant named Danny Pope, charged with possession of burglary tools and carrying a concealed weapon. The judge had given Triola permission to use her plea sheets, and when he picked them up he saw this note by Rothenberg: "State should attempt to add owner of car and add attempt. burg. charges."

"The note indicated that Judge Rothenberg believes the State Attorney should supplement their witness list and add an additional charge," the motion to disqualify her states. A seething Rothenberg once again agreed to recuse herself.

Furious, Rothenberg filed a complaint with the Florida Bar. "My major concern is the filing by Mr. Triola of a number of motions to disqualify the judge which have falsely accused the judge and/or the various prosecutors of misconduct," she wrote in her December 19, 1994, complaint.

The bar's grievance committee found Triola "did not act with reckless disregard to the truth or falsity but only in the apparent best interest of his clients.... In most, if not all, of the scenarios presented, the committee felt comfortable with the respondent's actions."

Rothenberg declined to comment for this column, sending a written statement noting that it would be "inappropriate" to do so prior to the selection. But in a 1995 Miami Herald story she claimed the public defender's office had declared war on her in an effort to drive her off the bench. "They were nasty, they were belligerent, they argued on everything," she whined. She also claimed to have won the battle, and that her court had one of the smallest backlogs of cases.

But the battles continued, and not just with public defenders. In 1996 private attorney Lance Stelzer accused her of misrepresenting the facts in a case. The judge claimed a defendant was pleading guilty to a probation violation when court transcripts showed he clearly was not.

In 2002 she was reassigned to the civil division.

People in the legal community tell me it is rare for judges even once to be forced to recuse themselves for displaying bias in a case. To have to do it as many times as Rothenberg has is a phenomenon, and shows repeated bad judgment on her part. And let's face it -- quality of judgment is the crux of being a judge.

What's disturbing about her insatiable desire for public office right now is that it looks like a political payoff -- that Rothenberg is being rewarded for running on the Republican ticket against Milian, whose maverick ways were not palatable to the GOP. When she quit her judgeship to run for State Attorney, she was hired by Joe Klock, managing partner for Steel Hector & Davis and a Republican operative who represented former Florida Secretary of State Katherine Harris during the disputed 2000 presidential election.

Rothenberg has shown she's willing to play politics at the expense of her judicial impartiality, so maybe Steel Hector is where she should stay.

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Tristram Korten
Contact: Tristram Korten