A judge in Palm Beach County filed contempt charges against Derrick Jenkins, who was sentenced to 30 days in jail, for a harshly worded letter critical of the judge after Jenkins’ case was dismissed. In addition to being critical, Jenkin’s letter was profane, stating ““f—— hypocrit” and he “cant wait til the voters wake up and get rid of these f—— clowns you call judges.” [sic] Judge Howard Coates did not take kindly and initiated contempt proceedings. Another judge was assigned, and found Jenkins’ words a danger to the orderly administration of justice, found Jenkins guilty or contempt of court, and sentenced him to 30 days in jail with 6 months of probation.
If that sounds a problematic, you’re right. The First Amendment guarantees the right to free speech, and its protections are strongest for speech that is critical of the government. There are limits, for instance it wouldn’t be prudent to shout insults and expletives at a judge in open court. However, there was no disruption of any proceedings in this case. In fact, Mr. Jenkins’ underlying case was closed, the court had dismissed his claim against the Sheriff’s Office, so there was no pending matter. The letter would lose its protection if it contained true threats, but claiming an investigation or to have a judge voted out is not a true threat- that’s the Constitutionally preferred way to deal with those officials we disagree with. Judge Warner said, “That’s what you do when you’re unhappy with the judge. You say, ‘we’re going to vote him out of office'” according to the Palm Beach Post.
Appellate arguments were Tuesday, and the statements and questions raised by the judicial panel hearing the appeal don’t appear to take kindly to the arguments in favor of the conviction. The case does not seem to meet any of the exceptions to the protections provided by the first amendment, in spite of the fact the allegations may have been “scandalous and noxious,” in the words of the offended judge. It will likely be several weeks or even a few months until the appellate court rules.
Fort Myers attorney David Brener, who until recently was the attorney for accused Zombicon shooter Jose Bonilla, has gone missing for several months. Brener first failed to appear for a court date for a client he was representing that had been set for trial back in October, 2018. The judge issued an order to show cause, which orders the attorney to appear before the court to show why he should not be held in contempt for missing the court appearance. That order was served on him at a subsequent court date on a different case, and the hearing started on October 8, 2018. The hearing was continued to October 17, but Brener failed to appear again. According to court documents, Brener failed to appear for a third time, and the court issued a Writ of Bodily Attachment: a pickup order for law enforcement to arrest Brener and bring him before the court, and a contempt of court case was initiated against him.
Brener has not been seen since those missed hearings. Since that time, several of the clients he represented have appeared in court without representation, and the court has appointed several of them attorneys, and other have retained new attorneys. Brener also failed to appear on the pending battery charge he was facing, and a new warrant has been issued in that case. FDLE lists him as a wanted person for the outstanding warrant, the last known address is vacant. Brener has also been formally suspended by the Florida Bar since November, 2018.
What’s odd about the missed court dates is that it doesn’t seem to be something that would cause someone to flee. It’s a simple contempt charge, not a sever charge. Brener was facing a felony the year before, and appeared for trial on that case in spite of facing years in prison, and he was acquitted. Brener does have another pending issue, a lawsuit alleging that he took $120,000 in legal fees to represent Mark Gaver, but did not earn the fees. Gaver is a Bonita Springs man who was prosecuted in a $50 million bank fraud scheme. Gaver was convicted at trial in Maryland and sentenced to 17 years in prison. That’s not a nice person to make angry. Also, at least one of the other Defendants that had hired Brener has expressed frustration standing in court without their lawyer, saying they had paid Brener a lot of money for their representation. Looks like all those Defendants are out of luck. No word on Brener’s whereabouts, of whether or not foul play was involved.
A Pasco judge found a New Port Richey man in contempt of court for liking a Facebook post: someone had put his ex wife’s picture on a “father’s rights” page alleging that she was abusive. The judge found that he had violated her order against disparaging or threatening the other party in the family law case stemming from their divorce and custody fight. She initially sentenced him to 60 days, but relented a few days later for time served. The limits on social media, and regarding First Amendment ramifications, are something the courts have to grapple with more and more.
Howell Donaldson III
The state has charged Howell “Trai” Donaldson III with four counts of murder for a string of killings in the Seminole Heights area of Tampa in the last few weeks. The State then subpoenaed his parents, Howell Donaldson, Jr. and Rosita Donaldson, to ask them about his history, including criminal, mental health and so forth. His parents, who were concerned that the State may try to use any evidence they provided to put their son to death, refused to answer the State’s questions or to cooperate. While the concerns may be sympathetic, there is no parental privilege applicable in this circumstance.
The State moved to hold them in contempt, and a hearing was held today in court. The Judge ruled that they would have to comply with the subpoena and to testify. He has given them until January 5, 2018 to answer the prosecutors questions or risk being found in contempt of court, which could include jail time.
This is fascinating, from a legal perspective, and the first time I’ve seen something like it. They were lawfully served with a subpoena (probably an Instanter), and the judge probably correctly orders them to comply under the law. It will be interesting to see how this plays out. The serial murders he is charged with are shocking, as four seemingly unconnected, innocent people were killed. The young man accused was a college graduate who was apparently polite, even with the cops that arrested him. This case will be in the headlines for some time.
Posted in 10-20-Life, 8th Amendment - Bail and Punishment, Criminal Law, Florida, Tampa Bay area
Tagged contempt, howell donaldson iii, murder, privilege, seminole heights, serial killer, subpoena, tampa
Jonathan Clyde Davis
A man in North Florida was found in contempt of court last week and sentenced to 6 months in jail for posting a live stream of a trial on Facebook Live. Jonathan Davis was sentenced to 6 months in jail in Gainesville, which is the maximum possible sentence for contempt of court. Prosecutors indicated that witnesses were already reluctant to testify in the murder case that was going on, and that the streaming may have been a tactic to discourage participation.
However, there are several problems with this charge, primarily the First Amendment. People have a protected right to publish, and there’s nothing that would indicate that the courtroom had been closed. Generally open court is open court, and is not only open to the public, it is open to being recorded and being disseminated. (For that matter, all court proceedings are recorded). Apparently there is an administrative order that people must get permission to record or broadcast, but it is unclear if Mr. Davis knew about that order. There’s even an issue whether that order is Unconstitutional, though there is clearly an interest in the court in making sure cameras do not disrupt the proceedings.
At first blush this case is going to have difficulty holding muster on appeal. Apparently, he lied to the judge about what he was doing, and if the judge couched his conviction on that, he might be upheld. The Gainesville Sun spoke to UF Law professor Kenneth Nunn, who astutely points out that a Direct Contempt proceeding may not have even been appropriate since the Bailiff’s alerted the judge Mr. Davis’ activity. The fact that Mr. Davis was streaming is not itself inherently disruptive. One can appreciate why the court and the prosecutor are concerned, but the proceedings in open court are always public and subject to publication.
The State was still able to obtain a conviction on the second-degree murder charges.
The Florida Supreme Court building
The Florida Supreme Court overturned the contempt conviction and jail sentence for juror Noel Plank, saying that the procedure for trying his contempt hearing was flawed, and that he should have been entitled to an attorney. The court found that since the drinking that led to his intoxication occurred out of the court’s presence, it should not have been heard as ‘direct criminal contempt’ [think of an angry defendant making a scene in a courtroom: that would be direct contempt]. Rather, the court found that it should have been treated as ‘indirect criminal contempt’ [think of someone going home and refusing to obey a court order after they leave]. The courts have long held that those accused of contemptuous conduct are entitled to attorneys for indirect contempt hearings, and that this proceeding was properly considered indirect.
Plank had already served 17 days in jail, when the court reduced his sentence. Since this sentence was overturned on procedural grounds, he could technically be facing a new hearing for indirect contempt, though I doubt anyone wants to go to the trouble and expense of prosecuting a man who already served his time.
Richard Masten as he eats a piece of paper in court
Richard Masten was found in contempt of court for refusing to turn over information related to a tip called in to Miami Dade Crime Stoppers. Crime Stoppers guarantees anonymity to its tipsters, and Masten would not divulge the information and risk the credibility of Crime Stoppers: to the point that he was willing to go to jail. He found out today that he won’t have to go to jail: the judge ordered him to write a memo/report on the legalities of anonymous tips and court orders. Masten says he’ll do it again to protect the integrity of the program. If this tip gets turned over, every defense attorney will try to get the tip info, and Crime Stoppers would be worthless.
I’d like to see his report. I’m curious, as the judge mentioned public records. Now, anything Crime Stoppers emailed to a state agency would be come public record: but the forum for getting that would be through the public agency. For instance, if someone emails me a tip, and I pass part of that along to the police, only the part that I passed along is public record. That’s not to say I couldn’t be compelled to give up the rest of it, but as a private citizen, my records do no become public unless I send them in whole to a public entity. On the other hand, if I were a business that makes a practice of trying to collect anonymous information: I would probably not store records that could later be subpoenaed and destroy that anonymity. That’s why Crime Stoppers uses numbers in lieu of names. I hope they don’t hang on to more identifying info, for the sake of the tipsters.
Chad Ochocinco Johnson Celebration
The judge who sentenced Chad Johnson to 30 days in jail has relented, after his apology and request by his attorney, and agreed to let Chad out of jail. Mr. Johnson is still on probation, and must check in and do his community service, plus whatever counseling and fines remain to be completed.
Deadspin notes that his situation is turning unfortunate, as he’s losing money, but still harbors hope of getting a shot to get back to the NFL. This latest jail stint is unlikely to facilitate that, or a job with a TV network. It’s a shame, because he had a lot of talent on the football field. #freeocho
Attorney General Pamela Bondi
Pam Bondi, the non-nonsense, chief law enforcement officer of the State of Florida weighed in on TMZ, and even she feels the punishment doesn’t fit the crime… or in this case, non-crime. Bondi told TMZ it shows questionable judicial temperament. Ms. Bondi a former prosecutor and Fox News contributor, has never been accused of being soft on crime. Somebody needs to ask “Chain Gang Charlie” Charlie Crist how he feels about it.
Also, there is now a Free Ochocinco Facebook page. #freeocho
Penelope Soto at First Appearance
Penelope Soto went viral a few weeks ago, when she flipped off a judge at first appearance and got held in contempt. I discussed why the judge was allowed to do that, but how several things went awry that denied Ms. Soto her due process. Her contempt sentence was subsequently set aside, and she appeared before a different judge for status yesterday, and was congratulated for the progress she was making. None of the stories I’ve seen have identified her attorney or attorneys, but they should be commended for their representation. They got the judge to set aside the contempt, and have gotten her into drug counseling which seems to be helping her out.