Circuit Judge's Discretion Is On Trial

By BILLY TOWNSEND The Tampa Tribune

Published: Feb 22, 2007

BARTOW - A long-festering feud between prosecutors and a high-profile Polk circuit judge has erupted into an ugly, nearly unprecedented legal dispute with constitutional implications.

State Attorney Jerry Hill's office wants Circuit Judge Susan Roberts off all 27 pending first-degree murder cases in the circuit, which includes Polk, Highlands and Hardee counties. Prosecutors have cited a range of alleged biases and conflicts - one of them involving Roberts' personal life.

Roberts, who oversaw the recent quadruple murder trial of Nelson Serrano, has refused to disqualify herself. The state attorney general's office is appealing that ruling on behalf of Hill's office. A spokeswoman said a written appeal is being prepared but has not yet been filed.

Roberts also has declined to freeze activity in the murder cases, pending the result of the appeal process.

Neither Roberts nor Hill would comment on the matter.

Motion Is Unprecedented

A state motion for wholesale disqualification is virtually unprecedented, several legal observers said.

"It means the state attorney has lost faith in her ability to oversee cases. It's like a vote of no confidence," said Professor Charles Rose of Stetson University Law School, in DeLand, adding that he's not surprised Roberts denied the motions.

"To remove yourself would be an admission that the state is right," he said, equating that to one branch of government - the judiciary - submitting to another - the executive.

It's a theme echoed in a strongly worded brief filed Tuesday by the office of Public Defender J. Marion Moorman.

"Judicial independence is the genius of our three-branch system of government, and the mere filing of this motion chills the independence and judicial courage of other sitting judges of the circuit," the brief states.

Moorman acknowledged that defense attorneys routinely seek to disqualify judges in specific cases. But he said the "wholesale" nature of the state attorney's request makes it a manipulation of the judicial system.

The state has cited a string of reasons in several recently-filed motions for wanting Roberts off the murder cases.

Those arguments culminated Monday in the revelation that Lakeland police are investigating Roberts' adult son in connection with a "significant head injury" suffered by a child under his care, according to a state attorney's motion to disqualify Roberts.

Two Lakeland police detectives on the case also figure prominently in seven of the murder cases in question, according to the motion. On top of that, Judge Roberts has been given temporary custody of the child in question and two other children living with her son, the motion states.

The state argues that it would be "improper" for Roberts to oversee trials in which these two detectives are involved.

"That's a close call," Rose said. "Just because her son is being investigated doesn't mean he's charged with anything." He said that calculation would probably change if formal charges were filed.

The state attorney's office motion indicates that it has recused itself from handling any of the cases involving the Lakeland police officers. Prosecutors also tried informally to persuade Roberts to withdraw, the motion said.

Roberts was assigned on Jan. 1, 2006, to handle all first-degree murder cases in the 10th circuit. The tension between prosecutors and the judge, however, far predates the recent personal revelations.

It surfaced several times during last fall's Serrano trial.

'Behavior Is Prejudicial To The State'

At one point, Roberts made news for threatening a mistrial if the mother of two of the victims showed emotion while testifying about finding her son, daughter and son-in-law shot to death.

Just prior to the verdict, she threatened to jail anyone who reacted verbally to the jury's decision.

"This type of behavior is prejudicial to the state, totally unwarranted, rude and disrespectful to the families of the victims of a quadruple murder," wrote prosecutor John Aguero in one of the disqualification motions.

Serrano was convicted and awaits sentencing.

In December, Roberts granted a motion to order a verdict of not guilty in a first-degree murder case before it went to the jury. In February, two jurors in the case told The Ledger newspaper that Roberts justified her decision to jurors by saying a conviction in the case would have likely been overturned on appeal and cost the state more money. But she also stated that she personally believed the defendant was guilty, the jurors said.

The state cited that incident as evidence that Roberts' fear of reversal on appeal adversely affects her judgment.

What the state has not cited is formal misconduct. State attorney spokesman Chip Thullbery said his office has not filed a complaint with the Judicial Qualification Commission. Commission complaints are confidential until a panel files formal charges with the Supreme Court.

Rather, what's at issue is the exercise of her judicial discretion. And with that in mind, Rose said he expects the state attorney's office to lose.

"If there's no misconduct, she's not going anywhere," he said.

Rose said the dispute shows the U.S. system of separation of powers playing out as it should.

"This is our democracy in action," he said. "It's ugly, but it's healthy."

Reporter Billy Townsend can be reached at (863) 284-1409.