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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

Mr. Smith’s counsel

Mr. Smith’s counsel was advised by the State of ex parte communication with the presiding judge in connection with the preparation of an order denying Rule 3.850 relief. Mr. Smith’s counsel objected to the ex parte contact as soon as he learned of it and moved for judicial disqualification. On appeal, this Court “conclude[d] that the ‘impartiality of the tribunal’ was compromised and the ex parte communications were improper.” Smith v. State, 708 So. 2d at 255. As a result, the matter was remanded for new proceedings before a new judge. Thus, this Court has presumed judicial partiality where the record establishes ex parte contact on the merits of an issue before the circuit court. The ex parte contact compromised the impartiality of the tribunal, rendering its decision unconstitutional. In light of this Court’s precedent denouncing ex parte communications regarding the merits pending before a judge, the order entered by Judge Bagley denying relief must be vacated and the matter remanded before a new judge. B. Judicial Investigation Outside the Record Apart from the ex parte contact, Mr. Rosenblatt’s letter revealed that Judge Bagley was conducting an independent investigation seeking access to documents that had not been 64

introduced into evidence. 52 Such judicial conduct has been strongly condemned by this Court. In Vining v. State, 827 So. 2d 201, 210 (Fla. 2002), this Court stated: The judge overstepped his boundaries by conducting an independent investigation and by reviewing information that was not presented during the trial. We caution that such behavior does not promote public confidence in the integrity and impartiality of the judiciary. Thus, the fact that the judge was conducting such an investigation was itself improper. What is not known is what other steps Judge Bagley took in his independent investigation and what information he obtained and used in denying post- conviction relief. 53 Mr. Riechmann filed a motion to get the 52 What is perplexing about Judge Bagley’s efforts to obtain depositions that had not been introduced into evidence is the fact that Judge Bagley had sustained the State’s objection Mr. Riechmann’s efforts to introduce statements made outside the courtroom. For example, Mr. Riechmann could not introduce Smykowski’s affidavit, let alone depose Smykowski. Mr. Riechmann was also precluded from introducing the 2/25/88 deposition of Det. Matthews (PC-R2. 1349). 53 An examination of the record on appeal put together by the circuit clerk’s office contains a suspicious anomaly. The documents appearing the record, not including the supplemental record, appear in the chronological order in which the documents were filed. In volume 5 of the record, a notice of supplemental authority shows up as being filed on December 17, 2002. The next document in the record is the deposition of Jacqueline Williams, a witness deposed in Brussels, Belgium, by the State. The transcript indicates that the transcription was completed on April 18, 2002, but the clerk’s office does not note anywhere the date it received the transcript. Ms. Williams was not called as a witness at the evidentiary hearing. The deposition was not entered into evidence by 65

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