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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

facts regarding Judge

facts regarding Judge Bagley’s independent investigation. 54 At the State’s urging, the motion to get facts was denied and Judge Bagley did not divulge what actions he had taken in his either party and neither party filed a pleading to which the document was attached. The next document in the record is the deposition of Peter Mueller, the German journalist who located Smykowski in 2000. Mueller was also deposed in Brussels by the State. The transcript also shows that the transcription was completed April 18, 2002, but the clerk’s office does not note anywhere the date it received the transcript. Mr. Mueller was not called as a witness at the evidentiary hearing, nor was his affidavit introduced. And neither party filed a pleading to which the deposition was attached. After the Mueller deposition, the next document appearing in the record is the February 28, 2003, order denying relief. This sequence suggests that the documents were mysteriously provided to the clerk’s office between December 17 th and February 28 th . One possible inference is that Judge Bagley obtained the transcriptions of those depositions in the course of his independent investigation and provided them to the clerk’s office when providing the February 28 th order. There is no explicit citation to the depositions in the order, although there are findings that may have been influenced by the content of the depositions. 54 At this point, there is no record of what occurred beyond Joel Rosenblatt’s self-serving letter refusing to provide the requested depositions to Judge Bagley. The letter indicated that Mr. Rosenblatt learned of the request only because the lead prosecutor, Reid Rubin, was out of town. Thus, it is unknown what contact with Mr. Rubin pre-dated the request for depositions discussed in Mr. Rosenblatt’s letter. Obviously, Judge Bagley either did not know that ex parte requests for non-record evidence were improper (troubling enough in itself), or he had prior contacts with Mr Rubin which had become routine enough that he did not believe the ex parte contact would be revealed. Interestingly, the record on appeal filed in this Court included documentation of one instance of ex parte contact between Mr. Rubin and Judge Bagley of which Mr. Riechmann had not previously been advised (PC-R2. 162). 66

independent investigation, what materials not introduced into evidence were obtained, and why he felt compelled to seek materials that were not introduced into evidence. In opposing the motion to get the facts, the State said: It appears that what Defendant truly wants to discover is not what the alleged ex parte contact or the alleged ex parte investigation was but why this Court wanted the depositions. However, Defendant is not allowed to inquire into this Court’s thought processes. (PC-R2. 1158). While citing State v. Lewis, 656 So. 2d 1248 (Fla. 1994), the State failed to accurately represent this Court’s position in Lewis. There, in authorizing depositions of a judge, this Court said that depositions were for discovering “factual matters that are outside the record.” Id. at 1249. This Court did indicate that an authorized deposition could not violate “the judge’s thought process.” Id. However, for this proposition, this Court cited United States v. Morgan, 313 U.S. 409 (1941), and noted that the holding of that case was “a judge’s thought process relevant to judicial decisions is not within the purview of an examination.” Id. Certainly, actions taken in violation of the Code of Judicial Conduct and in violation of the principle enunciated in Vining v. State should not be exempt from an examination as part of the “thought process relevant to 67

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