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[January 09, 2013]
Ex-Broward judge's conduct warrants one-year suspension
Jan 10, 2013 (Sun Sentinel - McClatchy-Tribune Information Services via COMTEX) -- Former Broward Circuit Judge Ana Gardiner deserves a one-year suspension of her law license for lying about a clandestine cell phone and text message relationship she had with a prosecutor, a judicial referee for the Florida Bar wrote in a report.
"I find the misconduct at issue involves dishonesty and deceit," Palm Beach County Circuit Judge David Crow wrote in his 22-page Jan. 8 report. "[Gardiner] failed to disclose the honest and true nature of her relationship with [Assistant State Attorney Howard Scheinberg]." While Gardiner presided over a 2007 death penalty murder trial that Scheinberg was prosecuting, the pair exchanged 949 cell phone calls and 471 text messages.
The failure to disclose the communications to the defense attorney "tainted the entire legal process," wrote Crow, who oversaw Gardiner's two-day Bar inquiry on Nov. 27 and 28.
Gardiner compounded her misconduct by downplaying the extent of the relationship when she was questioned by the state agency that oversees judicial conduct, Crow wrote.
The pair had "commenced a significant personal and emotional relationship" Crow wrote, yet "her testimony would leave any reasonable person with the misimpression that the relationship was inconsequential and merely professional." Crow's recommendation now goes to the Florida Supreme Court, which will have the final say on Gardiner's discipline.
Neither Gardiner nor her attorney, David Bogenschutz, returned calls seeking comment Wednesday.
Bar counsel, Jennifer Falcone Moore, had asked for Gardiner's permanent disbarment.
[Gardiner's] conduct "demonstrates that she cannot be trusted to uphold her oath and to do the right thing," Falcone Moore wrote in her closing argument. "Such inherent dishonesty simply cannot be tolerated in a community that relies on the truthfulness of its members." Gardiner, 50, sidestepped a judicial misconduct complaint when she resigned from the bench in 2010 and agreed to never again seek a judgeship.
She remains vulnerable, however, to discipline by the state Bar, which governs attorney conduct.
Bogenschutz argued that up until this incident, Gardiner had a sterling reputation, any errors she made were unintentional and clouded by emotional and mental issues and that the Bar had no jurisdiction over actions that occurred while she was a sitting judge.
Gardiner has already been punished with "the ultimate penalty of resignation," Bogenschutz wrote in his closing argument. "Her credibility is unrebutted by the Bar, and stands alone and clarion-like in its resounding truthfulness in the courtroom where this proceeding took place." The Bar had asked Crow to find Gardiner guilty of misconduct, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and engaging in conduct prejudicial to the administration of justice.
Crow found Gardiner guilty of all counts but stopped short of disbarment.
"[Gardiner] has already lost her judicial position, suffered public humiliation, and shows genuine remorse," he wrote. "[Her actions] appear to be an aberration at the time of emotional and personal turmoil and should not end an otherwise distinguished career." During hours of tearful testimony in November, Gardiner acknowledged an appearance of impropriety but maintained that she and Scheinberg never discussed the murder case.
Falcone Moore labeled Gardiner's remorse disingenuous and self-serving.
"[Gardiner] has paid lip service to accepting responsibility for her conduct throughout these proceedings, however, not once did she truly acknowledge the nature and extent of her wrongdoing," Falcone Moore wrote. "[Gardiner's] remorse is for herself, for the fact that her misconduct was discovered, not true remorse for her wrongdoing in the first place." Crow's recommendation mirrors that of Scheinberg's. He is appealing the April recommendation for a one-year suspension of his law license.
email@example.com, 954-356-4542 or Twitter @talanez ___ (c)2013 the Sun Sentinel (Fort Lauderdale, Fla.) Visit the Sun Sentinel (Fort Lauderdale, Fla.) at www.sun-sentinel.com Distributed by MCT Information Services
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