By Terrence McCoy
By Allie Conti
By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
In 1999, Janet Hern was on probation after pleading guilty to cocaine possession and was motivated to kick her years-long drug habit. Hern attended a group therapy session at the Broward County Alcohol and Drug Abuse Services Center, which let out at 8:15 p.m. As a condition of her probation, Hern was required to be home no later than 8:30 p.m. but she missed her bus home that night and decided to walk rather than wait an hour for the next bus, although she knew it would take her at least 45 minutes to make the trip on foot, in part because she´d fractured her foot a few weeks earlier. She made it home at 9:05 p.m., whereupon she discovered that her community control officer had already come by to check on her. She called him to explain but got no answer, she said. The next day, she told her probation officer what had happened. A probation officer must note such violations, and then a prosecutor decides whether to take them before a judge something that Broward County State Attorney Satz´s office does in almost every case. To revoke probation, under Florida law, a judge must find that the violation was willful. Enter Ross, who revoked Hern´s probation.
Hern got some relief on appeal, when a three-judge panel ordered her released from prison five months later and five days after Christmas.
And then there was Evelyn Jackson, also on probation in 1999 as part of a plea deal for burglary and battery charges. Jackson was ordered confined to her residence. At the time, she was in her late 20s, pregnant, and a patient at the Henderson Mental Health Clinic. She had a ninth-grade education. It was August. She stepped out into her fenced yard. And so she was hauled before Ross, who likened her behavior to a ¨jailbreak.¨
¨Confined to residence doesn´t mean running around the yard,¨ Ross said at the time. ¨We have to analogize this to the Broward County Jail. If one leaves his or her jail cell, that´s a jailbreak, although I think based on [Jackson´s] circumstances here, maybe we should take that into consideration.¨ So Ross sentenced her to three years and three months in prison, the shortest term he could under the state´s sentencing guidelines.
Of course, Ross didn´t have to find that Jackson had violated her probation. That seemed to be the inclination of Fourth District Judge George Allen Shahood, writing for the court, who said Ross had abused his judicial discretion.
¨It is certainly reasonable to conduce that [Jackson], having a limited education, pregnant and with no air conditioning, believed she was not violating her condition of community control by stepping outside and remaining on the premises of her residence,¨ Shahood wrote. ¨This is not, as characterized by the court, a situation where appellant was running around her yard. This was not a jailbreak.´¨
In another sternly worded ruling in 1999, the Fourth District admonished Ross in the case of James McFadden, who was on probation after a third robbery conviction, which made him eligible to be sentenced as a career criminal. According to the opinion, Ross ¨told the prosecutor what to ask and what evidence to adduce.¨
¨We cannot escape a settled feeling that [Ross] went too far in assisting an unprepared state attorney to establish the [violation of probation],¨ Judge Gary M. Farmer wrote for the court. ¨Simply stated, the trial judge´s conduct crossed the line of ostensible neutrality and impartiality and operated to deny the defendant essential due process by depriving him of the appearance of an unbiased magistrate and an impartial trier of fact.¨
The current frontrunner to take over Ross´ brown office, Judge Thomas M. Lynch IV, 56, the administrative judge of the civil division and a former chief assistant public defender, won´t do much to change anything, says Howard Finkelstein, the public defender. ¨It is obvious to everyone that Tom [Lynch] is hand-in-glove with Dale Ross,¨ Finkelstein says. ¨It will not be the people who brought us here who can take us away from it. It´s got to be a fresh face. It can´t be anyone already part of the judicial administration, which has brought us to this place.¨
Finkelstein, 53, a recovering cocaine addict, was elected public defender in 2004 and has been making waves ever since. ¨They hate me,¨ he says of Ross and others in judicial administration. ¨I think that what frustrates the bejeepers out of them because in their world, it´s tit for tat is that in my world, it is, Do the right thing as the situation calls for it.´ Personality and politics never enter into it. That´s what true believers believe.¨
Finkelstein´s not alone. A growing number of private defense attorneys are on his side, including Gelin, the blogger. Gelin and Finkelstein have more in common than their graying ponytails: They both truly believe that Ross presides over a broken system and that change must come, and sweepingly.
¨We´re just saying the same things that have been said around the halls of the courthouse every day for years,¨ Gelin says. ¨These guys just get so caught up in themselves and their power and position. This place is so sick. It wants to be cured. You couldn´t invent the stuff that´s been going on here... These judges are misbehaving, acting so infantile. It´s amazing that they´re doing this stuff.