In November 2015, Broward Circuit Court Judge Matthew Destry sentenced a black 23-year-old named Herbert Smith to 60 years in prison for driving on a suspended license, a violation of his probation. The public was outraged. Critics accused the white-haired judge of being excessive, cruel, or, as Howard Finkelstein of the Broward Public Defender's Office put it, "unable to see the humanity of poor people."
Now Destry may receive a harsh sentence of his own.
On Thursday, the state Judicial Qualifications Commission announced it will bring formal charges against the judge as a result of the Herbert Smith case. On August 19, an investigative panel found that Destry had attended a lunch with Vicente Thrower, a political activist who worked for Destry's previous judicial campaign, and Reverend Alan Jackson, a pastor who also formerly worked as a community liaison with the Broward Sheriff’s Office, after pronouncing the sentence. Just a few days later, Destry reduced it to 15 years of probation.
Destry informed neither prosecutors nor Herbert Smith's attorney about the lunch, the investigative panel found.
The drastic change in the sentence shocked everyone at the time. Considering the new evidence about the secret lunch meeting and the fact that Destry was up for re-election, the JQC stated that "taken together, your actions create the appearance of a quid pro quo exchange of political support for favorable judicial action, and further constitute inappropriate conduct."
A message left with Destry's judicial assistant and a courtroom clerk were not immediately returned. Destry's lawyer David Bogenschutz declined comment.
Though Destry is already leaving the bench (he lost re-election in the August primary), the JQC says it can still impose large fines and issue a public reprimand. Once Destry leaves the bench at the end of December, the Florida Bar can decide to revoke Destry's law license or impose its own sanctions depending on the JQC's ruling.
The JQC rarely brings formal charges. The news has sent shockwaves through the Broward courthouse. "If the JQC can prove it, this is as bad as it gets," says Bill Gelin, who runs the Justice Advocacy Association of Broward website. "These types of allegations completely undermine his impartiality, which is the backbone of the judiciary."
The judicial canons clearly state that a judge has to avoid any appearance of impropriety. He or she should not permit any communication without the parties on a case present, and no judge should make a public comment that might affect a case's outcome.
The JQC notice states that after Destry sentenced Herbert Smith to 60 years, a petition called for his removal from the bench. He then had a lunch meeting at Mangos restaurant in downtown Fort Lauderdale with Reverend Jackson and Thrower, the activist. According to the JQC, "this meeting took place outside the presence of the State Attorney and Defendant, and without the knowledge of either party."
At the meeting, the JQC states Thrower and Jackson asked Destry to reopen the case because they wanted a chance for the community to speak on Smith's behalf. Destry committed to setting a hearing and invited Thrower and Jackson to speak.
Destry argued the communication was permitted under an exception for scheduling or emergencies. But the JQC alleges that reason is not valid since Destry never disclosed the meeting with Thrower or Jackson — a clear violation of the judicial canon requiring prompt and full disclosure of outside communications.
At the August 19 hearing before the JQC, Destry acknowledged that after the meeting, "Mr. Thrower began urging members of his community to support his current re-election campaign."
Ratonya Dumas, a close friend of Herb Smith who started the viral petition, says Thrower contacted her on Facebook and tried to convince her to support Destry. Dumas also says that after he pronounced the more lenient sentence, Destry spoke at Smith's Pompano Beach church.
"You can tell that this wasn't a change of heart to change the sentence but a ploy so that he wouldn't lose his campaign," Dumas says. "That speaks volumes. Destry can't play both sides with the black community."
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