Costly Innocence

Costly Innocence

By Janet Leiser

Senior Editor

The attorney, who led the four-lawyer trial team that won a victory last month for Hillsborough Circuit Judge Gregory Holder, plans to ask the Florida Supreme Court to award the judge legal fees.

"As we speak we're working on an application for costs," David Weinstein says. "The attorneys' fees will be in the hundreds of thousands of dollars. I will not be surprised if they were in excess of a million. If I had to guess, we're probably looking at around $100,000 in out-of-pocket costs and around a million dollar in fees."

The state Judicial Qualifications Commission filed a June 23 motion with the Supreme Court, recommending that Holder's legal costs be paid. But the high court must decide how much, if any, is paid.

"In this day and age if you're charged with something by the government, those are the magnitude of fees and costs that you're going to expend in most cases that go to trial," Weinstein says. "It is scary. This will end up being a very expensive proceeding for both sides. This case, in its entirety, did nothing to improve the public's confidence in the JQC proceedings."

Weinstein, of Tampa's Bales Weinstein PA, spent much of the past two years representing Holder, a partner at Williams Reed Weinstein Schifino & Mangione prior to becoming a judge more than a decade ago.

Last month, a JQC panel heard testimony for six days before dismissing a charge that Holder plagiarized an Air Force research paper in 1998. The panel, voting 6-0, cited inconsistent testimony and a lack of credible evidence.

"The evidence was extremely conflicting and the implications disturbing," the panel wrote. "The credibility of certain witnesses was in doubt. The memories of the long past events were unclear. The panel concludes that the evidence was troublesome but did not rise to the level of clear and convincing evidence of guilt."

Holder, who testified on his own behalf, contended the paper in question wasn't the one he wrote. The paper appeared several years after Holder told federal investigators about corruption at the courthouse in 2000. No one was ever charged with wrongdoing in reference to the corruption allegations, but three judges later resigned.

Holder's trial team included Weinstein and Jon Koch, both of Bales Weinstein, and Juan Morillo and Steven Cottreau of Washington, D.C.-based Sidley Austin Brown & Wood, an international firm with 1,500 lawyers. Tampa litigator Greg Kehoe, another former Holder partner, was part of the team prior to leaving for Iraq in 2004 to investigate war crimes against Saddam Hussein and his regime.

Gulf Coast Business Review talked to Weinstein, who specializes in environmental and business law, at his Twiggs Street office, about a block from the courthouse. Following is an excerpt of the conversation, edited for brevity.

Why did you represent Judge Holder?

"I came to the aid of an old friend, and I would do it again. There may be several things more important than loyalty to friends and family, but there aren't many in my book. This is the first and I suspect the last JQC matter in which I'll be involved."

Did you hear negative comments in the months leading up to the hearing?

"We got some anonymous voice mails, and probably an equal number on the other side who said this is great you're coming to his assistance. Probably the most common question I got from anybody, people would stop me on the street and say, 'It's an Air Force paper, right? And he's accused of plagiarizing it?' Yes. 'What the heck does that have to do with him being a judge?' That was probably the most common question."

How did you reply?

"It has nothing directly to do with his performance as a judge. In fact, he was never accused of doing anything improper with respect to his official duties. The way the JQC went about it from a charging perspective was to say that it was essentially conduct unbecoming a judge.

"And under the (judicial) canons, there is such a prohibition. But I think people in the community found it difficult to understand why the JQC would expend these kind of resources on something like this."

Were you concerned this area of law isn't your specialty?

"It was somewhat of a challenge; we had to get up to speed on the JQC rules and procedures. The substantive law was not difficult compared to the complex environmental and business litigation that we're used to. But it does cause any good lawyer, when they get involved in a case that's not their mainstream area, to slow down, be careful and run the checklists to make sure every i is dotted and every t is crossed.

"Of course, there are not a lot of these types of cases. It's not like you can go to the law books and you're going to find every question answered. The JQC rules are pretty sparse. In terms of reported decisions on some of the mainstream JQC issues, there are not a lot of them."

How does the average person afford the defense you gave Holder?

"I know very few people who can afford to pay bills like this. I was talking to another lawyer in Lousiana who's actually a very interesting guy, a former homicide detective. And we were talking about this issue in another context and he said, 'Let's face it: You couldn't afford you if you were in trouble, and I couldn't afford me.' It is true.

"What made this case particularly difficult is that we were really put in the position of having to prove a negative. And that is darn difficult. Even though the JQC as a technical legal matter had the burden of proof here, the prosecutor had a paper that had Holder's name on it so their case was not a difficult case to prosecute. Their theory, if you will, was that the document speaks for itself."

Do you think Holder was targeted for talking to federal investigators about alleged corruption at the courthouse?

"I'm troubled by the proposition that many, many people believe this case wouldn't have been prosecuted had it been a judge other than Judge Holder."

How would you describe Holder?

"He's as straight forward, unassuming guy as you'll ever meet. Not that he's always right. But he'll call it like he sees it. At the end of the day, when you talk about being a trial lawyer in this community and trying cases, that's what you're entitled to - somebody who calls balls and strikes.

"He treats everybody fairly, he treats everybody with respect and he calls it honestly as he sees it."

How did this case affect your practice?

"It was very challenging. We are very, very busy with environmental and business cases. Especially in the last three to four months we've had to devote tremendous resources to this case. Obviously there are only so many hours to the day, and other things didn't get done.

"I have to say there was a lot of support in the community, including our clients, for Judge Holder's defense. Now that it's over my inbox looks like Mount Everest. I came back after trial to 1,100 e-mails in my inbox."

Wasn't it risky putting Judge Holder on the stand?

"We didn't think so. We thought it was important that the panel hear the truth directly from the horse's mouth."

Did you have to convince the judge of that?

"No. We would of had to chain him to the chair to keep him from testifying. That was never an option. If you had seen him at trial, he was calm, cool and collected. He was as sharp as I've ever seen him.

"I think the couple years he lived under this cloud were just awful. Imagine a guy who goes off to West Point at 17 and his entire career is duty, honor and country, and someone is questioning that which is Holder down to the very fibers of his soul. He was just tortured by this. He was just finally relieved to have his day in court."

What about the paper in question?

"Through the trial we knew it was important to show panel members, who were not expert at computers, how easy it is in this day and age to fabricate documents. So we hired a Photoshop expert. He actually prepared movies that we showed on a plasma screen at trial showing how easy it is to take handwritten comments from one source and essentially cut and paste them onto text in another source and to be able to make them larger or smaller, thicker or thinner. One of the panel members at trial described the process as being frighteningly simple, and it is.

"The prosecution's thesis of here's the paper, you can just believe your eyes, doesn't work in the 21st century. If you could just believe your eyes, you'd believe there's a creature named Shrek and Monsters Inc. was real and that Star Wars was real."

Do you think the JQC will be more careful in bringing charges against other judges?

"From what I hear, and this is the undercurrent, there are a lot of folks who will point to this case as a reason the JQC ought to take a hard look at the way it does things. And some of the things we're hearing is they need better separation between the investigative and charging process.

"Those are two totally different functions in our system, and ought to be kept completely separate. There are people who serve on investigative panels who then end up on hearing panels."

Were you concerned you might lose?

"We felt strongly we were going to win. I don't know that I would have predicted a 6-0 vote and one so quickly."

What can be learned from this?

"The lesson in this case is people need to do what they think is right, and Holder clearly did. But it's a tough world out there and when you do take controversial positions, there are people who are going to agree with you and there are people who are going to disagree with you strongly. Therefore that's going to have some ramifications.

"In Holder's case, he stuck to his guns and did what he thought was right. And it came out the right way. If you talk to the judge, these were the toughest days of his life. But the system worked.

"As cynical as people get about things, at the end of the day, while it was a winding road, the system did work. Holder was vindicated and he was vindicated by a 6-0 vote. So at the end of the day we got a fair trial and the JQC hearing panel did the right thing."

Does the judge plan on suing for damages?

"He's adamant right now that what he wants to do is spend time with his family and friends and do his job down the street there at the courthouse. He wants all of this controversy to be over.

"We have a really good group of men and women on the judiciary. I think for their sake, for the sake of the legal and rest of this community, that all of this controversy we should put behind us."

Do you think other judges are concerned about the JQC's behavior?

"There were four or five circuit judges sitting in the audience when I gave closing arguments in this case. And I think people are concerned that if a judge can be put through this for allegedly plagiarizing a term paper that had nothing to do with their official duties seven years ago, that there are members of the judiciary who think 'There but for the grace of God go I.'

What about Jeffrey Del Fuoco, the federal prosecutor who received the alleged cribbed paper under the door at his office?

"It's my understanding that subsequent to the trial he was placed on some kind of administrative leave, and remains on that leave today."

Is there a U.S. Justice Department investigation into where the paper came from?

"I just don't know. I would suspect there must be some reason Mr. Del Fuoco is on leave. We're going to have to wait and see what the Justice Department does about it."

Has Judge Holder requested an investigation?

"Judge Holder has done nothing since this verdict but try to get his life back to normal."