Florida 3rd CIrcuit Court of Appeals Judges Ivan F. Fernandez,Thomas Logue and Edwin A. Scales, III - we cannot disqualify our longtime personal friend, no way

I wrote on this blog about impropriety of attorneys and court employees listed as Facebook friends of judges in whose court they appear, land implications as to the judge's impartiality in giving such attorneys lucrative assignments, ruling in their favor, or assigning certain FB friends-stenographers who may then conveniently fix court transcripts for the chance of their employment security.

Specifically, I wrote about Facebook friends of the law clerk of Judge Kevin Dowd, of the Chenango County Supreme Court (who has made her friend list private after I ran the blog) and of the Albany County Family Court judge Sue Kushner.

The problem exists not only in New York, I guess, and many people are complaining.

In Florida, the judiciary decided to deal with the problem the usual way - declare that black is white, with the belief that such a declaration will take care of the problem.

Here is the full decision of the Florida 3rd District Court of Appeal on the subject of a judge's Facebook friends that, as the court decided, did not mandate the judge's recusal from the cases where those Facebook friends appeared in front of him as attorneys of record.

The decision has such interesting details that it is definitely worth deciphering.

First of all, the FB friend in question was not simply a Facebook friend of the judge, but was also a former judge himself, clearly suggesting that the attorney and the judge are former colleagues:

#IsraelReyes

was not simply a Facebook friend of the "trial judge" that the decision is, conspicuously, too shy to name.

He also advertises himself as having been a judge for 30 years, and having been a Circuit Court Judge of the Eleventh Judicial Circuit of Florida, appointed by former Governor Jeb Bush, for 8 years, from August 14, 2003 to his retirement on May 22, 2011.

Yet, the petition clearly identifies the unnamed "trial judge" of the court order, as 11th Circuit Court Judge Beatrice Butchko.

Here is Judge Butchko's biography posted on her official website:

Judge Butchko reports that she has been an "Assistant State Attorney, Miami-Dade County, for the years 1989-2000.

Retired Judge (now private attorney appearing in front of Judge Butchko and Judge Butchko's Facebook friend) Israel Reyes reports that 

"[f]rom 1980 until 1995, he was a police officer/detective with the Miami-Dade Police Department where (during various times) he worked in the Homicide Bureau, Media Relations Section, and Special Investigations Division’s Criminal Conspiracy and Racketeering Squads.  He served in the Organized Crime Bureau (where he was one of the principal investigators in the San Pedro corruption case); U.S. Secret Service Task Force; Police Applicant Background Investigation Unit; Firearms Training Section; and Uniform Patrol Division, earning numerous commendations and awards including the Employee Excellent Award."

So, from 1989 to 1995, for 6 years, Judge Butchko was a prosecutor and attorney (and former judge) Reyes was a police officer in the same county.

For 15 years they were most likely not just close, but joined at the hip, as Detective Reyes' performance on the stand as a police witness had to seal convictions and promotions for prosecutor Butchko.

That's one reason why her name was not mentioned in the decision - because in the decision judges pretended to "look the other way" and not see the conflict of interest that was SCREAMING at them.

Even if we do a collective lobotomy and even theoretically presume that a judge will not rule for a fellow judge,

even if that fellow judge is now a retired judge,

the fact the judge was a colleague of attorney Reyes in a pair of prosecutor/detective for 6 years, which working relationship was so successful that they both became judges soon after, that these two were in a close working relationship and their mutual careers depended on each other's performance for 6 years, and that she was Judge Reyes' colleague on the 11th Circuit Court for 5 years, from 2006 when she was appointed to 2011 when he retired - those lumps of evidence could be overlooked only willingly.

In its decision, the court took an extremely narrow position, reviewing only this issue:

and disregarding the actual history of working relationship that accompanied the "Facebook friendship" of these two.

What the court also completely forgot is the sense of propriety.

The court cited prudential considerations in a situation where a constitutional right to an impartial judicial review was involved and the convenience of the court administration was irrelevant:

The court hypocritically decided that when a judge and an attorney are Facebook friends, in an of itself, that is not a reason for disqualification of the judge

For these three reasons:

1) Because, supposedly, "some people have thousands of Facebook 'friends'"

The court did identify #JudgeBeatriceButchko in the decision and did not consider how many FB friends she actually had.

I was unable to locate Judge Beatrice Butchko's profile on Facebook, so it is likely that she has hidden or deleted her profile, and made her list of FB friends private - which begs a question, why?  If she did not do anything wrong?

2) Because, supposedly, "Facebook members often cannot recall every person they have accepted as 'friends' or who have accepted them as 'friends'" - which certainly was not the case here, and the court did not even go into verification whether Judge Butchko was aware that she accepted her former colleague of 11 years in two different jobs and an attorney appearing in a contested case as a Facebook friend:

3) Because, supposedly, some people may accept some Facebook friend on the basis of data-mining suggestions by Facebook itself - while that was certainly not the case here, and the court did not trouble itself to verify whether there outlandish proposition that former Detective Reyes and former Judge Reyes ended up on Judge Butchko's Facebook friend list as a result of Facebook's own data-mining.

So, because of these three SPECULATIONS, the court disregarded the ACTUAL appearance of impropriety in the ACTUAL relationship of the judge with her ACTUAL twice-colleague of 11 years.

Nice job, Florida's 3rd District Court of Appeals,

• #JudgeIvanFFERNANDEZ, a former police officer who likely worked with both prosecutor Butchko and Detective Reyes during his career as a police officer and who could not pass up the chance of helping "his own"; 

• #JudgeThomasLOGUE, former assistant County Attorney for Miami-Dade County from 1982 to 2012 who worked with Judge Butchko for 11 years and with attorney and former Judge Reyes (when he was a Police Detective in his county, obviously working in close contact with him, for 13 years from 1982 to 1995);

• #JudgeEdwinASCALESIII, member of a Commission on Ethics, member of a Judicial Nominating Committee, representative of the Florida Judiciary in the Florida Bar Foundation Board of Directors, etc, etc.

So, the absolute majority of this appellate "panel", 2 out of 3 judges that decided a case about judicial disqualification of Judge Butchko from a case where attorney (and former detective, and former judge Reyes appeared as an attorney of record) ACTUALLY WORKED side by side with both Judge Butchko and Attorney Reyes - Judge Fernandez as a police detective himself, and Judge Logue as a prosecutor), and the third, the paragon of ethics, Judge Scales The Third (no pun intended) went along with the two crooks.

These two judges, Fernandez and Logue, were themselves disqualified from this case since they had ACTUAL knowledge as witnesses contrary to what they were speculating about.  They could be called as witnesses in an evidentiary hearing about this particular recusal - and most certainly could not preside over this decision.

And, of course, how can they possibly hurt the feelings of Judge Butchko, a longtime former colleague of their youth, a beautiful woman and a Secretary of the Florida Conference of Circuit Judges?

Is expecting any kind of elementary honesty from the judiciary a foregone conclusion?

How do they say it - you scratch my back and I scratch yours?