The attorney for former Broward Circuit Judge Ana I. Gardiner is asking the Florida Supreme Court to accept the referee's recommended one-year suspension rather than The Florida Bar's request for disbarment.
Gardiner, who voluntarily stopped practicing law more than a year ago, was found guilty of ethical misconduct for misrepresenting her relationship in 2007 during a murder trial handled by Howard Scheinberg when he was the lead prosecutor in her court in a capital murder trial.
Palm Beach Judge David Crow was The Bar referee in her November trial and recommended the yearlong suspension. But Bar attorney Jennifer Falcone Moore called it "too lenient given the totality of the circumstances."
In a brief filed Friday, Gardiner's attorney, J. David Bogenschutz of Bogenschutz, Dutko & Kroll in Fort Lauderdale, emphasized the "overwhelmingly nonrebutted testimony" of a forensic psychologist and the judges and attorneys who regularly interacted with her established she was a women suffering severe depression, which impaired her judgment.
Gardiner, a single parent, lost her grandmother and father in the months preceding the trial. She spoke frequently with Scheinberg, but they insisted the conversations were restricted to family issues, not the murder trial.
A witness said Gardiner and Scheinberg shared a restaurant dinner during trial and joked about the defendant.
She resigned from the bench in 2010 rather than face a state Judicial Qualifications Commission trial.
Bogenschutz cited numerous Supreme Court cases accepting as mitigating factors such issues as poor health, mental illness and a death in the family.
Gardiner was investigated for ex parte communications with the prosecutor during trial and through the sentencing of Omar Loureiro, who received a death sentence.
After the 1,420 cell phone calls and text messages between the judge and prosecutor were publicized, the Broward state attorney's office had the case moved to Palm Beach County and retried because of the appearance of impropriety. Loureiro received a life sentence.
Bogenschutz said it can't be overlooked that there was no reversible error in the first trial. Vacating the sentence and conviction was solely an administrative, political and unilateral decision, he maintained.
Bogenschutz listed Gardiner's dedication to public service, the fact that she was not known for self-dealing conduct, and she had no other complaints against her in a 25-year legal career.
Quoting Crow's reasoning, the brief states Gardiner "already lost her judicial position, suffered public humiliation, and shows genuine remorse. The actions … appear to be an aberration at the time of emotional and personal turmoil and should not end an otherwise distinguished career."
Bogenschutz argued disbarment should be reserved for attorneys who prove unfit to practice law.
"Nothing could be further from the truth in the case" of Gardiner, he wrote.
Scheinberg, who also resigned his post amid the controversy, was tried and given a two-year suspension June 20, twice the length recommended by the referee.