Judge Donald M. Middlebrooks. (J. Albert Diaz)
U.S. District Judge Donald M. Middlebrooks sharply criticized the state Judicial Qualifications Commission for disciplining a Palm Beach judge for speaking his mind on drug and sex offender laws.
“The JQC’s actions are wrong and if continued will damage the independence of the judiciary,” Middlebrooks said at a luncheon hosted by the Palm Beach County chapter of the Federal Bar Association.
The former constitutional law attorney referred to the commission’s recommended reprimand of Palm Beach County Court Judge Barry Cohen as bullying and a direct threat.
“This is dangerous ground. The JQC’s actions strike at the heart of what it means to be a judge in a democracy,” Middlebrooks said.
Acting on a commission recommendation, the Florida Supreme Court reprimanded Cohen in April.
Cohen made public statements about the impact of drug laws on the incarceration of minorities, as well as race and poverty, among other issues.
The complaint against him came from Palm Beach State Attorney Pete Antonacci, who was appointed by Gov. Rick Scott. Antonacci failed in court to get Cohen removed from all of his office’s criminal cases and then turned to the JQC.
“How can the JQC allow itself to be used in this fashion?” Middlebrooks asked.
The commission alleged 14 violations of judicial standards, and Cohen reached a stipulated agreement on seven counts.
Many of the attorneys present said the commission action smacked of a political hit job.
The 15-member JQC includes judges and lawyers chosen by the Florida Bar board of governors. Five members are nonlawyers chosen by the governor.
The commission found Cohen’s statements about race and poverty “called into question” his role as a neutral and detached magistrate and undermined the role of a judge.
“But what is a ‘neutral and detached magistrate?’ ” Middlebrooks asked. “Is it a judge who believed in the status quo? One whose views are acceptable to the JQC? The judge whose mind is an empty slate? Or one who remains silent.”
One of the allegations against Cohen was that he handed a New York Times article about sex offender registration laws to a prosecutor and defense attorney outside the presence of the jury during a trial.
“The notion that a judge can’t hand lawyers a newspaper article without diminishing respect for the justice system strikes me as silly,” Middlebrooks said.
The commission also mentioned a letter from a prospective juror complaining Cohen suggested off-the-cuff that people should get their news from other sources than cable news, possibly PBS.
Middlebrooks said jurors are routinely asked to follow the law whether they agree with it or not.
“Does the JQC think Floridians lack the political sophistication to understand that judges can do so as well?” Middlebrooks said. “I think they are selling all of us short.”
In a question-and-answer session, West Palm Beach criminal defense attorney Richard G. Lubin said he prefers to know where a judge stands.
“It’s more of a threat to justice to not know what a judge is thinking,” he said.
Middlebrooks quoted numerous judges who spoke their mind, including U.S. Supreme Court Justices Thurgood Marshall and Anthony Kennedy.
He said more than 40 years ago, Florida Supreme Court Justice Richard W. Ervin Jr. warned against sanctioning judges for speaking out.
Middlebrooks also mentioned the late U.S. District Judge James Paine of West Palm Beach, who made headlines in 1991 when he criticized the war on drugs at a similar luncheon and said marijuana should be legalized.
Middlebrooks, who presides in West Palm Beach, said he met with Cohen to get his blessing before the speech, and the judge said he invoked Paine in his defense and was told by a JQC member that Cohen didn’t have a lifetime appointment like a federal judge.
Middlebrooks said he also watched the movie “Judgment at Nuremberg” as preparation, finding judges can’t sit silent in the face of injustice.
He lauded attorneys who traveled to Tallahassee to show support for Cohen’s formal reprimand in front of the Florida Supreme Court.
“If we don’t stand up and deal with this, we are going to feel the ramifications,” Middlebrooks said.