Howard Finkelstein (Melanie Bell)
Broward Public Defender Howard Finkelstein said he was pleased with one aspect of a federal appeals court ruling that resurrected an employment retaliation lawsuit filed against him and his office by a forensic psychologist.
The U.S. Courts of Appeals for the Eleventh Circuit on Wednesday reversed the summary judgment ordered by U.S. District Judge Donald L. Graham in Miami, finding a jury should weigh all the evidence in the case of consulting psychologist Michael Brannon.
The same decision eliminated Finkelstein individually as a defendant.
Brannon’s 2010 complaint claims his hours were severely curtailed and then eliminated because he testified for a judge at an ethics hearing before the state Judicial Qualifications Commission.
Finkelstein said Brannon’s pay dropped due to a state judicial budget crisis after the recession and changes in office policies on the use of psychologists as witnesses and spreading consulting fees among a rotating group of psychologists.
Brannon’s attorney, William Amlong of the Amlong Law Firm in Fort Lauderdale, said he looks forward to trying the case.
“This isn’t a case of mere infringement of free speech,” he said. “This is a case about how everybody has a right and the duty to testify truthfully.”
Brannon obtained an email from Finkelstein to a top assistant saying he wanted Brannon to suffer “death by 1,000 invisible cuts” and for him to be “pinned and wriggling on the wall with no target or issue or martyrdom for him to seek sanctuary.”
Amlong said he can’t wait to show a jury that email.
“That email is going to be the size of an I-95 billboard in the courtroom,” he said.
For his part, Finkelstein added a shocking revelation after the appeals court decision was released. He said he received an affidavit last year from psychologist Trudy Block-Garfield warning him of threats by Brannon against him and forwarded the affidavit to State Attorney Michael Satz’s office for investigation.
Brannon “said that he knew where Mr. Finkelstein’s gym is and when he attends there and that he would ‘get him,’ ” psychologist Judy Block-Garfield wrote in the affidavit. She has retired and could not be reached for comment.
Before receiving the affidavit, Finkelstein said Brannon physically threatened one of his assistants. Assistant Public Defender Lynn DeSanti said she was accosted by Brannon on Christmas Eve 2010 while walking into a courtroom. Brannon asked her why she was spreading lies about him.
“It was awful,” she said Thursday. “He was in my face, backing me into the wall, saying I was taking food out of his children’s mouths.”
Finkelstein said his dealings with Brannon worried him.
“I’ve handled lots of heavy cases. I’ve dealt with irate police officers, victims, families clients. You develop a tougher skin,” Finkelstein said. “But this really shocked me. When I left the courthouse, I had to have somebody watch me to make sure I was OK.”
Ron Ishoy, a spokesman for Satz, said Thursday that prosecutors invited Finkelstein “to discuss any possible threat against him by Dr. Brannon,” but he declined.
Finkelstein said Brannon’s hours were cut to avoid attorney and staff layoffs, and he was no longer used after he started telling juries about his animosity toward the pubic defender’s office.
“He started bringing it into the courtroom where we had clients looking at life imprisonment,” Finkelstein said.
Amlong said he had never heard of such threats and denied their validity. If true, he wondered why Finkelstein’s employees didn’t seek mistrials in the cases where Brannon criticized his office in front of juries.
Amlong said Finkelstein’s response to Brannon’s JQC testimony was hypocritical considering the source.
“You would think the public defender’s office, if anybody, would realize the bedrock of the adversarial system is to be able to call witnesses,” he said.
Reviewing the appeals court decision, Finkelstein said, “They have removed me and my family’s personal liability and, a second thing, as of recently Dr. Brannon has not threatened to physically harm or kill me or my family.”
Finkelstein, who has been in office for 10 years, became a household name by helping frustrated consumers with their legal problems on his long-running “Help Me Howard” segment on WSVN-TV news.
For The Jury
The 18-page appellate decision written by Judge John M. Walker, a visiting judge from the U.S. Court of Appeals for the Second Circuit, outlines a series of events that he said only a jury can confront. Brannon’s testimony for Circuit Judge Cheryl Aleman was a key issue.
“A reasonable jury could find that Brannon’s testimony at the Aleman hearing caused the removal,” Walker said. Circuit Judges Stanley Marcus and Joel Dubina concurred.
Brannon’s practice took a turn for the worse after his JQC testimony in 2007, the opinion said.
Brannon was paid $608,757 by the public defender’s office in 2006-2007. Following the Aleman hearing, he was paid only $170,612.
Aleman was publicly reprimanded in 2009 by the Florida Supreme Court for exhibiting “arrogant, discourteous and impatient conduct” while presiding over her first death-penalty case. She died in 2010 from lung cancer.
Finkelstein cited two factors for the drop in Brannon’s fees. Finkelstein decided to no longer use psychologists to testify for downward departures on sentences. He said he also put all psychologists on a wheel in 2009 to spread out what was left in the mental health budget. Wheeler, in his opinion, noted Brannon received roughly an equal share of work after that change.
“This guy has tied up this office and my life, and all I tried to ever do was try to save money and make it a fair process by going to a wheel,” Finkelstein said. “He wanted all the money.”
John Pacenti can be reached at (305) 347-6638.