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Fasano letter to judge prompts mistrial

By Jamal Thalji, Times Staff Writer
In print: Friday, September 5, 2008

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NEW PORT RICHEY — State Sen. Mike Fasano's letter to the judge started out like this: "I realize I cannot get involved in the Eloise Mudway case."

Oops.

He's involved now. The senator's letter led the judge to recuse himself Thursday from the trial of a New Port Richey couple accused of bilking the 91-year-old woman out of her home and savings.

That resulted in a mistrial for Joseph and Cynthia Clancy, who each face up to 30 years in prison if convicted of 2005 charges of exploitation of the elderly and grand theft from a person 65 years or older.

But state law and judicial canons gave Circuit Judge Jack Day no choice.

This was a bench trial, not a jury trial, meaning Day was both judge and jury. If even the possibility that the letter could influence the judge existed, he had to remove himself from the case.

Fasano accepted responsibility Thursday for the mistrial. He was relieved that there will soon be a retrial in front of a new judge.

"It is my fault," Fasano said. "I reacted and should have waited."

• • •

Like many judges, Day said he doesn't usually read correspondence from the public about cases before him.

That's because it's ex parte communication — Latin for "from one party." The court cannot accept direct contact about a case away from the interested parties.

The judge said his judicial assistant mistakenly showed him the senator's letter Thursday because it was from Fasano, a powerful Pasco County legislator.

"If (the Clancys) have done even half of what they are alleged to have done," Fasano wrote, "they should get the strongest possible sentence. Too often we read of deadbeat individuals in this state taking advantage of our elderly residents. Enough is enough!"

The senator even offered to propose "stronger" laws in these types of cases. It was that language, and Fasano's spot on the Senate Judiciary Committee, that led the defense to ask the judge remove himself.

"The Defendant(s) reasonably believes that (they) will not receive a fair and impartial trial," said the defense's motion.

Would the letter have had the same effect had this been a jury trial? Probably, surmised prosecutor Mary Handsel. If the Clancys were found guilty they would still be sentenced by this judge.

The silver lining in all this, Handsel said, is that the new trial can go forward even if the victim becomes incapacitated because of her age or condition.

If Mudway can't testify again, her testimony from Wednesday will be admissible in the retrial.

• • •

Judge Day saw the senator's letter in a larger light: legislative cuts of the judiciary's budget.

"I don't question Sen. Fasano's interest in the case," the judge said. "But it's a shame. … It's an important case and it's been treated as an important case by the state. Thousands of dollars of resources have been expended to get it in this week.

"So it's really ironic that this case is forced (to end), especially at times when we have concerns expressed by the Legislature about our efficiency."

• • •

The senator said he often writes letters to judges in cases, usually about deadbeat dads who owe child support.

But Eloise Mudway's plight caught Fasano's attention long ago. He said he wrote the letter Thursday and faxed it to the judge because he just got so angry reading a St. Petersburg Times article about the victim's testimony.

At first the Clancys called her "mother," Mudway told the judge on Wednesday, when they moved into her house. Then the victim testified that the couple tore through her bank accounts, had her unknowingly sign over her $370,000 home to them and then stuck her in an assisted living facility.

The Clancys have not only denied the allegations but are suing Mudway.

"When I saw the article that was written this morning, I was just outraged," Fasano said Thursday. "Once you start reading it in print … about what those two individuals did, robbing her blind, throwing her out of her own house, I guess I reacted."

Mudway isn't happy about the mistrial. But her caretaker said she has no hard feelings for Fasano.

"She feels like he's her hero," said Jeff Kores, "because he took the time to care about her case."

Jamal Thalji can be reached at thalji@sptimes.com or (727) 869-6236.