TAMPA — In a highly unorthodox move, a Tampa defense attorney in an attempted murder case is trying to depose a Hillsborough Circuit judge whose actions after the defendant's arrest have raised questions about whether he violated established procedure.
On Thursday, a Hillsborough judge heard from attorney Mark J. O'Brien, who is representing Matthew Buendia, a former Marine who shot a Hillsborough sheriff's deputy in the fall of 2011. Nearly three years after Buendia's arrest, O'Brien contends that Circuit Judge Chet A. Tharpe and officials with the Hillsborough state attorney's and sheriff's offices worked together to improperly revoke Buendia's bail. If successful, O'Brien's actions could force the spectacle of a veteran jurist made to give out-of-court testimony about his role in the case.
In the hands of another attorney, Tharpe's actions in 2011 might have gone unnoticed, or ignored in the name of keeping the peace. For obvious reasons, attorneys don't typically criticize judges.
But for the last several months, O'Brien has tried to make Tharpe and others talk publicly about what happened. O'Brien refused to comment for this article, but public legal documents offer a window into his efforts.
A former Marine who was deployed three times to the Middle East, Buendia had not been on law enforcement's radar until the night of Sept. 30, 2011, when an argument with his then-girlfriend turned violent and she called 911. Deputy Lyonelle De Veaux responded to the Carrollwood apartment complex where she asked the girlfriend, Jessica Gibson, to wait in her patrol car. No one disputes what happened next: Buendia walked up to De Veaux and shot at her nine or 10 times, putting three bullets into her left leg and shoulder.
De Veaux eventually recovered and Buendia, who had swallowed a handful of pills before the shooting, was hospitalized as well. Friends and family said he was suffering from posttraumatic stress disorder and was under the care of Department of Veterans Affairs doctors.
Two days later, Buendia made his first appearance before a judge. Charged with attempted second-degree murder and several other offenses, he was eligible for bail. Circuit Judge Cheryl Thomas, who was on duty that weekend, set bail at $65,000.
Almost immediately, an outraged Hillsborough County Sheriff David Gee demanded reconsideration. He asked the Hillsborough State Attorney's Office to file an appeal and his spokesman, Larry McKinnon, told reporters that Buendia was "an extreme danger to the community."
Though it's common practice to modify defendants' bail, what happened next struck O'Brien as "legally suspect," as he wrote in one court document. Hours after Thomas set bail, Tharpe — who is known as one of the tougher criminal law judges in the circuit — called the jail and revoked it. There was no hearing.
According to the Florida Rules of Criminal Procedure, judges can't set or change a defendant's bail unless they are the chief justice of the circuit, have been assigned to preside over the defendant's criminal trial, are the first-appearance judge or have been authorized by the judge who initially set bail. According to O'Brien's legal filings, Tharpe met none of those criteria. Thomas did sign an order approving Tharpe's decision, but that was on Monday — a day after Tharpe revoked Buendia's bail.
Someone had called Tharpe and asked him to intervene in a case that wasn't his, O'Brien wrote in a pleading. The question was who. He tried deposing Sheriff Gee and Mark Cox, the spokesman for the State Attorney's Office, but both fought off his subpoenas. He succeeded in deposing McKinnon, who told him that someone had likely called Tharpe, but he wasn't sure who.
"I've been around a long time," McKinnon said in his deposition. "I suspected he was being called to do some judicial ruling or overruling …"
Tharpe, Gee and McKinnon did not return calls for comment. Judge Thomas said Thursday she could not comment on pending litigation.
A few days after Buendia's bail was revoked, the State Attorney's Office increased the charges against him to include attempted first-degree murder of a law enforcement officer, making him ineligible for bail. Buendia, 27, has been in solitary confinement ever since.
Whether Tharpe is deposed is a decision that now rests with Circuit Judge Lisa D. Campbell, who is expected to rule next week.
"It's extremely rare that that would ever occur," said Clearwater-based defense attorney Jay Hebert. "The judge would have to be somehow factually connected to the case."
O'Brien says that Tharpe is deeply connected.
"The Defendant is entitled to know what evidence was provided to Judge Tharpe that would have resulted his revoking a lawful bond without notice, a hearing or legal authority," he wrote.
Contact Anna M. Phillips at firstname.lastname@example.org or (813) 226-3354. Follow her @annamphillips.