(ran ET edition of TAMPA & STATE)
He takes himself off cases involving a Clearwater lawyer, but not off cases from the Public Defender's Office.
Circuit Judge Brandt Downey on Monday refused a request by the Public Defender's Office to disqualify himself from 179 criminal cases because of fears by defendants that the judge favors police.
Downey said the office of Pinellas-Pasco Public Defender Bob Dillinger failed to demonstrate how his criticism of a jury last month would lead other defendants to develop "well-grounded fears" that the judge could not be fair in trials and hearings.
The judge declined to discuss his decision. Dillinger said he would appeal to the 2nd District Court of Appeal in Lakeland.
Dillinger also said he would ask the appellate court to order an emergency postponement of a trial scheduled to open today before Downey. Dillinger had asked Downey to postpone the trial until after the appeals court rules on the public defender's appeal. The judge refused.
"If the case is tried and then the court grants our appeal, we'll have to do the trial all over again, and it seems like a waste of judicial time," Dillinger said.
On July 15, Downey told six jurors that he was disappointed in their acquittal of Johnny Nathan, accused of the sale and possession of cocaine. The judge told jurors they should have believed the testimony of a police officer and sent the defendant to prison, "where he belongs."
While the judge will not remove himself from cases involving clients of the Public Defender's Office, Downey did remove himself from others.
For one, Downey disqualified himself from any cases handled by Clearwater lawyer John Trevena, who represented Nathan, because of comments Trevena made about Downey in a television news report two weeks ago.
Trevena, who now has three cases in Downey's division, told a television reporter that he found the judge's jury criticism shocking and said any defense lawyer would have difficulty practicing in front of a judge who favors police.
"I just felt it best to take myself off his cases because of his comments," Downey said, noting that he wanted to avoid any appearance that Trevena's comments left the lawyer in the judge's disfavor.
Downey said, "He was stating his opinion. I have no problem with that."
But even if he isn't angry at Trevena, Downey said, "so much of what we do involves the appearance of impropriety as opposed to it actually being there."
Trevena said he was puzzled about the judge's actions when he hadn't even asked Downey to disqualify himself.
"I've never seen any indication that the judge had any grudge against me or Mr. Nathan," Trevena said. "If he feels the need to recuse himself in my cases, then he should recuse himself in the public defender's cases."
The judge also disqualified himself from presiding over any cases involving a Clearwater police officer who testified in the Nathan case.
After the jury found Nathan not guilty, Downey told jurors, "The officer . . . saw what happened. And he told you the truth. And it's unfortunate that you didn't think that that was enough to convict this career criminal."
"I wanted to avoid any future problem where someone would argue that I was vouching for the officer's credibility," Downey said Monday. "I, of course, was not."
Downey noted that, before the Nathan trial, he had never seen the officer before. "For all I know, I might never have seen him again anyway," Downey said. "But I thought it just best for me to disqualify myself."
Had Downey disqualified himself in the 179 cases, he would be forced off the criminal bench, State Attorney Bernie McCabe's office said in court papers filed last week.
"Judges are human," prosecutors said in court papers filed last week. "Judges do make mistakes. Judge Downey made a mistake when he addressed the jury in the (July 15) case as he did. However, the comments were made only in reference to that case, based upon what he heard during that particular trial."