It’s not easy to be a judge, and the brightest or best-educated lawyer doesn’t necessarily make a good one. Self-control is as essential a qualification as mastery of the law. Judges who vent anger, disgust, impatience or other emotions appear biased. Much of the Code of Judicial Conduct is written to prevent just that.
Criminal trials, fraught with horrifying evidence, tension and unfathomable loss, are the ultimate test of a judge’s disposition. It would be difficult to cite a more vivid example of such a case than the six-month-long sentencing trial of Nikolas Cruz last year for the 17 murders he committed at Marjory Stoneman Douglas High School.
Broward Circuit Judge Elizabeth Scherer’s conduct during that trial, regrettably, serves as a textbook example of how not to do it. She repeatedly lost her temper with Cruz’s public defenders, who were simply doing their job, refused to stop victims’ family members from berating them in front the jury, and when it was over, still in the courtroom and wearing her black robe, the very symbol of justice and fairness, she ostentatiously hugged two of the prosecutors and victims and family members of victims. Video of those theatrics should be shown at judicial training seminars.
This is why Florida’s Judicial Qualifications Commission had a duty to pursue charges against Scherer, despite her resignation last month. Had she left the bench immediately, the JQC probably would have waived jurisdiction over her. But she made the resignation effective June 30.
A duty to pursue
The JQC’s case was well along by May 10, the date she announced her resignation. Documents filed with the Florida Supreme Court reflect that the JQC served Scherer with its notice of investigation on April 7. The JQC did not say who filed a complaint (it never does) but every aspect of the trial, including Scherer’s dustup with defense attorneys, was widely publicized.
The JQC has a duty to extol the highest possible ethical standards for Florida judges. The Parkland case was an example not to be overlooked.
The JQC’s proceedings and those of the Supreme Court, which receives and acts on its disciplinary recommendations, are meant to set the standards for all judges to follow.
The court had removed Scherer from another death penalty case involving a prosecutor, Assistant State Attorney Steven Klinger, a former colleague of hers, whom she hugged in the courtroom after the Cruz sentencing trial. Later, she was accused of commiserating with him on the outcome of the trial, which resulted in consecutive life sentences for Cruz because the jury did not unanimously seek a death sentence.
That prompted Gov. Ron DeSantis and the Legislature to change the law to allow death when as few as eight of 12 jurors vote for it — making Florida the most pro-death penalty state in the country.
Klinger was the prosecutor opposing a post-conviction motion filed by prisoner Randy Tundidor, who was sentenced to death. The defense counsel cited the Cruz trial and objected that he had heard Scherer and Klinger appearing to commiserate over the outcome. The Supreme Court said Scherer should have granted Tundidor’s motion to recuse herself from his case. .
A reprimand, at minimum
Before the investigation became public with the filing of its recommendations at the Supreme Court, Scherer and the JQC had already agreed that she should receive a public reprimand from the Supreme Court. Whether that actually happens is up to the court, which could render the issue moot by simply not acting until she has left the bench.
Scherer is just the most recent of more than 30 judges, including six others from Broward, whom the JQC has charged over the years with violating the anti-bias canons of the judicial code. Most cases resulted in reprimands. In 2010, however, Broward Circuit Judge Ana Gardiner resigned after the JQC charged her with misconduct for having a personal friendship with the prosecutor in a case where she had sentenced a defendant to death. The prisoner got a new trial. The court disbarred Gardiner and suspended the prosecutor’s law license for two years.
The Code of Judicial Conduct doesn’t simply tell judges how to behave. It also tells them why they must. As it explains:
“A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.”
Those are difficult standards, it’s true, but they are not impossible. Anyone wishing to be a judge should be willing and able to meet them — and should expect that someone will always be watching.
The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at .
