(CN) – Appellate judges want the Florida Supreme Court to decide whether a criminal defendant can disqualify a judge for being Facebook “friends” with the prosecuting attorney.
Pierre Domville had sought certification or a rehearing from Florida’s Fourth District Court of Appeal.
In an unsigned decision Wednesday, the West Palm Beach-based appellate court denied the rehearing motion and granted certification to the state’s high court.
It asked: “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook ‘friend,’ would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”
One member of the panel, Judge Robert Gross, wrote specially to highlight the importance of deciding how judges can take part in social media sites such as Facebook.
“Judges do not have the unfettered social freedom of teenagers,” Gross wrote. “Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face-to-face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”
Another member of the panel, Judge Jonathan Gerber, said the court should have denied both the motion for rehearing and the question certification.
“The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance,” Gerber wrote. “The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning. The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them ‘is of great importance to many.’ However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: ‘Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.'”
Gerber said that he and his colleagues addressed the narrow issue at the heart of the Domville’s certified question on Sept. 5, 2012.
“We concluded that, where the presiding judge in a criminal case had accepted the prosecutor assigned to the case as a Facebook ‘friend,’ a reasonably prudent defendant would fear that he or she could not receive a fair and impartial trial, so that the defendant’s motion for disqualification should be granted,” he wrote. “The occurrence of those facts in this case appears to be an isolated event, and understandably so. I see no basis to certify a question of great public importance.
Judge Andrew Siegel presides over the Domville prosecution in Broward County.
Domville is represented by Fort Lauderdale attorney Denzle Latty.
Attorney General Pamela Jo Bondi, of Tallahassee, leads the prosecution with Assistant Attorney General Georgina Jimenez-Orosa, of West Palm Beach.
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