Grasping at Straws

Last Wednesday I had occasion to monitor what was on the docket for a plea, but morphed into a highly unusual hearing in Judge Marc Lubet's courtroom (it seems as though he's gotten more than his fair share of "highly unusual" cases lately).

James Gilbert (2008-CF-018238-A-O) was arrested December, 2008 for ten counts of soliciting a minor via computer. Gilbert was employed by the Florida Highway Patrol at the time of the offenses. The defendant allegedly had sexual conversations and sent over 600 text messages to a 17-year old girl. Gilbert's ex-wife, an Orange County Deputy Sheriff, was later disciplined for conduct unbecoming a member of the OCSO for intimidating the victim's mother at the mother's place of employment.

In the hearing (which started to look a bit like a circus) last week, Defense Counsel Neal McShane made several serious allegations about a cover up within the State Attorney's Office.

• He told the Court that the previous Friday some new information had just come to light about an alleged cover up - claiming that the State and FHP conspired to obstruct justice by tampering with the victim. The victim was allegedly told by the State that she did not need to go to the deposition that had been scheduled in a corresponding injunction case (the parties in that case jointly requested a dismissal, having worked out the issues involved with the assistance of their attorneys).
• McShane also alleged that all of the victim's text messages to the defendant are now missing.  However, Judge Lubet stated that what the underage victim may or may not have texted is not relevant - the defendant is an adult and is therefore still responsible for his messages to her.

Assistant State Attorney Ryan Williams argued that the allegations are without substance because Mr. Gilbert's attorney had no evidence to back them up. His "source" remained unnamed. Mr. McShane requested that Judge Lubet call Assistant State Attorney Sarah Freeman, who handled the case at the time, and William Jay, Counsel for the victim in the injunction case, to testify on the spot. He asserted that if he could just ask them some questions, he could prove his allegations.

Judge Lubet told Mr. McShane that making allegations without knowing the facts is unethical. He would not grant McShane's request at that time.

Ms. Freeman advised that her office will be filing a protective order to prevent her from testifying in the matter and will attempt to quash any subpoena that is issued for a deposition.

Mr. Williams' original offer to the defendant of 90 days jail and 3 years Sex Offender Probation was not withdrawn at this stage of the game (remember, the case was scheduled for a plea - not a hearing where testimony would be taken) because he did not want to punish the defendant because of his attorney's allegations and motions.

Mr. McShane became extremely argumentative with Mr. Williams and angrily yelled at him about some emails he had sent to the State. I couldn't capture it quickly enough in my notes, and must admit that I was a bit stunned to see an attorney behave so badly. I don't remember what else was said.

Judge Lubet, who was in the second day of a jury trial, would not tolerate Mr. McShane's multiple assertions that this was still going to be a plea. He refused to order the victim to be deposed a second time in this case, but granted a second depo of FHP only as it related to the new information.

While waiting for the elevator after the hearing, several observers commented that Mr. McShane's arguments were without merit. I thought he was grasping at straws to further prolong his client's case.

A follow up 90-minute hearing was scheduled for Wednesday, January 6th at 2:00pm.

Click here for WFTV's coverage of the initial arrest.