Lots of Smoke, Not A Lot of Substance

Former FHP Trooper James Gilbert was back in court today for a 3.5-hour hearing relating to numerous motions made by his attorney, Neal McShane, about allegations that were made by him in December regarding a supposed conspiracy within the State Attorney's Office. See our earlier blog about this case here.

After hearing testimony from FHP, the victim's father (who was also Gilbert's supervisor at FHP before he was terminated), the victim's mother, Assistant State Attorney Sarah Freeman (who initially handled the case before ASA Ryan Williams took it over last spring), and Counsel for the victim's family, William Jay, it became abundantly clear that Mr. Gilbert's attorney was throwing numerous allegations and constitutional issues against the wall, hoping something would stick.

Nothing did.

Judge Marc Lubet, occasionally appearing exasperated with some of McShane's arguments, repeatedly tried to keep him focused on the issues he had raised in order to conduct the hearing in a methodical manner. Judge Lubet asked him approximately 6-8 times, "Tell me how your client's due process rights were violated." The reason he had to ask so often was because McShane never did provide an answer that "stuck."

The allegations of prosecutorial misconduct were based solely on the representations of the victim's mother, whom I will not name in order to protect the identity of the victim. McShane claimed that the State Attorney and FHP conspired to prevent a deposition in the civil injunction by telling the mother to dismiss the injunction - something to which McShane and Mr. Jay (Counsel for the victim and her mother) had both stipulated. Once the injunction was dismissed, there was no case to be deposed. At this point, Judge Lubet pointed out that Mr. McShane couldn't have it both ways (dismissing the injunction AND deposing the victim), to which he replied that he believed he could. At this point in time, the criminal case had not yet been filed.

It seemed odd to me throughout the hearing that the mother sat directly behind the defense table, her husband (the victim's father) sat in the last row on the same side, and the victim sat in the last row on the prosecution side of the courtroom.

When the mother took the stand, everything became clear as soon as she broke into tears after praising the defendant's 17-year career with FHP and tearfully telling him from the witness stand that she wished he had accepted the initial plea offer of 18 months probation. She complained to the Court that Mr. Gilbert was now facing the possibility of prison because the State's initial offer of probation, and a subsequent offer of 90 days jail, were now off the table because he had rejected them.

Remember, this is the man who texted her teenage daughter several hundred times in a sexually explicit manner!

She felt that it was not fair that the defendant might have to go to prison for his conduct with her daughter over the course of only 17 days. She minimized his actions by stressing that he never touched the teen. She indicated that the entire situation started when she filed for a civil injunction on behalf of her daughter because it was her husband's intent to have Gilbert transferred out of his unit.

Another spectator in the courtroom turned to me and stated "Appalling."

I would have to agree.

Mr. Williams confronted the mother after her lengthy diatribe about the unfairness of it all and remarked that she never once mentioned her daughter's well-being during her testimony. The mother then expressed a bit of relief that her husband had earlier left the courtroom and didn't hear what she had said. She then expressed anger at Mr. Williams' observation and proceeded to attack her daughter's character by telling the Court that she had tried to protect her child from dating the 24-yr old man with whom she was now living. The victim moved out of the home as soon as she turned 18 in August. Judge Lubet told her none of that was relevant and she stepped down.

Appalling. I don't think this woman will garner any support in a "Mother of the Year" contest.

Judge Lubet permitted Mr. McShane to submit what seemed to be reams of caselaw about the constitutional issues he believes are at issue (many of them dealt with drug cases) and asked him to be concise in his argument (it was already after 5:00pm at this point).

He wasn't.

Judge Lubet was though. All defense motions were denied. He allowed the defense attorney to do what he felt was necessary to preserve the record for an appeal, and stressed that this case would not be granted any more continuances.

I think the defendant would have a good case for replacing his lawyer after today's performance.

Mr. Gilbert's trial is scheduled for to begin during the trial period starting Feburary 15, 2010.

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.

Child Abuser Gets a Birthday Present From Judge

Gabriel Hernandez (2007CF18243) got a big birthday present today, all because it's Judge John Adams' "policy" to withhold adjudication of guilt on a first time felony. Apparently, the fact that Mr. Hernandez (whose birthday happens to be June 8th) has only 23 traffic offenses and one misdemeanor offense in Orange County still qualifies for a withhold so he won't lose his voting privileges.

Hernandez was charged with Aggravated Child Abuse (punishable by up to 30 years in prison) and Neglect of Child Causing Harm or Disability (15 year maximum) for inflicting multiple rib fractures upon an infant less than 12 months old. LESS THAN 12 MONTHS OLD! The negotiated plea agreement was for 5 years probation, a parenting class and no unsupervised contact with children under 18 years of age. As Judge Adams was announcing a withhold of adjudication (which will allow the defendant to truthfully state he's never been convicted of a felony), Assistant State Attorney Sarah Freeman leapt to her feet. She notified the judge that this was a negotiated plea that did not include a withhold and she objected. After a somewhat lengthy off-the-record bench conference, Judge Adams did not reverse himself.

I wonder if the judge would have made the same decision if the victim and victim's family had been present in the courtroom today. I certainly hope he sets aside his "policy" and does a better job of holding perpetrators accountable for their crimes - particularly in cases where the victim is the most vulnerable member of the human race - a small, defenseless child.