MIAMI — That Miami criminal defense attorney Jonathan Schwartz
changed police lineup photos in a police lineup during a witness
deposition wasn’t in question. The disagreements came in what should be
done about it.
After the Florida Bar prosecuted a complaint
against Schwartz, the first referee said the Florida Bar hadn’t proven
the attorney violated any rules. A second referee advised a 90-day
suspension followed by a year of probation.
The state Supreme Court made the suspension three years. Schwartz begins his suspension March 19.
Changing faces and hair
Armed robbery and carrying a concealed
weapon charges hung over Schwartz’s client, Virgil Woodson, when
Schwartz went into a pretrial deposition with the alleged victim on Feb.
13, 2015.
As detailed in the state Supreme Court’s opinion
on the first referee’s decision, there were two photocopies of
black-and-white police photo lineups. The victim had identified Woodson,
photo No. 5, circled the photo and the number and signed her name. The
police officer who conducted the photo lineup had done the same.
But
Schwartz, the court said, changed one photo lineup by swapping out
Woodson’s picture with the picture of another suspect other witnesses
identified as the guilty party. For the second exhibit, Schwartz changed
Woodson’s photo “by imposing the alternate subject’s hairstyle on the
client’s image.
“Although the images in the exhibits were altered
in this manner, they nonetheless retained the circle around subject No. 5
and the signatures of the victim and police officer below the
photographs.”
A judge gives an opinion. The state Supreme Court disagrees
The
first referee in this disciplinary case, 11th Judicial Circuit Court
Judge Celeste H. Muir, found the Bar didn’t prove that Schwartz
(admitted in 1986) committed any professional misconduct.
In the
referee’s report, Muir wrote that she found Schwartz’s “entire conduct
was to conduct a legitimate and constitutionally allowable challenge to a
questionable eyewitness identification, after having first brought
favorable evidence and witnesses to the attention of the prosecutor
handling his client’s case, including evidence that identified another
person as possibly the actual perpetrator.”
As for Schwartz himself, Muir found him “ forthright and honest in his testimony and conduct
” throughout the disciplinary trial.” The judge felt his testimony
showed her that he “acted without any purpose or intention to deceive”
and “his conduct was not dishonest or fraudulent.”
The Bar
appealed Muir’s decision. The state Supreme Court issued an opinion that
disapproved the referee’s findings of fact and the recommendation that
Schwartz violated no Bar rules.
When addressing Muir’s findings,
the court said, “notwithstanding the referee’s credibility findings and
her finding that Schwartz did not subjectively intend to deceive the
witness, this finding does not address that Schwartz knowingly and
deliberately created the defense exhibits by altering photocopies of the
police lineups and showing them to the victim at the deposition. “
The court also said: “Our consideration of the defense-altered
exhibits leads to the inevitable conclusion that they are deceptive on
their face. The referee, without elaboration, concluded that the
exhibits “in and of themselves” were not “misleading,fraudulent,
deceitful, or misrepresentations.”
“This conclusion is unsupported by the record and patently erroneous.”
A judge gives an opinion. The state Supremes agree — to a point
In
addition to rejecting Judge Muir’s findings and recommendation into the
10th row, the state Supreme Court recommended review of the case by a
new referee.
And, so the partial do-over fell to replacement referee Miami-Dade County Circuit Court Judge Lizzet Martinez.
Judge
Martinez took the above facts, the state Supreme Court opinion,
Schwartz’s discipline history (three incidents of “minor misconduct,”
two public reprimands and a 90-day suspension) and case law and
recommended a 90-day suspension followed by one year of probation.
The
state Supreme Court’s second opinion said: “Based upon the record
before us, we conclude that in recommending a non-rehabilitative
suspension the referee did not give Schwartz’s prior misconduct proper
consideration in light of existing case law. As the referee found, on
three prior occasions ... Schwartz violated numerous Bar rules, which in each instance included those rule violations that the Court has held are considered the most serious.”
Schwartz’s
90-day suspension came in 2012 after he filed affidavits knowing he’d
notarized them even though he hadn’t actually seen his client sign them.
Both public reprimands concerned some form of lying.
“This
cumulative misconduct by Schwartz, of the most egregious type
(dishonesty) and where he has previously received the longest
non-rehabilitative suspension permissible under the rules ... surely
necessitates an escalated sanction by this Court for that same repeated
type of misconduct,” the court stated in handing down its opinion on
Martinez’s suggestion.
The Bar wanted a three-year suspension. The state Supreme Court agreed with the Bar and suspended Schwartz for three years.
As
for Woodson, online court and Florida Department of Corrections records
say he got six years’ probation on March 25, 2015, violated probation
in October 2016 and went to prison until Jan. 1, 2018.
