Judge Gets Fax From Fasano, And A Trial Is Derailed

Under normal circumstances, State Sen. Mike Fasano's Thursday morning fax to Circuit Judge Jack Day might have amounted to nothing more than another person's opinion about an ongoing case.

Judges get them all the time.

But this was different. Day was presiding over the trial of a couple accused of cheating 91-year-old Eloise Mudway out of her house and assets. Unlike most criminal cases, which are decided by juries, the judge alone was to determine whether Joe and Cynthia Clancy were guilty and, in the event he did, what their sentences should be.

That made Fasano's letter condemning the Clancys and suggesting they receive the harshest possible sentences grounds for a recusal, defense attorneys argued.

Day granted the request, prematurely ending a trial that has been on the docket since October 2005. Now the case must be assigned to another judge and retried from the beginning. The case must come to trial within 90 days, unless the Clancys waive their right to a speedy trial.

"This is just a shame," said Assistant State Attorney Mary Handsel as she left the courtroom.

Day had little choice but to end the trial. The state's Code of Judicial Conduct requires that judges be impartial, avoid any appearance of impropriety and maintain the independence of the judiciary.

A letter on senate letterhead from a member of the Judiciary Committee evidently brought some of those issues into question. After beginning his letter with "I realize that I cannot get involved in the Eloise Mudway case," Fasano launches into his thoughts.

"If Joseph and Cynthia Clancy have done even half of what they are alleged to have done, they should get the strongest possible sentence," Fasano wrote. "Too often we read of deadbeat individuals in this state taking advantage of our elderly residents. Enough is enough!"

In recusing himself, Day said he didn't question Fasano's intentions, but the judge was clearly interested in preserving the independence of the bench.

"It's a shame that we have a 92-year-old alleged victim in this case and people who care about her, and the trial has been set several times," Day said "It's an important case, and thousands of dollars of resources have been expended to get it in this week.

"So, it's really ironic that this case was forced to an early end, especially at a time when we have concerns expressed by the Legislature about our efficiency."

In April, state Sen. Victor Crist requested an efficiency audit of circuit and county court judges throughout the state. Crist requested the audit after getting more than a dozen phone calls from state employees asking why their jobs were in danger during the economic crunch when highly paid judges sometimes didn't work a full week.

Results of the audit are due by Jan. 1.

By Thursday afternoon, Fasano had heard about his letter's effect. He said he hadn't intended for the fax to cause the trial's early end but that he had followed Mudway's case and wanted to make sure "the deadbeats" received a just punishment, if found guilty.

"I should not have sent that letter," he said. "I sent it too early, not realizing it was a bench decision and not a jury decision. I understand why the judge had to do what he did, and I appreciate him doing that. As it was explained to me, it would have been a different story if it had been a jury trial."

Aubrey Jewett, a political science professor at the University of Central Florida, said Fasano's decision to write to a judge about an ongoing case is unusual. Jewett said the result was probably the opposite of what Fasano intended when he sent the fax.

"Legislators should probably just use a little more common sense and a little more restraint," he said.

"Traditionally, particularly at the trial court level, it's pretty much been the case that legislators would not try to influence judges, and that's the way it's been."

Separation Of Powers

That deference stems from the separation of powers between branches of government. As a general rule, judges don't weigh in on legislation, and legislators don't advise the judiciary about how to interpret the law.

In Florida, preserving the independence of each branch has become even more delicate in recent years, since the Legislature assumed responsibility for funding most of the state court system.

A similar conflict arose in August 2003 after then-Gov. Jeb Bush sent a letter to Pinellas-Pasco Circuit Judge George Greer, who was presiding over the Terri Schiavo case. Bush asked Greer to appoint an independent guardian to investigate whether Schiavo would want to be taken off life support. The judge said he respected the governor but didn't take up his suggestion.

Charged With Exploitation

In Mudway's case, Handsel and defense lawyers Dean Livermore and Mark Goettel had agreed before the trial that Day would act as judge and jury. Joe Clancy, 55, and Cynthia Clancy, 45, are each charged with exploitation of an elderly or disabled adult and grand theft. Both are first-degree felonies punishable by as much as 30 years in prison.

The Clancys have pleaded not guilty and have been awaiting trial since their Oct. 4, 2005, arrests. Testimony began Wednesday, and the case was expected to conclude today.

Prosecutors had already presented evidence that Cynthia Clancy had convinced Mudway to sign a quit-claim deed, which transferred her Hilltop Drive home into Clancy's name. Mudway testified she didn't know what she was signing and that Cynthia Clancy told her she had to sign to save the house from foreclosure.

Prosecutors also contend the Clancys emptied Mudway's bank account and stole $30,000 in cash she had inherited from a friend. In early 2005, they left Mudway at the home of another local family, where she continues to live. Handsel said many of Mudway's belongings in the Hilltop Drive house were never returned to her.

Attorneys for the Clancys have argued that Mudway simply mismanaged her finances, ran out of money and couldn't pay her mortgage. Mudway agreed to the transfer to save her house, said Livermore, Cynthia Clancy's attorney.