Smith Hearing

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IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA

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CASE NO:

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JUDGE:

F08003920

BUTCHKO

5 STATE OF FLORIDA, 6

Plaintiff,

7 vs. 8 GATSON EVERETT SMITH, 9

Defendant.

10 _____________________/ 11 12

EXCERPT

13

December 4, 2009

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The above-styled cause came on for hearing before

16 the HONORABLE BEATRICE BUTCHKO, one of the Judges in 17 the Circuit Court of the 11th Judicial Circuit, at the 18 Richard E. Gerstein Justice Building, 1351 N.W. 12th 19 Street, Miami, Florida on Friday, December 4, 2009, 20 commencing at or about 1:30 p.m. and the following 21 proceedings were had: 22 23

Reported by:

Amber N.

Gabel

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APPEARANCES:

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OFFICE OF THE STATE ATTORNEY, by, RICHARD SCRUGGS, ASA On behalf of the Plaintiff

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OFFICE OF THE STATE ATTORNEY, by, PENNY BRILL, ASA On behalf of the Plaintiff OFFICE OF THE STATE ATTORNEY, by, FLEUR LOBREE, ASA On behalf of the Plaintiff OFFICE OF THE STATE ATTORNEY, by JOSE ARROJO, ASA On behalf of the Plaintiff

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LEWIS TEIN, PL, by MICHAEL TEIN, ESQUIRE On behalf of the Defendant

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LEWIS TEIN, PL, by KATHRYN A. MEYERS, ESQUIRE On behalf of the Defendant

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LAW OFFICE OF LARRY HANDFIELD, by, LARRY HANDFIELD, ESQUIRE On behalf of the Defendant _ _ _ _ _

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INDEX

18 DEFENSE WITNESS

Page

19 RICHARD SCRUGGS Direct Examination by Mr. Tein ................. 20 Cross-Examination by Ms. Lobree ................ Redirect Examination by Mr. Tein ............... 21 22 COURT'S RULING

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MR. TEIN:

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THE COURT:

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May it please the Court. Yes, redirect. REDIRECT EXAMINATION

4 BY MR. TEIN: 5

Q

Mr. Scruggs, are you the senior public

6 corruption prosecutor in this office -- the state's 7 attorney office? 8

A

No.

9

Q

Who's senior to you?

10

A

I mean, explain what you mean, and I'll see

11 what I can do to help you. 12 13

Q

You just told me no. Who is senior to you, if you're not the

14 senior public -15

THE COURT:

16

THE WITNESS:

Senior by age -Yeah, senior by age,

17 experience -18

THE COURT:

19 supervisors. 20

He said he doesn't have any

Senior by chain of command, maybe?

Is there anyone senior to you, like, by chain

21 of command in public corruption? 22

THE WITNESS:

No, but Mr. Centerino is far

23 senior to me in the office. 24

THE COURT:

Senior in terms of longevity in

25 the office?

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THE WITNESS:

2

THE COURT:

Yeah, he's been there -Does that have any significance

3 other than a bigger state pension? 4

THE WITNESS:

I'm trying to answer the

5 questions the best I can.

I don't know.

I don't

6 know. 7

THE COURT:

Mr. Tein, ask your question maybe

8 in a different way. 9

MR.TEIN:

It's okay.

10 BY MR. TEIN: 11

Q

You were formally chief of the public

12 corruption unit at the US State Attorney's Office, 13 right? 14

A

Yes.

15

Q

Are you aware of the power of your words and

16 your disclosures as the senior public corruption 17 prosecutor in the state attorney's office, where just 18 the disclosure of the existence of an investigation or 19 of a subpoena or of your opinion, like the one you 20 rendered a few minutes ago, that someone committed a 21 crime, are you aware of the power and the affect that 22 you and your words have, Mr. Scruggs? 23 24

A

Not particularly, you want to tell me? THE COURT:

You know, that's a very

25 legitimate question, you're going to go with that

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1 flippen answer. 2

THE COURT:

No, I mean -- I understand

3 that -- there's a couple ways to look at that, that's 4 why I said I'm not sure about answer. 5

THE COURT:

You know, he couldn't have made

6 it more clear. 7

THE WITNESS:

8 powerful person.

I think any prosecutor is a

I think any defense lawyer,

9 certainly if they are respected in the community, is a 10 powerful person in terms of their word be taken.

I

11 think that perhaps that because of my long standing 12 experience in the community, that perhaps my words are 13 listened to, whether they're taken seriously, I don't 14 know.

How powerful they are, I don't know, but I do

15 think people probably listen.

That's really the best

16 answer I can give you. 17 BY MR. TEIN: 18

Q

Is there any word ever, in any pleadings,

19 that Pastor Smith's lawyers filed in this case, that 20 accuses you, in the words that you used, of suborning 21 perjury? 22

A

Yeah.

23

Q

Did we use the words suborn perjury, yes or

A

No.

24 no? 25

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Q

What we said -- what we said was very clear,

2 that you instructed pastor -- we're going to play the 3 tape right now. 4

A

Fine, whatever.

5

Q

Mr. Scruggs, we said that you instructed him

6 how you wanted him to testify; isn't that the case? 7

A

No.

8

Q

Isn't it true, Mr. Scruggs, that you are

9 belittling the charge by suggesting that it's absurd 10 in saying we accused you of suborning perjury? 11

A

It's absurd that you are accusing me of

12 suborning perjury, and you have, and also -- let me 13 finish, and also you have -14

MS. LOBREE:

15

THE WITNESS:

Objection. -- you have accused me of

16 improper prosecution with improper motives, and if you 17 believe that you should call the police -18

THE COURT:

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THE WITNESS:

Sustained. -- and you should call the FBI.

20 BY MR. TEIN: 21

Q

Mr. Scruggs, you are the police.

22 Garcia is the police.

Detective

I have nowhere else to go

23 except for this courtroom based on what you did. 24

MS. LOBREE:

Objection, counsel is arguing

25 with the witness.

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THE COURT:

Sustained.

2 BY MR. TEIN: 3

Q

Mr. Scruggs, you attempted in your speeches,

4 when you were asked by your colleges from the state 5 attorney's office to belittle this motion as something 6 motivate by personal aminosis as opposed to the fact 7 that it comes from Pastor Smith suggesting that it 8 comes from dispute that you and I had a decade ago, 9 that I don't remember, and that you know bring up. 10

Is that what you think is motivating this, or

11 is this a well taken accusation of a serious issue of 12 prosecutorial misconduct, which you for the first time 13 admitted in your brief that you had, in fact, did 14 something improper at least as concerning leaks to the 15 media? 16

A

The short answer that is no, I don't believe

17 -- I'm particular focusing on the subordination of 18 perjury.

I don't believe Pastor Smith believes that

19 for a second, because he was there.

He knows, and you

20 know something, I don't believe Ms. Meyers believes 21 that either. 22

Q

I think that it came from you.

Mr. Scruggs, we all believe it.

We all

23 believe it, Mr. Scruggs. 24

MS. LOBREE:

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THE WITNESS:

Objection, counsel's testifying. Then i guess I am belittling

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1 it. 2

MR. TEIN:

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THE COURT:

Let me finish. Okay.

No ask a question.

4 BY MR. TEIN: 5

Q

MR. Scruggs, isn't it irrelevant what you

6 believe Pastor Smith thinks about whether you tried to 7 direct his testimony in a particular way unless you 8 understand the power of your words and the power of 9 your ability to make a decision whether to prosecute 10 him for something or use him simply as a witness? 11

Do you understand that your decisions affect

12 a persons life for the rest of their life and their 13 family, do you understand that, sir? 14

A

Of course I do.

15 answer the question.

Wait a second.

Stop your speech.

16 aware of that from day one.

Let me I'm painfully

I've been doing it for 30

17 years, and you bet I'm aware of that. 18

Q

Then why do you bandy about accusations like

19 the one that you made a few moments ago suggesting 20 that because we used ellipsis, that I committed a 21 crime, how could you say something so harmful and 22 reckless given your position, sir? 23

A

You feel comfortable with that question in

24 what you filed last night? 25

Q

I asked you the question, sir.

You're the

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1 witness? 2

A

The answer is given what you filed last

3 night, and the scurrilous, false accusations in here, 4 and the misrepresentations and the doctoring of the 5 transcript, I feel very comfortable saying that with 6 whatever power I've got. 7 that. 8

I want you to understand

I do.

Q

Do you think that what you've just said on

9 the record in this courtroom might intimidate a 10 defense lawyer from bringing charge like this? 11

A

I can only hope it would intimidate you and

12 anyone else form bringing false accusations, yes, that 13 is my intentions.

Stop making false accusations.

14 That's not what our profession is about, that's not 15 what we're here for.

We who labor here seek the

16 truth, and that's what I suggest you do from here on 17 out. 18 19 * 20

MR. TEIN: *

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MR. TEIN:

Nothing further, your Honor. *

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Your Honor, I also just wanted to

21 make sure that the Court had a copy of the William's 22 case which has the standard. 23

THE COURT:

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I really don't need to hear argument, so I'm

25 going to rule.

I do, and I read it.

It's here.

On the motion to dismiss criminal

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1 charges, I'm going to deny the motion to dismiss, but 2 I have a lot to say.

Relying on the supreme court of

3 Florida case, State of Florida versus Leon Williams, 4 623sd.462.

There is really quite elegant description

5 of due processed in this case, and it is a definition 6 that I think should be on the forefront of every 7 prosecutor's mind when they are prosecuting cases, and 8 that is due process is a general principle of law that 9 prohibits the government from obtaining convictions 10 brought about by methods that offend a sense of 11 justice. 12

That's beautiful. If we operate under those guidelines, we

13 wouldn't be here until 9:05 on a Friday afternoon on 14 the eve of trial.

There's several events that took

15 place during the course of the precharging 16 investigation that really could have been handled in a 17 much more professional manner by the State, and 18 certainly by law enforcement, and -- I don't know if 19 they police want to be in here, are they still out 20 there? 21

THE BAILIFF:

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THE COURT:

Yes. I started my ruling, but I wanted

23 you both to hear, and I'll just read this again.

This

24 is from the Williams case, and talks about due 25 process, and it talks about due process is general

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1 principle of law that prohibits the government from 2 obtaining convictions brought about by methods that 3 offend the sense of justice, and I think that law 4 enforcement and prosecutors really need to have this 5 in mind, because of the power that you have at your 6 disposal. 7

Let's talk about the tape recordings.

It is

8 my ruling and finding based upon the facts in this 9 case and the actions hear, that the tape recordings of 10 both interviews by Detective Garcia were unlawful. 11 They were unilateral tapings of an attorney, the 12 attorney's client, the prosecutor, during a quote 13 unquote "witness interview," after the parties were 14 specifically given the impression that there would not 15 be a contemporaneous memorialization of the meeting. 16 I don't care if you want to call it steno statement, 17 recorded statement, you know, it reminded me of Bill 18 Clinton, I didn't have sexual relationships, type of a 19 statement.

If the defense is told there will be no

20 court reporter, in their mind there's no instrument 21 that is recording the interview. 22 23 made.

The second interview a similar statement was During the course of the interview when the

24 client said, "For the record," and Ms. Meyers said, 25 "There's no record here," no one, including the

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1 detective, piped up to say, "By the way, I am 2 recording this for purposes of preparing my report 3 later," or whatever. 4 happen ever.

That is inexcusable.

So those tapes are gone.

It cannot

I know the

5 State concedes that they were the product of an 6 immunized meeting because the witness was under 7 subpoena, but just so that we're clear, in the trial 8 they won't be used for impeachment. 9 used for anything. 10

They won't be

They can't even be brought up.

Now, the tape recordings are even more

11 problematic, because, Mr. Scruggs, with all due 12 respect to you and your career as law enforcement and 13 your service to the government and to the State of 14 Florida, the way that you handled this disclosure was 15 very unprofessional.

Your lack of documentation as to

16 the date that those tapes were disclosed to you, was 17 unacceptable.

The minute the investigator reported to

18 you what had happened, you needed to do a memo to the 19 file.

I know that's the training of the state

20 attorney, because I worked there.

We were trained to

21 memo the file on all kind of issues.

You didn't do

22 that, and you're much to experienced for that. 23

Then you had a lack of documentation to your

24 disclosure to the defense.

As soon as you found out

25 about this, not only did you need to call them, you

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1 needed to draft a letter explaining exactly what 2 happened and the purpose of the tape and the meaning 3 of it, to avoid an appearance impropriety.

To avoid

4 any accusations against you on the merits of the 5 prosecution.

That didn't happen.

The other thing

6 that I think that you didn't do, is you didn't 7 confront Detective Garcia.

I think you were so

8 outraged by the fact that this happened, that you let 9 Fielder do it, and that was a mistake, because you 10 needed to sit Garcia down, Detective Garcia, and you 11 needed to ask him, how, why, were, how many, and then 12 at that point, you would have found out that there 13 were two tapes, much more professional disclosure 14 would have been made to the defense, then the way you 15 found out, and even the state attorney was kept in the 16 dark. 17

I mean, just poor -- poorly done. I don't think that you knew that those

18 recordings were being made secretly. 19 It's not likely that you knew that.

It defies logic. I don't think

20 that you authorized that those tapes be made for 21 Castigar (phonetic) purposes, because if you had 22 authorized that, then you knew that if you charged the 23 pastor, those tapes would be disclosed, because there 24 would be a Castigar hearing, and then you would have 25 to explain why you authorized the secret recording,

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1 which have never been in the history of the state 2 attorney's office.

I think that, more than likely,

3 you were fast and loose with your lips, like you were 4 in court here several times today.

I think that after

5 it came up on the January 23, 2008, at the meeting of 6 the state attorney, and I think that December 19, 7 2007, when you first disclosed your intent to possibly 8 charge -- in November there was an intention disclosed 9 of that maybe the pastor would be charged, when 10 Ms. Meyers confronted you with a phone call about 11 that, December 19th, and she was asking about, "How 12 could this be?

My client talked under subpoena.

He's

13 immunized," I think you probably loosely said, "We got 14 it on tape for Castigar purposes." 15 more sense.

I think that makes

I can't imagine after 40 years -- or 38

16 years that you would now engage in a secret taping of 17 lawyers, so that's how I think those Castigar comments 18 came about. 19

The other think is the way that the arrests

20 took place in the case, give the defense a reason 21 pause, and, again, leave them with this taste in their 22 mouth and this feeling of impropriety.

There was

23 negotiations between the state attorney, the state 24 attorney, defense counsel, and prosecuting attorneys 25 with settling the case, maybe not filing the case.

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1 This was a public corruption case that was handled 2 proactively hand-and-hand with the State and law 3 enforcement.

It is clear that law enforcement has the

4 absolute right upon probable cause to make the arrest, 5 whatever arrest they feel warranted, but it does not 6 fair well with the defense, when they are having 7 communications that leave rise to a possible delay, a 8 chance to further negotiate, or at least a surrender 9 of the client, that without advanced warning, the 10 client is arrested on the streets, when it's common 11 knowledge in white collar cases that these clients 12 surrender, so that, not professional, lawful, yes, not 13 professional, and you're dealing with a white collar 14 offense. 15

I have heard no evidence of flight risk, of

16 danger to the community in terms of violence, and a 17 man who is a pastor, who's respected by a lot of 18 people in the community, maybe not the police in this 19 case, not well done, and then he has to sit in the 20 police car for a few hours because he wants to give 21 keys to his wife, I think that could have been done in 22 a more elegant fashion as well. 23

The issues of suborning perjury, I don't see

24 that that was proven by the defense.

Clearly the

25 interview, that I heard and what I read, suggests,

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1 Mr. Scruggs, that you were doing most of the talking 2 and that you were outlining what you believed that the 3 evidence showed to client, but the pastor was either 4 agreeing or acknowledging uh-huh, as in I follow what 5 you're saying.

I follow what you're saying.

6 represented by competent counsel.

He was

They were free to

7 leave, they didn't leave, and so, you know, it's a 8 tactic that law enforcement uses in an interview. 9 don't think you were abusive from what I heard. 10 didn't slam your hands down.

I You

You didn't yell, so I

11 don't think you were suborning perjury.

I think you

12 were presenting your theory of the case to the 13 defendant, who was a witness at the time. 14

So that is my ruling.

Once, again, denying

15 your motion to dismiss, but I'm very disappointed that 16 a case like this, where there's media tension, the 17 public is going to be, you know, called, your 18 attention is -- oh, I forgot the media. 19 the media, very bad, Mr. Scruggs.

Speaking of

I couldn't believe

20 you testified in court that you intentionally tried to 21 get around complying with a lawful public records 22 request, because you don't like the practice. 23 can't do that.

You

The constitution, the first amendment,

24 the media -- in order for them to get the information 25 that they need to write stories to inform the public,

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1 they do that public records request, so whether you 2 like it or not, you got to give them what they ask 3 for.

You had it in the form of a CD, and you didn't

4 turn over that CD to the media.

You made them sift

5 through the files to get the information they wanted, 6 and you testified that you had this face-to-face 7 meeting with the reporter to avoid, you know, a full 8 disclosure of your boxes, and you directed him as to, 9 I believe what you thought was relevant.

You wanted

10 them in and out of there as quickly as possible, is my 11 opinion. 12 13 that.

I thought it was -- and I think you know Very improper of you to speak to the reporter

14 about matters that are outside the scope of the 15 prosecution.

I don't know if you really said that

16 these things were off the record and that this 17 reporter violated your trust, or that you said so much 18 that he didn't know whether what part was on the 19 record or what part was off the record, but I don't 20 believe that a prosecutor can have an off the record 21 discussion with a reporter without the intent that 22 that information get out, because if you don't want 23 the information to get out, you don't say anything at 24 all.

If you want the information to get out, but you

25 don't it attributed to you, you say off the record

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1 hoping the reporter will then go elsewhere to get it, 2 and so that's not what you did, you know that.

But in

3 the totally, I don't think that it gives full rise to 4 a due process violation to the extent that warrants a 5 dismissal of the case. 6

I hope that over the weekend the parties can

7 still have a chance to talk and see if they can 8 resolve this case.

I intend to pick a jury on Monday.

9 I don't have big calendar, so I will not entertain a 10 motion to continue this case on Monday.

I would like

11 to thank all of the lawyers today for your 12 professionalism, your level of preparation. 13 enjoy both styles of litigation.

I do

It is going to be

14 entertaining for me, and I want to thank everybody 15 else who's here. 16 a good weekend.

It's really late, and so try to have We're in recess.

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MR. SCRUGGS:

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THE COURT:

Until what time, Judge? Let's everybody plan on being

19 here at 10:00. 20

MR. SCRUGGS:

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THE COURT:

22 the big one.

This courtroom, right? Yeah, right here.

I like my courtroom.

I didn't book

I feel comfortable

23 here, so hopefully we can accommodate -24

MS. BRILL:

Despite the witness stand?

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THE COURT:

Pardon?

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MS. BRILL:

I said despite the witness stand?

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THE COURT:

I know the witness stand, but

3 it's -- I feel comfortable here.

It seats a lot of

4 people, and we'll try to accommodate as many of the 5 people that want to come. 6 here.

We fit a lot of people in

Thank you, everyone.

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MS. TEIN:

Thank you, your Honor.

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(Whereupon, the hearing was concluded.)

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CERTIFICATE

3 STATE OF FLORIDA: COUNTY OF MIAMI-DADE: 4 5

I,

Amber N. Gabel,

Shorthand Reporter and

6 Notary Public for the State of Florida at large, do 7 hereby certify that the foregoing proceedings were 8 taken before me at the date and place as stated in 9 the caption hereto on Page 1; that the foregoing 10 computer aided transcription is a true record of my 11 stenographic notes taken at said proceedings. 12 13

WITNESS my hand this 5th day of December, 2009.

14 15 16 17

___________________________ Amber N. Gabel Court Reporter and Notary Public in and for the State of Florida Commission Number DD721399 Expires: October 2, 2011

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