Brugmann v. State

• Decision Date: 12 June 2013
• Docket Number: No. 3D09–2540.,3D09–2540.
• Citation: 117 So.3d 39
• Parties: Bruce B. BRUGMANN, Petitioner, v. The STATE of Florida and Sean Casey, Respondents.
• Court: Florida District Court of Appeals

117 So.3d 39

Bruce B. BRUGMANN, Petitioner,

v.The STATE of Florida and Sean Casey, Respondents.

No. 3D09–2540.

District Court of Appeal of Florida, Third District.

June 12, 2013.

Opinion on Rehearing June 12, 2013.

A Case of Original Jurisdiction—Petition for Review.

Hunton & Williams and Thomas R. Julin, Miami, for petitioner Bruce B. Brugmann.

Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr. and Angelica D. Zayas, Assistant Attorneys General, for respondent State of Florida; Sean Casey, in proper person.

Before WELLS, C.J., and SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, SALTER, FERNANDEZ, and LOGUE, JJ.

Prior report: 2012 WL 1484102.

ON REHEARING EN BANC

PER CURIAM.

We withdraw the prior panel opinion on rehearing dated April 27, 2012 and summarily deny the petition. Our opinion is without prejudice to Mr. Brugmann or any other party seeking any other relief.

Denied.

WELLS, C.J. and SHEPHERD, SUAREZ, CORTIÑAS, and LOGUE, concur.

LAGOA and EMAS, JJ., recused.

On Motion for Rehearing En Banc

ROTHENBERG, J. (dissenting).

Bruce B. Brugmann (“Brugmann”), founder, editor, and publisher of the San Francisco Bay Guardian, filed the instant petition seeking review of the trial court's order: (1) granting The State of Florida's (“the State”) motion to seal and to prohibit anyone from disclosing or using the contents of tape recorded conversations between (a) Sean Casey (“Casey”), Casey's mother, and Casey's attorney, Milton Hirsch and (b) Casey, Casey's mother, and Michael Rappaport, a psychologist to whom Hirsch referred Casey for counseling during the pendency of his criminal case; and (2) sealing the following court records: (a) Casey's motion seeking relief of judgment, (b) Casey's addendum and appendices to the motion seeking relief of judgment, (c) the special appearance of counsel representing Casey for the purpose of opposing the State's motion to seal, (d) the memorandum of law submitted by Casey's counsel, and (e) Casey's supplemental motion filed in opposition to the State's motion to seal.

As will be explained in this dissent, the trial court erred in sealing these records and the rulings of the trial court and this Court are in direct conflict with Florida law. If these errors are not ultimately corrected, Dr. Rappaport will be shielded from possible criminal prosecution and/or review by the Florida Department of Health; Hirsch will be shielded from meaningful review by The Florida Bar; and the public will be denied access to important judicial documents. See Notice of the Florida Department of Health's Interest in the Sealed Recordings filed in this Court on November 4, 2010 (stating that the sealed records are necessary to investigate whether Dr. Rappaport committed professional misconduct); Notice of The Florida Bar's Interest in the Sealed Recordings (explaining that without access to the sealed recordings, it is Casey's word against Hirsch's word, which The Florida Bar found was insufficient proof).

PROCEDURAL HISTORY

In March 2001, Casey was arrested and charged with DUI manslaughter, vehicular homicide, and leaving the scene of an accident involving death. Soon thereafter, Casey hired Hirsch to represent him, and Hirsch referred Casey to Rappaport, a psychologist, for counseling. Rappaport counseled Casey every week for approximately one year at $175 a week, until Casey discontinued the visits after concluding that the sessions were costly and unproductive. On September 20, 2004, just prior to the scheduled trial date, Casey fled the country.

In 2006, Casey was detained in Chile on a visa violation, after which he voluntarily returned to the United States to face the 2001 criminal charges. On the day of trial, Casey entered into a negotiated plea with the State wherein he pled guilty to the charges, including the added fleeing charge, and received a sentence of twelve years and six months in state prison. Approximately two weeks later, Casey, through newly retained counsel David Scott Markus,¹ filed a motion to vacate his plea alleging that Hirsch and Rappaport had (a) advised Casey to flee the country prior to trial; and (b) encouraged him to take a plea to prevent Casey from explaining why he had fled the country. Casey claimed that, based on this clear conflict, he was denied effective assistance of counsel and therefore should be permitted to withdraw his plea.

On January 8, 2007, the trial court conducted an evidentiary hearing. At the hearing, Casey and his mother both testified that Hirsch and Rappaport had advised Casey to flee the country, whereas Hirsch and Rappaport, who were also under oath, denied advising Casey to flee. Additionally, Casey testified that on the day of the scheduled trial, when the trial court ruled that the State would be permitted to offer evidence of Casey's flight as consciousness of guilt, Hirsch realized that Casey would testify as to why he had fled, and thereafter, Hirsch coerced Casey into accepting the State's plea offer, rather than standing trial. A summary of the testimony follows.

Sean Casey

Casey testified that he hired Hirsch after he was arrested and that he never intended to flee because he wanted to stay and “fight the case.” When he hired Hirsch, Hirsch advised Casey to see Rappaport on a weekly basis, which he did for approximately one year.

In November of 2003, Casey received a letter from Hirsch asking Casey to come to his office. Casey testified that at this meeting Hirsch told him that if he could, he would make Casey disappear, specifically stating: “If I were you, I would just disappear.” Hirsch then asked Casey to meet with Rappaport one more time. When Casey left Hirsch's office, Casey broke down crying because he believed his attorney had given up on him because he was advising him to flee.

Casey was reluctant to see Rappaport. He had already spent a substantial amount of money on his defense ($65,000 to Hirsch, plus litigation costs; and $175 weekly for approximately one year for his sessions with Rappaport). However, Casey recalled that, on a previous occasion when he failed to follow Hirsch's advice, he received a letter from Michael Haber, Hirsch's associate, telling him that he needed to listen to Hirsch. Therefore, when he received a letter from Hirsch in December 2003 or January 2004 asking him to see Rappaport, once again Casey agreed to go. At this meeting, Casey claims Rappaport told him that he was aware that Casey had met with Hirsch, and Rappaport assured Casey that being a fugitive would not be difficult. Rappaport told Casey that he could obtain a fake identification and have plastic surgery, and advised Casey to keep a low profile. After these meetings, whenever Casey appeared for a court hearing, Hirsch would make comments to Casey such as: “Oh, you're still here? I heard property is cheap in Argentina these days.... [W]hat's the weather down there in South America?”

Casey testified that, because both his attorney and his therapist were telling him that he needed to flee, he decided to follow their advice. When Casey told his mother that Hirsch and Rappaport were advising him to flee the country, she asked to meet with them. On May 12, 2004, Casey and his mother met with Hirsch; and on May 13, 2004, they met with Rappaport. These meetings were secretly recorded by Casey and/or his mother.

Casey testified that, although at the recorded May 12, 2004, meeting Hirsch again spoke to Casey about disappearing, Hirsch did not do so as directly as he had during the November 2003, meeting. At this May 12, 2004, meeting, Hirsch told Casey that he wished Casey would just disappear, stating that if Hirsch had a magic wand, he would make Casey disappear. Casey testified that he eventually took the advice of his lawyer and therapist and fled to Chile.

Approximately two years later, when Casey was apprehended in Chile, he contacted Hirsch and Casey was eventually deported to Miami. The day after Casey returned to the United States, Hirsch, Rappaport, and Michael Haber came to see Casey at the jail. Casey testified that the first thing Rappaport asked him was why he had not changed his name. Casey testified that they told him “not to say anything—to keep his mouth shut,” so he took the plea offered by the State, and during the plea hearing, he answered “yes” and “no” to the trial court's questions, as Hirsch and Michael Haber advised him to do. The following day he contacted another lawyer, David Scott Markus, to represent him. Casey testified that he would not have left the country but for his lawyer's advice.

During cross-examination, the prosecutor, who had the tapes in her possession and had listened to them just prior to the hearing, suggested to Casey, who had not listened to the tapes since 2004, that Hirsch had told Casey that “he [Hirsch] wanted the charges to disappear, not for [Casey] to disappear.” Casey, however, disputed the prosecutor's representation, and Casey testified that: (1) both Hirsch and Rappaport had advised him to flee; (2) Rappaport had given him tips on how to successfully flee without getting caught; (3) Rappaport had told Casey about another client of his who was also a fugitive; and (4) Rappaport had told Casey that he could eventually return to Miami as long as he did not try to enter the country through Miami.

Casey's mother

Casey's mother testified that she came to Miami to meet with Hirsch because her son told her that his attorney was advising him to flee the country and Casey wanted her to hear what Hirsch had to say. When she met with Hirsch, Hirsch told her that he wished he could put Casey on another planet and make him disappear. Hirsch also advised her that her son had no chance of an acquittal and, if convicted, Casey was going away for a long time and it would be very difficult for someone like Casey to do the time. Casey's mother also testified regarding the meeting with Rappaport the following day, stating that Rappaport advised Casey to flee and told him to listen to...