In re Henson, SC04-1.

• Decision Date: 12 October 2005
• Docket Number: No. SC04-1.,SC04-1.
• Citation: 913 So.2d 579
• Parties: Inquiry Concerning a Judge, No. 03-14, re: James E. HENSON.
• Court: Florida Supreme Court

913 So.2d 579

Inquiry Concerning a Judge, No. 03-14, re: James E. HENSON.

No. SC04-1.

Supreme Court of Florida.

October 12, 2005.

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Honorable James R. Wolf, Chairman, Hearing Panel, Brooke S. Kennerly, Executive Director, Tallahassee, FL, Thomas G. MacDonald, Jr., General Counsel, Tampa, FL, E. Lanny Russell of Smith, Hulsey and Busey, Jacksonville, FL, for Florida Judicial Qualifications Commission, Petitioner.

Kirk N. Kirkconnell of Lindsey, Snure and Yates, P.A., Winter Park, FL, for Judge Henson, Respondent.

PER CURIAM.

Article V, section 12 of the Florida Constitution vests this Court with the authority to determine both whether a judge has engaged in misconduct and whether that misconduct justifies discipline or removal from office. This is a responsibility of the utmost importance to the integrity of the justice system. In this case we review the determination of the Hearing Panel of the Judicial Qualifications Commission (JQC) that Circuit Judge James E. Henson violated provisions of the ethics rules governing judges and attorneys in this state, and its recommendation that he be removed from office.

We conclude, based on the evidence presented to the Hearing Panel, that Judge Henson practiced law while still a judge and that, acting as an attorney between his terms of judicial service, he advised a client in a criminal matter to flee the country rather than face prosecution. We further conclude that these two extremely serious violations of the Code of Judicial Conduct and Rules of Professional Conduct constitute "conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold" the position of judge. Art. V, § 12(c)(1), Fla. Const. Neither those who appear before Judge Henson nor the public at large can have confidence in a judge who has committed these flagrant violations of our ethics rules. We therefore remove Judge Henson from office.

I. FACTS AND PROCEDURAL HISTORY

The charges on which the Hearing Panel found Judge Henson guilty stem from conduct during his final weeks as a county judge in December 2000 and then into 2001 when he practiced law before returning to the bench as a circuit judge. Count I involves the allegation that Judge Henson practiced law while still a judge; Count II concerns the charge that he advised a client facing a felony trial to flee the country.

Judge Henson served as a county judge in Orange County but was defeated in a re-election bid. His term ended on January 5, 2001. He returned to the practice of law, doing criminal defense work. He won election to a new judicial post as a circuit judge, and assumed office on January 5, 2003. In the light most favorable to the findings of the Hearing Panel, the facts bearing on Judge Henson's misconduct are as follows:

Diana Jimenez was a Florida resident from Colombia who came to the United States with a valid Colombian passport. Ms. Jimenez was involved in a December 16, 2000, automobile accident in which two people were killed. She tested positive for driving while intoxicated, and gave an incriminating videotaped statement in which she admitted drinking at a bar before the accident. The State charged Ms. Jimenez with DUI manslaughter and numerous related charges, for which she faced a prison sentence of more than thirty years. Her father, Dr. Alberto Jimenez, initially hired another attorney to represent her. After hearing favorable comments about Judge Henson and learning that he was a judge, Dr. Jimenez dismissed the lawyer he had hired and retained Judge Henson to represent his daughter. Judge Henson, who had been defeated in his re-election bid in November of 2000, had cleared his judicial calendar at the courthouse and had completed his judicial duties by December 15, 2000.

When he was first contacted by Dr. Jimenez, Judge Henson stated that he could not actively participate in the case until after his term as judge ended in January 2001. On December 20, 2000, Judge Henson and Dr. Jimenez signed a contract for Henson to represent Ms. Jimenez for $40,000, and Dr. Jimenez gave Judge Henson a check for the initial $15,000. Judge Henson then went to the county jail where Ms. Jimenez was in custody. He signed in as the attorney representing her and met with her. During this meeting, Ms. Jimenez also signed the contract and discussed with Judge Henson information for an upcoming bond hearing. This interview concerned the details of Ms. Jimenez's home and ties with the community. Judge Henson learned that Ms. Jimenez's Colombian passport was still valid and that she had several close relatives still living in Colombia. The subject of Ms. Jimenez fleeing to Colombia arose during several subsequent discussions. During a January 2001 trip to the bar to look for witnesses, Judge Henson asked Ms. Jimenez whether she still had her Colombian passport, and she said she did.

Judge Henson asked a fellow attorney, Robert Nesmith, to handle Ms. Jimenez's bond hearing because Judge Henson had a "conflict." Judge Henson introduced Nesmith to Ms. Jimenez at the bond hearing on December 22, 2000. Judge Henson sat in the audience with Dr. Jimenez. When the hearing ended, Judge Henson went forward to the bench and obtained papers from the presiding judge which were necessary to secure the bond. Judge Henson has admitted both the foregoing facts and that these facts demonstrate that he was improperly practicing law while still a judge.

Judge Henson contested the JQC's allegation in Count II that while representing Ms. Jimenez after he left the bench, he advised her to flee the United States. On this count, the Hearing Panel found:

The testimony on the issue of whether Judge Henson advised Diana Jimenez to avoid prosecution by fleeing to Colombia was in dispute. Judge Henson testified that although the subject of Colombia came up, he never advised or counseled Jimenez to flee. Judge Henson stated this position repeatedly throughout his testimony. However, Diana Jimenez, Dr. Alberto Jimenez and attorney Nesmith testified to facts supporting the charge and the Panel has rejected the testimony of Judge Henson and found the testimony of the other three witnesses on this issue to be credible and believable. The Panel is charged with the responsibility of resolving the conflicts in evidence. The Panel thus accepts the testimony of Diana Jimenez, Dr. Alberto Jimenez and Mr. Robert Nesmith and finds this testimony to be clear and convincing.

Diana Jimenez testified on video deposition and was subjected to cross examination by counsel for Judge Henson. Diana Jimenez testified that although Judge Henson did not specifically tell her to flee to Colombia, that Judge Henson gave her to understand on more than one occasion that fleeing to Colombia was an option which she should consider. Diana Jimenez stated that she told Judge Henson that she did not wish to flee to Colombia and have to be looking over her shoulder for the rest of her life. She further stated that Judge Henson told her that Colombia had no extradition treaty and therefore she would not be the subject of a search by U.S. authorities in Colombia. She stated that he further told her that this was not the kind of charge on which a search would be mounted for her in a foreign country. Ms. Jimenez stated that Judge Henson was very interested in learning that she had a valid passport from Colombia and that she had close relatives in Colombia who would cooperate with her if she went there. He discussed this with her more than once [during] meetings in December, January and August.

There was disagreement between Judge Henson and Diana Jimenez concerning what plea offers were made by the State and when these offers were conveyed to Jimenez. The State initially offered a 10-12 year cap on a proposed negotiated plea. This offer to Henson occurred in May of 2001. . . . It was uncertain whether Henson clearly and directly conveyed this 10-12 year plea offer to Diana Jimenez. In any event, after the Assistant State Attorney discussed the case further with the family of the deceased victims, the 10-12 year plea offer was withdrawn and the 16 year offer was substituted. Diana Jimenez and her father did not believe Judge Henson was ready to defend her in a trial and she thus believed that he was actually counseling and advising her to flee and avoid prosecution and thereby avoid a trial. The plea hearing actually occurred on October 18, 2001, and Ms. Jimenez testified that Henson strongly urged her to take the 16 year offer and avoid going to trial. Due to the absence of clear evidence, the Panel has rejected the charge on Henson's failure to advise his client of the plea offer.

A meeting had occurred in August of 2001, in which Judge Henson, Dr. and Mrs. Jimenez and Diana Jimenez were in attendance and participated. There was conflicting testimony as to whether Judge Henson used the word "Colombia" during this meeting. Henson denied even using the word but all of the other witnesses testified that he did bring up the subject of "Colombia" and the subject of extradition in the August meeting.

Maria Jimenez was the mother of Diana Jimenez and she attended the August 2001 meeting. Maria Jimenez spoke very little English and a portion of her deposition was read over objection. She remembered that Judge Henson did use the word "Colombia" and this was one of the few words she understood.

Dr. Alberto Jimenez testified to numerous meetings and telephone conversations he had with Judge Henson regarding his daughter's criminal prosecution. The doctor testified that he attended the August 25, 2001, meeting where there were discussions regarding the State having made an initial plea offer, withdrawn it and then come back with a higher 16 year offer. Judge Henson said at that time that if they went to trial, Diana Jimenez would probably be sentenced to something in the vicinity of 35 years. Henson and Diana Jimenez both stated...