Allegedly Improper Communications Between Judge and Broward County Prosecutor Gets Death Row Inmate Omar Louriero a New Trial

Omar Loureiro will be tried a second time for the murder of a Lighthouse Point man who he had gone home with from a local bar: right now, he's setting on Death Row for this crime.

In 2007, Loureiro was tried for first degree murder in the case, found guilty, and sentenced to death. Two years later, he's going back in the courtroom - and it's all because of the actions of the judge and the prosecutor in his first murder trial. (The new trial date hasn't been set.)

Testimony that Judge and Prosecutor Discussed the Case Over Dinner

Bottom line, there was testimony by Broward County prosecutor Sheila Alu that she had dinner with both Judge Ana Gardiner and prosecutor Howard Scheinberg, where they talked about the case, days before Loureiro was convicted. In fact, Alu testified that they had joked about the case.

Judge and Prosecutor Tell Their Side

The judge and prosecutor Scheinberg gave testimony, too - they admitted to an "appearance of impropriety," because they ran into each other at the restaurant while the trial was ongoing, but they denied discussing, much less joking, about Mr. Loureiro's trial. Critically, both also revealed in their testimony that they talked on the phone (cellphones, not office landlines) about the Louriero case sometime between this restaurant event and Mr. Louriero's sentencing several months later.

The Appearance of Impropriety is the Standard

Looks bad, especially since all attorneys everywhere recognize that phrase "appearance of impropriety" all too well. It's engrained early on that attorneys (and judges) are to err on the side of caution - we're not to give even a suggestion that anything inappropriate is taking place.

The Recent Texas Judge and Prosecutor Case Comparison

Of course, things can get much worse than this. Much worse. Over in Texas, it was revealed last year that a trial judge and the district attorney assigned to her courtroom had been carrying on a secret love affair for many years - and no one knew (though there was much courthouse gossip suggesting it) until one of the prosecutor's assistants blew the whistle on the two, which resulted in at least one Texas Death Row conviction being overturned thus far.

Charles Hood's conviction was overturned last month with the court ruling he had received an "unfair trial" due to the relationship between the judge and the prosecutor during his murder trial - and this, without any direct evidence that the judge and the district attorney ever spoke about the case directly.

23 Years After Being Sentenced to Die, 55 Year Old Nathan Fields Finally Exonerated

Last week, over in a Chicago courtroom, Nathan Fields stood to hear Circuit Judge Vincent Gardenia find him not guilty of murder. Nathan Fields is 55 years old, and he's finally been cleared 23 years after he was sentenced to death by a notoriously corrupt Illinois judge.

What happened in Nathan Fields' case?

The truth has come to light, and it has been shown that the trial court judge in Fields' initial trial accepted a $10,000 bribe in the case. Judge Tom Mahoney actually took the money to find Fields and his codefendant not guilty, but apparently Mahoney got nervous that he was about to be caught. So, he returned the bribe to its source, went ahead and found both men guilty of a double murder, and sentenced them both to death.

Nathan Fields Spent 7 Years on Death Row and Awaited Retrial for 11 Years

Nathan Fields was granted a new trial in 1998, and he was released pending retrial in 2003 when a fellow Death Row inmate put up his bail. That Death Row inmate who put up the money for Fields to walk free pending full exoneration is a man named Aaron Patterson. He's still on Death Row.

Patterson's generosity allowed Fields to be free in Chicago, with his family, after serving seven years on Illinois' Death Row. Still, it was over ten years before Fields' case came before another judge and his name was cleared of the murder charge.

What are his plans now?

Nathan Fields plans on taking a vacation with his family - he's never seen the ocean or the mountains, he's told reporters. He also plans on opening a construction company with his friend Aaron Patterson - although right now, Aaron Patterson remains behind bars.

Judge Tom Mahoney Fixed Murder Trials for Money

These are all facts that have been established. Judge Mahoney was caught for his evildoing, tried, and found guilty of conspiracy, racketeering, extortion, and obstructing justice in April 1993. Thomas Mahoney spent over 12 years behind bars before he died at the age of 83.

The U.S. Supreme Court's Perspective on Judge Mahoney's Actions

Mahoney's actions made their way to the United States Supreme Court, where his activities were scrutinized in the case of Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). There, a unanimous court heard the case where a criminal defendant argued that Judge Mahoney's taking in bribes other than the instant case nevertheless impacted his due process because Mahoney's criminality may well have influenced the judge's decisions in his case.

There, the petitioner argued he was "deprived of his right to a fair trial" because "[t]here is cause to believe that Judge Maloney's discretionary rulings in this case may have been influenced by a desire on his part to allay suspicion of his pattern of corruption and dishonesty." In Bracy, noting that only three judges in the totality of American jurisprudence had been found guilty of fixing a murder trial, with Mahoney being the sole jurist to do so in cases involving capital punishment, the court stated in an opinion written by Chief Justice Reinquist:

A judge who accepts bribes from a criminal defendant to fix that defendant's case is "'biased" in the most basic sense of that word, but his bias is directed against the State, not the defendant.

Brady, 117 S.Ct. at 1797.

And, once again, the point is made. The focus is not upon the particular defendant but upon the system itself.

It is a serious and blatant harm to the rights we all share in this country when due process of law is disregarded and disrespected by those in positions of authority. This is particularly and shamefully true when they are judges presiding over criminal matters.

Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England's King John promised that "...[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

King John signed the Magna Carta over 790 years ago. You'd think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you'd be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no - I'm not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I'm looking over at our sister state, Texas, and what's been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)

Chief Justice Sharon Keller has already been investigated and charged by the state's Commission of Judicial Conduct, where she will be facing trial in August. In the state legislature, impeachment proceedings are also being advanced against her.

What Chief Justice Keller Allegedly Did On the Day that Michael Richard Died

On the day that Michael Richard was scheduled to die, everyone knew - the state prosecutors, the Governor's office, the inmate's attorneys, and the Court of Criminal Appeals - that a motion to stay his execution would be forthcoming if the United States Supreme Court made its announcement that it would be considering whether or not execution by lethal injection was cruel and unusual punishment, and therefore an unconstitutional and illegal means of execution.

When that announcement came down from Washington, D.C., on the morning Mr. Richard was scheduled to die by lethal injection, lots of people when into action. His attorneys began working on finalizing a motion to stay the execution, and Justice Cheryl Johnson of the Court of Criminal Appeals, the justice assigned to the task, began working on the Court's response to that motion. Due process of law had begun regarding Michael Richard's legal rights.

Sharon Keller Went Home to Meet a Repairman.

Sometime that afternoon, it is uncontested that Chief Justice Keller left work and went home - purportedly to deal with a repairman. It is also uncontested that the inmate's attorneys had some computer snafu and were unable to deliver the final motion before closing time at the clerk's office. As time sped by, and it became clear that the defense attorneys would not be able to file their motion to stay before the 5:00 closing time for the Clerk of the Court of Criminal Appeals, they called the Court and asked for an additional twenty minutes.

It's All About 20 Minutes.

When the staff attorney of the high court called Justice Keller, relaying the request, she didn't allow the clerk's office to remain open for twenty minutes - giving the inmate's counsel enough time to file the motion. No one knows why.

And because Justice Keller said that the clerk's office would close at five o'clock, Michael Richard was unable to have his motion heard.

He died that night. Michael Richard died at 6:00 p.m. CST on September 26, 2007, executed by lethal injection during a time period where the U.S. Supreme Court was considering the legal issue of whether or not that was a form of cruel and unusual punishment.

Of course, there are questions. Where was Justice Johnson in all this? Why wasn't she involved in this decision? What about filing the motion at the Chief Justice's home?

As part of the Commission's investigation into Justice Keller's actions, another interesting bit of information has been revealed that is also very troubling: apparently, the Justices had already met and voted that they would deny Richard a stay if the U.S. Supreme Court did take up the issue - and they met and voted long before they ever read anything presented to them by Richard's attorneys. With courts like this, you wonder why they even bother having defense motions filed at all.

Due process is never more important than when the death penalty is involved.

Here's the key: due process is never more important than when a death penalty case is involved. Due process of the law must be insured, at every juncture, before our government should be allowed to take the life of any citizen.

Doesn't matter what that citizen may have done. The focus is upon the power of the State, not the culpability of the individual. Strict adherence to the due process of law is supposed to keep those in authority from abusing their power.

And when a Chief Justice finds it acceptable to leave her office early to check on a repairman, when a man is scheduled to die that night - all while there is reason to believe that a due process issue may be involved -- and when the Court itself decides to meet and vote on an issue before the defense can even be heard -- then we all need to stop and consider the seriousness of the current American apathy toward due process of law in this country today.

Protecting Due Process of Law is Our Responsibility

Because due process of the law will remain only so long as it is vigilantly and vigorously respected and protected - by all of us. Trusting those in authority to man the helm here is not enough, as Justice Keller has so wisely taught us all.


Austin American Statesman

New York Times

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