Rethinking the Barber/Bassett Judicial Race

Last week, I wrote about the non-partisan races on the ballot August 30. One race in particular generated a lot of feedback: the County Judge Race between incumbent Judge Susan Barber and challenger Carson Bassett.

After considerable additional thought, and conversations with both candidates, I am exercising my right to change my mind. Here is my new take on the race. My original thoughts, as they were originally published, are at the bottom.

County Judge Group 8 – Susan Barber vs. Carson Bassett

Info: Ledger Q&A, Barber finance reports, Bassett finance reports

This race was my toughest decision. After going back and forth several times, I have decided to vote for the incumbent, Susan Barber.

There is an elephant in the room: Judge Barber was reprimanded by the Florida Supreme Court in 2014 for an “inappropriate relationship” with her bailiff. This was, as far as I know, the only ethical problem evident in her 8-year career as a judge or 26-year career as an attorney. One might properly view this election as a referendum on whether this issue justifies firing Judge Barber.

This all came to light because of a different investigation involving a different judge, Judge Harlan, and her judicial assistant, Alisha Rupp. During that investigation, Rupp made an accusation that she walked in on Judge Barber and her bailiff having sex at the courthouse. Rupp was eventually convicted of crimes of dishonesty, so her accusation might best be taken with a grain of salt. But her accusation opened the door for inquiry.

An investigation was originally conducted by the 10th Circuit State Attorney’s Office, whose purpose is supposed to be to investigate possible criminal activity. Judge Barber was not found to have engaged in any criminal activity.

The state attorney’s office investigation report goes much further than a criminal analysis and delves into the office’s more subjective opinions on the character of the subjects. It is primarily focused on Judge Harlan and Rupp, but covers Judge Barber (then known as Judge Flood) and her bailiff, too. According to the report, Judge Barber loaned him money, assisted him with his divorce, professed to love him, and spent an inordinate amount of time with him on and off the clock. The report also accuses Judge Barber of looking at some of the investigator’s documents while left alone for a moment during the investigation. The documents were sitting out in the open on the table in the interview room.

After the State Attorney’s investigation, the Florida Judicial Qualifications Commission completed an investigation. The purpose of this investigation was to determine if Judge Barber violated any ethical rules applicable to judges. Ultimately, this investigation concluded that Judge Barber’s relationship with her bailiff was inappropriate, and warranted a public reprimand, but did not warrant removing her from the bench. No JQC charges were brought concerning the issue involving the documents on the table.

It is important to remember that these were two separate proceedings by two different organizations with two different purposes.

The First Accusation: an inappropriate relationship with her bailiff

This accusation was addressed by both the State Attorney and the Judicial Qualifications Commission.

Judge’s Barber’s relationship with her bailiff ultimately resulted in her being reprimanded by the Florida Supreme Court. The reprimand came after a stipulation negotiated between Judge Barber and the Judicial Qualifications Commission. A stipulation is an agreement, sort of like a settlement, that involves some admission of wrong-doing that is acceptable to the both the accused judge and the JQC. The stipulation and its attached findings and recommendations includes the following findings endorsed by the JQC:

• “The investigative Panel has conducted an extensive review of the underlying facts and background of Judge [Barber], including her unblemished record as a county judge and her regular service as an acting circuit judge.”
• “Her relationship with her bailiff, over whom she had supervisory authority, undermined public confidence in the judiciary.”
• “The JQC concluded that Judge [Barber]’s conduct was an isolated incident and does not demonstrate an unfitness for office.”
• “[T]he public welfare and sound juridical administration will be well served by a public reprimand of Judge Flood.”

I am inclined to agree with the Judicial Qualification Commission that this issue, alone, is not sufficient to warrant voting her out of office. I do not think her relationship with her bailiff should be a career ending event for her. I think the reprimand was the appropriate response. I know outstanding and ethical judges and lawyers who have nasty personal lives, nasty divorces, and even affairs with co-workers. That doesn’t make them unethical or bad lawyers and judges. It makes them human. Humans make mistakes, especially about matters of the heart. Some of the best humans even seem to make some of the worst mistakes in this department. The reprimand was an appropriate punishment for this transgression.

What would concern me is if the relationship affected her rulings or courtroom, or if there was sexual harassment involved. There is no credible evidence that I am aware of that indicates any of this sort of thing happened. Quite the opposite. She is a very highly regarded judge.

The Second Accusation: looking at the investigator’s documents

Interestingly, the state attorney’s second accusation, that Judge Barber looked at the investigator’s files inappropriately, is not mentioned in the publicly available documents of the Judicial Qualification Commission.

If we take the state attorney’s version of events at face value, here is what happened:

• Judge Barber was left alone during an interview and did not know she was being recorded.
• She walked over to where the investigator’s confidential case files were. From the video, it looks as if something in particular caught her eye.
• She did not touch them. She just looked at documents that were out on the table.
• Only one of those documents was identified in the report. It was a subpoena for Judge Flood that had been prepared, but had not yet been served on her. After the interview, Judge Flood requested a copy of the subpoena she saw, and the State Attorney, Jerry Hill, agreed that there would be no harm in giving her a copy.
• The report does not say what other documents she might have seen.

As far as I know, Judge Barber has never publicly given her side of the story for these events. One can easily imagine several possible responses. Maybe the other documents over there were documents already shown to her. Maybe the investigator was clearly keeping confidential documents filed away, so it would be obvious that one left out during a break was not confidential. Maybe it was obvious from a distance that the document was her subpoena, and that therefore it was not something that was inappropriate for her to see. (The state attorney conceded that there was no reason not to give her a copy.) Also, I seriously doubt a skilled investigator would have left truly confidential documents out in the open like that.

This incident is not mentioned at all in JQC documents that are public record. However, the JQC noted that it did an “extensive” investigation which, presumably, would have involved a review of the state attorney’s report. I can’t imagine that they would not have had it to review.

The most likely conclusion is that the JQC thoroughly vetted Judge Barber’s conduct, and, unlike the State Attorney, did not find any fault with her viewing the file. There is a big difference between looking at documents left face up a few feet from you and rifling through a file that does not belong to you.

More information is incredibly difficult to come by. The only publicly available videos are heavily edited. I have done a public records request for a transcript, but the State Attorney has not responded to it. All we have to go on are what the report says, on one hand, and the inferences we can draw from the JQC’s non-action.

The question I next logically turn to is whether the State Attorney’s report can be accepted at face value.

Whether the State Attorney’s Report should be accepted at face value

I am very bothered by same thing that bothered me about the way Judge Harlan’s case was handled. The 10th Circuit State Attorney should not handle investigations against judges in this circuit.  

Why? Because the state attorney has to try cases before these judges. Letting the local state attorney handle investigations of local judges creates the appearance of impropriety. The investigation report itself reads less like it was written by a dispassionate fact-finder and more like it was written by someone advocating for Judge Barber’s ouster.

Appearances matter. As noted in the investigation, “While the investigation produced no direct evidence that, as Alisha Rupp alleged, Judge [Barber] and Bailiff Maxcy were engaged in a sexual relationship, the inappropriate manner in which Judge [Barber] and Bailiff Maxcy carried on at the courthouse left the judge and the circuit open to the allegations.”

The state attorney should be criticized through the same lens. Even though I am not aware of any direct evidence that the state attorney conducted this investigation for the purposes of removing a judge whose decisions he did not like, the failure of the state attorney to turn the investigation over to a third party has left him open to that allegation.

Given the tone of the state attorney’s report — i.e., the obviously deliberate effort to cast Judge Barber’s action in a negative light — and the failure of the state attorney to appoint an independent investigator, I am inclined not to put too much weight on it without a corroborating investigation by a neutral fact-finder. If the JQC was not concerned about this incident, then I should not be, either.

Is it appropriate to look at documents across the table during a legal proceeding?

In general, no. For example, during a deposition, I would never go look at documents on opposing counsel’s side of the table. But if I happened to see a document that should have been served on me, but was not, I honestly might look more closely at it. It is hard to say, under the circumstances, what would or would not have been appropriate without seeing the full context of the incident, which, as far as I know, has never been made available to the public by the state attorney. The state attorney’s report is so full of spin, that it is hard to find the line between the fact and the spin. Therefore, Judge Barber should get the benefit of the doubt.

What do others say about these candidates?

There is one other arrow that tends to point to politics, rather than substance, at the heart of this race. I have reviewed both candidates’ campaign finance reports. Here is an interesting data point:

• Barber’s campaign is supported primarily by a very large group of local lawyers. The legal community is the community that knows her best. I know the politics of many of the lawyers on that list, and it is definitely a politically diverse group.
• Bassett’s campaign is supported by relatively few lawyers, and of the donors that I know, his donor base is heavily weighted to one side of the aisle. He is also using an openly partisan political consultant.

What About Carson Bassett?

Given the controversy over Judge Barber, might it be prudent to get a fresh start? Enter Carson Bassett. By all accounts, he is a great person. I don’t know him, but I know people who know him, and have seen some ringing endorsements. However, he is only 6-years out of law school, and has served only as a prosecutor during the majority of that time. He is not a well-rounded, experienced lawyer. He is a young former prosecutor with ambition. There is nothing wrong with being a young prosecutor with ambition, but I prefer to appear before judges who have been around the block a few more times. A decade more.

I do not recall ever having appeared before Judge Barber, but I have asked around, and other attorneys I trust speak highly of her. In the Ledger Q&A, Judge Barber’s answers are more mature and more in line with the type of answers I want a judicial candidate to be giving to questions like that. For example, when asked about their biggest mistakes, Judge Barber squarely addressed the ethical issue. Mr. Bassett said his biggest mistake was not marrying his wife sooner. That’s cute, but irrelevant and useless.

Ultimately, here is what I conclude:

• Judge Barber, at least on the bench, is a very good judge who enjoys the support of the local bar.
• She was too cozy with her bailiff, but, while worthy of criticism, this action does not warrant her removal from the bench.
• She did look at some of the investigators documents on the table during a break in her interview, but there is not a lot of truly credible information about whether this was appropriate or not. I can foresee circumstances where this would be inappropriate, and circumstances under which it would not.
• I cannot trust the State Attorney’s obviously biased conclusions, as detailed in his spin-laden report.
• The fact that the JQC, an independent board, investigated the conduct and was apparently unconcerned about it, is persuasive.
• Carson Basset, though a great person and fine young lawyer, lacks the experience necessary to be an ideal candidate for judge. He may be a great candidate for the bench in a few more years.
• When push comes to shove, the ultimate question is: which one will be a better judge in the courtroom? The answer is the one that has consistently already been a great judge in the courtroom, irrespective of scandalous, but legal conduct outside the courtroom. The scale tips in favor of leaving a well-respected judge on the bench, and encouraging the ambitious newcomer to run again in the future.

Therfore, I am voting for Susan Barber.

A final thought

My original post created quite a stir. I communicated with supporters of both candidates, and, eventually, both of the candidates themselves reached out to me. I had extremely candid conversations with both of them, and I came away from those conversations thinking more highly of both of them. These are both good people, who are working hard to achieve their goals. I support them both. Whichever one loses, I hope they will run again, and I hope they will contact me to support them when they do. My vote will be for Susan Barber, but if Carson Bassett wins, I’ll be among the first to congratulate him and I will be optimistic that his hard work and thoughtfulness will overcome his lack of experience in due time.

MY ORIGINAL CONCLUSION

What you see above is a substantial revision. In the interest of full disclosure, here is how the post originally read:

County Judge Group 8 – Susan Barber vs. Carson Bassett

Info: Ledger Q&A, Barber finance reports, Bassett finance reports

This race was my toughest decision. I am voting for the newcomer, Carson Bassett.

If you cannot tolerate a long explanation, skip ahead to the bottom of this section, where I provide a brief summary.

There is an elephant in the room: Judge Barber was reprimanded by the Florida Supreme Court in 2014 for an “inappropriate relationship” with her bailiff. This was, as far as I know, the only ethical problem evident in her 8-year career as a judge or 26-year career as an attorney. One might properly view this election as a referendum on whether this issue justifies firing Judge Barber.

This all came to light because of a different investigation involving a different judge, Judge Harlan, and her judicial assistant, Alisha Rupp. During that investigation, Rupp made an accusation that she walked in on Judge Barber and her bailiff having sex at the courthouse. Rupp was eventually convicted of crimes of dishonesty, so her accusation might best be taken with a grain of salt. But her accusation opened the door for inquiry.

The state attorney’s office investigation report is an interesting and scandalous read. It is primarily focused on Judge Harlan and Rupp, but covers Judge Barber (then known as Judge Flood) and her bailiff, too. According to the report, Judge Barber loaned him money, assisted him with his divorce, professed to love him, and spent an inordinate amount of time with him on and off the clock. There is also a finding, with pictures, that Judge Barber, not realizing she was on camera, took a peek at an investigation file that she should not have while left alone for a few minutes during the investigation. This, to me, may be more troublesome than the relationship.

However, I am also bothered by same thing that bothered me about the way Judge Harlan’s case was handled. The 10th Circuit State Attorney should not handle investigations against judges in this circuit.  

Why? Because the state attorney has to try cases before these judges. Letting the local state attorney handle investigations of local judges creates the appearance of impropriety. The investigation report itself reads less like it was written by a dispassionate fact-finder and more like it was written by someone advocating for Judge Barber’s ouster.

Appearances matter. As noted in the investigation, “While the investigation produced no direct evidence that, as Alisha Rupp alleged, Judge [Barber] and Bailiff Maxcy were engaged in a sexual relationship, the inappropriate manner in which Judge [Barber] and Bailiff Maxcy carried on at the courthouse left the judge and the circuit open to the allegations.”

The state attorney should be criticized through the same lens. Even though I am not aware of any direct evidence that the state attorney conducted this investigation for the purposes of removing a judge whose decisions he did not like, the failure of the state attorney to turn the investigation over to a third party has left him open to that allegation.

There is one other arrow that tends to point to politics, rather than substance, at the heart of this. I have reviewed both candidates’ campaign finance reports. Here is an interesting data point:

• Barber’s campaign is supported primarily by a very large group of local lawyers. The legal community is the community that knows her best. I know the politics of many of the lawyers on that list, and it is definitely a politically diverse group.
• Bassett’s campaign is supported by relatively few lawyers, and of the donors that I know, his donor base is heavily weighted to one side of the aisle. He is also using an openly partisan political consultant.

Because the state attorney chose not to appoint an independent investigator, he, and this race, are open to the accusation that Judge Barber is being ousted because of political dissatisfaction with her decisions, not moral outrage over her conduct. The moral outrage just provides the opportunity for a viable challenge.

Enter Carson Bassett. By all accounts, he is a great person. I don’t know him, but I know people who know him, and have seen some ringing endorsements. However, he is only 6-years out of law school, and has served only as a prosecutor during the majority of that time. He is not a well-rounded, experienced lawyer. He is a young former prosecutor with ambition. There is nothing wrong with being a young prosecutor with ambition, but I prefer to appear before judges who have been around the block a few more times. A decade more.

I do not recall ever having appeared before Judge Barber, but I have asked around, and other attorneys I trust speak highly of her. In the Ledger Q&A, Judge Barber’s answers are more mature and more in line with the type of answers I want a judicial candidate to be giving to questions like that. For example, when asked about their biggest mistakes, Judge Barber squarely addressed the ethical issue. Mr. Bassett said his biggest mistake was not marrying his wife sooner. That’s cute, but irrelevant and useless.

Ultimately, here is what I conclude:

• Judge Barber, at least on the bench, is a very good judge who enjoys the support of the local bar.
• But the investigation did find that she was too cozy with her bailiff, and, more importantly in my book, tried to sneak a glance at an investigative file that she should not have.
• The investigation is what creates the opportunity for the challenge, and I have serious objections to the lack of an independent investigator. There is the appearance of the possibility of unstated political motivations.
• Carson Basset, though a great person and fine young lawyer, lacks the experience necessary to be an ideal candidate for judge, but just because he is not the ideal candidate does not mean he is not a good candidate.
• The scale tips in favor of putting the whole Harlan/Rupp/Barber/Maxcy mess behind us, and removing the last remaining person implicated from the courthouse.

In short, Judge Barber’s poor choices, notwithstanding anyone else’s motivations, are what led us to this point. Jerry Hill may have fanned the flames, but Susan Barber lit the fire under her own career’s pyre.

Under the circumstances, I am willing to give Bassett a shot. He has my vote. He appears to be a good man and I trust he will learn how to be a good judge in time. I just hope that his limited perspective and lack of experience will not blind him to the broader, objective points of view he must adopt as a jurist. Even if his election is politically motivated, in the absence of evidence to the contrary, and there is none, I will give him the benefit of the doubt that his decisions will not be.