IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY FLORIDA
STATE OF FLORIDA CASE NO.: 16-000275CF
RANDAL THOMAS ROSADO
DEFENDANT’S MOTION TO RECUSE
COMES NOW the Defendant, Randal Thomas Rosado, pursuant to Florida Statute 38.10 and Rule 2.330 of the Florida Rules of Judicial Administration to recuse Judge Margaret O. Steinbeck from proceeding further in this action. The Defendant hereby states as follows:
1. Several alleged victims in this action are colleagues of this trial judge, including Judge Joseph C. Fuller, Jr. and Judge John E. Duryea, Jr., sitting judges in this Twentieth Judicial Circuit.
2. Lee County Clerk of Court, Linda Doggett, is also an alleged victim in this action. This trial judge has a direct working relationship with the court clerk, as Mrs. Doggett’s name appears on every order issued by Judge Margaret O. Steinbeck.
3. On July 31, 2017, the Defendant’s court hearing in this instant case was unexpectedly cancelled because senior judge, Thomas S. Reese, was sitting on the bench in place of Judge Steinbeck while she was on vacation. Judge Reese and Judge Duryea are Plaintiffs in a civil case against the Defendant in Leon County Circuit Court case #2016-CA-1546, causing a conflict of interest extending to Judge Steinbeck.
4. Judge Steinbeck’s ongoing working relationship with Judge Fuller and Judge Duryea, and the clerk of court, who are parties to this case, and Judge Steinbeck’s working relationship with her colleague, Judge Reese, a party to a separate civil case against the Defendant, create a personal bias or prejudice concerning these parties.
5. The Defendant fears that he won’t receive a fair trial, and feels that Judge Steinbeck has deprived him of his rights under the First, Eighth, and Fourteenth Amendments for the United States Constitution, deprived him of his rights under Article 1 Sections 9, 14, 17 and 21 of the Florida Constitution, and has violated Florida statutes and federal law.
6. Judge Steinbeck has made it impossible for the Defendant to have pretrial release in order to access his files and properly defend himself by imposing excessive bail and denying the Defendant a reasonable bond as reflected on court record in a bond reduction hearing on June 16, 2017. The Defendant is not a convicted felon, has no violent history, has never failed to appear before any court, yet is being held on a bond comparable to a capital crime, and has been denied his request for a reasonable reduction. Defendant essentially has no bond and has been incarcerated for nineteen months.
7. On July 19, 2017, the Defendant had a Nelson Hearing to request replacement of his counsel, Sebouh Gourjian, appointed by Judge Steinbeck on January 23, 2017. The basis of the Defendant’s request was a conflict of interest with codefendant’s counsel, Steven E. Smith, and ineffective assistance of counsel. On August 8, 2017, Judge Steinbeck entered an order denying the Defendant’s motion, only addressing the conflict of interest pursuant to Florida Statute 27.5303. Despite sharing a business address, business telephone line and office personnel with the codefendant’s attorney, the judge supported Attorney Gourjian’s arguments that no “affiliation” or conflict exists. The Defendant argued that he and Mr. Gourjian had numerous confrontational disagreements, the attorney had insulted the Defendant’s marriage, made derogatory remarks to the Defendant, and even threatened on multiple occasions to use his representation to harm the Defendant in the outcome of this case. Judge Steinbeck ignored the obvious irreconcilable differences between the Defendant and Mr. Gourjian, and is forcing the indigent Defendant to use her appointed attorney or to represent himself because he cannot afford a private attorney.
8. Due to the unexpected cancellation of the hearing on July 31, 2017, when Judge Thomas S. Reese was the sitting judge to Judge Steinbeckâ€™ds cases, the Defendant had a hearing on August 14, 2017. After successfully proving his understanding and competence for self-representation, Judge Steinbeck persuaded the Defendant against defending himself with strong warnings which deprived him of his rights as an indigent and denied him effective access to the court. The judge informed the Defendant that without counsel he could not communicate directly with the state attorney’s office on negotiations, that he could not subpoena witnesses for depositions or trial testimony, and despite his indigent status, he would be required to incur all costs related to obtaining discovery and taking depositions or receiving transcripts of those depositions. The Defendant voiced his concern about receiving legal mail because Lee County Jail policy does not allow legal mail to be received from a non-attorney, and the judge responded that she was sure the sheriff has provided inmates with whatever was fair and necessary. In Supreme Court Case Ake v Oklahoma, 470 US 68, 105 S Ct. 1087, 84 L.Ed 2d 53 USLW 4179 (1985), the court said “When a state brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the Defendant has a fair opportunity to present his defense…justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding when his liberty is at stake.” Due to the threats and warnings by Judge Steinbeck, the Defendant decided against self-representation with the hopes that Attorney Gourjian would finally provide effective assistance. During the Faretta Hearing on August 15, 2017, Judge Steinbeck also advised the Defendant that he could choose to represent himself in the future.
10. In communications with Attorney Sebouh Gourjian following the Defendant’s request for replacement counsel and self-representation, Mr. Gourjian advised the defendant that he would prepare him for self-representation by providing the Defendant with his complete case discovery, which required a signed order from Judge Steinbeck approving the cost of having copies created by a third-party company. The judge signed that order months ago, and despite promises by Attorney Gourjian, the Defendant has still not received his discovery after sixteen months of incarceration in the Lee County Jail, and nineteen months of incarceration in total. Sebouh Gourjian encouraged the Defendant to remain represented by him temporarily so the cost of discovery and witness depositions would be paid by the court. It appears that Attorney Gourjian was seeking billable hours and free travel at the court’s expense, using it as an opportunity to travel to New Hampshire and California with state prosecutor, James D. Miller, to take witness depositions that lack the significance of depositions from the alleged victims employed inside the courthouse. Conveniently Attorney Gourjians’ parents reside in southern California not far from the witness deposed, allowing him to bill the state for his family visit. The Defendant’s first paid attorney, Robert Ingham, subpoenaed the alleged victims for depositions scheduled for January of 2017, but after being criminally charged in the same judicial circuit, Judge Steinbeck notified the Defendant of a conflict of interest. Defendant could not afford another paid attorney and learned that many local attorneys refused to represent him because of the judges and court clerk involvement. Now, a year later, Attorney Gourjian continues to refuse to take the depositions of the alleged victims, even those previously scheduled.
11. In case management hearings on September 25, 2017 and November 1, 2017, Attorney Gourjian informed Judge Steinbeck of the Defendant’s intentions to represent himself at future pretrial hearings and at trial. When Attorney Gourjian mentioned this to the court once again on December 13, 2017, Judge Steinbeck informed the Defendant that he could not be pro se and represented by counsel at the same time. The Defendant explained that he had still not received discovery and was being painted into a corner by the court, in which the judge said she had no time to argue with him because she had an important appointment. Assistant State Attorney, James D. Miller, advised the court that he estimated approximately five days for trial, in which the judge complained about the length of time due to her busy trial schedule. The Defendant does not feel that five days is even adequate for trial, being that there are ten alleged victims, all of whom the Defendant has the right to face at trial. There are many additional witnesses to question at trial as well. Attorney Gourjian refuses to depose any alleged victims, and has told the Defendant that the alleged victims won’t be called to testify at trial, especially the judges and court clerk. The Defendant’s life is at stake and he is being denied of his right to face his accusers, and has a biased judge dictating the length of his trial with the state’s help. Defendant was advised by a criminal attorney with over 50 years of experience that “An attorney cannot refuse to take the depositions of the victim under any circumstances.”
12. Prior to the hearing on December 13, 2017, and with the understanding through conversations with Attorney Gourjian and Mr. Gourjian’s previous communication with the court, the Defendant filed a Motion to Suppress Evidence in Unlawful Search and a Motion to Dismiss. These are two important pretrial motions that Sebouh Gourjian has refused to file on the Defendant’s behalf. Based on the signed judge’s order regarding the Defendant’s discovery and the communication on court record, the Defendant fully expected to be a pro se litigant by that point in time. On December 19, 2017, Judge Steinbeck denied both motions because they were not filed by the attorney she forced on the Defendant. The Defendant is appealing both orders.
13. Judge Steinbeck has shown prejudice in striking only the pro se filings that could benefit the Defendant’s case, and not those which could possibly be used against him by the state. For example, in December of 2016 the Defendant filed pro se “Defendant’s Affidavit In Response to The State’s Discovery.” At the time the Defendant was not in receipt of discovery documents and was reacting in haste to the case report provided to him by his previous attorney, Robert Ingham. The affidavit was filed without the advise or knowledge of Mr. Ingham. The Defendant was represented by his paid private attorney at the time of filing, and had not had a Faretta Hearing or been certified pro se by the court, yet Judge Steinbeck has not stricken this pro se filing as she has done with Defendant’s other pretrial motions. This trial judge seems to be strategically picking and choosing which pro se filings she will strike in order to assist the state and manipulate the case by failing to provide consistent rulings.
14. The Florida Code of Judicial Conduct, Cannon 3(E)(1) provides that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning one party or one party’s lawyer…”
15. Pursuant to Rule 2.330(F), “The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” If this motion is deemed legally sufficient, the court shall immediately enter an order granting disqualification and proceed no further in this action.”
16. Though the trial judge in this instant case may not have been biased as a matter of fact, that is of no moment because…the appearance of justice proscribes the trial judge from continuing, even though the record may be void of any actual bias or prejudice on her part.” Marcotte v Gloeckner, 679 So 2d 1225 (Fla. 5th DCA 1996)
17. “The judge found that although he had no personal bias or prejudice concerning any party herein or any personal knowledge of disputed evidentiary facts, his impartiality ‘might be reasonably questioned’ and it was therefore required that he recuse himself.” Smith v Silorsky Aircraft, 420 F.Supp 661 (C.D. Calif. 1976)
18. “A motion to disqualify is legally sufficient if the facts would objectively cause a well-founded fear in the moving party that they would not receive a fair and impartial trial.” Edwards v State, 976 So. 2d 1177 (Fla. Dist. Ct. App. 4th Dist. 2008)
19. “The standard for determining whether a motion to disqualify a trial judge is legally sufficient is whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Fondura v State, 940 So. 2d 489 (Fla. Dist. Ct. App 3d Dist. 2006)
20. “Disqualification is required when litigants demonstrate reasonable, well-grounded fear that they will not receive a fair and impartial trial, or that a judge has pre-judged a case.” Williams v Balch, 897 So. 2d 498 (Fla. Dist. Ct. App. 4th Dist. 2005) See also Jarp v Jarp, 919 So. 2d 614 (Fla. Dist. Ct. App. 3d Dist. 2006) and Jimenez v Ratine, 954 So. 2d 706 (Fla. Dist. Ct. App. 2d Dist. 2007)
21. “Issue of whether a party has well-grounded fear that it will not receive a fair trial, so as to support a motion to disqualify a judge, is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling.” Corie v. City of Riviera Beach, 954 So. 2d 68 (Fla. Dist. Ct. App. 4th Dist. 2007) See also Aberdeen Property Owners Ass’n, Inc. v. Bristol Lakes homeowners Ass’n, Inc. 8 So. 3d 469 (Fla. Dist. Ct. App. 4th Dist. 2009)
WHEREFORE, Defendant requests the entry of an order of disqualification of Judge Margaret O. Steinbeck to another circuit judge. Should the same bias and prejudice exist (or potentially exist) with other judges in the Twentieth Circuit or other judicial circuits throughout the state, the clerk should reassign this case to a more suitable venue or federal jurisdiction, where the Defendant can receive non-biased treatment and a fair trial.
Under penalties of perjury, I certified that I understand the contents of the foregoing motion, and that the facts contained in the motion are true and correct, and that motion has been timely filed.
Randal Thomas Rosado
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of te foregoing has been furnished to the Clerk of Court and to Judge Margaret O. Steinbeck at 1700 Monroe Street, Fort Myers, Florida 33901 and to the Office of the State Attorney at 2000 Main street, 6th Floor, Fort Myers, Florida 33902 on this _____ day of _________________, 2018.
Randal Thomas Rosado
2501 Ortiz Avenue
Fort Myers, Florida 33905