Inquiry Concerning a Judge No. 15-594 Re: Gregory Holder

Supreme Court of Florida
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No. SC16-970
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INQUIRY CONCERNING A JUDGE NO. 15-594 RE: GREGORY HOLDER
[July 7, 2016]
PER CURIAM.
This case is before us to review the findings, conclusions, and
recommendation of the Judicial Qualifications Commission (JQC) concerning
Thirteenth Judicial Circuit Judge Gregory Holder and the stipulation entered into
between Judge Holder and the JQC. We have jurisdiction. See art. V, § 12, Fla.
Const. We approve the parties’ stipulation to allegations that Judge Holder: (1)
engaged in inappropriate ex-parte communication with the Chief Assistant State
Attorney for the Thirteenth Judicial Circuit, on behalf of a defendant over whose
case he was presiding; and (2) made a public offer to convert the same defendant’s
remaining community control to probation, prior to conducting any hearing on that
matter and the JQC’s finding that this misconduct violated five canons of the Code
of Judicial Conduct. We also approve the stipulated discipline of a public
reprimand and completion of six additional Continuing Judicial Education (CJE)
training hours on topics related to ethics.
FACTS
In its Notice of Formal Charges, the JQC accused Judge Holder of engaging
in improper conduct in violation of five canons of the Code of Judicial Conduct
while presiding over defendant Clay Allred’s case in the Thirteenth Judicial Circuit
Veteran’s Court from 2015-2016. The JQC’s Notice of Formal Charges states in
pertinent part:
1. As the judicial officer assigned to the 13th Circuit Veterans’ Court,
you presided over the criminal case of State of Florida v. Clay Allred
(Hillsborough County Case # 2014-CF-12289) from approximately
January of 2015 through March of 2016. Clay Allred’s criminal case
arose after a 2014 confrontation with a convenience store clerk which
resulted in Mr. Allred being charged with two felony counts;
discharging a firearm from a vehicle, and aggravated assault with a
deadly weapon, as well as one count of criminal mischief (a
misdemeanor). Throughout the period of time that you presided over
his case, Mr. Allred was represented by private legal counsel.
2. On March 27, 2015 you accepted a no contest plea by the
Defendant, Mr. Allred, and sentenced him to 24 months of community
control[n.1], to be followed by 36 months of probation.
3. As a consequence of his arrest and subsequent conviction of
multiple felonies, the Defendant was expelled and later denied re-
admission to the University of South Florida (“USF”), where he was
working to complete his undergraduate degree, the completion of
which was recommended by the Defendant’s VA Medical Center staff
psychologist.
4. On November 13, 2015 you sent a letter to USF President, Dr.
Judy Genshaft.[n.2] Your letter, written on your judicial letterhead,
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served as both a letter of recommendation for Mr. Allred, and a
request for Mr. Allred to be admitted into an online only program at
USF. In your letter you state,
As the presiding Judge, I supervise Mr. Allred’s daily
progress within our Community Control/House Arrest
sentence (sic). . . .
I can attest to the fact that Mr. Allred has completed or
exceeded all requirements in record time. In point of
fact, in my 21 years as a Judge of this Circuit, I have
never seen anyone so motivated to succeed and
rehabilitate.
***
I am formally requesting that you re-admit Mr. Clay S.
Allred to the University of South Florida as an online
student consistent with the recommendation of the VA
treating Psychologist . . . I can personally modify Mr.
Allred’s community control prohibiting him from ever
entering the USF property. Should he violate my order
of Community Control and Probation, he would face a
possible 20 years in the Florida State Prison. (Emphasis
Supplied.)
***
I personally echo the ringing endorsements contained
within the many exhibits attached hereto and respectfully
request that USF live up to its National Rating as the
Second Most Veteran Friendly College in America.
5. The Director of the USF Office of Admissions replied to your
letter informing you that Mr. Allred would not be considered for an
online only undergraduate program, because no such program was
available at USF. Your office received USF’s reply letter on
November 20, 2015.
6. At the time you wrote to the USF President on the Defendant’s
behalf, there was no motion to modify community control pending.
Such a motion to modify a criminal sentence would have entitled all
parties to be present and heard by the Court, including the defense,
prosecution, and victim. In this case, your letter could be construed as
making a public commitment to modify the Defendant’s criminal
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sentence prior to a hearing on the subject, and indeed, prior to any
such motion or request being made to the court, and is improper.[n.3]
7. In 2016, after it became clear that the Defendant’s March 2015 no
contest plea, adjudication of guilt, and subsequent sentence on two
felonies was inhibiting his ability to reapply to USF, you personally
called the Chief Assistant State Attorney (“CASA”) for the 13th
Judicial Circuit, after first discussing the matter with the assigned
Assistant State Attorney, and requested that he review the evidence
against the Defendant. In attempting to persuade him that there was
insufficient evidence to prove one of the charges, you tried to
persuade the State to agree to allow the Defendant to have
adjudication withheld. After speaking with you, the CASA called the
Defendant’s private legal counsel and informed him of your call and
request. The CASA then called you back to say that the State would
not be amenable to your request to reduce the charges. The CASA
indicated that this was [sic] first time a judge had ever made such a
request to him on behalf of a Defendant over whose case they were
presiding. Moreover, even before the [sic] he made the no contest
plea, and was sentenced on the initial charges, the Defendant’s own
legal counsel made numerous appeals to the CASA, and the in-court
ASA, on essentially the same grounds, which the State did not agree
with.
[N.1] Community Control is a stricter form of probation,
limiting a defendant to house arrest allowing only travel
to church, school, work, and medical care, and where the
probation officer, or court, must approve any travel to
any other places.
[N.2] The letter to President Genshaft was received by
USF on November 16, 2015.
[N.3] Coincidentally, on November 20, 2015, the
Defendant’s private attorney filed a pleading styled a
“Motion to Modify Community Control to Probation,” in
which the Defendant, through his attorney, requests a
modification of his sentence so that the 24 months of
community control [house arrest] could be converted into
the less restrictive regular probation. The motion
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explains that the conditions of the Defendant’s
community control, as well as his extensive treatment
regimen, were preventing the completion of his
undergraduate degree. On January 8, 2016, you
conducted a hearing on this motion, and you granted,
over the State’s objection, the Defendant’s request to
modify his sentence.
Following an investigative hearing, Judge Holder entered into a factual
stipulation with the JQC admitting the charges, apologizing for his improper
conduct, and accepting the public reprimand and six additional hours of CJE
training as recommended by the panel. Based on the Stipulation, the Investigative
Panel concluded that Judge Holder violated Canons 11, 2A2, 2B3, 3B(7)4, and
1. Canon 1 states: “An independent and honorable judiciary is
indispensable to justice in our society. A judge should participate in establishing,
maintaining, and enforcing high standards of conduct, and shall personally observe
those standards so that the integrity and independence of the judiciary may be
preserved.”
2. Canon 2A states in pertinent part that a judge “shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary.”
3. Canon 2B states that “a judge shall not allow family, social, political or
other relationships to influence the judge’s judicial conduct or judgment.”
4. Canon 3B(7) states in pertinent part that “[a] judge shall not initiate,
permit, or consider ex parte communications . . . .”
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3B(9)5 of the Code of Judicial Conduct. Thereafter, the JQC panel made its
findings and recommendations of discipline, in which it stated:
After an inquiry that included sworn testimony by Judge Holder
before the Investigative Panel of the JQC, the Commission has now
entered into a Stipulation for Discipline with Judge Holder in which
he admits that his conduct was inappropriate and should not have
occurred. He further acknowledges that his conduct violates canons 1,
2A, 2B, 3B(7), and 3B(9) of the Code of Judicial Conduct. A full
recitation of the relevant facts is provided in the Notice of Formal
Charges, filed concurrently with these Findings, and the Stipulation of
Discipline entered into by the Commission and Judge Holder.
Judge Holder accepts responsibility for his behavior, and is
mindful that while he intended only to help the defendant, an Army
Green Beret who received the Bronze Star Medal for service in
Afghanistan, his actions went too far, and created the appearance of
impropriety and partiality. He further regrets that his actions could
impair the public’s perception of fairness in the judiciary, and assures
the Commission and the Court that such conduct will never occur
again.
The Judicial Qualifications Commission finds and recommends
that the interests of justice, public welfare, and sound judicial
administration are best served by requiring Judge Holder to receive a
public reprimand, and complete six additional CJE training hours on
topics related to ethics.
REVIEW OF JQC’S FINDINGS
This Court may “accept, reject, or modify in whole or in part” the findings
and conclusions of the JQC. Art. V, § 12(c)(1), Fla. Const. “This Court reviews
5. Canon 3B(9) states in pertinent part that “[a] judge shall not, while a
proceeding is pending or impending in any court, make any public comment that
might reasonably be expected to affect its outcome or impair its fairness . . . .”
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the findings of the JQC to determine whether the alleged violations are supported
by clear and convincing evidence, and reviews the recommended discipline to
determine whether it should be approved.” In re Flood, 150 So. 3d 1097, 1098
(Fla. 2014) (quoting In re Woodard, 919 So. 2d 389, 390 (Fla. 2006)). “Although
this Court gives the findings and recommendations of the JQC great weight, the
ultimate power and responsibility in making a determination to discipline a judge
rests with this Court.” Id. (quoting In re Renke, 933 So. 2d 482, 493 (Fla. 2006)).
Judge Holder has admitted to the factual allegations regarding his actions
and does not dispute the JQC’s findings. We have held that “where a judge admits
to wrongdoing and the JQC’s findings are undisputed, this Court will ordinarily
conclude that the JQC’s findings are supported by clear and convincing evidence.”
In re Flood, 150 So. 3d at 1098 (quoting In re Diaz, 908 So. 2d 334, 337 (Fla.
2005)). Accordingly, we conclude that the findings are supported by clear and
convincing evidence, the level of proof necessary to impose discipline.
We further conclude that Judge Holder’s conduct was in violation of the five
canons specified above. Judge Holder unilaterally contacted the President of the
University of South Florida while the defendant’s case was pending and promised
in an ex parte communication that he could “personally modify” the defendant’s
community control. He further contacted the Chief Assistant State Attorney for the
13th Judicial Circuit and advocated on behalf of the defendant that the State should
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allow the defendant to have his adjudication withheld. By engaging in such
conduct, Judge Holder failed to maintain the high standards of conduct necessary
to preserve the integrity of the judiciary, violating Canon 1, and acted in a manner
that could potentially undermine public confidence in the judiciary, violating
Canon 2A. Further, his conduct created the appearance of impropriety and
partiality, violating Canon 2B. Finally, Judge Holder admitted to engaging in ex
parte communications with the Chief Assistant State Attorney and sending a letter
making public comments regarding the defendant’s case to the President of the
University of South Florida, violating Canons 3B(7) and 3B(9), respectively.
RECOMMENDED DISCIPLINE
This Court is empowered to accept, modify, or reject the JQC’s
recommendations and “order that the . . . judge be subjected to appropriate
discipline.” Art. V, § 12(c)(1), Fla. Const. In reaching an agreement with Judge
Holder on the recommended sanction, the JQC Investigative Panel noted that
Judge Holder accepted full responsibility for his misconduct involving the
defendant, and admitted that though he only intended to help the defendant, his
actions went too far, creating the appearance of impropriety and partiality and that
Judge Holder further regretted and apologized for the misconduct. Further, the
JQC recognized that Judge Holder assured the Commission and this Court that
such conduct will never occur again.
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While we recognize that Judge Holder’s conduct was motivated by a well-
intentioned desire to help a defendant who was before him in Veteran’s Court, as
Judge Holder understands by his agreement to the violations and discipline, this
type of assistance must still comply with the Code of Judicial Conduct and does
not permit him to engage in ex parte communications. “[T]he object of
disciplinary proceedings is not for the purpose of inflicting punishment, but rather
to gauge a judge’s fitness to serve as an impartial judicial officer.” In re McMillan,
797 So. 2d 560, 571 (Fla. 2001). Existing precedent suggests that Judge Holder’s
conduct warrants public reprimand. See In re Bell, 23 So. 3d 81 (Fla. 2009)
(public reprimand was appropriate judicial disciplinary sanction for judge who sua
sponte ordered arrest without complaint from State Attorney’s Office or another
party); In re Henderson, 22 So. 3d 58 (Fla. 2009) (public reprimand was
appropriate judicial disciplinary sanction for county judge’s association as mentor
with convicted felon who had been a criminal defendant in the judge’s court); In re
Maxwell, 994 So. 2d 974 (Fla. 2008) (public reprimand was appropriate sanction
for judge’s improper acceptance of ex parte communication).
CONCLUSION
On the record before us, we conclude that there is clear and convincing
evidence to support the findings of fact as to all charges and we approve the
stipulation entered into by Judge Holder and the JQC. Accordingly, we hereby
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command Judge Gregory Holder to appear before this Court for the administration
of a public reprimand at a time to be established by the Clerk of this Court and
further direct that Judge Holder complete six additional CJE training hours on
topics related to ethics.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Judicial Qualifications Commission
Judge Kerry I. Evander, Chair, Judge James A. Ruth, Vice-Chair, Michael Louis
Schneider, Executive Director and General Counsel, and Alexander John Williams,
Assistant General Counsel, Tallahassee, Florida,
for Florida Judicial Qualifications Commission, Petitioner
David Barnett Weinstein of Greenberg Traurig, P.A., Tampa, Florida,
for Judge Gregory Holder, Respondent
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