Local judge ordered to disqualify himself from hearing cases

An appellate court has ruled that Circuit Judge Brian Iten should have recused himself from hearing at least seven of the 58 cases this year in which he denied requests to do so.

A three-judge panel from the Second District Court of Appeals on Monday issued the most recent order in Iten’s cases, ruling the defendants’ arguments had been “legally sufficient” for Iten to have recused himself.

The defense in those cases only had to establish facts that would cause any reasonable person to fear they would receive a fair and impartial trial in Iten’s court, the appellate orders state. The defense did not need to prove that Iten was actually biased. Also not relevant was Iten’s opinion of whether he was biased.

Iten presides over the 12th Circuit Felony Division 3, which hears all felony cases in which the defendant’s last name starts with the letter A or H through O.

The motions were filed by private attorneys and public defenders in a wide variety of felony cases, including drug-related, battery and murder charges. But while the cases varied, the arguments made by attorneys were all related to Iten’s recent election campaign. Iten, a former local prosecutor, on Aug. 28 lost his bid to retain his seat to Bradenton defense attorney Maria Ruhl.

The motions argued that Iten had advertised and highlighted endorsements from the current and former state attorneys, all three county sheriffs, police chiefs and former sheriffs or police chiefs on his campaign website. His campaign Facebook page also featured a picture in which he stood with State Attorney Ed Brodsky.

Attorneys argued that drawing attention to the endorsements created the appearance of a bias in favor of prosecutors. As a result, their clients feared they would not get a fair trial.

At least one additional appeal is outstanding, but Iten has already recused himself in the case. In two other cases, defense attorneys have filed motions asking Iten to reconsider recusing himself in the wake of the appellate rulings.

Iten declined to comment on the Second District Court of Appeals rulings.

Iten’s defeat in last month’s election was the first time in 12 years that a sitting judge faced a challenger in the 12th Judicial District — and perhaps the first time ever a sitting district judge had lost an election.

Chief Judge Charles Williams has signed orders reassigning the seven cases as ordered by the appellate court. Williams also declined requests to be interviewed and would only agree to answer initial questions in writing through the court’s public information officer.

Williams said he still stands behind Iten’s rulings, even in the wake of the Second District Court of Appeal’s decisions. Iten, he wrote, “based his rulings on his understanding of the law and the facts of the motions at the time they were presented.”

“The vast majority of private criminal defense attorneys and the Office of Regional Counsel did not file motions to recuse Judge Iten,” Williams wrote. “The motions to recuse represent a relatively small number of cases that Judge Iten oversees and those defense attorneys who legally took issue with Judge Iten did what they felt were in the best interest of their clients in filing the motions to recuse.”

Iten did recuse himself in 58 other cases in the first half of 2018.

In 2017, Iten recused himself from 62 cases that were assigned to him. Most of those cases involved two long-time defense attorneys in Bradenton, Charles Britt and Peter Lonmbardo, according to court administration.

“The Court acknowledges and respects the ruling made by the 2nd DCA and has taken appropriate actions directed and will have no further comment on the matter,” Williams concluded in his response to written questions.

Leading up to last month’s election, Iten addressed criticisms that he was prosecuting from the bench. He said his support base, which included dozens of defense attorneys, spoke to his ability to be a fair and impartial judge.

“Perception is not always reality,” Iten told the Bradenton Herald at the time.

Many in the legal community feel that Iten spent too little time on the civil bench in Sarasota County and later in Manatee County, a total of less than 18 months, before moving to the criminal bench.

“There is no rule or custom that dictates that a lawyer or state attorney who becomes a judge must not sit in a division for any period of time,” Williams said. “Upon taking the bench Judge Iten spent almost 18 months hearing exclusively civil matters and once he began hearing criminal cases, on his own volition he recused himself from any case that was filed or investigated while he was in the Office of the State Attorney.”

Many of the recusals previously granted stem from Iten’s time as a local prosecutor.

In 2013, State Attorney Ed Brodsky created a special position for a prosecutor to work closely with detectives in high profile violent cases and gave that position to Iten in Manatee County. Iten, as a result, had an office at the sheriff’s office and would respond to major crime scene to provide support and guidance to detectives.

According to Lombardo, his on-going requests to have Iten recused from his cases stem from one case Iten had worked with police on while he was a prosecutor and that was later assigned to his court. Iten eventually recused himself after Lombardo submitted emails showing exchanges between Iten and police.

“You can’t be the prosecutor and the judge,” Lombardo said. “I think if he hadn’t come back on the criminal bench, things would have been different for Judge Iten.”

Many local defense attorneys say they are tired of watching judges in the 12th Circuit retire without finishing their terms, forcing an appointment by the governor. Iten losing his election bid was welcomed by many lawyers.

“It’s good to see the democratic process work,” Britt said. “I am hopeful everybody, especially about the democratic process of it, that more people will participate and there will be more elections and maybe we will have a more diverse judiciary.”

This story was originally published September 21, 2018 at 11:06 AM with the headline "Local judge ordered to disqualify himself from hearing cases."