MIAMI — That Miami criminal defense attorney Jonathan Schwartz changed police lineup photos in a police lineup during a witness deposition wasn’t in question. The disagreements came in what should be done about it.
After the Florida Bar prosecuted a complaint against Schwartz, the first referee said the Florida Bar hadn’t proven the attorney violated any rules. A second referee advised a 90-day suspension followed by a year of probation.
The state Supreme Court made the suspension three years. Schwartz begins his suspension March 19.
Changing faces and hair
Armed robbery and carrying a concealed weapon charges hung over Schwartz’s client, Virgil Woodson, when Schwartz went into a pretrial deposition with the alleged victim on Feb. 13, 2015.
As detailed in the state Supreme Court’s opinion on the first referee’s decision, there were two photocopies of black-and-white police photo lineups. The victim had identified Woodson, photo No. 5, circled the photo and the number and signed her name. The police officer who conducted the photo lineup had done the same.
But Schwartz, the court said, changed one photo lineup by swapping out Woodson’s picture with the picture of another suspect other witnesses identified as the guilty party. For the second exhibit, Schwartz changed Woodson’s photo “by imposing the alternate subject’s hairstyle on the client’s image.
“Although the images in the exhibits were altered in this manner, they nonetheless retained the circle around subject No. 5 and the signatures of the victim and police officer below the photographs.”
A judge gives an opinion. The state Supreme Court disagrees
The first referee in this disciplinary case, 11th Judicial Circuit Court Judge Celeste H. Muir, found the Bar didn’t prove that Schwartz (admitted in 1986) committed any professional misconduct.
In the referee’s report, Muir wrote that she found Schwartz’s “entire conduct was to conduct a legitimate and constitutionally allowable challenge to a questionable eyewitness identification, after having first brought favorable evidence and witnesses to the attention of the prosecutor handling his client’s case, including evidence that identified another person as possibly the actual perpetrator.”
As for Schwartz himself, Muir found him “forthright and honest in his testimony and conduct” throughout the disciplinary trial.” The judge felt his testimony showed her that he “acted without any purpose or intention to deceive” and “his conduct was not dishonest or fraudulent.”
The Bar appealed Muir’s decision. The state Supreme Court issued an opinion that disapproved the referee’s findings of fact and the recommendation that Schwartz violated no Bar rules.
When addressing Muir’s findings, the court said, “notwithstanding the referee’s credibility findings and her finding that Schwartz did not subjectively intend to deceive the witness, this finding does not address that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition. “
The court also said: “Our consideration of the defense-altered exhibits leads to the inevitable conclusion that they are deceptive on their face. The referee, without elaboration, concluded that the exhibits “in and of themselves” were not “misleading,fraudulent, deceitful, or misrepresentations.”
“This conclusion is unsupported by the record and patently erroneous.”
A judge gives an opinion. The state Supremes agree — to a point
In addition to rejecting Judge Muir’s findings and recommendation into the 10th row, the state Supreme Court recommended review of the case by a new referee.
And, so the partial do-over fell to replacement referee Miami-Dade County Circuit Court Judge Lizzet Martinez.
Judge Martinez took the above facts, the state Supreme Court opinion, Schwartz’s discipline history (three incidents of “minor misconduct,” two public reprimands and a 90-day suspension) and case law and recommended a 90-day suspension followed by one year of probation.
The state Supreme Court’s second opinion said: “Based upon the record before us, we conclude that in recommending a non-rehabilitative suspension the referee did not give Schwartz’s prior misconduct proper consideration in light of existing case law. As the referee found, on three prior occasions ... Schwartz violated numerous Bar rules, which in each instance included those rule violations that the Court has held are considered the most serious.”
Schwartz’s 90-day suspension came in 2012 after he filed affidavits knowing he’d notarized them even though he hadn’t actually seen his client sign them. Both public reprimands concerned some form of lying.
“This cumulative misconduct by Schwartz, of the most egregious type (dishonesty) and where he has previously received the longest non-rehabilitative suspension permissible under the rules ... surely necessitates an escalated sanction by this Court for that same repeated type of misconduct,” the court stated in handing down its opinion on Martinez’s suggestion.
The Bar wanted a three-year suspension. The state Supreme Court agreed with the Bar and suspended Schwartz for three years.
As for Woodson, online court and Florida Department of Corrections records say he got six years’ probation on March 25, 2015, violated probation in October 2016 and went to prison until Jan. 1, 2018.
———
