Barahona judge goes after gag-order violators
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. October 24, 2011
Seeking the source of a courthouse leak, a Miami child welfare judge ordered more than 30 people to appear before her and swear they didn’t violate a gag order. Read the full Miami Herald story here.
By Carol Marbin Miller
A Miami-Dade Circuit Court judge, apparently angry that details of a controversial — and closed — child custody hearing had been disclosed to a reporter, required dozens of state child welfare workers to appear before her to sign statements swearing that did not leak to the newspaper.
The appearances — like the hearing itself — were kept secret from the public.
Miami-Dade Circuit Judge Maria Sampedro-Iglesia, one of five judges who preside over child welfare cases at the county’s Children’s Courthouse, required 33 investigators, caseworkers and supervisors to appear before her privately to sign sworn statements declaring they did not leak confidential information to The Miami Herald, sources have told the newspaper. The appearances were not part of a formal hearing, and no notice was given publicly that the meetings were to occur. An attorney for court administrators told The Herald Sampedro-Iglesia has not issued any subpoenas in the case since Aug. 1 — meaning the workers could not have been subpoenaed.
Only one of the 33 people compelled by the judge to appear, DCF’s former regional administrator, Jacqui Colyer, refused to sign an affidavit. In response, Sampedro-Iglesia entered an order banning Colyer from her courtroom until the child welfare case is resolved, sources have told the newspaper. Colyer, who resigned from DCF Aug. 9, declined to discuss the matter with a reporter, saying she no longer is involved in DCF’s affairs.
The unusual proceedings are the latest chapter in the equally unusual case involving now-11-year-old Victor Barahona, whose twin sister, Nubia, was killed in February. Victor and Nubia had been adopted from foster care by Carmen and Jorge Barahona, and had been the subject of several complaints to the Department of Children & Families’ abuse hotline both before and after their adoption. Victor was found by a Road Ranger on the side of Interstate 95, drenched in lethal chemicals and clinging to life. His twin was found hours later inside a garbage bag, her emaciated body also awash in toxic chemicals, in the flatbed of her adoptive father’s pickup truck.
Both Jorge and Carmen Barahona are awaiting trial on murder and aggravated child abuse charges at the Miami-Dade County Jail. They have pleaded not guilty.
At the request of state prosecutors, Sampedro-Iglesia ordered Victor to return from Texas — where he was living with an uncle who is seeking to adopt him — to attend a custody hearing in late August. Sources say prosecutors argued that Victor should remain in foster care in Miami, rather than live in Texas with his extended family, which he had grown to love. His uncle had renovated a bathroom so that Victor did not have to be near a bathtub, which was the scene of much of his torment. Police and prosecutors say the boy had been tied up and forced to live in a bathtub with his sister, even being forced to eat in the bathroom.
Both DCF and private foster care case managers assigned to work with the boy argued that Victor should remain with his uncle, and, under both state and federal law, extended family members trump foster parents for custody when all other factors remain equal.
The Herald reported on details of the hearing on Aug. 19. That morning, Sampedro-Iglesia signed an order returning Victor to Texas.
The judge then scheduled an Aug. 26 hearing to determine who had leaked information to the newspaper, but cancelled the hearing after an attorney for The Herald asserted the newspaper’s right to attend the proceeding. An attorney for the Miami-Dade Circuit Court gave the newspaper’s attorney, Scott Ponce, assurances that The Herald would be given notice if the hearing was reset.
In a letter delivered Wednesday to Chief Judge Joel H. Brown, another Herald attorney, Sandy Bohrer, called the proceedings “a star chamber system of justice.”
“Judge Sampedro-Iglesia had no authority to conduct these private proceedings, she did so in violation of Florida law regarding the closure of judicial proceedings, she did so in violation of an agreement between the Court, through its general counsel and counsel for The Herald, and she did so in violation of all notions of procedural justice, all to reach a substantive result for which there is no authority under Florida law,” Bohrer wrote in the letter.
Through General Counsel Linda Kelly Kearson, court administrators have refused to release a copy of Sampedro-Iglesia’s order regarding Colyer, or other records associated with the proceedings, citing the confidentiality of juvenile court records and “the best interests of the minor child” at the center of the case. On Wednesday, Kearson also declined to answer a dozen questions emailed to the court system’s spokeswoman, Eunice Sigler last week.
“Were we to answer your questions,” Kearson wrote, “we would contravene the basic confidentiality principles set forth in [state child welfare law] and the court’s duty to protect the child from further harm, to the fullest extent of the law,” she wrote.
A spokesman for DCF said his agency was still studying a request from the newspaper to review the court order, of which DCF has a copy. “The department always strives to be as transparent as possible and we are processing this request while considering state law and the judge’s order,” said Joe Follick, DCF’s spokesman in Tallahassee.
Talbot “Sandy” D’Alemberte, a former president of the American Bar Association, said Sampedro-Iglesia appeared to be “very distinctly over-reaching” when she “coerced” people to go to the courthouse to sign statements outside a formal hearing.
“She had no authority,” said D’Alemberte, the former dean of Florida State University’s law school and FSU’s former president, who still teaches there.
“I think the whole thing is simply bizarre. I’ve heard of some things that are damn strange, and this certainly makes the top 10 list,” said D’Alemberte. “The whole idea of closing not only the proceedings, but also keeping the order secret, fundamentally violates everything we know about open courts and destroys the fundamental principal of open proceedings,” he said.
But a former judge and top prosecutor said judges have enormously wide latitude, and Sampedro-Iglesia likely did not exceed hers.
Bob Butterworth, who has been a Broward Circuit Court judge, Broward sheriff, attorney general and DCF secretary during a 40-year career in public service, said Sampedro-Iglesia was well within her authority to seek out the source of leaked information. “I always say: Follow an order, and if you don’t want to, appeal it,” said Butterworth, who was the top administrator at DCF during 2007 and 2008. “Judges have a lot of discretion; they really do.”
Butterworth added: “Judges take gag orders — especially when it comes to kids — very seriously.”