I have no interest in politics but politics has an interest in me*
The position of State Attorney** in Florida is an elected one. Therefore Katherine Fernandez-Rundle is an elected official. Therefore she is a politician.
Rundle is more politician than prosecutor. I believe that even she would acknowledge that and I do not think that there is anything necessarily wrong with that. It is, after all, how the system is set up.
Rundle's beginning in the State Attorney's Office under Janet Reno was political; her father was an influential figure in the Hispanic community. Rundle was not on the same track as other new Assistant State Attorneys who work their way up from misdemeanor court to felony court and try increasingly more serious cases. For the vast majority of her time as an A.S.A. she handled the office's grand jury work. That position itself is political. Don L. Horn, who currently handles those responsibilities, is widely viewed as being groomed as Rundle's successor as State Attorney.
Thus, when she became State Attorney in 1993 Rundle had very little experience in the kind of work that her prosecutors did; she had never been immersed in the substantive criminal law, the crimes themselves and their statutory elements; she had never become knowledgeable on procedural criminal law, that is the case law that effects everything from the validity of an arrest to the validity of a conviction. And she had very little jury trial experience.
She became State Attorney through a phantasmagoria of circumstances. President Clinton's first choice for Attorney General was doomed when it was discovered that she had not paid the taxes for her nanny (a revelation that led to frantic post-facto filings with the IRS by similarly situated A.S.A.'s). Clinton's second choice was doomed by the discovery of some racy photos of her (a revelation that led to frantic photo-deleting by similarly situated A.S.A.'s). The president, determined to select a woman for Attorney General, then turned to a candidate about whom there could be no question of nannies or racy photos, Janet Reno.
Thus Katherine Fernandez-Rundle became Miami's State Attorney.
Her appointment was controversial. There were widely believed to be two candidates and only two candidates. The other was Trudy Novicki, the head of the Organized Crime/Public Corruption unit of the office. Rundle's appointment was controversial because Novicki was widely respected by her peers, Rundle was not. Novicki was deeply respected by Reno, Rundle was not as respected. Novicki was known for her good judgment, Rundle was known for her lapses. Novicki was a serious person, Rundle a silly one. And Novicki, unlike Rundle, had hands-on experience with both the substantive and procedural aspects of criminal law and actually had tried some cases. Rundle was appointed because she was more politically viable in multi-ethnic, bi-lingual Miami.
Some A.S.A.'s resigned in protest.
Understandably--and wisely--Rundle relied heavily on the advice of her closest aides to compensate for her lack of knowledge and experience. However that reliance was not used by her to educate herself. It was used as a replacement for her own lack of knowledge and experience. Thus what she knew about criminal law was not taught to her, it was told to her.
For example, I once had a meeting with Rundle directly about a legal matter. The meeting concerned the office's decision-making on whether to seek the death penalty. A serious legal challenge has always been mounted against the death penalty because of the supposed arbitrariness of the decision to seek or waive and I had a poster-candidate of a case for that argument.
Early on in my handling of the case I had filled out the required "Death Penalty Evaluation" form. Though I have always been opposed to the death penalty I knew the law and the SAO's policy and made my recommendations accordingly and without my personal views influencing them.
This particular case was a close one but I recommended waiver. I then sent the form on up the chain. Death penalty decisions are made by a committee, the first-among-equals member of which was, and is, the head of the Legal division, Penny Brill. After staffing the case the form is sent back to the trial assistant with the committee's decision. Some first degree murder cases are facially inappropriate for the death penalty under prevailing law and office policy and the decision to waive is made at this initial stage. In this case however the committee overruled my recommendation at this stage and certified the case as appropriate for the death penalty. I then informed the judge and the defense attorney and per practice a second defense attorney, the so-called "death phase" lawyer, was appointed (the defendant was indigent) to assist in the defense.
The next stage is the defense investigation of the defendant and his background which goes into a "mitigation packet" which when completed is forwarded to the prosecutor. When I received the mitigation packet I reviewed it, filled out a supplemental death penalty evaluation form and sent it back to the committee, again recommending waiver. Again the committee disagreed and certified the case as appropriate for death. That is normally the end of the road. If something new comes up of course the decision can be revisited but usually, and in this case, the committee's decision to seek death after review of the mitigation packet means that the case proceeds to trial as a death penalty case.
Because of my opposition to the death penalty I followed an office-approved procedure. I got a colleague to try the case with me. I would try the guilt phase with him or her but in the event of a conviction on first degree murder I would then have nothing else to do with the case. I would not participate in the death phase and would not even be present at counsel table.
I tried the case with my friend Michael Spivack. In the event there was a conviction on first degree murder and I left the death phase to Michael. One day not long after the conviction, Michael came down to my office and told me that he had just met with Penny Brill, had told her about the case and her reaction had been, "Why is this a death case?" I was furious. The office had just had the taxpayers pay for two defense attorneys, had tied up two senior prosecuters in a trial that had lasted two or three weeks***, and had done so after waiver of the death penalty had been rejected twice over my recommendation. And now, after conviction, we waived?
More important than the waste of manpower was the appearance of impropriety. There are some defense attorneys who believe that the SAO deliberately seeks the death penalty in order to get the supposed more guilt-predisposed jury that is said to come from death qualifying the venire, and then waive death on some pretense after getting the conviction. This case had more than the appearance of that impropriety. I did not believe then and I do not believe now that such a thing was behind the decision in this case. What I did believe then and now is that the decision-making in this case had the hallmarks of the arbitrariness that is produced by the mindset described by Karl Llewellyn in The Bramble Bush, that however high-minded the stated reasons, decisions by judges (and quasi-judicial officials like prosecutors) are as often based on the effects of what they ate for breakfast.
It was this case, and Penny Brill's morning diet, that brought me into conversation with Ms. Rundle one afternoon.
-David Ranck
