110 W. New York Ave.
DeLand, FL 32720
posted Aug 8, 2008 - 3:44:28pm
Editor's note: This commentary, about criticism leveled at State Attorney John Tanner, was written for The Beacon by Craig James, a DeLand attorney and former member of the U.S. Congress. It addresses the legal issues surrounding the sealing of a Grand Jury presentment made after the Grand Jury declined to indict Tanner.
Some newspapers have criticized John Tanner’s expenditure of attorneys’ fees and his objection to the release of the Grand Jury presentment in his ongoing legal battle with State Attorney Shorstein.
Yes, I do agree no additional attorneys’ fees should be spent from this point forward. However, that could be accomplished if State Attorney Shorstein and the Attorney General of the State of Florida dismissed their appeal of Judge Hammond’s order of March 12, 2007. John Tanner is simply defending Judge Hammond’s order to seal the Grand Jury presentment, an order that is now being unreasonably contested. Tanner should not be required to unilaterally release the presentment.
Since some newspapers have expressed concern in regard to Tanner’s expenditure of attorneys’ fees, why have they not chastised Shorstein and the Attorney General for not only causing John Tanner to incur attorneys’ fees, but also for spending state taxpayer’s money for their salaries and expenses in initially pursuing an illegal course of action and continuing to defend it? After all, they are the losing party.
As I am sure most people understand, John Tanner is the appellee not the appellant and the court (Judge Hammond) granted Mr. Tanner’s motion to repress and expunge Grand Jury presentment as unlawful and improper. The court specifically found that:
The Duval County Grand Jury, under the advice of State Attorney Shorstein, has exceeded their authority in investigating State Attorney Tanner and the Office of the Seventh Judicial Circuit State Attorney.
The court further commented about the presentment filed under seal by the Duval County Grand Jury, as follows:
That presentment was under seal pursuant to court order and Florida Statue 905.28, that specifically seals any presentment, without indictment, to permit an individual to seek expungment or repression where there is a challenge of the lawfulness or propriety of the actions of the grand jury and/or the state attorney advising them. This statue is a legislative acknowledgment of the lack of due process afforded one who has not been indicted but is the subject of a presentment. There is no opportunity to vindicate oneself at trial and to assert all the rights involved therein: the right to confront one’s accusers, the right to cross examine witnesses, the right to call witnesses, and the right to be represented by counsel. “It is possible, then, that the testimony and information presented to a grand jury, on which they must rely and report, is potentially one-sided and inaccurate. Mako at 520
Even if John Tanner and his attorneys filed no further papers in this action, the appellate court could proceed to decide the matter pending before them. Only the Attorney General and State Attorney Shorstein can end this matter immediately by dismissing their appeal, unless one expects John Tanner to petition the lower court to unseal the record.
No matter how one examines the facts in this case, it appears clear to me after reading Executive Orders 06-148 and 06-149, that it was never intended by the Governor that the State Attorney’s Office be subjected to an investigation.
The only powers Shorstein had were the same powers John Tanner had prior to his recusal. Obviously, the Governor never intended for John Tanner to investigate himself.
In a way of further comment, may I say I am certainly disappointed and concerned about the actions and inactions of several public officials involved in this case.
First: I am surprised State Attorney Shorstein did not recuse himself when the allegations of bias against him surfaced. John Tanner did recuse himself when it was suggested he was biased.
Second: I am disappointed in Jeb Bush, the Governor of the State of Florida at the time the first order was issued, for not responding to State Attorney Shorestein’s letter of September 11, 2006, when Shorstein asked him to clarify his assignment. He specifically asked the Governor “Does your order authorize me to inquire into motives, methods and manner of the original investigation conducted by Mr. Tanner’s office?” Judge Hammond, in his order of March 12, 2007, commented about the letter received from the governor as follows:
The Governor did not respond affirmatively, he did not issue an amended order. The letter in response maintained the status quo, the only addition being the inclusion of “code of conduct” language tagged on after “facts and law.” Certainly a letter does not have legal consequences; it is not an Executive Order. “Code of Conduct” issues are entirely different than investigation of potential criminal conduct and have specific procedures for their investigation.
Third: I am disappointed in Attorney General Bill McCollum and State Attorney Shorstein for not dismissing the appeal based on what appeared to be the facts of this case.
In any event, I am not disappointed or surprised that John Tanner will not release the presentment. If the presentment has any negative suggestions concerning his conduct, John Tanner would have very little hope of adequately contradicting any of the allegations in the presentment without an opportunity to examine the Grand Jury transcript, if it exists, and without any opportunity to cross examine the witnesses.
Therein a dilemma is created, because Grand Jury proceedings are secret and resemble a Star Chamber Proceeding more than any other judicial proceeding contemplated or utilized in our judicial system.
Ironically, it would be much easier for John Tanner to attack any accusations that may or may not exist in the presentment if it were, in fact, attached to an indictment, and he were required to defend himself in trial. At least in that instance, by case law, he would have an opportunity to request the court to examine the Grand Jury proceedings to determine if there were statements made at the Grand Jury proceedings that were contradicted by witnesses at trial.
If Florida Statute 905.28 did not exist, the press could be used as an unwitting and hopefully unwilling accomplice to the destruction of someone’s reputation by an unscrupulous, Machiavellian, or even well-meaning prosecutor.
I would like to say I do not pretend to be an expert in these matters. I do not represent John Tanner, nor have I been privy to any of the pleadings that have been sealed. I have, however, practiced law in Volusia County since 1967, except for four years that I was in the U.S. House of Representatives (from 1989-1993).
I can only hope this letter presents a competent and compelling argument that might cause one to reconsider the criticism of John Tanner for not demanding the release of the presentment. I think he is correct in his decision and he would be foolish to act otherwise. His request for the release of the presentment would set an unfortunate precedent that might survive to haunt us all.
— Sincerely, Craig T. James
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