Smith Hearing

1
1 IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT, IN AND
2 FOR MIAMI-DADE COUNTY, FLORIDA
3 CASE NO: F08003920
4 JUDGE: BUTCHKO
5 STATE OF FLORIDA,
6 Plaintiff,
7 vs.
8 GATSON EVERETT SMITH,
9 Defendant.
10 _____________________/
11
12 EXCERPT
13 December 4, 2009
14
15 The above-styled cause came on for hearing before
16 the HONORABLE BEATRICE BUTCHKO, one of the Judges in
17 the Circuit Court of the 11th Judicial Circuit, at the
18 Richard E. Gerstein Justice Building, 1351 N.W. 12th
19 Street, Miami, Florida on Friday, December 4, 2009,
20 commencing at or about 1:30 p.m. and the following
21 proceedings were had:
22
23 Reported by: Amber N. Gabel
24
25
OFFICIAL REPORTING SERVICE, LLC (954) 467-8204

2
1 APPEARANCES:
2 OFFICE OF THE STATE ATTORNEY, by,

RICHARD SCRUGGS, ASA
3 On behalf of the Plaintiff

PENNY BRILL, ASA

FLEUR LOBREE, ASA
8 OFFICE OF THE STATE ATTORNEY, by

JOSE ARROJO, ASA
10 LEWIS TEIN, PL, by

MICHAEL TEIN, ESQUIRE
11 On behalf of the Defendant
12 LEWIS TEIN, PL, by

KATHRYN A. MEYERS, ESQUIRE
14 LAW OFFICE OF LARRY HANDFIELD, by,

LARRY HANDFIELD, ESQUIRE
_ _ _ _ _
16
17 INDEX
18 DEFENSE WITNESS Page
19 RICHARD SCRUGGS
Direct Examination by Mr. Tein ................. --
20 Cross-Examination by Ms. Lobree ................ --
Redirect Examination by Mr. Tein ............... --
21
22 COURT'S RULING ................................
23
24
25

3
1 MR. TEIN: May it please the Court.
2 THE COURT: Yes, redirect.
3 REDIRECT EXAMINATION
4 BY MR. TEIN:
5 Q Mr. Scruggs, are you the senior public
6 corruption prosecutor in this office -- the state's
7 attorney office?
8 A No.
9 Q Who's senior to you?
10 A I mean, explain what you mean, and I'll see
11 what I can do to help you.
12 Q You just told me no.
13 Who is senior to you, if you're not the
14 senior public --
15 THE COURT: Senior by age --
16 THE WITNESS: Yeah, senior by age,
17 experience --
18 THE COURT: He said he doesn't have any
19 supervisors. Senior by chain of command, maybe?
20 Is there anyone senior to you, like, by chain
21 of command in public corruption?
22 THE WITNESS: No, but Mr. Centerino is far
23 senior to me in the office.
24 THE COURT: Senior in terms of longevity in
25 the office?

4
1 THE WITNESS: Yeah, he's been there --
2 THE COURT: Does that have any significance
3 other than a bigger state pension?
4 THE WITNESS: I'm trying to answer the
5 questions the best I can. I don't know. I don't
6 know.
7 THE COURT: Mr. Tein, ask your question maybe
8 in a different way.
9 MR.TEIN: It's okay.
10 BY MR. TEIN:
11 Q You were formally chief of the public
12 corruption unit at the US State Attorney's Office,
13 right?
14 A Yes.
15 Q Are you aware of the power of your words and
16 your disclosures as the senior public corruption
17 prosecutor in the state attorney's office, where just
18 the disclosure of the existence of an investigation or
19 of a subpoena or of your opinion, like the one you
20 rendered a few minutes ago, that someone committed a
21 crime, are you aware of the power and the affect that
22 you and your words have, Mr. Scruggs?
23 A Not particularly, you want to tell me?
24 THE COURT: You know, that's a very
25 legitimate question, you're going to go with that

5
1 flippen answer.
2 THE COURT: No, I mean -- I understand
3 that -- there's a couple ways to look at that, that's
4 why I said I'm not sure about answer.
5 THE COURT: You know, he couldn't have made
6 it more clear.
7 THE WITNESS: I think any prosecutor is a
8 powerful person. I think any defense lawyer,
9 certainly if they are respected in the community, is a
10 powerful person in terms of their word be taken. I
11 think that perhaps that because of my long standing
12 experience in the community, that perhaps my words are
13 listened to, whether they're taken seriously, I don't
14 know. How powerful they are, I don't know, but I do
15 think people probably listen. That's really the best
16 answer I can give you.
17 BY MR. TEIN:
18 Q Is there any word ever, in any pleadings,
19 that Pastor Smith's lawyers filed in this case, that
20 accuses you, in the words that you used, of suborning
21 perjury?
22 A Yeah.
23 Q Did we use the words suborn perjury, yes or
24 no?
25 A No.

6
1 Q What we said -- what we said was very clear,
2 that you instructed pastor -- we're going to play the
3 tape right now.
4 A Fine, whatever.
5 Q Mr. Scruggs, we said that you instructed him
6 how you wanted him to testify; isn't that the case?
7 A No.
8 Q Isn't it true, Mr. Scruggs, that you are
9 belittling the charge by suggesting that it's absurd
10 in saying we accused you of suborning perjury?
11 A It's absurd that you are accusing me of
12 suborning perjury, and you have, and also -- let me
13 finish, and also you have --
14 MS. LOBREE: Objection.
15 THE WITNESS: -- you have accused me of
16 improper prosecution with improper motives, and if you
17 believe that you should call the police --
18 THE COURT: Sustained.
19 THE WITNESS: -- and you should call the FBI.
20 BY MR. TEIN:
21 Q Mr. Scruggs, you are the police. Detective
22 Garcia is the police. I have nowhere else to go
23 except for this courtroom based on what you did.
24 MS. LOBREE: Objection, counsel is arguing
25 with the witness.

7
1 THE COURT: Sustained.
2 BY MR. TEIN:
3 Q Mr. Scruggs, you attempted in your speeches,
4 when you were asked by your colleges from the state
5 attorney's office to belittle this motion as something
6 motivate by personal aminosis as opposed to the fact
7 that it comes from Pastor Smith suggesting that it
8 comes from dispute that you and I had a decade ago,
9 that I don't remember, and that you know bring up.
10 Is that what you think is motivating this, or
11 is this a well taken accusation of a serious issue of
12 prosecutorial misconduct, which you for the first time
13 admitted in your brief that you had, in fact, did
14 something improper at least as concerning leaks to the
15 media?
16 A The short answer that is no, I don't believe
17 -- I'm particular focusing on the subordination of
18 perjury. I don't believe Pastor Smith believes that
19 for a second, because he was there. He knows, and you
20 know something, I don't believe Ms. Meyers believes
21 that either. I think that it came from you.
22 Q Mr. Scruggs, we all believe it. We all
23 believe it, Mr. Scruggs.
24 MS. LOBREE: Objection, counsel's testifying.
25 THE WITNESS: Then i guess I am belittling

8
1 it.
2 MR. TEIN: Let me finish.
3 THE COURT: Okay. No ask a question.
4 BY MR. TEIN:
5 Q MR. Scruggs, isn't it irrelevant what you
6 believe Pastor Smith thinks about whether you tried to
7 direct his testimony in a particular way unless you
8 understand the power of your words and the power of
9 your ability to make a decision whether to prosecute
10 him for something or use him simply as a witness?
11 Do you understand that your decisions affect
12 a persons life for the rest of their life and their
13 family, do you understand that, sir?
14 A Of course I do. Wait a second. Let me
15 answer the question. Stop your speech. I'm painfully
16 aware of that from day one. I've been doing it for 30
17 years, and you bet I'm aware of that.
18 Q Then why do you bandy about accusations like
19 the one that you made a few moments ago suggesting
20 that because we used ellipsis, that I committed a
21 crime, how could you say something so harmful and
22 reckless given your position, sir?
23 A You feel comfortable with that question in
24 what you filed last night?
25 Q I asked you the question, sir. You're the

9
1 witness?
2 A The answer is given what you filed last
3 night, and the scurrilous, false accusations in here,
4 and the misrepresentations and the doctoring of the
5 transcript, I feel very comfortable saying that with
6 whatever power I've got. I want you to understand
7 that. I do.
8 Q Do you think that what you've just said on
9 the record in this courtroom might intimidate a
10 defense lawyer from bringing charge like this?
11 A I can only hope it would intimidate you and
12 anyone else form bringing false accusations, yes, that
13 is my intentions. Stop making false accusations.
14 That's not what our profession is about, that's not
15 what we're here for. We who labor here seek the
16 truth, and that's what I suggest you do from here on
17 out.
18 MR. TEIN: Nothing further, your Honor.
19 * * * * * * * * * * * * * *
20 MR. TEIN: Your Honor, I also just wanted to
21 make sure that the Court had a copy of the William's
22 case which has the standard.
23 THE COURT: I do, and I read it. It's here.
24 I really don't need to hear argument, so I'm
25 going to rule. On the motion to dismiss criminal

10
1 charges, I'm going to deny the motion to dismiss, but
2 I have a lot to say. Relying on the supreme court of
3 Florida case, State of Florida versus Leon Williams,
4 623sd.462. There is really quite elegant description
5 of due processed in this case, and it is a definition
6 that I think should be on the forefront of every
7 prosecutor's mind when they are prosecuting cases, and
8 that is due process is a general principle of law that
9 prohibits the government from obtaining convictions
10 brought about by methods that offend a sense of
11 justice. That's beautiful.
12 If we operate under those guidelines, we
13 wouldn't be here until 9:05 on a Friday afternoon on
14 the eve of trial. There's several events that took
15 place during the course of the precharging
16 investigation that really could have been handled in a
17 much more professional manner by the State, and
18 certainly by law enforcement, and -- I don't know if
19 they police want to be in here, are they still out
20 there?
21 THE BAILIFF: Yes.
22 THE COURT: I started my ruling, but I wanted
23 you both to hear, and I'll just read this again. This
24 is from the Williams case, and talks about due
25 process, and it talks about due process is general

11
1 principle of law that prohibits the government from
2 obtaining convictions brought about by methods that
3 offend the sense of justice, and I think that law
4 enforcement and prosecutors really need to have this
5 in mind, because of the power that you have at your
6 disposal.
7 Let's talk about the tape recordings. It is
8 my ruling and finding based upon the facts in this
9 case and the actions hear, that the tape recordings of
10 both interviews by Detective Garcia were unlawful.
11 They were unilateral tapings of an attorney, the
12 attorney's client, the prosecutor, during a quote
13 unquote "witness interview," after the parties were
14 specifically given the impression that there would not
15 be a contemporaneous memorialization of the meeting.
16 I don't care if you want to call it steno statement,
17 recorded statement, you know, it reminded me of Bill
18 Clinton, I didn't have sexual relationships, type of a
19 statement. If the defense is told there will be no
20 court reporter, in their mind there's no instrument
21 that is recording the interview.
22 The second interview a similar statement was
23 made. During the course of the interview when the
24 client said, "For the record," and Ms. Meyers said,
25 "There's no record here," no one, including the

12
1 detective, piped up to say, "By the way, I am
2 recording this for purposes of preparing my report
3 later," or whatever. That is inexcusable. It cannot
4 happen ever. So those tapes are gone. I know the
5 State concedes that they were the product of an
6 immunized meeting because the witness was under
7 subpoena, but just so that we're clear, in the trial
8 they won't be used for impeachment. They won't be
9 used for anything. They can't even be brought up.
10 Now, the tape recordings are even more
11 problematic, because, Mr. Scruggs, with all due
12 respect to you and your career as law enforcement and
13 your service to the government and to the State of
14 Florida, the way that you handled this disclosure was
15 very unprofessional. Your lack of documentation as to
16 the date that those tapes were disclosed to you, was
17 unacceptable. The minute the investigator reported to
18 you what had happened, you needed to do a memo to the
19 file. I know that's the training of the state
20 attorney, because I worked there. We were trained to
21 memo the file on all kind of issues. You didn't do
22 that, and you're much to experienced for that.
23 Then you had a lack of documentation to your
24 disclosure to the defense. As soon as you found out
25 about this, not only did you need to call them, you

13
1 needed to draft a letter explaining exactly what
2 happened and the purpose of the tape and the meaning
3 of it, to avoid an appearance impropriety. To avoid
4 any accusations against you on the merits of the
5 prosecution. That didn't happen. The other thing
6 that I think that you didn't do, is you didn't
7 confront Detective Garcia. I think you were so
8 outraged by the fact that this happened, that you let
9 Fielder do it, and that was a mistake, because you
10 needed to sit Garcia down, Detective Garcia, and you
11 needed to ask him, how, why, were, how many, and then
12 at that point, you would have found out that there
13 were two tapes, much more professional disclosure
14 would have been made to the defense, then the way you
15 found out, and even the state attorney was kept in the
16 dark. I mean, just poor -- poorly done.
17 I don't think that you knew that those
18 recordings were being made secretly. It defies logic.
19 It's not likely that you knew that. I don't think
20 that you authorized that those tapes be made for
21 Castigar (phonetic) purposes, because if you had
22 authorized that, then you knew that if you charged the
23 pastor, those tapes would be disclosed, because there
24 would be a Castigar hearing, and then you would have
25 to explain why you authorized the secret recording,

14
1 which have never been in the history of the state
2 attorney's office. I think that, more than likely,
3 you were fast and loose with your lips, like you were
4 in court here several times today. I think that after
5 it came up on the January 23, 2008, at the meeting of
6 the state attorney, and I think that December 19,
7 2007, when you first disclosed your intent to possibly
8 charge -- in November there was an intention disclosed
9 of that maybe the pastor would be charged, when
10 Ms. Meyers confronted you with a phone call about
11 that, December 19th, and she was asking about, "How
12 could this be? My client talked under subpoena. He's
13 immunized," I think you probably loosely said, "We got
14 it on tape for Castigar purposes." I think that makes
15 more sense. I can't imagine after 40 years -- or 38
16 years that you would now engage in a secret taping of
17 lawyers, so that's how I think those Castigar comments
18 came about.
19 The other think is the way that the arrests
20 took place in the case, give the defense a reason
21 pause, and, again, leave them with this taste in their
22 mouth and this feeling of impropriety. There was
23 negotiations between the state attorney, the state
24 attorney, defense counsel, and prosecuting attorneys
25 with settling the case, maybe not filing the case.

15
1 This was a public corruption case that was handled
2 proactively hand-and-hand with the State and law
3 enforcement. It is clear that law enforcement has the
4 absolute right upon probable cause to make the arrest,
5 whatever arrest they feel warranted, but it does not
6 fair well with the defense, when they are having
7 communications that leave rise to a possible delay, a
8 chance to further negotiate, or at least a surrender
9 of the client, that without advanced warning, the
10 client is arrested on the streets, when it's common
11 knowledge in white collar cases that these clients
12 surrender, so that, not professional, lawful, yes, not
13 professional, and you're dealing with a white collar
14 offense.
15 I have heard no evidence of flight risk, of
16 danger to the community in terms of violence, and a
17 man who is a pastor, who's respected by a lot of
18 people in the community, maybe not the police in this
19 case, not well done, and then he has to sit in the
20 police car for a few hours because he wants to give
21 keys to his wife, I think that could have been done in
22 a more elegant fashion as well.
23 The issues of suborning perjury, I don't see
24 that that was proven by the defense. Clearly the
25 interview, that I heard and what I read, suggests,

16
1 Mr. Scruggs, that you were doing most of the talking
2 and that you were outlining what you believed that the
3 evidence showed to client, but the pastor was either
4 agreeing or acknowledging uh-huh, as in I follow what
5 you're saying. I follow what you're saying. He was
6 represented by competent counsel. They were free to
7 leave, they didn't leave, and so, you know, it's a
8 tactic that law enforcement uses in an interview. I
9 don't think you were abusive from what I heard. You
10 didn't slam your hands down. You didn't yell, so I
11 don't think you were suborning perjury. I think you
12 were presenting your theory of the case to the
13 defendant, who was a witness at the time.
14 So that is my ruling. Once, again, denying
15 your motion to dismiss, but I'm very disappointed that
16 a case like this, where there's media tension, the
17 public is going to be, you know, called, your
18 attention is -- oh, I forgot the media. Speaking of
19 the media, very bad, Mr. Scruggs. I couldn't believe
20 you testified in court that you intentionally tried to
21 get around complying with a lawful public records
22 request, because you don't like the practice. You
23 can't do that. The constitution, the first amendment,
24 the media -- in order for them to get the information
25 that they need to write stories to inform the public,

17
1 they do that public records request, so whether you
2 like it or not, you got to give them what they ask
3 for. You had it in the form of a CD, and you didn't
4 turn over that CD to the media. You made them sift
5 through the files to get the information they wanted,
6 and you testified that you had this face-to-face
7 meeting with the reporter to avoid, you know, a full
8 disclosure of your boxes, and you directed him as to,
9 I believe what you thought was relevant. You wanted
10 them in and out of there as quickly as possible, is my
11 opinion.
12 I thought it was -- and I think you know
13 that. Very improper of you to speak to the reporter
14 about matters that are outside the scope of the
15 prosecution. I don't know if you really said that
16 these things were off the record and that this
17 reporter violated your trust, or that you said so much
18 that he didn't know whether what part was on the
19 record or what part was off the record, but I don't
20 believe that a prosecutor can have an off the record
21 discussion with a reporter without the intent that
22 that information get out, because if you don't want
23 the information to get out, you don't say anything at
24 all. If you want the information to get out, but you
25 don't it attributed to you, you say off the record

18
1 hoping the reporter will then go elsewhere to get it,
2 and so that's not what you did, you know that. But in
3 the totally, I don't think that it gives full rise to
4 a due process violation to the extent that warrants a
5 dismissal of the case.
6 I hope that over the weekend the parties can
7 still have a chance to talk and see if they can
8 resolve this case. I intend to pick a jury on Monday.
9 I don't have big calendar, so I will not entertain a
10 motion to continue this case on Monday. I would like
11 to thank all of the lawyers today for your
12 professionalism, your level of preparation. I do
13 enjoy both styles of litigation. It is going to be
14 entertaining for me, and I want to thank everybody
15 else who's here. It's really late, and so try to have
16 a good weekend. We're in recess.
17 MR. SCRUGGS: Until what time, Judge?
18 THE COURT: Let's everybody plan on being
19 here at 10:00.
20 MR. SCRUGGS: This courtroom, right?
21 THE COURT: Yeah, right here. I didn't book
22 the big one. I like my courtroom. I feel comfortable
23 here, so hopefully we can accommodate --
24 MS. BRILL: Despite the witness stand?
25 THE COURT: Pardon?

19
1 MS. BRILL: I said despite the witness stand?
2 THE COURT: I know the witness stand, but
3 it's -- I feel comfortable here. It seats a lot of
4 people, and we'll try to accommodate as many of the
5 people that want to come. We fit a lot of people in
6 here. Thank you, everyone.
7 MS. TEIN: Thank you, your Honor.
8 (Whereupon, the hearing was concluded.)
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2 CERTIFICATE
3 STATE OF FLORIDA:
COUNTY OF MIAMI-DADE:
4
5 I, Amber N. Gabel, Shorthand Reporter and
6 Notary Public for the State of Florida at large, do
7 hereby certify that the foregoing proceedings were
8 taken before me at the date and place as stated in
9 the caption hereto on Page 1; that the foregoing
10 computer aided transcription is a true record of my
11 stenographic notes taken at said proceedings.
12
13 WITNESS my hand this 5th day of December, 2009.
14
15 ___________________________
Amber N. Gabel
16 Court Reporter and Notary Public
in and for the State of Florida
17 Commission Number DD721399
Expires: October 2, 2011
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Smith Hearing

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Smith Hearing

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1

1 IN THE CIRCUIT COURT OF THE

3 CASE NO: F08003920

8 GATSON EVERETT SMITH,

15 The above-styled cause came on for hearing before

16 the HONORABLE BEATRICE BUTCHKO, one of the Judges in

17 the Circuit Court of the 11th Judicial Circuit, at the

18 Richard E. Gerstein Justice Building, 1351 N.W. 12th

19 Street, Miami, Florida on Friday, December 4, 2009,

20 commencing at or about 1:30 p.m. and the following

21 proceedings were had:

23 Reported by: Amber N. Gabel

OFFICIAL REPORTING SERVICE, LLC (954) 467-8204

2 OFFICE OF THE STATE ATTORNEY, by,

4 OFFICE OF THE STATE ATTORNEY, by,

6 OFFICE OF THE STATE ATTORNEY, by,

8 OFFICE OF THE STATE ATTORNEY, by

10 LEWIS TEIN, PL, by

12 LEWIS TEIN, PL, by

14 LAW OFFICE OF LARRY HANDFIELD, by,

18 DEFENSE WITNESS Page

22 COURT'S RULING ................................

OFFICIAL REPORTING SERVICE, LLC (954) 467-8204

1 MR. TEIN: May it please the Court.

2 THE COURT: Yes, redirect.

5 Q Mr. Scruggs, are you the senior public

6 corruption prosecutor in this office -- the state's

9 Q Who's senior to you?

10 A I mean, explain what you mean, and I'll see

11 what I can do to help you.

12 Q You just told me no.

13 Who is senior to you, if you're not the

15 THE COURT: Senior by age --

16 THE WITNESS: Yeah, senior by age,

18 THE COURT: He said he doesn't have any

19 supervisors. Senior by chain of command, maybe?

20 Is there anyone senior to you, like, by chain

21 of command in public corruption?

22 THE WITNESS: No, but Mr. Centerino is far

23 senior to me in the office.

24 THE COURT: Senior in terms of longevity in

OFFICIAL REPORTING SERVICE, LLC (954) 467-8204

1 THE WITNESS: Yeah, he's been there --

2 THE COURT: Does that have any significance

3 other than a bigger state pension?

4 THE WITNESS: I'm trying to answer the

5 questions the best I can. I don't know. I don't

7 THE COURT: Mr. Tein, ask your question maybe

9 MR.TEIN: It's okay.

11 Q You were formally chief of the public

12 corruption unit at the US State Attorney's Office,

15 Q Are you aware of the power of your words and

16 your disclosures as the senior public corruption

17 prosecutor in the state attorney's office, where just

18 the disclosure of the existence of an investigation or

19 of a subpoena or of your opinion, like the one you

20 rendered a few minutes ago, that someone committed a

22 you and your words have, Mr. Scruggs?

23 A Not particularly, you want to tell me?

24 THE COURT: You know, that's a very

25 legitimate question, you're going to go with that

OFFICIAL REPORTING SERVICE, LLC (954) 467-8204

2 THE COURT: No, I mean -- I understand