Florida Court Urges Discipline of Trash-Talking Prosecutor

By Carol Marbin Miller 
Florida Daily Business Reviews
Thursday, February 25, 1999

Broward prosecutor Alberto Milian has called defense attorneys "maggots," and referred to a jury as "buffoons," "morons," and "lobotomized zombies."

He once told a circuit court judge he didn't believe in the jury system.

Now, an appellate court has leveled some harsh words back at Milian. For the fifth time in as many years, judges with Florida's 4th District Court of Appeal have tossed out a conviction based upon Milian's "prosecutorial excess."

And this time, the appeals court has not stopped at merely rebuking the assistant state attorney. They have asked the Florida Bar to discipline him.

Last week, a three-judge panel of the appeals court threw out the arson conviction of Johnny C. Barnes and ordered a new trial, ruling that "highly improper" comments during Milian's closing argument prejudiced the jury during its deliberations. Barnes became the fifth person whose conviction was overturned by the appeals court based upon Milian's misconduct.

'Maggots, buffoons, morons' and 'lobotomized zombies,' are just some names hurled at defense lawyers by Broward prosecutor Alberto Milian. 

"It is evident from these cases that [Milian] has persisted in this improper conduct for more than five years in spite of repeated disapproval of it by our court," the panel wrote. "Apparently, this prosecutor has not learned from our previous comments that his improprieties have brought repeated discredit to the office of the State Attorney -- by his failure to comply with the canons of advocacy."

"With the fifth rebuke of prosecutor Milian by this court, we hope that the disciplinary organs of the Florida Bar will finally bring their compelling powers to bear on this lawyer who either refuses or is unable to limit his trial tactics to that which are ethical and proper," stated the opinion, written by Judge Gary M. Farmer. Judges Bobby W. Gunther and Carole Y. Taylor concurred.

Milian could not be reached for comment, and State Attorney Michael Satz did not wish to discuss the opinion.

"I really can't make any comments to the public on this, because it's still a pending matter," said Ralph Ray, Satz's chief assistant. "I don't think it's appropriate at this time to comment."

Milian is a member of the Florida Bar in good standing, said Charmaine Codrington, a Bar spokeswoman. The Bar investigated two complaints against Milian in July 1998, but the allegations in both cases were dismissed. Codrington said any investigation spurred by the appeals court would still be confidential.

Prosecutorial misconduct has been a serious concern to the judiciary in recent months.

Last month, the 3rd District Court of Appeal in Miami rebuked a former Miami-Dade prosecutor for misconduct in a ruling that reversed a murder conviction. The case marked the fourth time -- the third in one year -- that prosecutor Harvey Hyman had earned the wrath of the appeals court. Hyman is now an assistant public defender in Tampa.

In November, when the 3rd District reversed another conviction based upon Hyman's "improprieties," Chief Judge Alan Schwartz lamented "what is often euphemistically called 'overzealous advocacy,' but what is really just unprofessional and unethical behavior."

In the Barnes case, Milian was rebuked for disparaging one of Barnes' lawyers, calling him "a hired gun."

It was not the first time Milian got in hot water with the appeals court for insulting defense counsel.

In 1993, the appeals court reversed a conviction for aggravated assault on a police officer because, among other things, Milian said defense attorneys had "conjured up" the testimony of a favorable witness. He also suggested to jurors there was additional incriminating evidence which they had not been allowed to hear.

The appeals court was most offended however, by Milian's calling defense attorneys "maggots" and "poor excuses for human beings."

Milian has not reserved his harshest remarks for defense attorneys, either. In 1993, he raged against jurors who found a defendant guilty only of lesser-included misdemeanors, rather than the felonies with which he had been charged. After the jury had left, he said in court that the panel had been "made up of buffoons" and "morons" and "lobotomized zombies," who were "eating pizza or salads instead of deliberating."

"Mr. Milian said that this jury was 'a classic reason I don't believe in the jury system'," the appeals court wrote.

Patrick C. Rastatter, a Fort Lauderdale defense attorney who successfully appealed the Barnes case, as well as another case prosecuted by Milian, said he hoped Milian's actions don't reflect badly on the rest of Satz's office.

"There are many skilled prosecutors who don't engage in that behavior and still obtain convictions," he said.

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