My client was facing a life sentence for burglary with an assault and armed robbery. She had been a prostitute most of her life, and had been labeled a “Habitual Violent Offender” by the prosecutors, based on her extensive criminal record. The charges stemmed from an incident in which she and a friend allegedly entered the house of one of her clients and held a machete to his throat while the friend took his wallet. She could get life.
I was both excited and a little nervous about taking this one to trial because we would be before the infamous Judge Ellen “Maximum” Morphonios, known for her penchant for dishing out thousand-year sentences. She had been profiled by both “60 Minutes” and People magazine and had sometimes exhibited bizarre behavior. After sentencing a rapist to a life sentence, she reportedly stood up and lifted up her robe, revealing her rather shapely legs, and remarked, “That’s the last time in your life that you’re going to see a pair of legs like this.” Another story involved a defendant’s mother, who cried so hard that she passed out on the floor. Morphonios continued the court’s business, announcing “Next defendant. Step forward. Step over the body.”
It was evident at the outset of our trial that the judge had taken a liking to the victim, who was in his late 90s. Testifying through a Spanish interpreter, the victim revealed that he had been paying for the sexual services of my client three times a week for several years. They had engaged, he said, in both oral and regular sex.
Judge Morphonios appeared both astonished and envious. Her eyes popping in disbelief, she interrupted the prosecutor’s questioning and, in her booming southern accent, asked the victim, “Sir, what do you eat for breakfast?”
“Cuban toast,” he answered.
“Well then, I got to get me some Cuban toast,” she said.
Then the victim testified that his last encounter with my client was very different. After he opened the door to his Miami home, the defendant and her female friend forcibly pushed their way inside, he said. According to him, my client then grabbed the victim’s machete and held it to his neck while the co-defendant removed the victim’s wallet, which contained only a few dollars.
During the victim’s testimony, the veteran prosecutor ran into a problem. When she asked the elderly victim how he felt with a machete at his throat the victim said something that sounded like “Ee-mah-hee-neh,” which was translated as “Imagine.” Realizing that his response would be insufficient to establish on the record that he was in fear, she persisted. “Sir, were you scared when the defendant held the machete at your throat?,” she asked. More passionately the victim repeated “Ee-mah-hee-neh,” again translated as “imagine”. Despite my strenuous objections the judge allowed the prosecutor to continue trying to lead the witness into saying he was scared.
Finally the impatient judge intervened. “Let me give this a try,” she told the prosecutor. I began to feel like I was playing a game of tag-team prosecution. The judge turned to the victim and said, “Sir, you must have been petrified when she put the machete to your throat.” I vehemently objected. The only person in the room that the jurors trusted was now assuming the role of prosecutor.
The judge persisted, “Sir, when she put that machete to your throat, you must have had the fear of God in you.” All she could elicit was an increasingly vehement “Ee-mah-hee-neh.” That’s when the judge gave up on the witness and turned to the jury: “I’m making a finding that any reasonable person, upon having a machete at their throat, would be afraid.” It was the most egregious breach of judicial conduct I have ever witnessed. But I also knew it had laid the groundwork for an appeal if the jurors found my client guilty.
Sure enough, the Third District Court of Appeal threw out my client’s conviction and remanded the case for retrial. “The judge’s comments unduly prejudiced the jury against the defendant,” the appellate court said.
By then the case was getting weaker as the victim became older, sicker and less mentally coherent. As a result, the prosecutor offered my client a plea bargain of six years in prison, with full credit for the time that she had already served. Two years later she was out, courtesy of the eccentric judge.
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