INQUIRY CONCERNING A JUDGE. IN RE JOHN H. SHEARER, JR.
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The Florida Supreme Court dismissed disciplinary proceedings against Judge John H. Shearer, who was charged with conduct unbecoming a judge for asserting his Fifth Amendment right against self-incrimination during a police interrogation about a vehicle involved in a hit-and-run accident. The court held that a judge's valid assertion of Fifth Amendment protections cannot constitute the basis for judicial discipline.
No. A judge's valid assertion of Fifth Amendment protections cannot support a finding of conduct unbecoming a judge, as the Fifth Amendment protections extend to members of the legal profession, and the case does not involve questions specifically, directly, and narrowly relating to the performance of official duties.
[1] A judge's assertion of Fifth Amendment rights against self-incrimination, even when questioned by police regarding an accident, does not constitute conduct unbecoming a m…
[2] The protections of the Fifth Amendment's self-incrimination clause extend to members of the legal profession.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The conduct for which the judge was found guilty of conduct unbecoming a member of the judiciary arose out of his valid assertion of fifth amendment rights.”
Establishes the core holding that conduct cannot be found unbecoming when it involves valid Fifth Amendment assertions.
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Join FLexlaw to unlock all legal intelligenceJudge Shearer's truck was involved in a property damage accident and driven from the scene. Police later located and identified the vehicle as belongi…
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PER CURIAM.
The Judicial Qualifications Commission has recommended that we impose a public reprimand upon Judge John H. Shearer. The recommendation stems from a charge that the judge was guilty of conduct unbecoming a member of the judiciary when he was interrogated by a police officer during an investigation of an accident causing property damage. The truck involved in the accident was driven from the scene before the police arrived, but was later located and identified as belonging to the judge. When questioned, the judge admitted ownership of the vehicle and supplied all information requested except the identity of the vehicle’s driver. Rather than identify the driver, Judge Shearer asserted his fifth amendment rights.
During the interrogation the judge made several comments, the intent of which is in dispute. The gist of his comments was that he is a judge between 8:00 a. m. and 5:00 p. m., and a private citizen during the remaining hours. Also, he told the police officer that if the police had sufficient evidence against him, he should be arrested. The officer stated that Shearer added, “If not, leave me alone.” Shearer disputes this.
The focus of the findings and conclusions of the Judicial Qualifications Commission is that Shearer’s comments reflected a failure to appreciate that his judicial responsibilities are not limited to office hours. Shearer replies that he merely intended to urge the policeman to treat him as any other citizen and not to give him special treatment because he is a judge.
The circumstances described by the Judicial Qualifications Commission are legally insufficient to warrant a public reprimand. The conduct for which the judge was found guilty of conduct unbecoming a member of the judiciary arose out of his valid assertion of fifth amendment rights. The case is thus governed by Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), which holds that the protections of the self-incrimination clause of the fifth amendment extend to members of the legal profession. This is not a case in which a public official refuses to answer questions “specifically, directly, and narrowly relating to the performance of his officiaT duties as distinguished from his beliefs or other matters that are not within the scope of the specific duties which he undertook faithfully to perform as part of his employment by the State.” Id. at 519, 87 S.Ct. at 630 (Fortas, J., concurring).
[*MLI] Accordingly, these proceedings are hereby dismissed.
It is so ordered.
ENGLAND, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur. OVERTON and ALDERMAN, JJ., dissent.
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State v. Spiegel, 710 So. 2d 13 (Fla. 3d DCA 1998)…in his suppression order, an attorney has “a right to take refuge under the Fifth Amendment if his answer would tend to incriminate him.” Sheiner v. State, 82 So. 2d 657, 661 (Fla.1955). See DeBock v. State, 512 So. 2d 164 (Fla.1987); In re Shearer, 377 So. 2d 970 (Fla.1979). The right to assert the privilege must be specifically invoked and may be waived in a particular proceeding by testimony without objection. See Black v. State Bar of California, 7 Cal.3d 676, 103 Cal.Rptr. 288, 499 P. 2d 968 (1972); Sta…
Authorities Cited
- Spevack v. Klein, 385 U.S. 511 (U.S. 1967)