N E XT CASE ON TODAY 'S CALENDAR I S IN QUIRY CONCERNING A JUDGE , R AY JAMES HENSON. IN RE JAMES HENSON.

GOOD MORNING. MAY IT PLEA SE THE COURT , COUNSEL, JUDGE HEN SON , SPECTATORS. I REPRESENT JUDGE JAMES HENSON, A CIRCUIT JUDGE IN ORANGE COUNTY. JQC HAS FI LED A COMPLAINT IN 2003, REGA RDING SE VERAL ALLEGATIONS OF MISC ONDUCT , MOSTLY WHILE JUDGE HENSON WAS A PRIVATE LAWYER BUT ONE WHILE HE WAS A COUNTY JUDGE. THE FI RST COUNT INVOLVED PRACTICING LAW BE FORE HE FORMALLY GOT OFF THE BE NC H AS A COUNTY JUDGE.

THERE IS NO DOUBT THAT THAT OCCURRED.

NO, SIR. THAT IS ADMITTED FROM THE VERY BEG INNING , IN A 6-B HEARING, IN THE STIPULATION AND AT THE HEARING. THERE IS NO DOUB T THAT THAT OCCURRED. I WILL HAVE SOMETHING TO SAYABOUT THAT A LITTLE LATER.

CHIEF JUSTICE: I DO HAVE A QUESTION. IT WAS NOT SPECIFICALLY DIS CUSSED, BUT HOW JUDGE HENSON ACT UALLY RECEIVED THE JIMENEZ CASE. THERE IS ME NTION THAT HE, THE CLIE NT WAS IMP RESSED A BOUT HIS STATUS AS A JUDGE , AND THAT THE CONT ACT MAY H AVE COME THR OUGH A BAIL BONDSMAN. WAS THAT DEVELOPED IN THERECORD? YOU DO AGREE THAT IT , P A RTOF THE REASON THAT THE CLIENT CAME , WAS BECAUSE HE WAS A JUDGE.

BECAUSE HE WAS A PRIORJUDGE.YOUR HO NOR , I DON'T BELIEVE IT WAS DEVELOPED THAT CLOSELY.I THINK THAT THE RECO RD WILL SHOW THAT IT WAS REFERRED TO HIM BY A BONDSMAN, THAT THE CLIENT DID SAY HE WAS IMPRESSED BY THE FACT THAT HE HAD BEEN A JUDGE .

CHIEF JUSTIC E: S O IT WAS REFERRED BY A BON DSMAN WHILEHE WAS STILL THE JUDGE SETTING IN THE STATE .

WELL , JUDGE HENSON HAD LOST THE ELECTION. IT WAS DECEMBER. HE HAD CL EARED OUT HISOFFICE. HE HAD C EASED HIS JUDICIAL D UTIES AND HE WAS ON VACATION AT THE TIME. THAT IS WHAT THE RECORD

WHERE DI D THE ME ETING TAKE PLACE? ANOTHER MEETING WITH THECLIENT?

RIGHT .

I BELIEVE THE ORIGINAL MEETING WITH THE CLIENT TOOK P LACE TOOK PLACE , WITH THEBONDSMAN, I THINK, IN THE OSCEOLA COUNTY JAIL.

HAD JUDGE HENSON ALREADY SET UP A LAW O F FICE OR WHAT WAS THE STATUS OF THAT ?

HIS STATUS WAS THAT HE HAD , HIS BELIEF WAS THAT HIS STATUS WAS THAT HE HAD C EASED HIS JUDICIAL DU TIES AND WAS ON VACATION.

HE WAS PAID A RETAINER?

EXCUSE ME?

HE WAS PAID A RETAINER?

YES, YOUR HONOR.

HAD HE SET UP A TRUSTFUND?

YOUR HONO R, IT WAS NOT DEPOSITED UNTIL AF TER THE FIRST OF THE YEAR.

SO HE WAS G IVEN A CHECKAND IT WAS HE LD.

YES, YOUR HONOR. THAT IS WHAT THE RECORD WOULD SHOW. HE HAD NOT RESIGNED

HE HAD NOT RES IGNED , IS THAT CORRECT?

THAT IS CO RRECT .

WHAT WAS HIS TERM LE GALLY ENDED?

I BELI EVE THE D ATE THE RECORD WILL REFLECT IS JANUARY 5 , AND HE RECEIVED THE CHECK IN DECEMBER.

LET ME ASK YOU ABOUT WHAT I T HINK IS A MUCH MORE SERIOUS ALL EGATION , AND THAT IS THE ALLEGATION THAT HE ADVISED HIS CLIENT TO ABSCOND . THE JQC HEARD CONF LICTING TESTIMONY ON THIS I S SUE ANDFOUND THAT YOUR CLIE NT, IN F ACT, DID AD VISE HIS CLIENT TO AB SCOND TO COLOMBIA. HOW DO WE REVIEW THAT AND DETERMINE OTHERWISE, IF THE JQC WAS THERE AND SAW THE WITNESSES AND BASICALLY MADE A CREDIBIL ITY DETERMINATION? HOW CAN WE REVERSE THAT?

OKAY.YOUR HONOR, THIS COURT HASTHE RESPONSIBILITY , UNDER OUR AR TICLE V SECTION 1 2, TO GIVE A COMP LETE REVIEW, ANDUNLESS THIS COURT CAN FIND THAT IT WAS CLEAR AND CONVINCING EVIDENCE , THE JQC'S FINDINGS AND RECOMMENDATIONS ARE NOT ENTITLED TO G REAT WEIGHT.

THAT IS TRUE , BUT IN ORDER TO DETERMINE WHAT IS CLEAR AND CONVINCING , WE NOWHAVE TO VIEW THE FACTS IN THE LI GHT MOST FAVORABLE TO THE JQ C'S FINDINGS , DO WE NOT?

THAT IS CORRECT , YOURHONOR , BUT THERE IS MORE THAN JUST DEMEANOR OF THE WITNESSES HERE. THE , THIS RE QUIRES BOTH QUANTITATIVE AND QUALITATIVE REVIEW OF THE JQC'S FINDIN GS. WE, AL SO, HAVE AN ISSUE WHICH , SINCE YOU HAVE REQUESTED , HAS T O DO SINCE YOU HAVE ASKED, HAS TO DO WITH THE UNCHARGED MISCONDUCT WHICH WAS BR OUGHT INTO THIS , AND IT IS CLEARTHAT THE UNCHARGED CONDUCT WAS CONSIDERED BY THE COMMISSIONER. THAT IS IMPR OPER. CONCLUSIONS WERE MADE O N CHARGES THAT WERE NOT P ENDING AG AINST JUDGE

BEFORE WE GET TO THAT ONTHE ISSUE OF ACTU ALLY WHETHER OR NOT THERE IS A CLEAR AND CONVINCING EVIDENCE THAT HE ADV ISED HIS CLIENT TO LEAVE THE JURISDICTION, WE HAVE, HERE , THREE PEOPLE WHO TESTIFIED TO THE FACT THAT THE STATEMENT WAS MADE , WELL , ONE PERSON SAID THAT THAT WAS THE IMPLICATION. THE OTHER T WO SAID HE, IN FACT, TOLD THE PERSON THAT HE RE LEASED JURISDICTION ANDDID NOT HAVE TO FACE PRX . IS THAT CORRECT?

TO FACE PROSCUTION. IS THAT COR RECT?

HIS CLIENT SAID , WHICH IS THE CHARGE AGA INST HI M, BY THE WAY, THAT HE ADVISED MS. JIMENEZ TO LEAVE THE JURISDICTION. THE DAD , DR . JIMENEZ, SAID THAT IN A TELEPHONE CONVERSATION IN DISCUSSING O PTIONS, THAT HE DID NOT L IKE THE PLEA OFFER OF 16 YEARS , SO AC CORDING T O D R . JIMINEZ , WHICH JUDGE HENSON DENIED, DR . JIMINEZ SAYS THAT JUDGE HENSON SAID WE CAN PU T HER ON A PLANE TO PUERTO RICO AND COLOMBIA.

AND THEN WE , A LSO , HAVEAN ATTOR NEY WHO SAYS THAT JUDGE HENSON , ALSO , T OLD HIMTHAT HE HAD ADVISED THE CLIENT TO GO TO COLOMBIA.IS THAT CORRECT?

THAT IS CORRECT , YOUR HONOR, BU T YOU NE ED TO CONSIDER NOT ONLY THE WORDS BUT WHO SAYS THEM AND WHAT B IAS , PREJUDICE OR

WASN'T THE INFORMATION ABOUT JUDGE HENSON 'S DISCUSSION , THE ATTORNEY RELATIONSHIP, ALL OF THOSE FACTORS WERE CONSIDERED BEFORE THE DETERMINATION DIDOCCUR SO ME.

THOSE WERE BROUGHT OUT , YOUR HONOR, BUT THERE IS ALSO UNCH ARGED MISC ONDUCT HERE , AND THE CLEAR AND CONVINCING STANDARD HAS SIMPLY NOT BEEN MET BY THE EVIDENCE, EVEN IF YOU BELIEVE , EVE N IF YOU BELIEVETHE EVIDENCE. THE EVIDENCE IS CONFLICTING . ACCORDING TO THE D A VY CASE , THE EVIDENCE MUST BE CREDIBLE, THE MEMORY OF T HE WITNESS MUST BE CLEAR ANDWIT HOUT CONF USION AND LE T ME GIVE YOU AN EX AMPLE WITH MR . NEESMITH , WHO COULD NOT REMEMBER AND CONTRADICTED HIMSELF ON WHEN THIS STATEMENT WAS MADE.MR. NEESMITH SAID AT ONE POINT, WITH REGARD TO A LATER STATEMENT , HE THOUGHTTHE JUDGE WAS JOKING .

BUT HE WAS VERY CLEARTHAT THE STATEMENT WAS, IN FACT, MADE.

THAT WAS HIS TESTIMONY , YES, YOUR HONOR .

CHIEF JUSTICE: WHAT WE HAVE HERE IS A DISPUTE. JUDGE HENSON DENIED THIS, BUT HE DID ADM IT OR WHAT HE SAID IS THAT THE SUBJECT OF THE CLIENT FLEEING TO COLOMBIA WAS DISCUSSED , SO WE HAVE THAT AS NOT THAT IT NEVER WAS DISCUS SED, BUT HIS VIEW, HIS TESTIMONY UNDER OATH , WAS THAT IT WAS THE CLIENT S THAT WERE SAY ING THAT THEY WANTED T O F LEE, CORRECT ? SO WE HAVE GOT A REAL , GOT THE ISSUE , YES, IT CAME UP, AND THEN WE HAVE GO T THREE WITNESSES THAT SAY THAT IT CAME UP BECAUSE OF HIS SAYING THAT IS WHAT S HOULD OCCUR , INCLUDING A LAWYER WHO , AL THOUGH YOU ARE SAYING IS , HAS BIAS OR PREJUDICE , CERTAINLY JUDGE HENSON IS LIKEWISE , A , SOMEBODY THAT HAS AN INTEREST IN THE OUTCOME , SO WE H AVE GOT CONFLICTING TESTIMONY, WHICH IS WHAT O CCURS IN JUST ABOUT EVERY CRIMINAL CASE THAT WE HEAR ON REVIEW , AND , NO W , GOING BACK TO THIS ISSUE OF WHAT DO WE DO WITH THE FACT THAT W E HAVE GOT CLEAR FINDINGS FROM THE JUDICIAL QUALIFICATIONS COMMISSION THAT DETERM INED CREDIBILITY ISSUES ?

YOUR HONOR, WITH REGARD TO THE DISCUSSIONS , HE I S NOT CHARGED WITH DISCUSSING THE MA TTER OF FLEE ING TO COLOMBIA. INDEED, A CRIMINAL DEFENSE LAWYER HAS A DUTY , AND THEREIS A RULE IN THE RECORD , I DON'T HAVE THE CITATION TO IT , WHERE A CRIM INAL DEFENSE LAW YER, YOU SI MPLY CANNOT SHUT YOUR EARS WHEN A CLIENT TALKS ABOUT THIS. THIS COMES UP ALL THE TIME IN CRIMINAL CASES , WHEN CLIENTS ARE WORRIED. THEY DON'T KNOW WHAT TO DO. THEY ARE S CARED OF GOING TO PRISON. YOU CAN'T JUST SAY I AM NOTGOING TO LISTEN TO THAT.

SO WHAT DID YOUR CLIENT TESTIFY TO , WHEN THESE MATTERS WERE BROUGHT UP? WHAT DO ES HE SAY HIS RESPONSE WAS ?

HE TESTIFIED THAT, AS TO MS. JIMINEZ , THE CLIENT, H E NEVER TOLD HER TO FLEE.

I AM NOT ASKING YOU WHAT HE NEVER TOLD . I AM ASKING WHAT HIS RESPONSE WAS. YOU SAY THAT SHE BROUGHT IT UP. OKAY. OR THAT YOUR CLIENT TESTIFIED THAT SHE BROUGHT THAT UP , ALL RIGHT , NOW , WHAT DID YOUR CLIENT TESTIFY TO, BEFORE THE JQC , AS TO HIS RESPONSE, WHEN SHEBROUGHT IT UP ?

YOUR HONOR , WITH ALL DUE RESPECT , I DON'T BELIEVE THAT MS. JIMINEZ BROUGHT UP ANYTHING. HE SAID DR . JIMINEZ , THE DAD, BROUGHT IT UP.

OKAY. LET'S GO WITH THAT ONE THEN. WHEN DR . JIMINEZ BROUGH T IT UP , ACCORDING TO THE TESTIMONY OF YOUR CLIENT,THEN, WHAT DID YOUR CLIENT SAY , BEFORE THE JQC, AS TO HIS RESP ONSE TO THAT, WHEN IT WAS BROUGHT UP BY D R . JIMINEZ?

THEN THERE ENSUED A DISCUSSION ABOUT WHETHERTHERE WAS AN EXTRADITION T REATY BETWEEN THE UNITED STATES AND COLUMBIA. AND COLOMBIA . THAT WAS WHAT HAPPENED NEXT.

YOUR CLIENT SAID WHAT? I AM NOT SU RE

THIS CAME UP IN THE CON TEXT OF A DISCUSSION OF WHETHER THERE WAS AN EXTRADITION TR EATY BETWEEN THE U.S . AND COLOMBIA AND A DISCUSSION ABOUT THAT ENSUED.

I AM VERY DISAPPOINTED THAT IT SEEMS TO ME THAT YOU ARE G ETTING VAGUER AND V AGUER , I N TERMS OF , IF YOUR CLIENT SAID , YES , THE S UBJECT MATTER WAS BROUGHT UP , I DIDN'T IN ITIATE IT , DR . JIMINEZ INITIATED IT AND ASKED ABOUT THAT , SO I AM ASKING, LOGICALLY , HOPEFULLY , A LAWYER , FOR INSTANCE, WOULD HAVE SOME RESPONSE TO THAT AND WOULD SAY, NO , THAT WOULD BE WRONG. THAT WOULD BE A CRIMIN AL ACT , ITSELF, TO DO THAT. OR MA YBE HE WOULD SAY SOMETHING EL SE, SO I AM TRYING TO F IND OUT WHAT YOUR CLIENT SAID OR DID HE SAY WHAT HE SAI D?

I DON'T BELIEVE THERE WAS DIRECT TESTIMONY IN THERECORD ON THAT , OTHER THAN THAT THE FACT THAT THE DISCUSSION THEN TURNED TO WHETHER THERE IS EXTRADITION .

HE CERTA INLY DID NOT TESTIFY, THEN THAT, HE TOLD DR. JIMINEZ THAT THAT WOULD BE WRONG AND THAT THAT SHOULD NOT OC CUR.

I DON'T BELIEVE THAT TESTIMONY IS IN THE RECORD,YOUR HONOR.

CHIEF JUSTICE: SO , A GAIN , THE FACT I S THAT HE ADMITS THERE WAS A CONV ERSATION , AND WE WOULD HAVE TO BELIEVE THAT AT L E AST THREE P E OPLE , INCLUDING ONE ME MBER OF THE BAR OF THE STATE , PER JURED THEMSELVES UNDER OATH, IN SAY ING THAT THIS IDEA, INSTEAD OF COMING FROM THEM , CAME FROM JUDGE HENSON.

YOUR HONOR , I DON'T BELIEVE YOU HAVE TO BELIEVE THAT ANYB ODY PERJ URE ED THEMSELVES. MEMORIES FA DE. MISTAKES ARE MADE. I THINK PERJURY IS A VERY STRONG WO RD. I WOULD NOT ACCUSE ANY OF THESE PEOPLE OF PERJURY, BUT THEIR TESTIMONY IS AT BEST CONFUSING AND THEIR MEMOR Y IS , AT BEST , CLOUDED.

YOU SAID EARLIER THAT THIS MISCONDUCT THAT WE ARE TALKING ABOUT WAS NOT CHARGED?

THERE IS SE VERAL ITEMS OF MISCONDUCT WHICH WAS NOT CHARGED, YOUR HONOR.

WAS THIS PARTICULAR MISCONDUCT WE ARE T ALKING ABOUT, A REPRESENTATION OF MISS JIMINEZ , WAS THAT CHARGED?

YES , YOUR HONOR.

YOU WOULD AGREE THAT, IF WE FIND THAT THE JQC'S CONCLUSIONS ARE SUPPORTED BY , THAT THEY ARE CL EAR AND CONVINCING EVIDENCE TOSUPPORT THOSE FINDINGS, THAT THIS CHARGE IN COUNT TWOWOULD BE GROUNDS FOR REMOVAL OF A JUDGE.

YOUR HONOR , IT IS A VERY SERIOUS CHARGE, BUT I D ON'T THINK WE SHOULD HAVE A SLIDING SCALE OF PROOF BASED ON THE SERIOUSNESS OF THE CHARGE. I THINK THAT IS WHAT THE JQC IS U RGING THE COURT TO DO HERE. WE DO NOT D E NY THAT THIS IS A SERIOUS CHARGE. WE DO NOT DENY THAT IT IS WRONG AND U N ETHIC AL T O DO WHAT HE IS C HARGED WITH. WE DENY THAT HE DID IT , AND WE DENY THAT IT HAS BEEN PROVEN THAT HE DID IT.

BUT THE QUESTION, RE ALLY, IS, IF WE , IN FACT , ACCEPT THE JQC'S DETERM INATION , THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT JUDGE HENSON DID ADVISE HER TO FLEE THE JURISDICTION , IS THAT GROUNDS FOR REM OVAL O F THE JUDG E?

YOUR HONOR , THE CASES, AS YOU K NOW, I AM SURE, ARE ALL OVER THE BO ARD ON T HIS , BUT I THINK THAT THAT CERTAINLYCOULD BE GROUNDS FOR REMO VAL . I THINK THAT WOULD BE DISINGENIOUS TO SAY THAT IT IS NOT. I THINK IT COULD BE GROUNDS FOR REMOVAL.

WHAT WOULD BE YOUR ANSWER , IF, IN FACT , WE ONLY FIND THAT JUDGE HENSON PRACTICED LAW WHILE HE WAS STILL A COUNTY JUDGE. IS THAT , AL ONE , GROUNDS FOR REMOVAL?

I DO NOT THINK SO, YOUR HONOR. I THINK THAT IT IS UNDER THE 1997 AMENDMENT, THAT THE COURT HAS OTHER OPTIONS . I JUST SAT THROUGH A PUBLIC REPRIMAND A MO MENT AGO, WITH ANOTHER JUDGE FROM MI AMI , WHO RECEIVED A FINE AND SOME OTHER SANC TIONS . THAT, A PUBLIC REPRIMANDWOULD BE APPROPRIATE FORTHAT. PERHAPS A FINE. THERE ARE OTHER LESS DRACONIAN SAN CTIONS , IF YOU FIND, AND , AGAIN , THERE IS REALLY NO REASON FOR THE COURT TO S PEND A LOT OF T IME WORRYING ABOUT WHETHER HE DID O R DID NOT DO THE PRACTICE OF LAW. THAT IS ADMITTED. AND WITH AN EXPLANATION. BUT EVEN IF YOU BELIEVE THAT , I WOULD SUBMIT TO THE COURTTHAT, UNDER THE CASES AND U NDER THE WEIGHING OF THE SERIOUSNESS OF THE OFFENSE, HOW IT HAPPENED, W HEN IT HAPPENED, WH Y IT HAPPENED,THAT THAT , IN ITSELF , ESPECIALLY I N LI GHT OF THE TESTIMONY OF HIS ADMINISTRATIVE JUDGE, THEFACT THAT HE HAS BEEN BOTH A COUNTY JUDGE AND A CIRCUIT JUDGE, WITHOUT ANY OTHER COMPLAINTS, THE FACT THAT , ACCORDING TO TWO PRACTICING LAWYERS THAT, HE IS AN HONEST AND A N IMPARTIAL JUDGE , WOULD NOT BE

ON THE OTHER HAND , WE H AVE A S ITTING JUDGE WHO GOES OUT AND BEGINS TO PRA CTICE LAW, WHIL E HE IS STILL A SI TTING JUDGE, AND BASICALLY U SING THE PRESTIGE OF HIS OFFICE TO GET HISCLIENT, SO ARE WE TO JUST SORT OF OVERLOOK THAT AND SAY, OK AY, HE THOUGHT HE WAS ON V ACATION. HE DIDN'T THINK HE HAD ANYMORE JUDICIAL DU TIES , ALTHOUGH HE WAS STILL ON THE PAYROLL AT THAT P OINT .

YOUR HONOR , I DON'T THINK THAT YOU SHOULD O R WILL OVERLOOK THAT. I THINK THAT IS , AS HE HAS ADMITTED, A MISTAKE , A WR ON G THING TO DO, AND I THINK JUDGE HENSON I S PERFECTLY WILLING AND BELIEVES THAT HE SHOULD RECE IVE DISCIPLINE FOR THAT, BUT REMOVAL OF A JUDGE IS THE DEATH PENA LTY FOR A JUDGE SHIP . AND T O REMOVE HIM FOR THAT WHEN OTHER JUDGES HAVE NOT BEEN REMOVED FOR E QUAL OR MORE SERIOUS MATTERS , WOULD SIMPLY NOT B E APPROPRIATE FOR THAT ALONE.

ISN'T THE PROBLEM THAT WE CONFRONT, IN THIS TYPE OF SITUATION , IS THAT WE HAVE TO ANALYZE THIS IN , AT THE BOTTOM LINE OF PUBLIC CONFIDENCE IN WHO IS SITTINGUP TO BE THE JUDGE , AND S O WE HAVE TO LOOK AT THE CUMULATIVE RECORD HERE , OF WHAT THIS JUDGE DID, AND IT COULD BE A CLOSE QUESTION AS YOU AR GUE ON THE CLEAR AND CONVINCING ON ONE POINT , WE HAVE TO TAKE THE WHOLE RECORD INTO CONSIDERATION, D ON'T YOU AGREE WITH THAT?

I AGREE WITH THAT , YOURHONOR , B UT YOU, ALSO , HAVE TO CONSIDER, IN TE RM S OF WHAT DISCIPLINE YOU IMPOSE ON JUDGE HENSON , WHAT HE WAS CONVICTED OF, NOT THING THAT IS HE WAS ACQUITTED OF , NOT THINGS THAT HE WAS NOT CHARGED, WITH NOT THINGS THAT WERE BROUGHT , AND A PRIME EXAM PLE OF THIS IS THE DAVEY CASE, WHIC H I AM SURE THIS COURT IS VERY FAMILIAR W THE JQC FO UN D ALL SO RTS OF MISCONDUCT ON THE PART OF JUDGE DAVE Y, BUT THE COURTTHEN, AND IT WAS THE SA METHING , IT WAS A CLEAR AND CONVINCING ARGUMENT , THE JUDGE, THE COURT DISCIP LINED JUDGE DA VEY DIFFERENTLY THA N WHAT THE COMMISSION HAD RECOMMENDED.

CHIEF JUSTIC E: I JUST WANT TO REMIND YOU THAT YOU ARE IN YOUR REBUTTAL TI ME .

THANK YOU. I WILL LET MR . RUSSELL SPEAKWITH YOU.

GOOD MORNING. MAY IT PLEASE THE CO URT.I AM LA NNY RUSSELL AND WITH ME TODAY IS MY SE NIOR PARTNER MA RK HULSEY . WE ARE HERE TO REPR ESENT PARDON ME?

WHY DON'T YOU P ICK UP , MR. R USSELL, ON THAT POINT. MR . KIRKCONNELL WAS JUST MAKING. HOW DID , HO W DO YOU DISTINGUISH THE DAVEY DECISION OUT OF THIS COURT?

THE MIS CONDUCT THAT THE COMMISSION FOUND THE JUDGE G UILTY OF WAS THE ADVICE TO DIANA JIMINEZ TO FL EE THE JURISDICTION. THEY FOUND THAT BY CLEAR AND CONVINCING EVIDENCE.THERE WAS DISCUSSION OF OTHER MISCONDUCT , BUT ONLY IN THE COND EX TEX CONTEXT OF THE COMMISSION DISCUSSING THAT FOR THE PURPOSE OF WHETHER IT MET THE CLEAR AND CONVINCING STANDARD N K ELLY , THE SAME ARGUMENT STANDARD. IN KE LLY, THE SAME ARGUMENT WAS MADE TO THIS COURT, THAT THE COMMIS SION SOME HOW ALTERED MISCONDUCT , WHICH THEY ULTIMATELY DIDN 'T FIND THE JUDGE G UILTY OF. SOMEHOW THERE WAS UNCHARGED MISS CONDUCT , AND THAT IS NOT MISCON DUCT, AND THAT IS NOT WHAT HAPPENED HERE. THE TWO MATTER S THAT I WOULD CALL THE COURT'S ATTENTION T O WAS THE ST ATEMENT B Y THE JUDICIAL QUALIFICATIONS COMMISSION THAT THEY WERE TROUBLED BY THE APPEARANCE OF THE B AIL BONDSMAN IN THIS CASE, MR . CA NNED LAYER YEAH, IN ALL MR . CANDILARIA, I N ALL THREE CASES , AND THAT DOES NOT SH OW THE CHARGE FOR UNCHARGED MISCONDUCT. THE BAIL BONDSMAN WAS FOUND PRESENT IN THIS CASE, IN EVALUATING AS TO WHETHER THEOTHER TWO CHARGES , FLE EING AND THE ADVICE TO HE CTOR RODRIGUEZ AND JERRY LEE THOMPSON, WAS REPORTED BY CREDIBLE EVIDENCE. AND WHAT WAS SAID WAS THEY WERE TROUBLED BY THAT , BUT DESPITE BEING TROUBLED BY THE APPEARANCE OF THE BAIL BONDSMAN IN ALL THREE CASES IN WHICH THE ADVICE WAS A CHARGE TO FLEE , THE JUDICIAL QUALIFICATIONS COMMISSION NONETHELESS FOUND THAT, WITH CLEAR AND CONVINCING EVIDENCE, AS TO THOSE TWO MATTERS , THE RE WAS NOT CLEAR AND CONV INCING EVIDENCE.

WHAT I WOULD LI KE FOR YOU TO ADDRESS IS , COMING OUT OF THE DAVEY CASE, WHAT IS THESTANDARD OF OUR REVI EW OF THE COMMIS SION'S DETERMINATION HERE?

THAT IS A DIFFICULTQUESTION, YOUR HONOR, BECAUSE I THINK THE STANDARD , THE STAN DARD IT SELF , IS ACTUALLY VERY CLEAR. THE STANDARD IS CLEAR AND CONVINCING, AND WE SORT OF HAVE A C H ICKEN AND THE EGG PROBLEM WITH THAT STANDARD , AND WITH THAT ANALYSIS IN THE LA TER CASES , I THINK PARTICULARLY THE FORD DECISION, THIS COURT SAID THE FINDINGS ARE ONLY ENTITLED TO PERSUASIVE FINDINGS, IS IF THIS COURT FIRST FINDS THAT THEY MEET THE STANDA RD OF CLEAR AND CONVINCING. IN EAR LIER CASES, MA YBE LAMONT AND DAVEY , A LSO , THE STATEMENT WAS SIMPLY MADE THAT THE FINDINGS AND RECOMMENDATIONS OF THE PANEL ARE E NTITLED TO G REAT WEIGHT AND ARE PER WA YS I HAVE PERVASIVE FORCE AND EFFECT. SO WE HAVE GOT TO SO LVE THAT PROBLEM , THAT JURISPRUDENCE NOW EXISTS. IN RESPONSE TO YOU ON THIS CASE, JUDGE , I DON'T THINK IT MA KES ANY DIFF ERENCE , BECAUSE ULTIMATELY BEFORE THIS COURT IS NO W WHAT I BELIEVE IS CLEAR AND CONVINCING EVIDENCE.

WELL , WOULD YOU ARTICULATE FOR US AND MEET HEAD ON THE CHALLENGE O F YOUR OPPONENT HERE , THATTHERE WAS NOT CLEAR AND CONVINCING EVIDENCE THAT HE ADVISED HIS CLIENT TO FLEE THE JURISDICTION. WHA T IS THE STRONGEST EVIDENCE IN THE RECORD TO SUPPORT THAT CHARGE?

YES , YOUR HONOR. I HAD TR IED TO DETERMINE WHICH ONE WOULD BE THE STRONGEST , B E CAUSE THE JUSTICES HAVE ALREADY IDENTIFIED THE THREE WITNESSES WHO TESTIFIED , AND, PERHAPS THE MOST DIRECT , IS THE T ESTIMON Y OF DIANA JIMINEZ 'S FA THER, WHO TESTIFIED THAT , IN A CONVERSATION WITH THERESPONDENT, THE RESP ONDENT ADVISED HIM , IF YOU REPEAT THIS, EXCUSE ME , WE CAN PUT YOUR DAUGHTER ON A P LANE TO PUERTO R ICO AND FROM PUERTO RICO TO COLOMBIA. THE DOCTOR'S RECOLLECTION OF THAT CALL WAS CLEAR AND CREDIBLE. WE, ALSO , HAVE THE TESTIM ONY OF HIS OFFICE MATE , ATTOR NEY , WHO TESTIFIED , IF YOU REPEAT THIS, I WILL DENY I IT . THAT IS JUDGE HENSON S PEAKING AND THIS IS MR . NEESMITH REPE ATING WHAT JUDGE HENSON TO LD HIM, AND MR. NEESMITH TESTIFIED , IF YOU REPEAT THIS, I WILL DENY IT. I TOLD DR . JIMINEZ , DIA NA S HOULD FLEE TO COLOMBIA , BUT ULTIMATELY, PERHAPS WHAT MAKES THE MOST COMPE LLING EVIDENCE IN T HIS CASE, YOUR HONOR , IS THE TESTIMONY OF DIANA JIMINEZ , HERSELF. IN THIS CASE , THE RESPONDENT HAS CLAIMED THAT DIANA HAS ACKNOWLEDGED THAT THE RESPONDENT NE VER ADVISED HER TO FLEE TO COLOMB IA, AND IDON'T THINK THAT ACCURATELY REFLECTS WHAT THIS WOMAN'S TESTIMONY WAS. IF YOU LO OK IN THETRANSCRIPT AT PAGES 73-TO- 77 AND ACTUALLY WE ENCOURAGEYOU TO DO THIS. WE HAVE VIDEOTAPED DEPOSITIONS THAT WERE USED IN THIS CASE . WATCH HER VIDEOTAPED DEPOSITION IN THIS MATTER.IT IS IN CROSS-EXAMINATIONFROM THE RESPON DENT'S COUNSEL IN WHICH SHE G OES ON IN THE TRANSCRIPT FOR FOUR PAGES , AND SHE EXPLAINS IN DETAIL , CONVINCINGLY AND CREDIBLY, THAT THE JUDGE WAS RELENTLESS IN PUTTING BEFORE HER FOR HER CONSIDERATION, THE OPPOSITE OF FLEEING TO COLOMBIA , AND THAT CAME UP IN THE CONTEXT , YOUR HONOR , OF YOUR SENTENCE COULD BE 35 Y EARS , DON'T YOU STILL HAVE YOUR PASSPORT? DON'T YOU HAVE FAMILY IN COLOMBIA? THIS IS A VERY SERIOUS CHARGE YOU ARE GO ING TO LOSE , AND THE COMMISSION FOUND IN DETAIL, THAT THAT WAS CONVINCING, AND IT LASTED OVER A SUBSTANTIAL PERIOD OF T IME . SO I THINK ULTIMATELY , AS THIS COURT HAS SAID , YOU CONSIDER THE TOTALI TY OF IT , SO I HAVE DIFFICULTY WEIGHING THOSE, YOUR HONOR, BUT IN MY FINAL ANALYSIS , I THINK IT IS DIANA 'S TESTIMONY WHICH BECOMES THE M OST CR EDIBLE.

CHIEF JUST ICE: HOW DID MR . NEESMITH COME FORTH? THE COMPLAINT WAS FILED BY THE JIMINEZ ES , IS THAT CORRECT?

THER E WAS A COMPLAINTFILED WITH THE FLORIDA BAR BY THE JIMINEZ ES , YES, MA 'AM.

CHIEF JUSTICE: AND THEN ULTIMATELY IT WAS REFERRED OVER TO THE JQ C?

I AM TR YING TO REMEMBER HOW THAT HAPPENED.I THINK THAT, AL THOUGH THE COMPLAINT WAS FILED WITH THE FLORIDA BAR , I BELIEVE THIS MAY BE IN THE RECO RD, THE CHIEF JUDGE OF THE CIRCUIT BECAME A WARE OF THE CHARGES. THERE WAS SOME PUBLICITY SURROUNDING THE CHARGES, AND THE CHIEF JUDGE MAY HAVE BROUGHT THE MATTER TO THE JQC.

WHAT IS MR. NE ESMITH 'STESTIMONY?WHAT IS IN THE RECORD ABO UTHOW DID HE, THEN , COME FORTH?

WE LEARNED OF MR . , THE COMMISSION, EXCUSE ME , LEARNED OF MR . NEESMITH 'S EXISTENCE BECAUSE OF A PRIOR STATE ATTO RNEY INVESTIGATIONIN WHICH THE STATE ATT ORNEY TOOK A STATEMENT FROM MR . NEESMITH , AND THAT IS HOW THE COMMISSION, THROUGH ITS INVESTIGATOR, FOUND MR . NEESMITH, AND ONCE WE GOT THE RECORDS OF THE STATE ATTORNEY'S INVESTIG ATION, THEN WE F URTHER PURSUED THE MATTER WITH MR . NEESMITH ANDTOOK IT .

CHIEF JUSTIC E: MR . NEESMITH WAS COREPRESENTING THESE CLIENT S?

E ARLY ON, YOUR HONOR, INTHE MATTER , AND THE CHRONOLOGY OF THIS WAS AS FOLLOWS. IT WAS ON DECEMBER 15 THAT THE JUDGE ACT UALLY UND ERTOOK TO REPRESENT DINE, A WE NT TO THE JAIL AND VI SITED HER REPRESENT DIANA AND WEN T TO THE JAIL AND VIS ITED HER AND TOOK THE RETAINER CH ECK , BUTBEFORE THE JUDGE ACTU ALLY ENDED HIS TERM.

CHIEF JUSTICE: THE REASON I AM ASKING THIS IS THE ULTIMATE ALTERNATIVE TO THE, THAT HE ADVISED THEM TO FLEE , IS THAT ALL THRE E OF THEM GOT TOGE THER THAT, IS THE ATTORNEY AND DR . JIMINEZ AND M S. JIMINEZ, AND THEY , ALL , BASICALLY CONCOCTED THIS STORY, AND SO I AM TRYING TO UNDERSTAND THE CONT EXT OF WHAT THEIR RELATIONSHIP , YOU KNOW , WHAT , THE ATTORNEY'S RELATIONSHIP WAS WITH THECLIENTS , OTHER THAN REPRESENTING THEM AT THE BAIL BOND SMAN HEARING. DID HE HAVE A CONTINUING RELATIONSHIP WITH THEM ?

I DIDN'T QUITE UNDE RSTAND WHERE YOU ARE GOING BUT I DO NOW AND I WILL ANSWER PRECISELY AND DIRECTLY. I BELIEVE THE RECORD ESTABLISHED THAT, AFTER THE BAIL BOND HEARING , THE RE WAS NO FU RTHER SUBSTANTIAL INVOLVEMENT OF ATTORNEY NEESMITH IN THE JIMINEZ CASE. THERE WAS ISSUES IN THE REC ORD OVER WH ETHER ATTORNEY NEESMITH THOUGHT HE WAS GOING TO HAVE AN INVOLVEMENTIN THE CASE AND THOU GHT HE WAS ACTUALLY GOIN G TO END UP BEING CO-COUNSEL WITH THEJUDGE IN THE CASE, AND THERE WERE SOME ISSUES THAT WERE BROUGHT UP OVER WHETHER THAT FACT THAT , ATTORNEY NEESMITH DID NOT CONTINUE ON IN THE REPRESENTATION OF THE JUDGE , CAUSED SOME ANIMOSITY IN THIS MATTER. I THINK THE RECORD PRECISELY REFLEKTED , YOUR HONOR , THERE WAS A MEETING REFLECTED , YOUR HONOR , THERE WAS A MEETING SCHEDULED IN WHICH THE ATTORNEY NEESMITH THOUGHT HE WAS TO MEET WITH THE JIMINEZ ES A GAIN. HE WAS SH ARING OFFICE SPACE. THE MEETING HAD ALREADYHAPPENED AND THE JIMINEZES WERE LEAVING AND AFTER THAT HE HAD NO FURTHER INVOLVEMENT IN THE MATTER .

DURING THE TRIALPROCEEDINGS , DID HE HAVE ANY REPRESENTATIONS OF THE JIMINEZ FAM ILY?

YES .

IT DID NOT END.

I AM SORRY. TO BE PR ECISE , YOUR HONOR , IN CONNECTION WITH THE TRIAL, THAT WAS THE END OF IT.

YOU SAID IT WAS THE END BUT IT WASN'T THE END. TELL US THE REST OF THE STORY.

THE REST OF THE STORY WAS, AFTER THE TRIAL WAS OVER , I BELIEVE DR. JIMINEZ CAME BACK TO DR . NEESMITH ANDASKED HIM TO HANDLE FOR HIS DAUGHTER, A POST TRIALPROCEEDING.

IN THIS IDENTICAL MATTER.

YES, SIR , THE SAME CASE.

IS THAT WHAT PRODUCED THE STATEMENT TO THE STATEATTORNEY?

PARD ON ME , SIR?

IS T HA T WHAT PRODUCED THE STATEMENT BY MR. NEESMITH TO THE STATE ATTORNEY? IS THAT HOW THE STATE ATTORNEY BECAME INV OLVED IN ALL OF THIS? WAS THAT AN ISSUE IN THE COLLATERAL PROCEE DINGS?

NO. I AM NOT AWARE THAT IT CAME U P. I AM NOT EXACTLY SURE AS TO HOW IN THE RECORD, THE STATE ATTORNEY GOT TO THAT ISSUE , BUT A FTER THE TRIAL WAS OVER , DIANA JIMINEZ WAS SERVING 15 Y EARS, THERE WERE SOME POST T RIAL MOTIONS IN AN EFFORTTO REDUCE OR SET AS IDE THESENTENCE OF 15 YEARS , ANDTHAT WAS HA NDLED BY ATTORNEY NEESMITH.

IS THAT A CONCERN BEFORE THESE CHARGES WERE BROUGHT AGAINST JUDGE HENSON DID THAT OC CUR BEFORE THESE CHARGES WERE BROUGHT AG AINST JUDGE HENSON?

YES , THEY WERE .

AND CONCLUDED BEFORE THAT TIME?

ALL OF THE POST TRIAL MOTIONS WERE DEN IED.

TELL US SOMETHING ABOUT THE FEE ARRANGEMENTS IN THE CASE, THE INVOLVEMENT OF ATTORNEYS ANY FEES CHARGED, ANY FEES RECEIVED , UNTIL , REALLY, THE CONCLUSION OF THE CASE.

RIGHT . THE RETAINER AGREEMENT WHICHWAS SIGNED ON DECEMBER 15 , WHICH WAS IN EVIDENCE , CALLED FOR THE PA YMENT OF A NONREFUNDABLE RETAINER OF $50,000.THAT WAS DECE MBER 15 , WHEN THE AGREEMENT WAS ACTUALLY S IGNED BY D R . JIMINEZ. I BELIEVE THE EVIDENCE S HOWED IT WAS ON THAT DA TETHAT HE, ALSO , DELIVERED TO THE JUDGE , A CHECK IN THE AMOUNT OF $15,000 , $20,000. WHICH WAS DELIVERED TO THE JUDGE ON DECEMBER 15. THEREAFTER , IN ACCORDANCE WITH THE FEE AGREEMENT , SUBSEQUENT INSTALLMENTS , THE REST, MOST OF THE REST OF THE RETAINER WAS PAID , APPARENTLY ONLY $45,000 OF IT WAS PAI D. THE DO CTOR COMPLAINED ABOUT THE FEE, DID NOT PAY THE LAST $5,000 OF THE FEE , AND ACTUALLY I BELIEVE IN EVIDENCE WAS A LETTER FROM THE JUDGE OFF ERING TO RETURN $5,000 OF THE FEE, IN CONSIDERATION OF THE DOCTOR G REEK NOT TO FILE - - THE DOCTOR DEGREE ING NOT TO FILE CHARGES , AND THE DOCTOR AGREEING NOT TO FILE CHARGES , AND THAT WAS IN THE CONCLUSION OF THE JQC.

CHIEF JUSTICE: ONE OF THE SUGGESTIONS WAS THAT SHE F LEET COUNTRY BECAUSE HE WAS NOT PREPARED TO GO TO TRIAL. IN LOOK ING AT THE CONCLUSIONS OF THE RE CORD , THE JQC , ARE CONTRADICTED BY THE FACT THAT THERE WERE DEPOSITIONS.THERE WAS A STRATEGIC REASON FOR NOT FILING A MOTION , THAT THERE WAS CONTACT WITH AN EXP ERT , THAT IT W ASN'T A SITUATION OF JUDGE HENSON HAVING DONE NO DISC OVERY , AS , THAT THAT STATEMENT WAS MADE F WE DISAGREE ON . IF WE DISAGREE WITH THE JQC ON THAT FINDING , HOW DOES THAT AF FECT THE ULTI MATE CONCLUSION.

LET ME ADDRESS THAT, YOUR HONOR , IN TWO PAR TS , FIRST AS TO THE PREP ARATION FOR TRIAL. THE CONCLUSION THAT THE JUDGE HAD DONE DISCOVERY IN PREPARATION FOR TRIAL , WAS A T ACTIC NOT TO GO FORWARD , BUT AS THE JUDGE ADMITTED IN HIS TESTIM ONY WAS HIS PERCEPTION OF THE CASE WAS THAT IT WAS A CLEAR LO SER AND THERE WAS NO CHANCE FOR DIA NA TO WIN , AND ON THESITUATION OF THE EXPERT , THERE WAS AN EXPERT CONSULTED BUT THERE WAS NO EXPERT TO TESTI FY , SO THEREWAS NO EXPERT TESTIMONY AT THE TRIAL , IF IT WERE TO OCCUR IN APPROXIMATELY 30 DAYS. ULTIMATELY THE PRESENCE OF MOTIVATION IN THIS CASE IS ONLY A FA CTOR TO BE CONSIDERED IN TOTALITY WITH THE REST OF THE EVIDENCE , AND IN THIS CASE , I THINK THE COMMISSION , WENT SPECIFICALLY TO THAT ISSUE , TRYING TO FIND THE BASIS FOR MAKING THE REST OF THE STATEMENT OF THESE WITNESSES , CLEAR AND CONVINCING , O F SOME REASON WHY THE JUDGE WOULD HAVE DONE, THIS AND UNFORTUNATELY IT IS PART OF THE HU MAN CONDITION, YOUR HONOR, THAT WHEN WE LOOK BACK ON CONDUCT THAT WASWRONG , THE QUESTION CAN , ALSO , OFTEN BE ASKED , WHAT WERE YOU THINKING , AND PEOPLE WA NTED , THE COMMISSION WANTED TO UNDERSTAND WHAT THE JUDGE WAS THINKI NG IN THIS MATTER, AND THAT WAS PART OF THEIR DETERMINATION , BASED U PON THE EVIDENCE BEFO RE THEM , THAT THE TRIAL , ALTHOUGH SOME WO RK HAD BEEN DONE , WAS NOT IN THE CONDITION THAT IT WOULD EFFECTIVELY PROC EED, AND THE OTHER REASON THEY FOUND MOTI VATION, WAS THE BELIEF THAT, IN FACT , IF DIANA JIMINEZ CH OSE TO FLEE , THAT SHE WOULD NOT BE EXTRADITED.

LET ME MAKE SURE THAT I AM CLEAR ON , THIS , EVERYBODY KEEPS REFERRING TO THE COMMISSION HE RE. WE ARE DE ALING WITH POST 1998 COMMISSION. CORRECT ? IN WHICH THERE I S A DI VISION BETWEEN THE INV ESTOR I PA NEL AND INVESTIGATORY PANEL AND THE HEAR ING PANEL , CORRECT?

EXACTLY, YOUR HONO R.

AND THE FINDINGS AND RECOMMENDATIONS OF THE COMMISSION, QUOTE , COME FROM THE HEARING PANEL .

THAT IS EXACTLY CORRECT. THAT IS THE WAY I THINK , I THINK DEFIN ED IN OUR BRIEF AS THE ADJUDICATORY PANEL , IS THE WAY WE DID THAT, ANDTHERE WAS SIX MEMBERS OF THAT PANEL . ONE OTHER THING THAT I GUESSI WOULD GO BACK TO, IN T ERMS OF THE PANEL , BECAUSE IT WAS A COMMENT OF THIS COURT THAT , IN EVAL UATING THE FINDIN GS , THEN JUSTICE OF A COMMISSION , THE SUPREME COURT HAS OBSERVED THAT THE FINDINGS OF THAT COMMISSION ARE ENTITLED TO THE KIND OF DEFERENCE WE HAVE TALKED ABOUT HERE TO DAY , BECAUSE OF THE CONSTITUTIONAL COMPOSITION OF THAT COMMISSION, IN TERMS OF WHO THOSE PERSONS ARE, AND THE MEMBERS OF THIS PANEL ARE IDENTIFIED IN THE BRIEF , AND WHAT I WOULD ENCOURAGE MR. CHIEF JUSTICE

LET ME ASK ON THAT, I DID NOTE THE COMPOSITION OF THE SIX MEMBERS, AND I, ALSO , NOTED THAT ON THE CHARGE , THE VOTE WAS 4- 2. IT BECA ME A MATTER OF INTEREST TO ME , WHO THE TWO WERE, BECAUSE YOU KNOW , IT WAS TWO JUDGES ON THAT COMMISSION THAT WOULD AFFECT MY EVALUATION, AND AS I UNDERSTAND IT , THIS IS CONFIDENTIAL AS TO THE VOTE. SO WHE N YOU LOO K AT THE COMPOSITION , WE HAVE NO I DEA IF IT WERE THE TWO JUDGES THAT DISSENTED OR THE TWO LAY PEOP LE, AND IF THAT , SO , THE COMMENT ON THE 4-2 , ARE WE JUST TO IGNORE THAT IT WAS A 4-2 , OR IS THAT , WE S HOULD HAVE ASSUMED IT WAS A 6-0? DOES IT HAVE ANY SIGNIFICANCE IN THIS CASE ?

I WOULD LIKE TO SAY IT HAS NO SIGNIFICANCE, YOUR HONOR

CHIEF JUSTICE: BUT YOU BROUGHT IT UP, BECAUSE YOU WERE COMMEN TING THAT, NOT ONLY IS THIS JUST AN ORDINARY JU RY. THIS IS A COMPOSITION THAT HAS CON STUPTION AL SIGNIFICANCE CONSTITUTIONAL SIGNIFICANCE.

THAT'S RIGHT, AND FOR THEPURPOSE OF THE 4-2 VOTE , I HAVE TO SAY I DON'T THINK IT HAS A LE GAL SIGN IFICANCE BECAUSE THERE IS NOT A S LIDING SCALE O F WEIGHT ASTO WHAT THE ADJUDICATORY P ANEL DID, BASED UPON THEVOTE. ONCE THE CONSTITUTIONAL CASE L AW ESTABLISHED , SAFEGUARDS ARE MET , OF A SUPER MAJORITY , WHICH WAS MET HERE, AND ONCE THE PANEL , ADJU DICATORY PANEL APPL IES THE APPROPRIATE CLEAR AND CONVINCING STANDARD, THEN THOSE FINDINGS ARE IN FACT , ENTITLED TO THAT, AND WE DON'T KN OW , YOUR HONOR , WHAT MEMBERS VOTED WHICH WAY. THE FINDINGS, I THINK, ARE DELIBERATELY SI LENT ON THAT, BUT WHAT I WOULD ENCOURAGE THIS COURT TO DO , IS LOOK ATWHAT THE CONDUCT OF THE PANEL WAS I N THIS CASE , AT THE PROCEEDING. IF YOU LOOK AT THE RECORD CLOSELY, PARTICULARLY AT THE QUESTIONING FROM THE PANEL MEMBERS , THEMSELVES, YOUWILL SEE THAT THE PANEL MEMBERS ARE FOCUSED . THEY ARE INTENSE IN WHAT THEY ARE DO ING. SOME OF THE MOST WITHER ING CROSS-EXAMINATION IN THIS C ASE , CAME F ROM MEMBERS OF THE COMMISSION, THE PANEL , ADJUDICATORY PANEL OF THE COMMISSION-CALLED WITNESSES, IN WHICH THEY A T G REAT LENGTH PROBED THEM EFFECTIVELY TO UNDERSTANDWHAT WAS GOING O N , AND THEOTHER THING I THINK IN THIS RECORD, EVIDENCE, I THINK, FOR THIS COURT, IS THAT THE PANEL DID PRECISELY WHAT THEY WERE REQUIRED TO DO IN THIS MATTER , IS REMEMBER IN THIS MATTER THERE WERE FIVE CHARGES THAT ACTUALLY WENT TO RESOLUTION BEFORE THE ADJUDICATORY PANEL. THE FIRST OF THOSE CHARGES WAS THE ADMITTED MISCONDUCT IN RE GARDS TO PRACTICING LAW WHILE STIL L A JUDGE. THE SECOND OF THOS E WAS THE DIANA JIMINEZ MATTER , WHICH WE DISCUSSE D AT LENGTH AND THE EVIDENCE THAT SUPPORTED THAT. THERE WERE THREE OTHER CHARGES, CHARGES REG ARDING H ECTOR RODRIGUEZ, A CLIENT OF THE JUDGE'S WHO DID FLEE AND DIDN'T TESTIFY BECAUSEHE WAS NEVER FOUND , AND THIS PANEL FOUND AGAINST THE COMMISSION ON THAT AND THEN TESTIMONY FROM J ERRY LEE THOMPSON, ANOTHER CLIENT OF THE JUDGE WHO DID NOT FLEE BUT TESTIFIED THAT HE WAS TOLD BY THE JUDGE TO FLEE , AND LAST LY, THERE WAS A CHARGE THAT THE JUDGE FA ILED TO PROPERLY AD VISE DIANA ABOUT A PLEA O F FER, WHICH RESULTED IN A PLEA OFFER BEING LOST , AND NOW INSTEAD OF THE THEN -OFFERED TWELVE YEARS , DIANA IS SERVING 16 Y EARS, AND WHEN YOU LOOK AT THOSE CHARGE ANSWER WHAT THE RECORD IS , WHAT YOU WILL SEE FROM THOSE CHARGES AND THE FINDINGS OF THE COMMISSION , IS THE COMMISSION WAS DOING , THE ADJUDICATORY PANEL WAS DOING PREC ISELY WHAT THIS COURT HAS CHARGED IT WITH DOING IN EVAL UATING THE DISPUTE IN THE EVIDENCE AND COMING UP WITH CLEAR AND CONVINCING EVIDENCE, WHICHIS ULTIMATELY WHAT THEY DID .

CHIEF JUSTICE: GO AHEAD.

WOULD YOU ADDRESS WHAT IF ANY NE XUS , EITHER TIME OR SUBSTANCE , THERE MAY HAVE BEEN, WITH REGARD TO THESE COLLATERAL PROCEEDINGS, AND ANY OF THE SU BSTANCE OF WHAT WE ARE TALKING A BOUT TO DAY , AND UTILIZATION OF A NY OF THAT MATERIAL , TO ADVANCE INTEREST IN THE COLLATERAL PROCEEDINGS , IF THE RECORD SHOWS ANYTHING ABOUT THAT .

THE THING THAT THE RECORD SHOWS, YOUR HONOR, IN T ERMS OF THE COLLATERAL PROCEEDINGS THAT YOU ARETALKING ABOUT, OF THE THREE DIFFERENT CHARGES RE LATEING TO FLE EING , JIMINEZ , JE RR Y LEE THOMPSON.

THE COLLATERAL PROCEEDINGS I AM REFERRING TO GO TO THE FLEEING CHARGES IN THE CH RALRAL PROCEEDINGS , GOING TO THE JIMINEZ CHARGESAND WHETHER THIS NEX US IS A CONDUCT OF STATUS FOR THE INDIVIDUAL AS A BASIS FOR RELIEF BY THIS CLIENT AND AS A RES ULT OF THAT SHOWS ANY NEXUS OR NO NEXUS WHATSOEVER.

I AM TRYING TO REC ALL PRECISELY , YOUR HONOR, IF THERE IS ANYTHING IN THERECORD OF THE PROS THE POST TRIAL COLLAT ERAL PROCEEDINGS REGARDING THE F LEEING ADVIC E. I DON'T BELIEV E THERE WAS BUT I AM NOT 100 PERCENTSURE.

CHIEF JUSTICE: WHEN DURING THE TESTIMONY UNDEROATH, DID IT OCCUR AFTER THE POSTCONVICTION PROC EEDINGS WERE CONCLUDED OR DURING THE TIME THAT THEY WERE STILL ONGOING ?

THE MOTIONS , I BELIEVE , WERE F ILED FAI RLY E ARLY , BUT , ALSO, I THINK THAT THE STATEMENT WAS TA KEN FROM THE , BY THE STATE ATTORNEY FAIRLY EARLY, TOO, YOUR HONOR. I THINK BOTH THOSE IT EMS ARE IN THE RECO RD. I JUST CAN'T RE MEMBER THE PRECISE JUXTAPOSITION O F THEDATES OF THOSE TWO THINGS.

CHIEF JUSTICE: THANK YOU. WITH OUR HELP, YOUR TIME HAS EXPIRED, IF YOU WOULD LIKE TO CONCLUDE.

THANK YOU V ERY MUCH. THE INTEGRITY OF OUR JUDGES HAS NEVER BEEN MORE IMPORTANT THAN IT IS TODAY . ULTIMATELY , THIS PROCEEDING IS NOT ABOUT PRINCIPLY ABOUT , SANCTIONING THIS RESPONDENT . IT IS ABOUT PRESERVING THE CONFIDENCE , THAT OUR CITIZENS DESERVE TO HAVE I N OUR JUDICIARY. TO ACCOMPLISH THIS IMPORTANT OBJECTIVE , WE RESPECTFULLY REQUEST THAT THIS COURT ACCEPT THE RECOMMENDATION OF THE ADJUDICATORY PANEL OF THE JUDI CIAL QUALIFICATIONS COMMISSION.

CHIEF JUSTICE: REBUTTAL .

THE COURT HAS HIT U P ON AN IMPORTANT POINT THAT I WOULD L IKE TO ADDRESS BRIEFLY , AN D THAT IS THE RELATIONSHIP OF THE THREE WITNESSES THAT HAVE ACC USED JUDGE HENSON . NEESMITH, M S. JIMINEZ AND HER FATHER.MR. NEESMITH WAS INVOLVED IN THIS CASE FROM THE VERY BEGINNING.HE DID THE BOND HEARING. HE EXPECT ED TO G ET HALF THE FEE.HE WAS, THEN, S HUT OUT ANDDID NOT IN DICATE GET PAID. A FTER DID NOT GET PAID. AFTER DIANA WAS SENTENCED , THE RECORD WILL SHOW THAT HE WAS H I RED B ITE JIMINEZ FAMILY TO DO POSTCONVICTION. AND DIE AND I AND DIANA 'S TESTIMONY TAKEN IN 2004 , SHETOLD US FOR THE FIRST TIME THAT HER CONVICTION HAD BEEN , I BELIEVE TIMING WE ISS THE STATEMENTS THAT WERE MADE WOULD SHOW THE PROCEDURE WAS ONG OING WITH REGARD TO HIS REPRESENTATION.

DO WE KNOW THAT THIS HAD ANYTHING TO DO WITH THE PROCEEDINGS THAT WAS ADVANCED IN THE ISSUE OF COLLATERAL PROCEEDINGS?

I DON'T THINK WE KNOW FROM THIS RECORD, YOUR HONOR. THE SE COND MATTER THAT THE COURT BROUGH T UP IN MR . RUSSELL 'S PRESENTATION WAS THE MATTER OF MOTI VATION. MOST PEOPLE DON'T DO SOMETHING FOR NO REASON AT ALL , AND THAT IS ONE OF THE THINGS YOU HAVE TO ASK YOURSELF, IS WHY WOULD , ASSUME JUDGE HENSON DID THIS, WHY WOULD HE D O IT, AND THE PANEL CA ME UP WITH THE CONCLUSION THAT I T WAS BECAUSE HE WAS NOT PREPARED FOR TRIAL, YET THEY FOUND HIM , HE WAS NEVER FOUND GUILTY OF THAT. HE WAS NEVER FOUND GUILTY OF THAT, SO IF YOU BASE THE FINDING ON THE MOTIVATION, IT FALLS R IGHT THERE .

DO WE CONSIDER AT ALL