7th Circuit to fill 2 judicial openings amid a lack of diversity in applicants
- Oops!Something went wrong.Please try again later.
Gov. Ron DeSantis will choose from six finalists to fill a vacancy on the 7th Circuit bench while steps are already underway to fill a second seat opening soon, marking significant turnover on the circuit’s bench, leaving it with less experience and less diversity.
The retirement of Raul Zambrano in December and the pending retirement of James Clayton April 1 will complete the departures of two of the 7th Circuit's most experienced judges.
Zambrano’s departure makes the circuit less diverse, leaving it without a Hispanic judge.
Apparently only one minority candidate applied for his seat, Assistant Public Defender Regina Nunnally, who was not selected as a finalist.
And a criminal defense attorney in a letter to the Judicial Nominating Commission talked about a different kind of dearth of diversity: too many prosecutors.
Among the six finalists for Zambrano's seat are three prosecutors.
As the governor's office interviews the finalists, the 7th Circuit Judicial Nominating Commission is accepting applications for Clayton’s seat. The deadline for applications is 5 p.m. March 20.
Besides the power and responsibility, the job comes with a $191,163 annual salary.
The commission interviews the applicants publicly for about 10 minutes. Then they deliberate in private before selecting finalist.
For Zambrano’s seat, the commission selected Ann Phillips, Robert Pickens III, Michele Simonsen, Sarah Thomas, Andrew Urbanak and David Wainer III as finalists who will be forwarded to Gov. Ron DeSantis.
Phillips, an attorney, is an associate professor and program coordinator of Homeland Security at Embry-Riddle Aeronautical University.
Pickens is an attorney at Holmes & Young in Crescent City, according to the Florida Bar member profile.
Wainer is an attorney in civil practice in Jacksonville.
Simonsen, Thomas and Urbanak are prosecutors with the 7th Circuit State Attorney's Office.
'Too many prosecutors'
Criminal Defense Attorney Michael Lambert wrote in a letter to the committee before it selected its finalists for Zambrano's seat that too many prosecutors ascended to be judges.
“All the judges I grew up with will soon be resigning," Lambert wrote. "The void that will be created is immeasurable. We currently have too many prosecutors who are judges. It escapes me that they are seemingly perceived above civil and criminal defense lawyers. Many are known because of the salacious media coverage of various cases they prosecute.”
Thirteen of the 26 circuit judges in the 7th Circuit had previously worked as prosecutors — most of them in the 7th Circuit but some in the 4th Circuit, based on their profiles on the 7th Circuit page. Some worked as prosecutors immediately before becoming judges while others listed having worked as prosecutors in the past. Some listed being in private practice as well at some point in their careers.
Zambrano, who was no longer listed since he is retired, also had worked as a prosecutor immediately before becoming judge.
Nine of the circuit’s 17 county judges listed some experience as prosecutors.
Judicial candidates' recommendations
Some of the nominees to fill Zambrano’s seat received letters of recommendation. The News-Journal requested copies of any letters or emails sent for the six finalists.
The committee provided letters or emails for two of the six finalists. .
Sen. Tom Wright, R-Port Orange, sent a letter supporting Phillips for the vacant position. Phillips is an assistant professor and program coordinator of Homeland Security at Embry-Riddle Aeronautical University and is also a former assistant state attorney general, according to Wright’s letter.
Wright praised Phillips’ “integrity, fairness and legal prowess,” in the letter.
“I am confident that Ms. Phillips’ diverse experience, expertise in law, and dedication to serving her community make her the right person for this position,” Wright wrote.
The committee received about 28 letters or emails in support of Assistant State Attorney Sarah Thomas. She received support from business people, lawyers and a circuit judge in Kentucky, where she grew up. Thomas received a letter of support from Lauren Harbuck, an employee benefits specialist at Brown & Brown. The Volusia Flagler Association of Women Lawyers also supports Thomas.
Thomas also received letters or emails of support from 10 law enforcement officers, including Daytona Beach Police Chief Jakari Young who praised her work in prosecuting a human trafficking case. She received more praise from Holly Hill Police Chief Jeff Miller in having a bond quickly revoked for a man charged in a case involving sexual abuse of children.
Chitwood makes a recommendation
Thomas received letters of support from Volusia Sheriff’s Office Chief Deputy Brian Henderson and from Volusia Sheriff Mike Chitwood.
Chitwood wrote in praise of her work, including on a case in which he was the victim. Chitwood did not say what case it was, but he has been the target of online threats which have led to criminal charges against a handful of people across the country.
Chitwood also brought up the case of Nicole Jackson-Maldonado, who was 14 when she and a 12-year-old boy were accused of shooting at deputies. The boy’s case was handled in juvenile court and at his sentencing a deputy told the boy that he was forgiven. But Jackson-Maldonado's case was kept in adult court and she was sentenced to 20 years in prison as part of a plea agreement. The State Attorney's Office stated that Jackson-Maldonado was the "ringleader" and "primary shooter."
“Through the course of this case the VSO developed an even closer relationship with Sarah due to the criticism and backlash that both endured from those trying to find the SAO or the VSO at fault,” Chitwood wrote in his recommendation letter.
While it was not mentioned in the letters, Thomas also aggressively prosecuted in 2021 former Daytona Beach Police Officer Shane Jackson who was fired after stabbing someone outside a New Smyrna Beach bar. A jury convicted Jackson of the lesser charge of felony battery, and Circuit Judge Leah Case sentenced Jackson in October to four years in prison followed by one year probation.
But the committee also received a letter critical of Thomas from criminal defense attorney Lambert. Lambert wrote about a case involving a former Volusia Sheriff’s Deputy named Jacob Kraker who was charged with perjury in an official proceeding.
Lambert objected that Thomas dropped the charges against Kraker in a document in which she wrote “the arrest was sufficient.” Lambert, who represented Kraker in the case, complained that Thomas' decision denied Kraker the chance to “prove his innocence and clear his name.”
“The State controls the whole process, though it was doing Chitwood’s bidding (perhaps why he wrote her a recommendation letter),” Lambert wrote.
Lambert wrote that Kraker was rehired at the sheriff's office through arbitration with back pay and benefits and then resigned.
While Lambert wrote in the email that there are too many prosecutors, he did give a thumbs-up to Urbanak. Lambert wrote that Urbanak was the most qualified of all the applicants he knew whether prosecutors or not. “Though a prosecutor, he is the pinnacle of that office-humble, principled, even-tempered, soft-spoken, learned, prepared and replete with common sense,” Lambert wrote.
In an email to The News-Journal, Lambert wrote that he was contacted by JNC Chairman Travis Mydock about the applicants. Lambert told Mydock that he thought Asa Simonsen, Jared DePaula, Urbanak and Nunnally were qualified.
A lack of diversity
Regina Nunnally, a long-time assistant public defender, was the lone Black person who applied for the circuit seat. Nunnally has applied for appointments at least 10 times to circuit or county judgeships. Twice her name has been among the finalists.
She said in a phone interview that when she got the call that she was not among the finalist again this time she asked them what she could do to improve her chances. She said she was told there were a lot of candidates and it was a tough choice.
She said she is not applying for Clayton’s position.
In fact, Nunnally is leaving the Public Defender’s Office to take a position at Legal Aid in Volusia County to focus on helping people with housing issues.
Nunnally said it was important to get connected to the right person and “get the governor’s ear” for an appointment.
“It’s political when you run and it’s also political when it comes to appointments,” Nunnally said.
She said the 7th Circuit has a good number of female judges. But it does not have diversity when it comes to race and ethnicity. The circuit has two Black judges, both elected to the bench.
Nunnally said: “I think it’s important that people see that the circuit, whether county or circuit, represents a cross section of the community.”
The 7th Circuit Judicial Nominating Commission
Mydock, a St. Johns County attorney who chairs the 7th Judicial Nominating Commission, declined to speak to The News-Journal about the process of selecting finalists and diversity.
“I think it would be inappropriate for me to give an interview on behalf of the commission,” Mydock wrote.
The commission’s other members are Raven Sword from Flagler County; Kelly Parson Kwiatek, John Reid, Erica White and Terrence White from Volusia County; and Casey Arnold and Andrew Morgan from St. Johns County. The News-Journal contacted them by phone or email, but they either declined to speak or did not respond.
Reid is a high-ranking prosecutor at the 7th Circuit State Attorney’s Office. No one has complained to The News-Journal about Reid having any conflict of interest when considering prosecutors.
The News-Journal sent an email and text messages to the State Attorney’s office asking whether Reid recused himself from deliberations or votes when the applicants were from the prosecutor’s office. But there was no response from Reid or the office.
The Judicial Nominating Commission manual does not list any specific possible conflicts of interest. It just states that a commissioner shall disclose all personal and business relationships with an applicant. It further states that “if a substantial conflict of interest is apparent, that commissioner shall not vote on further consideration of any affected applicants.”
On Tuesday, Mydock sent a passage from the manual about an advisory legal opinion from 1996 from the Florida Attorney General's Office stating that "no substantial conflict of interest exists" in a case in which an assistant public defender "considers and votes" on an applicant from his or her office.
This article originally appeared on The Daytona Beach News-Journal: 7th Circuit to fill 2 judicial seats amid lack of diversity
