Lawyers weigh impact of Broward judge's arrest on death penalty case
A judge being prosecuted by the state for driving drunk should not be in charge of deciding whether a convicted killer lives or dies, a defense lawyer said Tuesday.
Defense lawyer Richard Rosenbaum said he plans to file a motion to remove Broward Circuit Judge Cynthia Imperato from the Randy W. Tundidor murder case. Then Tundidor will seek a new trial, Rosenbaum said.
Imperato, 56, was arrested last week in Boca Raton after a police officer saw her car weaving on the roadway. She refused a breath test and declined to cooperate when the officer asked her to step in front of her Mercedes-Benz.
Imperato has now moved from the criminal division at the Broward Courthouse to handle foreclosure cases, leaving all her pending cases to Broward Circuit Judge Paul Backman. For most cases, changing judges is little more than an administrative complication.
But Tundidor's is not like most cases.
Tundidor, 46, was convicted in May 2012 of the murder of his landlord, Nova Southeastern University professor Joseph Morrissey, and the attempted murder of the professor's wife and son. Five months later, the jury unanimously recommended the death penalty.
The case has been at a standstill since then, with the defense filing various motions hoping for a new trial. Tundidor was due in court Tuesday for a Spencer hearing, during which the defense argues for a life sentence rather than execution.
But Imperato's arrest invigorated Rosenbaum's effort to win his client a new trial. He told Backman Tuesday that he wants Imperato off the case, and that any judge who tries to step in at the final stage would not be qualified to pass sentence without having sat in on the trial.
Backman disagreed, saying he could review trial transcripts to bring him up to speed.
Prosecutor Tom Coleman argued that Imperato, who is still a judge, can finish working on the Tundidor case even though she is now in a new division at the courthouse.
Nova Southeastern University law professor Bob Jarvis said the defense is unlikely to prevail in its bid to get Imperato off the case unless that's what she wants.
"There is no accepted standard for when a recusal is necessary," he said. "The question that comes up is, would a reasonable person say this judge cannot do justice in this case?"
Jarvis said Imperato's "scrape" with the law is probably not enough to warrant her removal from the Tundidor case.
"Nothing that happened that night [of her arrest] has made it so that she can't handle the sentencing," he said. "This case is ready for disposition."
(Source: The Orlando Sentinel)
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