The tragic story of Josh Stein: A sick tortoise, an urge to help and a fatal trip through Broward’s Felony Mental Health Court

Josh Stein, a mentally troubled man of 38, died of an apparent accidental drug overdose the day after Christmas.  Broward’s elected public defender, Howard Finkelstein, says Stein’s death can be traced to anxiety and stress caused by “cattle car justice” meted out in Broward’s Felony Mental Health Court. In a letter last week to Chief Judge Peter Weinstein, Finkelstein chronicled Stein’s journey through the system after his burglary arrest in July 2013 for an ill advised taking, without permission, of a sickly red-footed tortoise that Stein wanted to nurse back to health. Finkelstein, who helped establish the specialized court to protect the mentally disabled in 2003, now says Felony Mental Health Court is a failure that must be shut down. 

Josh Stein

Josh Stein

Dear Chief Judge Weinstein,

Josh Stein is dead. A 38-year-old man has been forever silenced. His mother and father will never again see his smile, hear his laugh or hold and hug him. Their only son is lost forever. Now they are left with only pictures and memories.

He died a victim of Broward County’s Felony Mental Health Court’s callous, misguided treatment of the mentally ill. (more…)

Florida’s chief justice and the hunt for goof-off judges

By Dan Christensen,

Florida Chief Justice Jorge Labarga

Florida Chief Justice Jorge Labarga

Florida’s chief justice has ordered the state’s 20 chief judges to monitor the work of each judge in their circuit looking for goof-offs – a move that’s unnerved judges in South Florida and elsewhere.

In the same Dec. 1 administrative order, Chief Justice Jorge Labarga directed each chief judge to “separately communicate” with each trial court judge in their circuit “the importance of a professional work ethic and accountability to the judiciary as a full-time commitment.”

“Neglect of duty” offenses “shall be reported by the chief judge to the chief justice of this court,” Labarga’s order says.

Labarga declined an interview request to discuss what prompted the order.

But Supreme Court spokesman Craig Waters said, “The Chief Justice simply wants to make sure that the chief judges and the judges they supervise understand that there are consequences for violations of the public trust. We certainly realize that most of our judges honor their duties, but we feel it is a healthy thing to remind everyone of their ethical obligations.”

Broward, where judicial misbehavior has made national headlines and County Court Judge Gisele Pollack and Circuit Judge Laura Marie Watson are defending ethics charges brought against them by the Judicial Qualifications Commission (JQC), is among a number of circuits thought to have motivated Labarga’s order.

“The Supreme Court has to have a statewide perspective,” said Waters. “The people in the 18th Circuit (Brevard and Seminole counties) are convinced that the order is aimed at them.” Three judges from the 18th Circuit have disciplinary cases pending before the JQC.

Still, over the years Broward has had its fair share of concern about judges allegedly shirking their duty.

Larry Seidlin, the weepy probate judge who gained notoriety presiding over the high-profile Anna Nicole Smith case, had a reputation for paying more attention to his backhand than his caseload before his 2007 retirement. And this fall’s election included allegations that defeated incumbent Judge Stephen Feren was frequently absent from the courthouse.

Chief judges are elected to two-year terms by their fellow judges and serve as the administrative officer in their circuit, with supervisory authority over all judges and court personnel.


The new administrative order obliges chiefs to ensure accountability by the judges they oversee.

“Until this order came out, the chief judge, at least in Broward, was largely a ceremonial title where you went to rubber chicken lunches and you cut ribbons at the courthouse,” said Broward Public Defender Howard Finkelstein. “I was told by at least four chief judges that whether a judge was intoxicated on the bench or was violating people’s rights by not following the law they had no authority to do anything…This order, as I read it, puts it clearly on the chief judges.”

Broward Chief Judge Peter Weinstein has the new, laborious chore of monitoring his colleagues’ work in the 17th Judicial Circuit. How will he do it?

“That’s an excellent question when you have 90 judges,” he said. “It’s hard to quantify a judge’s work.”

Weinstein said he hoped to get more specific direction from Labarga at the quarterly chief judges’ meeting at the Supreme Court today, Dec. 12.

“This will be discussed, and if it isn’t I will talk with Chief Justice Labarga personally to ask him, ‘What is it you actually want us to do?’” said Weinstein.

JAABBLOG, a courthouse blog written by attorney William Gelin, reported Tuesday that the chief justice’s administrative order may have been a response to a potential investigation of Broward’s judiciary by the Senate Judiciary Committee. The blog said Sen. David Simmons, R-Altamonte Springs, confirmed that public hearings had been considered, but were obviated by Labarga’s order.

Simmons did not return a phone message seeking comment.

Waters, the high court’s spokesman, was asked whether Labarga was aware of the Senate’s concerns, and whether that prompted his order.

“We of course always have a dialogue going on with the Legislature and of course are open to whatever concerns they have,” said Waters, who declined further comment.

“Serious concerns” about court orders altered by BSO prompt Broward judges’ meeting

By Dan Christensen, 

Broward County Court Judges Sharon Zeller, right, and Ginger Lerner-Wren

Broward County Court Judges Sharon Zeller, right, and Ginger Lerner-Wren

Concerned that the sheriff’s office has altered the terms of misdemeanor probation orders without informing judges, Broward’s top county court judge has called a meeting of judges for next week to assess what’s happening.

“It is apparent that there is a practice of modifying the terms of probation without the knowledge or input of the judiciary,” Administrative Judge Sharon Zeller said in a recent memo to all criminal division judges that announced the Dec. 10 meeting.

“This raises serious concerns: the legality of probation, with probation, instead of the court, determining the terms of probation; modifying terms of probation without knowledge of the court, and enforcement.”

No law or administrative order of the Broward court authorizes the Broward Sheriff’s Office to engage in the little-known practice of unilaterally changing court-ordered reporting requirements to reduce how often defendants must report in person to a probation officer.

Florida Statute 948.03 gives judges the sole authority to “determine the terms and conditions of probation.”

As reported last month, Broward County Court Judge Ginger Lerner-Wren discovered what BSO was doing in early October while questioning a defendant. She quickly found that dozens of her probation orders had been changed, and prohibited the practice in her courtroom, calling it “outside the law” and “not in the interest of public safety.”

A probation officer later told the judge in open court, “This is occurring in order to alleviate workforce shortages or pressures.”

In an interview, Judge Zeller said that an attorney for the circuit court, Alexandra Rieman, has researched the matter and “believes that Judge Lerner-Wren is correct.” Zeller said a new administrative order of the court might be needed to address the problem.

“It seems easily solvable,” Zeller said.


BSO Community Programs Director David Scharf, who oversees probation, said in an interview that BSO adopted the practice as policy about 2009, but he declined several requests over the past month to make public a copy of that policy.

The practice, known as “dosage probation,” is based on what Scharf said are “evidence-based” risk assessments of probationers to determine how many doses, or times, a probationer must report in person to an officer. He cited language in standard misdemeanor probation order forms that he said authorizes probation officers to modify conditions imposed by a judge. The form tells defendants that “each month you will make a full and truthful report in person to your probation officer, unless otherwise directed by your probation officer.”

Thousands of misdemeanor defendants are adjudicated guilty every year and many are sentenced to varying terms of probation. Asked how many times BSO changed court-ordered reporting requirements for misdemeanor defendants last year, Scharf declined to answer.

Judge Zeller said she does not plan to ask BSO to provide such an accounting, but said individual judges may do so.

Probationers instructed not to report are nevertheless required to pay BSO the full cost of supervision, a monthly fee of $75.

Take the case of Christopher Thurlow, a Fort Lauderdale man found guilty last April of battery and sentenced to “make a full and truthful report in person to your probation officer” once a month for 12 months. A standard special condition of probation required him to pay the full cost of his supervision, $900, at a rate of $75 a month.

Court and BSO records show BSO later deemed Thurlow a medium risk, placing him on what’s known as Level 2 supervision. Level 2 offenders are told to report in person every other month – or six times a year. In the months they aren’t required to show up for an in-person assessment, they mail in a form with several questions including, “Have you used alcohol excessively or any controlled substances this month?”

No matter how often he reports in person, however, BSO still requires Thurlow to pay the full $900 for 12 months of reporting supervision. “Probationers do pay monthly costs of supervision regardless of their report in status,” BSO spokeswoman Keyla Concepcion explained.


Misdemeanor probation supervision fees represent a significant sum for BSO. During the fiscal year that ended Sept. 30, BSO supervised 12,500 misdemeanor probationers and collected $2.8 million in such fees, according to information provided by BSO.

BSO’s probation workload is crushing. Last year, BSO employed just 31 probation specialists to handle the onslaught of probationers.

The State Attorney’s Office has taken a wait-and-see approach, with a spokesman indicating sympathy for Judge Lerner-Wren’s concerns, but saying it’s “not directly our fight.”

In a Nov. 18 memo about the matter to her fellow judges, Judge Lerner-Wren mentioned receiving a call from Sheriff Scott Israel days after reported the story.

He “wanted to say he was 95 percent in agreement. He also stated he only wants to work with the judges and his office will gladly comply with whatever a judge wants for his or her division,” said Lerner-Wren.

Lerner-Wren, who declined to be interviewed about her conversation with the sheriff, also cited “pertinent” Florida law, including the Separation of Powers provision of the Florida Constitution.

“It seems logical to conclude that unless county criminal division judges transmit a directive to BSO to curtail the systemic practice of changing sentencing orders of probation without court notification or court approval, this practice will continue,” she wrote.

BSO’s practice of altering probation terms could also run afoul of another constitutional provision which expressly grants victims of crime “the right to be informed, to be present, and to be heard when relevant, at all stages of criminal proceedings.”

In Thurlow’s case, for example, the battery victim was not informed about a Nov. 13 hearing at which his terms of probation were discussed, according to a transcript of the proceedings.

Broward’s criminal justice system failing mentally ill, too costly

Broward Chief Judge Peter Weinstein, left, and Public Defender Howard Finkelstein

Broward Chief Judge Peter Weinstein, left, and Public Defender Howard Finkelstein

Editors Note:
Last month,  published the story of Broward’s “Forgotten Soldier” – a mentally ill ex-Marine in his late fifties whose journey through the county’s long broken mental health system was marred by illegal confinement and a lack of appropriate care.

The compelling story of the Forgotten Soldier was written by Owen McNamee and Douglas Brawley, two assistant public defenders who represent him. Last week, their boss, elected Broward Public Defender wrote to Broward Chief Judge Peter Weinstein to compare the treatment of the mentally ill by the criminal justice systems of Broward and Miami-Dade. Finkelstein concluded that Broward’s mental health system is backwards, cruel and unnecessarily costly.

“We need to get back on track and Miami-Dade has provided a successful model to follow,” Finkelstein said. Here is Finkelstein’s November 19 letter to Weinstein: (more…)

BSO quietly changes court’s probation orders; Broward judge blows the whistle

By Dan Christensen, 

Broward County Judge Ginger Lerner-Wren, left, and David Scharf, director of community programs for the Broward Sheriff's Office

Broward County Judge Ginger Lerner-Wren, left, and David Scharf, director of community programs for the Broward Sheriff’s Office

Fort Lauderdale resident Christopher Wayne Thurlow was adjudged guilty last April of misdemeanor battery and violating a restraining order. His sentence: 12 months of reporting probation – that is, to appear personally once a month before a probation officer.

But that’s not what happened.

Without informing the court, the Broward Sheriff’s Probation Office changed Thurlow’s court-ordered reporting requirement to once every two months.

Broward County Court Judge Ginger Lerner-Wren, who signed Thurlow’s probation order, chanced to find out October 2 when Thurlow appeared in her courtroom again for arraignment on new charges of resisting arrest without violence and a related criminal traffic charge.

“I asked (the prosecutor) to contact probation, as I knew defendant was currently on probation. The defendant indicated to the court that he was told he did not have to report,” Lerner-Wren told Chief Judge Peter Weinstein in a memo the next day.

At a hearing, Judge Lerner-Wren soon learned from a probation officer that BSO had similarly modified other probation orders without her knowledge.

“This is being done with no court order or other known administrative authority,” she wrote.

Lerner-Wren signed an order banning the practice in her courtroom, calling it “outside of the law” and “not in the interest of public safety.” Her memo adds that Charmin Gilbert, the probation officer, stated “this is occurring in order to alleviate workforce shortages or pressures.”

Since then, Lerner-Wren has informed the court’s top administrative judges by memo that she’s identified dozens of similar cases in her court culled from a list of 125 pending court-ordered probation cases compiled by the probation office.


“The majority appear to have been modified, changed or altered without court notification, opportunity for court review and without court approval,” she wrote in an Oct. 29 memo obtained by “The practice seems to have emerged as early as 2010, with the pattern apparently being systemized in 2014.”

Lerner-Wren, a veteran member of Broward’s bench, declined comment. But in her Oct. 29 memo she expressed concern about BSO’s actions.

“In my view, this situation raises a number of serious legal issues, particularly as to the integrity of court process, legal enforcement of sentencing orders by the court and potential public safety issues,” she said.

The memo indicates particular concern that BSO Probation’s actions violate the rights of victims of violent crimes.

“It is unknown how many modified cases involve a victim and/or are violence related,” she said. “In my view, this raises constitutional issues relating to the legal question of whether or not victims had a right to be notified and be heard pertaining to a change in post-conviction sentencing.”

County Court administrative Judge Sharon Zeller and Criminal Division chairwoman Judge Mary Rudd Robinson did not respond to requests for comment over several days. Chief Judge Weinstein is on vacation.

Ron Ishoy, a spokesman for State Attorney Michael Satz, said his office is aware of the matter and has been in contact about it with BSO officials.

“It’s not directly our fight (but) we certainly understand Judge Lerner-Wren’s concern and we’ll continue to monitor it,” Ishoy said.

Florida Statute 948.03 gives judges the sole authority to “determine the terms and conditions of probation.”


But David Scharf, who oversees probation as BSO’s director of community programs, indicated in an interview that his office has modified the terms of court-ordered probation in each of Broward County’s misdemeanor criminal courts because it is standard BSO policy. If so, hundreds or perhaps thousands of cases could be affected.

Scharf added that while he’s aware of judicial concerns about possible illegality, he sees no actual problem.

“Our practice is not contrary to any court order,” he said, citing standard language in misdemeanor probation orders that he says authorizes probation officers to modify conditions imposed by a judge.

That language on forms defendants sign says, “Each month you will make a full and truthful report in person to your probation officer, unless otherwise directed by your probation officer.”

Scharf explained that the practice, known as “dosage probation,” is rooted in what’s known as “evidence-based decision making” that involves the use of “objective risk assessment” criteria to assess whether a probationer is high, medium or low risk. BSO, without court input, then determines how many doses, or times, someone on probation must physically report to an officer.

“We as an agency are committed to public safety. The claim that we are compromising public safety we refute tremendously,” Scharf said. “Our successful completion rates are up.”

Scharf said he does not understand why Judge Lerner-Wren was not aware of BSO Probation’s policy because dosage has been part of BSO policy since about 2009.

“I don’t know what she doesn’t know,” said Scharf, who did not produce a copy of the policy despite several requests. “We have probation officers in court and have for many years. There’s never been a question or an issue about how we operated.”

He said BSO is currently developing a response to the court.

“We’re ready to work with the judiciary and formulate a plan, and if they want more discretion in how they are handling things we certainly are willing to do that – with the caveat that what we are doing is working,” said Scharf.

Meanwhile, Judge Lerner-Wren has informed judicial higher-ups of her plans to schedule “review hearings of all cases identified by BSO Probation to reaffirm court orders, hear input from the parties and evaluate the need for further court action.

“I wanted to share this new information in order that my colleagues may consider what steps, if any, to take in their respective criminal divisions,” she said.

Broward PD Finkelstein says bond court judge Hurley must go; Chief judge says no

By Dan Christensen, 

Broward County Court Judge John "Jay" Hurley Photo: NBC6 Miami

Broward County Court Judge John “Jay” Hurley Photo: NBC6 Miami

John “Jay” Hurley, a Broward County judge who’s gained a measure of online celebrity for his brand of televised justice, will keep his post in bond court despite a call for his removal by Broward Public Defender Howard Finkelstein.

Finkelstein complained to Chief Judge Peter M. Weinstein last week in a letter that Hurley should be booted out of magistrate court for “expressing his contempt for the homeless and members of my office.”

Saying Hurley “has crossed the line,” Finkelstein asked Weinstein to transfer him in a letter recounting five incidents from October 7-15. DVD recordings that Finkelstein said depict “Judge Hurley’s rash and troubling behavior” accompanied the four-page letter.

“Each DVD shows Judge Hurley over-reacting, abusing his judicial authority and acting in a manner unbecoming a judicial officer,” Finkelstein wrote. “His behavior is clearly intended to bully and intimidate the attorneys and prevent them from effectively representing detainees.”

But in a Sunday telephone interview, Weinstein rejected Finkelstein’s request.

“Jay Hurley is doing a fine job. He’s a good judge. It’s a tough assignment and there are all kinds of issues, but there are no plans for him to move,” said Weinstein, who has served as chief judge since 2011.

Specifically, Finkelstein accused Hurley of chastising one public defender, threatening two others with contempt and twice having Chief Assistant Public Defender Nadine Girault Levy thrown out of court for seeking to assist homeless persons charged with violating municipal ordinances.

“On one occasion he actually pressed the panic button to stop her from making legal argument,” Finkelstein told Weinstein. “In an attempt to humiliate Girault Levy, Judge Hurley then ordered her to remain in the courtroom until deputies arrive[d] so she could be escorted from the courtroom by armed deputies.”

Hurley declined comment Friday through his secretary.

The web site streams live video from Broward’s bond court and other locations. In June, Miami’s NBC 6 reported that Hurley has a daily following “on computer screens across the nation.” Site owner Cathy Russon told the station, “Judge Hurley popped into our chat room the other night, and oh my God, it’s like a celebrity that is better than George Clooney.”

Finkelstein, widely known locally as TV legal advice maven “Help Me Howard,” said the judge’s actions followed challenges by public defenders to Hurley’s “refusal to appoint counsel to homeless persons” charged with violating city ordinances.

Florida’s court operations are funded by the state, except for criminal violations of city ordinances. If a police officer arrests an indigent for a municipal infraction, the city must pay for a defense lawyer.

But city paid defense lawyers, like city prosecutors, typically don’t appear at bond hearings due to cost considerations. They only show up after the case proceeds to court.

Public defenders are state-funded and do not handle municipal cases. Yet they are always present at magistrate hearings and are permitted by law to counsel indigent defendants and ensure they get the rights to which they are entitled.

And that’s the rub. Indigents accused of minor city violations are, in what Finkelstein said in an interview is Hurley’s encouragement; often plead guilty in exchange for a sentence of a few days or time served.

“He is more focused on quickly moving through the docket than ensuring that defendants understand the process,” Finkelstein said in his letter.

Hurley’s refusal to appoint a lawyer to defend homeless persons arrested for municipal violations is allegedly personal.

In his letter, Finkelstein told Chief Judge Weinstein that at an Oct. 14 hearing Hurley went into a 10 minute “impromptu tirade” in which he “interjected his personal feelings into the proceedings and admitted that his wife and family had been approached by the homeless while in their car in traffic. He attempted to minimize his comments by characterizing them as ‘venting’ and repeatedly emphasized his compassion for homeless people while he continued to complain about being harassed by the homeless.”

Finkelstein also cited Hurley’s handling of defendant Gregory Williams at an Oct. 8 bond hearing. Via video proceedings, Williams told the judge that he was deaf and did not use sign language, but did read lips.

“Judge Hurley completely ignored (Chief Assistant PD) Girault Levy’s request to appoint counsel to Williams and to transport Williams to the courtroom so he could read the court’s lips and understand the hearing,” Finkelstein wrote.

Instead, Hurley accepted a no contest plea from Williams over video.

“Judge Hurley relied on a detention deputy to “translate.” It is apparent that Williams did not understand what was said and only wished to be released from custody, Finkelstein told the chief judge. “Judge Hurley denied Williams due process of law and failed to accommodate his disability in order to expedite and extricate a plea.”

Weinstein, while declaring his support for Hurley, acknowledged the court has “issues with how we deal with municipal ordinance violations” and said he’s taking steps to address them.

“We are in the process of working on a new administrative order to make things a lot clearer,” Weinstein said. He said the changes should be implemented by the end of the year.

Broward continues to fail its mentally ill; The sad case of Broward’s ‘Forgotten Soldier’

By Owen McNamee and Douglas Brawley 
Special to 

South Florida State Hospital in Pembroke Pines.

South Florida State Hospital in Pembroke Pines.

Editor’s Note: Owen McNamee heads the mental health division of the Broward Public Defender’s Office. Douglas Brawley is an assistant Broward public defender and attorney for the Forgotten Soldier.

Twenty years ago eighteen members of a Broward Grand Jury issued a scathing report that concluded the county’s mental health system was under-financed, fragmented and leaderless. They found the system was failing thousands of mentally ill and disabled persons and causing hundreds to wind up in jail or endure forced hospitalizations without needed treatment.

Twenty years later, we are still failing this vulnerable population. (more…)

Broward courts use fees to prevent sun from shining on judicial records; a $132,000 demand

By Alison Fitzgerald, Center for Public Integrity 

Rendering of the new Broward courthouse now under construction.

Rendering of the new Broward courthouse now under construction.

When the Center for Public Integrity last summer requested records from Florida’s 17th judicial circuit regarding the procedures and policies surrounding foreclosure cases, officials were more than happy to comply — for a price.

A price of $132,348, to be exact. (more…)

Star of Oscar-winning film about dolphin hunting cast in long-running Broward civil action

By William Hladky, 

Ric O'Barry

Ric O’Barry

Six years after it began, a sprawling civil action targeting the Miami-based star of an Academy Award-winning documentary about dolphin hunting in Japan drags on in Broward Circuit Court with no end in sight.

Ocean World Adventure Park, Marina and Casino, located in the Dominican Republic, says its $700 million “racketeering” suit against Ric O’Barry is about damages it suffered after O’Barry “orchestrated a campaign” that ultimately prevented Ocean World from importing in 2007 a dozen dolphins from a Japanese cove where fisherman slaughter and sometimes capture the ocean mammals.

O’Barry and his employer and co-defendant, the nonprofit Earth Island Institute, counter that Ocean World’s legal action is a SLAPP suit intended to silence O’Barry and other environmentalists. SLAPP is an acronym for “strategic lawsuit against public participation.”

“It is not going to intimidate me and shut me up,” O’Barry said in an interview.

O’Barry became a dolphin activist after training dolphins for the 1960s Miami-based television show “Flipper.” He became a star in “The Cove,’ which took home the Academy Award for Best Documentary in 2010.

the-cove-movieThe film follows O’Barry and a group of dolphin activists in Taiji, Japan, as they sneak past fences and “keep out” signs to covertly film Japanese fishermen inside the cove as they herd, trap and slaughter dolphins not selected for captivity.

Virginia Sherlock, a Stuart-based attorney experienced in defending against SLAPP suits, said real estate developers often file SLAPP suits to silence critics. Those who file SLAPP suits have no intention of winning, she said. “The purpose is to shut up” critics and make sure “everybody else knows about it” so the suit will have a chilling effect.

Thirty states, including Florida, have anti-SLAPP laws. Florida’s law is weak because it only restricts government agencies and homeowner associations from filing such suits. It does not apply to businesses.

Sherlock said that while SLAPP suits are “almost never successful,’’ they average about 3 ½ years to resolve. Ocean World’s six-year-old suit is unusual, she said.

In its original 16-page complaint, Ocean World sought to halt criticism by asking the court to order O’Barry and the Earth Island Institute, an environmental organization based in Berkeley, California, from showing any videos that mention the “Taiji Twelve” dolphins that Ocean World was attempting to import.

Such videos, the complaint alleged, would “recruit others to commit animal enterprise terror (that)…will cause economic harm…, incite blockages, violence and vandalism towards the…12 dolphins.”

The court, however, declined to approve a restraining order.

Today, the court file fills more than 28 boxes.

Ocean World brought two more suits against O’Barry and the Earth Island Institute in Miami-Dade County in 2007 and 2011 alleging slander, defamation, negligence and fraud. Both were later dismissed.

A fourth suit, filed in Broward last May, is pending. It alleges defamation, slander and libel against O’Barry and Earth Island Institute for remarks made by O’Barry on Mike Huckabee’s television show on March 14, 2010.

O’Barry was asked by Huckabee about how much money dealers earn from selling captured dolphins. He mentioned Ocean World once.

“We know that Ocean World Casino in the Dominican Republic paid $154,000 for each dolphin…and when we started speaking out against this, myself and Earth Island Institute, we were hit with a $700 million lawsuit which we are still dealing with,” O’Barry responded.

Deanna Shullman, a Lake Worth attorney who represents O’Barry, said she requested a trial date for the 2007 case more than a year ago, but has yet to receive one.

O’Barry says Ocean World doesn’t want a trial. The suit “just goes on and on,” he said.

Shullman has complained in a pleading that Ocean World’s lawyer, Alexander Penalta, has delayed proceedings by filing more than 30 notices that he would be unavailable for depositions and hearings.

Penalta, of Boca Raton, declined to be interviewed. He has, however, been busy in court.

In recent weeks, he filed papers asserting a variety of new, unsubstantiated charges against O’Barry, including one that he bilked a couple of money by claiming his dolphins could make spiritual contact with their dead son. Peralta also asked Broward Circuit Judge Marc Gold to order O’Barry to submit to a mental examination because of alleged “memory problems.”

Said Shullman, “The filings by the plaintiff are getting farther and farther afield from the true issues in this case.”

Yet the piling on of allegations is characteristic of a SLAPP suit, creating a “moving target” that is harder to defend against, according to attorney Sherlock.oeanworld

“The purpose of this tactic is to keep litigation going, even when there is a clear lack of factual or legal support, by simply changing the ‘facts’ as set out by the plaintiff,” Sherlock said.

Ocean World had wanted the 12 Japanese dolphins for a second park it planned to build in the Dominican Republic. But the dolphins were not allowed to enter the Dominican Republic after the government refused to issue a required permit.

Without the dolphins, the park could not be built, Ocean World Vice President Stefan Meister said during a deposition.

“Because of the actions of your clients, I couldn’t get that import permit,” Meister said.

The original lawsuit, however, was filed by Ocean World three months before the Dominican Republic made its decision to deny the permit that prevented the dolphins from entering the country.

Attorney Sherlock said SLAPP suits frequently are filed before governmental decisions are finalized and typically accuse defendants of “defamation” and “tortious interference.” Ocean World’s original case against O’Barry includes those same counts.

While O’Barry and the Earth Island Institute are the focus of Ocean World’s litigation, there is evidence to indicate that diplomatic pressure from Germany and Great Britain played a big role in the Dominican Republic’s decision to block Ocean World’s purchase of the 12 Taiji dolphins.

Meister discussed it in an Aug. 9, 2007 email he sent to two dolphin dealers.

Meister wrote how he had met with then-Dominican Republic President Leonel Fernandez and his environmental minister to discuss importing the Japanese dolphins.

“The meeting was going our way,” Meister wrote, noting that the President had dismissed” complaints from “tour operators, animal rights groups, (and) zoological associations” opposed to importing the dolphins.

But the “atmosphere of the meeting’’ changed when the environmental minister gave Fernandez letters from the German and British ambassadors that said “importing dolphins from the Japanese…would tarnish the image of the Dominican Republic and could very well result in a negative backlash in tourism,” the email said.

“The President said in the national interest of the DR, he cannot allow this import under the international pressure,” Meister wrote.

Meister went on to say that he doubted anyone in the “Western Hemisphere” would “touch” the 12 Taiji dolphins. He suggested dolphin dealers should find a buyer “not politically sensitive to the (Japanese) issue,” possibly in China.

Rulings on the recent legal motions and notices are pending. The next hearings in the litigation are set for January in Broward Circuit Court.

Legal battles blaze in Broward, elsewhere six decades after “safe” cigarette filter

By Myron Levin, FairWarning kent

It’s hard to think of anything more reckless than adding a deadly carcinogen to a product that already causes cancer—and then bragging about the health benefits.

That’s what Lorillard Tobacco did 60 years ago when it introduced Kent cigarettes, whose patented “Micronite” filter contained a particularly virulent form of asbestos. Smokers puffed their way through 13 billion Kents from March, 1952 until May, 1956, when Lorillard changed the filter design.

Six decades later, the legal fallout continues—including last month when a Broward jury awarded record damages against Lorillard and filter manufacturer Hollingsworth & Vose of more than $3.5 million.

Lorillard and Hollingsworth & Vose face numerous lawsuits by victims of mesothelioma, an extremely rare and deadly asbestos-related cancer that typically shows up decades after initial exposure. Plaintiffs have included factory workers who produced the cigarettes or filter material, and former smokers who say they inhaled microscopic asbestos fibers through the filters. Lorillard says hardly any fibers escaped.

While there is no official count, records and interviews suggest that the number of mesothelioma claims filed against the companies since the 1980s is at least in the low hundreds. Lorillard filings with the Securities and Exchange Commission show the company settled 90 cases in a recent two year period, and that 60 more cases are pending.

Time is on the companies’ side. Since factory workers and smokers with potential claims all are at least in their 70s and 80s, the strange saga of the asbestos filter should soon be coming to an end.

Lorrillard's cigarette manufacturing plant in Greensboro, N.C. Photo: Rob Brown/Greensboro News & Record

Lorrillard’s cigarette manufacturing plant in Greensboro, N.C. Photo: Rob Brown/Greensboro News & Record

Surprisingly, however, there has been a burst of new cases in the last few years, according to filings with the SEC. Growing awareness of the asbestos episode is probably the cause. These days, a mesothelioma patient is almost certain to be asked by his doctor or lawyer: Did you happen to smoke Kents in the 1950s?

Lorillard officials did not reply to emails and calls seeking comment. H&V also declined interview requests, though company lawyer Andrew McElaney noted that the companies have won most cases that have gone to trial.


Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker with a nearly 15 percent market share, and net sales in 2012 of more than $6.6 billion. Established  in 1760 as the P. Lorillard Co., it is one of the oldest continuously operated companies in the U.S.  Lorillard also owns electronic cigarette-maker blu eCigs, which recently created a buzz with commercials by TV personality Jenny McCarthy and actor Stephen Dorff.

Kent was Lorillard’s response to the health scare of the early 1950s, when the link between smoking and lung cancer began drawing wide attention. Tobacco companies scurried to roll out filters to calm jittery smokers and keep them from quitting in droves. The health benefits would prove illusory, but the switch to filters averted the potential loss of millions of customers.

Lorillard named its first filter for Herbert A. Kent, briefly its president, and aggressively touted the superiority of the Kent “Micronite” filter. It was a blend of  cotton, acetate, crepe paper and crocidolite asbestos—sometimes called “African” or “Bolivian blue” asbestos because of its bluish tint.

At the time, the risk of deadly lung disease to heavily exposed asbestos miners and plant workers was already well-documented. But asbestos also was known to be an effective filter material, dense enough to stop minute particles and gases, as long as it stayed put. Lorillard had learned of the use of crocidolite in gas masks made for the Army Chemical Corps. In contracting with H&V to supply the  material, Lorillard agreed to be held solely responsible for any “harmful effects’’ of the cigarette filters.

Lorillard launched Kent at a press conference at New York’s Waldorf-Astoria, touting the Micronite filter as offering “the greatest health protection in cigarette history.”

From the collection of Stanford University (

From the collection of Stanford University (

Playing on the public’s gee-whiz faith in science and technology, Kent ads told a glamorous, though vague, back story of how the quest for the new filter “ended in an atomic energy plant, where the makers of KENT found a material being used to filter air of microscopic impurities.”

“What is ‘Micronite’?” another ad asked. “It’s a pure, dust-free, completely harmless material that is so safe, so effective, it actually is used to help filter the air in operating rooms of leading hospitals.”

The marketing blitz included advertising in medical journals and mailing gift boxes of Kent to physicians, along with  “Dear Doctor” letters  talking up the advantages for “patients whom you have felt obliged to advise to cut down or cut out smoking.”

The filter material was produced at H&V plants in West Groton and Rochdale, Mass., and shipped to Lorillard cigarette plants in Louisville, Ky., and Jersey City, N.J. For H&V workers,  the results were catastrophic, with whole families destroyed by asbestos disease. A woman named Elizabeth Jacobs buried her husband and brother, both H&V workers, who died of mesothelioma and asbestosis, respectively.

Then Jacobs also died of mesothelioma in 1985 at the age of 54. Her only known exposure to asbestos came from laundering her husband’s dusty work clothes.


The plant was a “dust-creating monster,” said Dr. James A. Talcott, an oncologist who co-authored a study of H&V filter workers. Published in the New England Journal of Medicine in 1989, it tracked the health status of 33 former employees of the West Groton plant. By then, 28 had died—more than three times the expected number, based on average life spans–including 18 from asbestos-related illnesses. Of the five surviving workers, four were suffering from asbestos diseases.

Dozens of Lorillard plant workers also died of mesothelioma. An exhibit in a court case in Louisville listed 34 victims by initials only, under the heading:  “Lorillard Workers With Mesothelioma At Louisville And Jersey City Plants.”

How much asbestos Kent smokers inhaled has been a more contentious and ambiguous subject. Internal documents produced in lawsuits highlight Lorillard’s deep anxieties that Kent smokers were breathing asbestos.

For example, an April, 1954 letter from Lorillard research director Harris B. Parmele to company president W.J. Halley stated that researchers had found “traces of mineral fiber” in the smoke. “We are embarked upon a program of attempting to work out a method for the elimination of the presence of such fibers in the smoke,” the letter said.

memo in September, 1954, H&V official Peter Breymeier discussed the need “to find a way of anchoring asbestos…All efforts are to be exerted to solve the asbestos-dust-in-Kent smoke problem.”

And H&V president A.K. Nicholson stated in a memo two months later: “It is Lorillard’s belief that asbestos must be eliminated from the Kent cigarette as soon as possible because of a whispering campaign started by their competitors of the harmful effects of asbestos.”

As a result, the memo said, H&V would “discontinue that part of our research program devoted to the fixing of asbestos fibres and direct the entire attention of the program toward the complete elimination of asbestos.”

Even so, Lorillard continued using asbestos in the filters for the next 16 months, and continued to sell existing stocks of Kents for several more months.


The filter litigation is hardly Lorillard’s biggest challenge.

The company depends for nearly 90 percent of sales on its popular Newport menthol brand. The Food and Drug Administration is considering whether to restrict the use of menthol in cigarettes—which would be a bigger blow to Lorillard than to its rivals.

The company also faces some 4,500 lawsuits by individual smokers in Florida, thanks to a Florida Supreme Court ruling that made it easier to sue tobacco companies for smoking-related harms.

Though the filter lawsuits are a fraction of that number, Lorillard fiercely defends the ones that go to trial.

“They litigate hard,” said Timothy F. Pearce, a lawyer with the Levin Simes firm in San Francisco who successfully tried a filter case in 2011. “It’s no small undertaking to be in a trial with them,” he said. “They had, like, 13 lawyers” working on the case.

Lorillard and H&V have won 17 of 23 trials of filter cases. One of their six losses came last month in Broward when jurors ordered them to pay more than $3.5 million in damages to former Kent smoker and mesothelioma victim Richard Delisle, of Leesburg. Three other companies were found liable for another $4.5 million.

A key contention of the companies is that little or no asbestos leaked from Kent filters, so plaintiffs contracted mesothelioma in some other way. Despite the nervous tone of internal letters and memos, they say that tests of Kent smoke in the early ‘50s never found more than three fibers per cigarette.

The smokers’ exposures were “very, very low,” Kevin H Reinert, Lorillard’s director of regulatory science policy, testified in a deposition in April “I don’t believe it increased the risk.” Plaintiffs have found this hard to challenge, since Lorillard failed to preserve most of the original test reports.

Plaintiff experts testing cigarettes from old packs of Kents have found abundant asbestos fibers in the smoke. Lorillard and H&V contend the tests were unreliable because the cigarettes had deteriorated with age.

However, the companies’ first line of defense has been to convince juries that plaintiffs didn’t smoke Kents in the first place, and only say they did because they have a bad memory or are shading the truth. To undermine their credibility, defense lawyers and investigators fan out around the country to track down and interview family members, school chums, Army buddies–anyone who might have known the plaintiff in the 1950s.

It’s hard to establish the brand of cigarette a person smoked decades ago, and the strategy has often proved successful. It failed in the case of Don Lenney, who not only won in court, but is still alive nearly four years after being diagnosed (Many mesothelioma victims die within a year).

Lenney, 76, a former insurance agent in Northern California, says he started smoking in high school, and soon switched from unfiltered brands to Kent. “The Kent Micronite filter was supposed to be the healthy alternative,” he told FairWarning, “so I started smoking Kents.”

Diagnosed with mesothelioma in November, 2009, Lenney had his left lung removed and underwent chemotherapy and radiation treatments. He also sued Lorillard and H&V.

“They attacked my credibility as far as whether I had actually smoked Kent cigarettes,” Lenney  recalled. Their investigators “were very pushy,” Lenney said. “They would knock on somebody’s door and just ask to interview them…without even calling first to set up an appointment,” he said. “A number of people were put out with that kind of treatment.”

In March, 2011, Lorillard and H&V were found liable by a state court jury in San Francisco. The judge later ordered them [link] to pay Lenney and his wife about $1.1 million in damages and costs. The companies appealed and the case was resolved in a confidential settlement.

Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, did not fare as well.

Lorillard mounted a relentless attack on Couscouris’ credibility, suggesting that during his teenage years in Australia he had evaded the draft, and had once improperly received unemployment benefits.

Defense lawyers also seized on a statement by a plaintiff witness that Couscouris had become too sick to walk. They sent a private investigator to conduct surveillance at Couscouris’ home, and videotaped him and his wife getting into their car and making a few stops, including at a  restaurant and a shopping mall.

In October, 2012, a Los Angeles jury found that Couscouris had failed to prove he’d smoked Kents, handing a victory to the defense.

“The trial ended up being more of an attack on my client,” said Couscouris’ lawyer Trey Jones. “Almost like a ‘blame the victim’ type thing.”

FairWarning ( is a Los Angeles-based nonprofit investigative news organization focused on public health and safety issues.



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