By Noreen Marcus, FloridaBulldog.org
Miami appeals court Judge Bronwyn Miller is trying to make a First Amendment case out of the ethics charges she’s fighting in the Florida Supreme Court.
The Judicial Qualifications Commission (JQC) claims Miller wrongly pressured her former boss, Miami-Dade State Attorney Katherine Fernandez Rundle, to hang tough in the court-ordered resentencing of Corey Smith, a convicted mass murderer Miller had prosecuted 20 years earlier.
That input from Miller, now a judge on the Third District Court of Appeal (3rd DCA), backfired with the disclosure of texts from Miller to Rundle full of critiques and advice about the Smith resentencing. JQC regulators quoted the texts when they charged Miller with ethics violations last year.
For example: “This is extremely weak,” Miller wrote about a draft motion asking Miami-Dade Circuit Judge Andrea Wolfson to reconsider dropping two prosecutors from Rundle’s Smith resentencing team.
Wolfson “needs to be disqualified,” Miller continued, adding in a separate text to Rundle, “I think you should disqualify her then all [her] rulings can be reconsidered.” (Wolfson declined to reconsider dropping the prosecutors; Rundle appealed her ruling but did not seek Wolfson’s disqualification.)
Another time Miller objected to Rundle assigning to the team a new hire who’d written a novel with a sadomasochistic motif. “Why in the world would you have a misogynistic pervert anti-death penalty campaigner work on a death penalty case involving the murders of women and vulnerable people?” Miller asked in a text.
“The guy is credentialed,” Rundle responded. “Ted Bundy was too,” Miller shot back with a vomiting face emoji. The prosecutor/author was fired two weeks after Miller compared him to the 1970s serial killer Florida executed in 1989.
“Miami Judge’s Venomous Texts Come Back to Bite Her in Crumbling Death Penalty Case,” the Miami Herald declared when it published the texts in November 2024.
MILLER REPORTS TO JQC
Also that month, Corey Smith, the Death Row inmate who was convicted in 2004 of killing four people to protect his Liberty City drug racket, pleaded guilty to second-degree murder and manslaughter for a reduced sentence of 30 years. He’s simultaneously serving 60 years for a federal conviction.
Probably because she anticipated an ethics investigation, Miller reported herself to the JQC, which zeroed in on her texting with Rundle. After the investigation Miller was charged with disobeying first principles, or canons, of judicial conduct.
The texts “appear to be coercive,” the JQC charging notice states. “Your communications cast reasonable doubt on your capacity to act impartially as a judge, undermine your appearance of integrity and impartiality, demean the judicial office, [and] interfere with your proper performance of judicial duties.”
Also, they “may lead to your frequent disqualification,” the notice says, suggesting that 3rd DCA litigants who want Miller off their cases could use her opinionated texts to reach that goal.
There could be a lot of them. Miller antagonized the criminal defense bar with one of her published texts, telling Rundle that defense lawyers“play by different rules…prosecutors are held to higher ethics.”
An appointee of Gov. Rick Scott, Miller joined the 3rd DCA in 2019 after 14 years as a Miami-Dade trial judge. Her term expires in January, meaning she’s up for a retention vote in November.
“She feels like she’s in the fight of her life,” said Miller’s chief counsel Stuart Z. Grossman, a prominent Miami civil litigator. “We’re going to work hard to bring out her version of the story based upon the record.”
The JQC charges went to the Florida Supreme Court in October. Two months later Miller’s lawyers filed a 77-page motion to dismiss them. Her main defense: a First Amendment right to speak freely in private communications.
“There was no nexus between Judge Miller’s private text exchanges and her role on Florida’s Third District Court of Appeal. The texts had no relation whatsoever to her judicial responsibilities,” the motion says.
“But the Investigative Panel overlooked these critical facts and bootstrapped Judge Miller’s lawful cooperation [with Smith’s resentencing] in her private communications into the vagaries of the ‘catch-all’ Canons in the Florida Code of Judicial Conduct,” it says. “This approach does not withstand constitutional muster.”
SETTING UP AN APPEAL
The motion’s subtext appears to be an attempt to shift the court’s attention away from Miller’s combative texts to safer ground, the fundamental guarantee of free speech.
That issue is a ticket to federal court Miller could try to punch should the state Supreme Court remove her from the 3rd DCA. Legal questions involving the U.S. Constitution can be and usually must be litigated in federal courts.
Still, Miller has a problem, former judge Jeffrey Swartz told the Florida Bulldog last week. “This is not a First Amendment issue.
“This isn’t Judge Miller’s inability to step out and say what she wants to say in public. This is lobbying, this is arguing with Kathy Rundle,” he said. Swartz chaired the Florida Supreme Court’s judicial ethics advisory committee in 2002 and was a Miami-Dade County Court judge for a decade. Now he’s a professor at Cooley Law School in Tampa.
“You can’t insert yourself as a DCA judge into litigation that you were involved in 20 years ago, you just can’t unless you’re subpoenaed to testify,” he said. “But you don’t try to lobby the prosecutor, the state attorney, for a result. That’s not your job.”
Early in his career Swartz was a Miami-Dade prosecutor when Janet Reno, later the U.S. Attorney General, ran the state attorney’s office. He didn’t overlap there with Miller; he indicated he didn’t oppose her in court. Swartz said he has no connection to the Corey Smith case.
Miller’s lawyer Grossman didn’t respond to Swartz’s analysis but objected to Swartz sharing it while the Miller case is pending. He quoted a rule of professional conduct that prohibits Florida lawyers from making public comments they know or should know will prejudice a legal proceeding.
“All we want is a fair trial, not to have someone violating Bar rules in his effort to show us Judge Miller violated the rules,” Grossman said.
The JQC set an April 20 hearing date for Miller’s motion to dismiss the charges based on the First Amendment. If the JQC and the Supreme Court approve the motion, the case ends. Otherwise, Miller faces trial and, if she loses, possible sanctions ranging from a reprimand to suspension or removal from the bench.
‘REPUTATION IS ALL I HAVE’
The Corey Smith case must be deeply personal to Miller. In the 1990s Smith and his John Doe Gang ran a huge drug operation in Liberty City that flourished until federal and state prosecutors started getting indictments.
In 2004 assistant state attorney Miller was part of a team that prosecuted Smith and six others. Witnesses were killed; Miller’s life was threatened. In the end jurors found Smith guilty of four counts of murder and two counts of manslaughter.
There were two jury votes in his penalty phase: 10-2 and 9-3 for death. In 2017, when the U.S. Supreme Court required unanimity, Smith won a new penalty phase, a resentencing. (He would lose today because the Florida Legislature passed a law that honors non-unanimous death votes.)
This time defense lawyers urged Judge Andrea Wolfson to disqualify prosecutors Michael Van Zamft and Stephen Mitchell, claiming they had manipulated witnesses to testify against Smith by arranging for conjugal visits and other amenities.
Though Miller was never accused of improper conduct, her texts to Rundle show she felt her own reputation was on the line. If Smith were resentenced to death after what was basically a retrial, the prosecution would be vindicated.
“My reputation is all I have and I am not going to become a casualty of a failure to take a stance,” Miller texted Rundle.
Smith’s lawyers tried to disqualify Rundle’s entire office and Miller testified about her role in the 2004 prosecution. Wolfson denied the defense motion but removed Van Zamft and Mitchell due to “possible witness testimony manipulation … not only in the past, but in the present,” according to the JQC’s charging notice to Miller.
“At that point, unless further fact issues pertaining to you arose, your participation should have ended,” the notice says.
Instead, Miller offered advice on the motion asking Wolfson to reconsider removing the prosecutors and pushed Rundle to get Wolfson disqualified. Wolfson declined to reconsider her ruling and Rundle appealed unsuccessfully to the 3rd DCA – where Miller recused herself.
Wolfson’s response to the witness-tampering charge and the notorious Miller-Rundle texts were game-changers.
On Nov. 10, 2024, Rundle told Smith’s lawyers she’d no longer seek the death penalty, setting the stage for the plea deal and 30-year sentence.
That night Miller sent Rundle a bitter note. “More tanking of a case where nobody did anything wrong,” she wrote.
Rundle’s response: “We did good by focusing on our duty to protect our community from a mass murderer. And we did it ethically and with due process. Let’s stay focused and not let distractors take the focus off the conviction you achieved. Talk tomorrow?”
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