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Palm Beach County judge slaps lawyer with $6,000 sanction for missing key letter in DUI manslaughter case

When an appellate court received word that an expert could prove James F. Clark Jr. wasn’t at fault for the 2006 wreck that resulted in his DUI manslaughter conviction, it sent his case back to a trial judge for a hearing that could have won him a new trial.

Since then, however, Clark’s case has become a rarity.

A circuit judge slapped Clark’s defense with a $6,000 sanction for missing a letter that contradicted arguments the defense made in court filings.

Circuit Judge John Kastrenakes weighed a claim by the defense, led by Benjamin Waxman of Miami, that it simply missed the document among hundreds of trial papers against prosecutors’ contention that Waxman put the state through a costly appeal that would have been avoided with, at the least, due diligence.

Kastrenakes didn’t find intentional error but ruled that the severity of the mistake required sanctions.

While courts sometimes punish inmates for frivolous motions, Clark’s case is a first in at least two decades locally in which a judge has issued financial sanctions against attorneys or experts in a criminal case, local lawyers and legal observers say.

“As a whole, it is about as rare an occurrence in the practice of law as there is,” Florida Bar President-elect and West Palm Beach attorney Gregory Coleman said. “It’s basically unheard of to have a situation like this.”

The unusual finding comes during a vigorous appeal of Clark’s 2011 conviction and 11-year prison sentence in the death of 85-year-old Lucy Miller. According to testimony at Clark’s trial, Miller was trying to make a U-turn on Yamato Road in Boca Raton when Clark’s car collided with hers as he was traveling in the opposite direction.

Clark, 42, of Homestead, remains in custody, moved last year from a state prison to the Palm Beach County Jail.

Throughout the case, Clark claimed Miller was solely at fault, saying she unlawfully turned into oncoming traffic when she should have yielded. But what halted his appeal was the revelation from defense expert Frank Andrew Fore, an accident reconstruction specialist. He claimed a printout from an event data recorder in Miller’s Toyota — the car’s so-called black box — showed that her car was stopped at the time of the crash.

That means Miller was at fault, Fore claimed.

Appeals prosecutor Leigh Miller and lead traffic homicide prosecutor Judith Arco say they provided Clark’s defense with a letter from Toyota saying the event data recorder in Miller’s car wasn’t the kind of device that could provide pre-crash data.

Fore in court records said he didn’t know about the letter, but as a hearing neared to see whether Clark would win a new trial, Fore in an interview with prosecutors took back most of his statements.

Clark lost his quest for a new trial, and in his findings, Kastrenakes deemed Fore’s testimony “to be evasive, internally inconsistent, inconsistent with his trial testimony, inconsistent with the physical evidence, and not worthy of belief.”

It was these findings, in part, that led Miller and Arco to seek sanctions against Fore and Waxman, saying that Fore provided false testimony and Clark’s defense pushed a claim they should have known was bogus.

In a sanctions hearing this month, Waxman said Clark’s defense requested a new trial in good faith.

Prosecutors may have turned over the letter from Toyota in the hundreds of pages of paperwork they traded in the case, but he never saw it.

“I’m telling you as an officer of the court that I wasn’t aware this existed,” Waxman said.

Reached by phone last week, Waxman said if there was an oversight, it’s nothing beyond a mistake attributed to human error. He pointed out that prosecutors could have brought up the letter when they petitioned the appellate court.

Also, the missed letter was just one part of the appeal, Waxman said, and Kastrenakes found issues raised in the hearing for a new trial on the whole weren’t frivolous.

“I was surprised by it,” Waxman said of prosecutors’ decision to seek sanctions. “Even presuming I’d seen it (the document), there was a significant basis for what we filed and the expert believed in good faith what he said.”

Fore, through his attorney Richard Lubin, said he informed Clark’s defense of his mistake weeks before his pre-hearing interview with prosecutors. It was Waxman’s responsibility to inform prosecutors and the court, Fore said. And because he was never provided the letter from Toyota, Fore argued, he shouldn’t be punished for not having read it.

Miller and Arco, however, believed Fore and Clark’s defense team were equally culpable and doubted that they had mistakenly missed the letter. They asked Kastrenakes to issue more than $18,000 in sanctions to reflect expert fees, prosecutors’ salary for the hours spent fighting the claim and other costs.

Kastrenakes, a former federal prosecutor, said he didn’t believe that prosecutor’s salaries were a recoverable expense because they are public servants. The judge several times said he didn’t believe the claim was frivolous, but indicated that Fore and Clark’s defense should have done more before they filed the claim.

Though Kastrenakes said Fore and Clark’s defense team were jointly liable for the $6,000, Waxman’s fellow defense attorney Alan Ross said he would pay the amount.

Miller and Arco said they were pleased with the ruling.

“We weren’t that surprised because of his findings when he ruled on the motion,” Miller said. “We feel what he decided was appropriate.”

Clark is moving forward with a vigorous appeal in the manslaughter case, arguing among other things that prosecutors withheld evidence. The appellate court is now expected to decide those issues.

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