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Thursday, Jun 22, 2017
Crime & Courts

Judge considered holding lawyers in contempt during DJ trial

— The judge who presided over a high-profile, shock jock slander trial says he considered holding three lawyers in contempt after the trial was interrupted by the DUI arrest of another lawyer.

James Arnold, who retired in January as a circuit court judge, took the witness stand Friday in the administrative trial over whether the three lawyers — Stephen Diaco, Robert Adams and Adam Filthaut — should be sanctioned by the state Supreme Court for charges they orchestrated the Jan. 23, 2013, DUI arrest of attorney C. Philip Campbell.

Campbell was then representing radio DJ Todd “MJ” Schnitt in his case against Bubba the Love Sponge Clem, who was represented by the Adams and Diaco law firm. Stephen Diaco’s brother, Joseph Diaco Jr., was the attorney on the case.

The lawsuit had been filed by Schnitt in 2008, and the relations between the opposing lawyers was especially contentious.

Around the eighth day of the trial, Jan. 24, 2013, Arnold said he learned of Campbell’s arrest the night before. After the parties agreed to adjourn the case for the day, Arnold instructed them to work on jury instructions before reconvening on the 25th.

The arrest, Arnold said, disrupted the trial — a point being contested by Greg Kehoe, who is representing the three lawyers, who noted that the parties would have had to work on jury instructions anyway.

Following the announcement of the continuance, Arnold said, he saw Stephen Diaco on the television news criticizing the delay, “which I found offensive considering the parties had agreed to it.”

The next day, Arnold said, he told Joseph Diaco he had a “bone to pick with your brother.”

The morning of Jan. 25, Arnold said, Schnitt’s legal team filed two motions, one for a mistrial and another to disqualify Adams and Diaco from the case. Arnold said his primary concern was that jurors had not been “contaminated” by the media “feeding frenzy.”

Jurors were put under oath, and only one had seen news coverage of the arrest, but said it would not be a problem.

Stephen Diaco was called as a witness but would only answer questions about the handling of Campbell’s briefcase, which was left in the car of Melissa Personius, an Adams and Diaco paralegal. Witnesses said Personius lied about where she worked and flirted and drank with Campbell at Malio’s Steakhouse before he was arrested driving her car.

Stephen Diaco invoked the Fifth Amendment when asked other questions. Although he had been subpoenaed to bring his cellphone, he said he forgot the phone, and didn’t remember his phone number or the name of his cell carrier, Arnold said.

Melissa Personius also appeared. “My recollection was she took the Fifth, but the transcript speaks for itself,” Arnold said.

Ultimately, the jury reached a verdict against Schnitt. Arnold said he was setting a schedule for hearings and discovery in connection with the Schnitt team’s motion for a new trial, when the parties asked to go into mediation.

In the end, the sides settled, which Arnold said ended his involvement in the case.

“I considered bringing criminal contempt of court proceedings against the attorneys,” Stephen Diaco, Adams and Filthaut, Arnold said.

Asked why he didn’t, he said, “The reason was everybody was taking the Fifth Amendment and I didn’t have any investigative authority. ... I felt there was a lack of evidence for me to go forward with contempt of court proceedings.”

According to evidence presented by the Florida Bar, Filthaut was close friends with then-Sgt. Raymond Fernandez, who was in charge of the Tampa police DUI unit. Filthaut and Fernandez exchanged more than 90 text messages the night of Campbell’s arrest. Fernandez, who was later fired, has said Filthaut told him Campbell was drinking at Malio’s and would be driving.

Fernandez on Friday was called as a witness and repeatedly invoked his Fifth Amendment right against self-incrimination.

He followed in the footsteps of Stephen Diaco, Filthaut and Personius, who also refused to answer questions during the hearing.

Given that the FBI has said it’s investigating the incident, the refusal by those involved was expected. Adams, however, testified earlier in the hearing, saying he felt he would lose his law license if he didn’t.

Adams and Filthaut’s lawyer, Mark O’Brien, told Judge William Douglas Baird that Personius had been asked only to see if Campbell was drinking, and that her actions that night far exceeded anything her bosses wanted or expected her to do.

Tampa police Officer Timothy McGinnes testified Friday that Fernandez told him that night he had gotten a tip about a lawyer who would be driving after drinking at Malio’s.

At some point, Fernandez sent McGinnes a description of the car and the license tag number.

Fernandez pulled Campbell over after seeing him make an illegal turn on Ashley Drive, turning right from the right travel lane instead of the turn lane, McGinnes said. McGinnes joined Fernandez and gave Campbell some field sobriety tests, which Campbell flunked before saying he didn’t want to take any more tests.

McGinnes said after he told Campbell he was under arrest, the attorney wanted to take the tests, but McGinnes refused, saying a court could find those tests were coerced.

The Pinellas State Attorney’s Office, which investigated the DUI arrest and declined to bring charges, criticized the coercion assertion, saying there was no legal basis.

After the arrest, McGinnes said he talked to Fernandez. “The only thing I recall him saying was his so-called friend Adam Filthaut was the one giving him the blow by blow.”

McGinnes said he was later removed from the DUI unit. He testified that Police Chief Jane Castor told him it was “for the sake of the city and my sake also.”

He said he’s testified “more than once” about that night, including before a grand jury.

The bar hearing is set to resume Thursday with presentations by Adams and Filthaut. Diaco has sent a petition to the state Supreme Court asking that his license to practice law be revoked. If that is accepted, he could re-apply to practice law in five years.

esilvestrini@tampatrib.com

813-259-7837

Twitter: @ElaineTBO

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