(SS) Two years after Broward Public Defender Howard Finkelstein beat back a lawsuit filed against him by forensic psychologist Michael Brannon, the longstanding feud between them continues to play out in court.
And it’s likely to result in the spectacle of Finkelstein, known to television audiences as “Help Me Howard” for his legal advice segments on WSVN, testifying in open court about the dispute for a jury tasked with deciding whether to put a convicted killer to death.
Assistant public defenders representing Jacqueline Luongo were in court at the end of August arguing that prosecutors should not be allowed to call Brannon as a witness at the upcoming penalty phase of her trial.
Openly gay Jacqueline Luongo is the first murderer in Broward County to face sentencing under Florida's newest death penalty law, which requires a jury to recommend death by a unanimous vote after finding that enough aggravating factors have been proved beyond a reasonable doubt.
Testimony from psychologists typically figures prominently during penalty phase proceedings, and it’s customary for those hired by the prosecution to disagree with those hired by the defense. But with Brannon, defense lawyers said they were concerned that his animosity for Finkelstein is so intense that he can’t be trusted to be fair with one of Finkelstein’s clients.
“I don’t see why prosecutors, in a death penalty case, would rely on the opinion of the one forensic psychologist with a demonstrated history of hostility toward this office,” said Finkelstein. “He’s not the only forensic psychologist in town.”
Brannon declined to comment for this article, citing his involvement in the Luongo case — Broward Circuit Judge Dennis Bailey ruled that Brannon could evaluate Luongo and testify to his findings, and that it would be up to Luongo’s lawyers to convince a jury to reject his opinion.
Brannon has not yet interviewed Luongo.
The bad blood between the psychologist and the public defender dates back to 2007, when Brannon testified on behalf of a Broward judge at a misconduct hearing. Finkelstein had been in a dispute with that judge over her handling of a defendant, and she was later reprimanded for her conduct.
Finkelstein denies that Brannon’s testimony had any effect on their relationship. Nevertheless, by the end of that year, Finkelstein’s office reviewed its relationship to Brannon and later concluded that he had too large a share of its cases.
Brannon went from making $608,757 a year from the Public Defender’s Office in 2006-2007 to just $170,612 two years later.
When Brannon brought the issue up on the stand during a murder trial in 2009, Finkelstein stopped referring any cases to him.
Brannon sued, arguing that Finkelstein was violating his First Amendment right to testify for the judge in the 2007 case. The lawsuit was dismissed in 2012, revived in 2014, and tried in federal court in Miami before Senior U.S. District Judge Donald Graham, who ruled in Finkelstein’s favor.
"They never established any bias on my part, ever," Brannon said after the 2012 dismissal.
Prosecutors are free to choose which psychologists they want to employ — the Broward State Attorney’s Office argued in the Luongo case that it’s the jury’s job to determine an expert’s credibility.
Finkelstein said he knows of no other cases where his office plans to challenge the use of Brannon as an expert in forensic psychology, but with life-or-death at stake in the Luongo case, he felt it was necessary.
“I anticipate that to establish the issue of bias, I’m going to have to take the stand,” said Finkelstein.Luongo was found guilty in April of murdering her roommate, Patricia Viveiros, and hiring a hit man to kill a potential witness in the resulting case.
The penalty phase was supposed to begin in late June, but a variety of motions and arguments, including the discussion about Brannon, have pushed the date back to Sept. 11.