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In re Henson10/12/2005
s made, and that in a previous statement Nesmith did not disclose that Judge Henson had said he would deny making the remark if asked and that Judge Henson offered to refer a case to Nesmith to buy his silence on the Jimenez disclosure. Judge Henson also argues that each of these witnesses was biased against him--Ms. Jimenez because she blamed Judge Henson for her sixteen-year prison sentence, Dr. Jimenez for the same reason and because of a fee dispute with Judge Henson (which led Dr. Jimenez to file a Bar grievance against Judge Henson), and Nesmith because he and Judge Henson had personal and professional disagreements. Finally, he asserts that Ms. Jimenez is not credible because of her criminal conviction and that Nesmith's credibility is suspect because he has twice been sanctioned by this Court--a reprimand and a suspension--for ethical violations.
Contrary to Judge Henson's assertions, none of the matters he raises regarding the testimony of the witnesses against him deprives the evidence of the probative force necessary to prove the allegation in Count II. The other key witnesses corroborated Ms. Jimenez's testimony that at several points during the course of his representation of her, Judge Henson conveyed the suggestion that she should leave the United States rather than face trial on her DUI manslaughter charges. He asked whether she retained her passport and whether she had family remaining in Colombia, and discussed with her on several occasions the option of fleeing to Colombia. Dr. Jimenez testified that Judge Henson directly made the same suggestion to him in a separate conversation, and Nesmith testified that Judge Henson acknowledged advising Ms. Jimenez and her father that she should leave the country.
In this case, Diana Jimenez and Dr. Jimenez testified by videotaped deposition, and Maria Jimenez via a transcribed deposition. Accordingly, their testimony is available to this Court in the same form as it was presented to the Hearing Panel. We have stated that the normal level of deference accorded by an appellate court to a lower tribunal's findings of fact does not fully apply when the findings are based on evidence other than live testimony. See Parker v. State, 873 So. 2d 270, 279 (Fla. 2004). However, both Judge Henson and Nesmith appeared personally before the Hearing Panel and were questioned vigorously by panel members as well as by opposing counsel. Therefore, we decline to substitute our credibility determination for that of the Hearing Panel, and we conclude based on this record that there is no legal reason for us to overturn the Hearing Panel's findings resolving conflicts in the evidence against Judge Henson.
Resolving conflicts in the evidence in favor of the Hearing Panel's findings, we conclude that the accusation that Judge Henson advised Ms. Jimenez to flee the jurisdiction to avoid trial is supported by clear and convincing evidence. This Court has noted that "even when the evidence is in conflict, the proof may be more than sufficient to meet the standard of clear and convincing evidence." In re Bryan, 550 So. 2d 447, 448 n.* (Fla. 1989); see also In re Guardianship of Schiavo, 780 So. 2d 176, 179 (Fla. 2d DCA 2001) ("The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence."). The evidence here was not, as in Davey, "indecisive, confused, and contradictory" on the essential question of whether Judge Henson advised Ms. Jimenez to flee the United States. In Davey, one witness could not testify whether in fact he saw a fee check that constituted a crucial piece of evidence, and another witness gave contradictory testimony on the question.
In this case, the test
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