The retrial of Michael Cavagnaro and his namesake son, convicted of tampering with another commercial fisherman's lobster traps, may be sent to Marathon after two Upper Keys judges recused themselves.
Circuit Judge Ruth Becker will hear the case if Chief Judge David Audlin sends it to the Marathon courthouse as expected.
Circuit Judge Luis Garcia, who presided over the Cavagnaros' first trial, recused himself from hearing the case again. County Judge Regan Ptomey also has recused himself at the request of Cavagnaro's Coral Gables attorney, Joe Hirshhorn, for unknown reasons. Both judges preside at the Plantation Key courthouse.
Assistant State Attorney Colleen Dunne will prosecute the Cavagnaros again.
In January an appellate judge ruled that Cavagnaro and his son, both Key Largo residents and lobster fishermen, should get a new trial after having been convicted of lobster trap molestation and sentenced to jail and community service as well as being kicked off the water for life.
The Cavagnaros were charged with tampering with another angler's trap on Aug. 25, 2009. They were found guilty and sentenced in June 2010 by Garcia, who allowed each to post a $50,000 bond while appealing the verdict to the 3rd District Court of Appeal.
While Cavagnaro senior was spared nine months of incarceration and his son, four months, during the appeal, the arrest and conviction cost the elder Cavagnaro his position on the elected Key Largo Fire-EMS District board. Gov. Charlie Crist suspended and later removed him from office.
After the 3rd District Court of Appeal ruled that Garcia failed to explain "reasonable doubt" to jurors before their deliberations in the June 2010 trial, both men have been granted a new trial.
Prosecutors must prove a defendant's guilt to jurors beyond a reasonable doubt to convict him.
The appellate court found that the oversight "reaches down into the validity of the trial itself," and that it was a "fundamental error requiring reversal."