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From: The National Law Journal, Gail Diane Cox
Time: 12:07:48 PM
All we can say to this one is wow!
Judges Behaving Badly (Again)
Another collection of what-were-they-thinking stories.
Gail Diane Cox The National Law Journal April 26, 1999
Jason Thompson was part of a work crew spiffing up the home of Associate Circuit Judge John A. Clark for a summer garden party. When the judge paid Mr. Thompson by giving him gas money plus a mere $5 for lunch, neither he nor the other laborers were in a position to complain.
According to August 1998 findings by Missouri's judicial conduct commission, the work crew was made up of probationers from Judge Clark's courtroom. The judge called the work "community service"; the conduct commissioners said it was more like "oppression."
Last Law Day, 10 individuals, including Judge Clark, were on the bench, but as this May 1 approaches, none still is, all apparently having forgotten some of the principles this august day honors.
Ticket-fixing and drunk driving, the staples of most judicial conduct actions, don't count here. These are stories of sheer, what-were-they-thinking? injudiciousness.
Looking for stupid judge tricks was tougher this year than last. Many who manage state judicial conduct panels reported an increase in cases settled without fanfare. Rules vary, but typically, if targeted judges resign early enough in an investigation, they can keep their files sealed. Some states, such as Massachusetts and Alaska, won't say if they have such resignations in any given year, for fear of exposing a judge who went quietly.
"Couldn't tell you if I wanted to," says Meg W. Babcock, chief counsel to the Indiana Commission on Judicial Qualifications. "When it's a case of 'retire or we'll file,' and the judge does, we keep no record of it."
Even when a judge's shenanigans are public, negotiated resignations may salvage pensions or licenses to practice law.
"I know we are criticized for letting them off," says Robert C. Flowers, executive director of the Texas Commission on Judicial Conduct. "But what we are supposed to do is minimize the damage."
Texas reports a record 11 resignations-under-investigation last year. Mr. Flowers says that the high number may be due to media exuberance over the sanctions given maverick judges in off-the-wall cases from 1997 and early 1998. Those judges fought publicly, and they ended up in Jay Leno's monologues--and The National Law Journal.
In New York, the rate of resignations-under-investigation seems to be accelerating even faster than it is in Texas. But the administrator of New York's Commission on Judicial Conduct, Gerald Stern, says that the statistics are too erratic to draw conclusions.
"Yes, we've already had nine judges resign in 1999, but we may go the rest of the year without any," he cautions.
So, it has been a year in which some of the goofiest stories may be forever buried. Certainly, no one rivaled Richard "Deacon" Jones of Nebraska, whom the NLJ spotlighted last Law Day for signing court orders "Snow White" and urinating on a colleague's carpet.
But this year there is Pennsylvania's Rebel Without a Courtroom, Bernard J. Avellino, who protested an unwanted assignment by vanishing, and Florida's Steven Shea, who appears to have focused attorneys' attention by unlocking the drawer where he kept a gun.
There's no logic to such conduct. Missouri Public Defender Rebecca D. Burke may have come closest in testifying that Judge Clark, the garden party host, thought that, as a judge, "he could do anything he wanted."
BERNARD J. AVELLINO: A GUY FROM SOUTH PHILLY IS FED UP AND OUTTA THERE
The pennsylvania Supreme Court knew of no precedent for what Common Pleas Court Judge Bernard J. Avellino did. He went AWOL.
Early on, the judge established a reputation as a rebel up from the mean streets of South Philly. In 1982, the year after he was elected, he described a female victim of assault as "coyote ugly." Voters retained him, despite a "not qualified" rating by the Philadelphia bar.
Then came an assignment he called demeaning: hearing nonjury felony cases. The judge boycotted his own courtroom while collecting his $109,372-a-year salary. After three days, the Supreme Court ordered him back. Instead, he sued, alleging civil rights violations. After a week, he did go back--sort of. His own time charts show that he averaged a 62-minute work day.
The Judicial Conduct Board filed 30 charges. A "stipulated disposal" ended the case after Judge Avellino, 60, tendered his resignation.
STEVEN SHEA: GUN? WHAT GUN? OH, YOU MEAN THAT GUN
The unpopularity Award goes to Steven Shea, 47, a circuit judge from the Florida Keys. He says he's the victim of a conspiracy, and he may have the numbers to prove it. Prosecutors, private attorneys, a bailiff, court reporters, clerks and four other judges complained about him to the state Judicial Qualifications Commission, which took the rare step of asking the Supreme Court to suspend him pre-hearing, saying that he was regarded with "physical and emotional fear" thanks to his "retaliatory conduct toward anyone who disagrees with [him] on any subject."
Sure enough, when the Supreme Court did suspend him, the judge with whom Judge Shea shared a two-courtroom courthouse immediately phoned sheriff's deputies to escort him out and change the locks.
Judge Shea told the commission that he had never, as alleged, brandished a gun in chambers--he had merely chosen strategic moments to unlock the drawer where everyone knew he kept it.
JAMES SCANDIRITO: LET'S DISCUSS YOUR CASE OVER DRINKS, MY DEAR
If a 22-year-old college student is awaiting sentencing by a 54-year-old judge on a drunk driving charge, and the judge asks her to meet him at a bar on a Saturday night to discuss her case, should she, or we, be suspicious? Michigan's Judicial Tenure Commission was. It found allegations by Adrienne Sajor and others credible enough to charge that 41-B District Judge James Scandirito "exploited his judicial position to seduce and attempt to seduce women by implying that he could or would facilitate their legal matters in exchange for sexual favors."
In March, Judge Scandirito took a leave, shortly after the second of two suits was filed in Macomb County Circuit Court against him. Both female plaintiffs allege that the judge forced himself on them after luring them into his car. Ms. Sajor sent the commission a tape of voice-mail messages she says that he left her. Another woman said that she pleaded guilty in a traffic case in January 1998 but that the judge delayed sentencing for a year, during which they had an affair.
Judge Scandirito's response, received on April 14, has not yet been made public. A staff attorney, Thomas Prowse, characterizes it as a "taking-the-Fifth defense."
JOHN A. CLARK: WHEN YOU SERVE ME, YOU SERVE THE COMMUNITY
Missouri's Commission on Retirement, Removal and Discipline found Associate Circuit Judge John A. Clark, 47, guilty of dozens of charges.
But it's the garden party that's likely to be remembered.
The judge was to hold the party at his home for officials, including legislators. There were lawns to mow, rotten wood to be disposed of, stones to be set around flower beds--a lot of work.
He "hired" probationers from his court, deeming their labor community service. He didn't keep records of hours or anything else.
At other times, it was alleged, he used teen-agers from a youth facility to work unpaid at his rental property and had the probationers paint a county-run school where he was the fiscal officer.
His bookkeeping at the school was "incompetent at best," the panel said. Although he said that 21 months of financial records had been stolen, auditors found thousands of dollars in canceled checks made out to the judge. He explained that he had reimbursed himself for out-of-pocket purchases. The commission replied that his even taking the job amounted to misconduct.
FRANCES-ANN FINE: IT'S OK IF YOU WEREN'T AT THE HEARING; NOBODY WAS
Judicial conduct panels don't see many repeat offenders. Then there's Frances-Ann Fine.
In 1995, three years after she was first elected, the Nevada Judicial Discipline Commission reprimanded and fined the Las Vegas Family Court judge for holding hearings without one side's even knowing it was supposed to be there. Sometimes attorneys on both sides were said to be missing. She would just bring in the experts and talk to them. Last fall, the commission concluded that she was doing it again.
There was a new twist, however. The panel found that she had added nepotism to impropriety by appointing Faith Garfield to mediate a divorce without telling the husband or wife or their attorneys. Ms. Garfield was her first cousin. In another case, she changed a mother's right to custody of her son without notice.
Presumably, there can't be a third time. The commission's removal order included what is colloquially known as a Dracula clause, which effectively bars the 43-year-old judge from ever taking the bench again. She has appealed.
RALPH T. ROMANO: HUSBAND ASSAULTS WIFE: SO WHAT'S THE PROBLEM?
It's a hard call, but the most offensive remarks from the bench by West Haverstraw Village Court's part-time judge may have come when he arraigned a defendant who was charged with violating a protective order by assaulting his wife with a telephone.
"What's wrong with that?" Judge Ralph T. Romano said, according to court papers. "You've got to keep them in line once in a while."
Off the bench, he is alleged to have used foul language while publicly berating a police detective who questioned a bail ruling. The judge "exhibited intemperate and biased behavior, disregard of the law, and an egregious assertion of influence for private gain," the New York Commission on Judicial Conduct concluded. As an example of the last category, the commission recounted a scene in which the judge offered to help the police chief with the town council in return for the chief's filing a criminal complaint that his subordinates had rejected. The complaint would have aided one of the part-time judge's law practice clients, who was embroiled in a property dispute.
Judge Romano's attorney told the state high court that his real problem was a tendency toward "lightheartedness." Despite that and his 22 years on the bench, the removal was affirmed.
CHARLES J. ASSINI: HEY, CAN A MAN EVER HAVE TOO MANY FRIENDS?
His name is on the door of an office he has shared for 20 years with attorney Lawrence Long. Their names appear cheek by jowl on their stationery. So why, the New York Commission on Judicial Conduct asked, was there no disclosure of that in the record when Mr. Long argued cases in front of East Greenbush Town Justice Charles J. Assini?
Other charges of misconduct filed last fall are that the part-time judge neglected cases for months, sued the town while he was moonlighting and used filthy language to refer to another judge.
Urging his removal, the commission cited his relationship with a driving school to which he assigned traffic offenders. The school's owner sat alongside him, helped evaluate defendants and gave out pamphlets about his course proclaiming, "No other course is acceptable."
Judge Assini told the Albany Times Union that he is confident the New York Court of Appeals will vindicate him when it makes a final ruling. Meanwhile, the court has suspended him.
RANDALL L. HOFFMAN: YOU THINK YOU'VE GOT WIFE PROBLEMS, BUDDY
As an unhappy divorcee who didn't share custody of his daughter and who was the object of a one-sided protective order, District Court Judge Randall L. Hoffman should not have sat in judgment of similar cases, the North Dakota Disciplinary Board said.
"Judge Hoffman inserted his personal situation and arguments" into those proceedings and "demonstrated a lack of dignity and courtesy to those appearing before him," the board found. It recommended a six-month suspension--and a course in anger management.
The board described a "course of conduct" that included the judge's stalking, harassing and physically assaulting his ex-wife. His public language regarding the judge who had granted the divorce decree also constituted misconduct, the board found.
Judge Hoffman, 43, was elected in 1994. In February, he announced his retirement.
HYDE JENKINS: LET'S HOIST A COUPLE AND TALK ABOUT TRASH
It was a first for the Mississippi Supreme Court when it told Adams County Chancellor Hyde Rust Jenkins to leave the "physical premises" of his courthouse "immediately." Should there be any doubt, Justice James L. Roberts declared, "As long as he remains in office, that office will remain in disrepute."
As a full-time bench officer, Judge Jenkins should not have been practicing law. But the state Commission on Judicial Performance found that he did, that he co-owned a garbage hauling business which had a "lucrative relationship" with a landfill company and that he used his judicial position to help the company obtain property. At a midnight negotiating session at the judge's home, reportedly with gin and hunting talk, he drafted a lease agreement over which one party, a landowner named Marion Green, subsequently sued, the panel found.
Given that shady history, the commission found--and the high court agreed-- that the judge-turned-defendant should have recused himself from a related case in which he ended up ruling against Mr. Green.
Judge Rust, who has been on the bench since 1987, did not deny writing the lease, but he said that he never thought of it as a formal arrangement.
BENNY SWINDELL: FIVE'LL GET YOU 10 I CAN HELP THIS BOY GO STRAIGHT
As a candidate for re-election, Circuit Chancery Judge Benny Swindell, of Clarksville, Ark., told voters that judges need "more options" in dealing with juvenile offenders. On the bench, he practiced what he preached.
On George Washington's Birthday, 1997, the judge took a boy whom he had committed to a youth facility with him to an out-of-state casino and staked him to a session with the slot machines. The minimum age for gambling in the neighboring state, Mississippi, is 21. The boy was 17.
He had been convicted of negligent homicide after driving drunk.
It was all "so innocent," said Judge Swindell. It was "contributing to the delinquency of a minor," replied the Arkansas Judicial Discipline and Disability Commission, noting that on other occasions, the judge had given young defendants cigarettes. In return for the judge's leaving the bench when his term expired on Dec. 31, 1998, and agreeing never to hold judicial office again, the commission said that it would drop the 15 counts of misconduct that it had filed.
Judge Swindell, 55, was first elected in 1990.
This article appeared in the May 3, 1999 issue of The National Law Journal.
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