Judge Not: Judges Benched for Personal Misconduct
by Gary Hunter & Alex Friedmann
They decide hot-button topics ranging from abortion and racial discrimination to religious freedoms and contested elections. They can put you in prison or vindicate your civil rights. They can even sentence you to death. Who am I talking about? Judges.
Of all the public officials involved in the justice system, including the police, prosecutors, prison guards and parole officers, judges wield the most influence and power. Presumably, then, when we entrust members of the judiciary with such power we expect them to follow the law and conduct themselves in an ethical and professional manner.
Unfortunately that is not always the case, as demonstrated by the following recent examples of judicial misconduct.
Federal Judicial Hijinks
On February 6, 2008, Massachusetts U.S. Bankruptcy Court Judge Robert Somma, 63, was pulled over following a minor car accident and charged with driving while intoxicated. He was wearing high heels, stockings and a cocktail dress at the time, and the arresting officer noted that the judge had to retrieve his driver’s license from his purse.
The following week Somma pleaded no contest to the misdemeanor charge; his license was suspended for a year and he was ordered to pay a $600 fine. He tendered his resignation two days later. However, after more than 200 attorneys signed on to a letter of support submitted to the First Circuit Court of Appeals, Somma sought to rescind his resignation.
“He made a mistake; he took responsibility for it,” said First Circuit Executive Gary H. Wente. Ultimately, though, Somma agreed to step down. “The United States Court of Appeals for the First Circuit and Judge Robert Somma have agreed that he will not resume service on the United States Bankruptcy Court for Massachusetts but is leaving to pursue other endeavors,” the Office of the Circuit Executive wrote in a terse statement issued May 30, 2008.
Somma is now employed at the Boston law firm of Posternak Blankstein & Lund, as senior counsel. While he was not charged with ethical misconduct, apparently his penchant for crossdressing and drunk driving was too much for the dignity of the federal courts.
The resignation of another federal judge, U.S. District Court Judge Edward W. Nottingham, became effective October 29, 2008. Nottingham, who served as the chief judge for the District of Colorado, came under fire when a messy divorce settlement with his third wife revealed salacious details about his personal life, and his problems steamrolled from there.
The first of four complaints against Nottingham was related to his admission in his divorce case that he had spent $3,000 during a single night at a strip club. Complaint number two was lodged by a disabled attorney who blocked Nottingham’s car with her wheelchair after he parked in a handicap parking space. The attorney said Nottingham identified himself as a federal judge and threatened her. He was fined $100 for the incident.
A third complaint accused Nottingham of soliciting prostitutes using his court-issued cell phone and visiting an escort service’s website while at work. He was also accused of lying to investigators about the accusations.
On October 10, 2008, a fourth complaint was filed after a prostitute testified that Nottingham was one of her clients and had asked her to lie to federal authorities investigating their relationship.
Although Nottingham referred to the issues raised in the complaints as “private and personal matters involving human frailties and foibles,” he announced his resignation on October 21, 2008. The misconduct charges were then dropped by the Judicial Council of the Tenth Circuit as being moot. The Council noted that the former chief judge “may have made false statements” during the disciplinary investigation, but he was not criminally charged. See: In re: Nottingham, Judicial Misconduct Complaint No. 2007-10-372-36, et al. (Judicial Council of the Tenth Circuit).
Nottingham said he was “embarrassed and ashamed for any loss of confidence caused by [his] actions and attendant publicity,” and apologized to “the public and the judiciary.”
The former chief judge, who was dubbed “Judge Naughty” by the local press, is now in private practice in Denver. He still faces an ethics complaint filed with the Colorado Attorney Regulation Counsel. Judge Nottingham had been appointed by president George H.W. Bush and was generally fair in lawsuits filed by prisoners.
As more details of his sexual proclivities circulated in the local media, judge Nottingham held a bench trial on one of the last cases before he resigned which was a lawsuit brought by federal prisoner Mark Jordan challenging the constitutionality of the Ensign Amendment, the statute which bars federal prisoners from receiving sexually explicit materials in the mail. He quickly upheld the statute. Apparently it is immoral for prisoners to look at pictures and cartoons depicting nudity while judges consort with prostitutes with impunity until their spouses file for divorce.
U.S. District Court Judge Samuel B. Kent, 59, of the Southern District of Texas, also brought unwanted scrutiny to the federal bench. On Sept. 28, 2007, Kent received a three-page reprimand and 120-day suspension with pay from the Fifth Circuit Judicial Council, stemming from a complaint of sexual harassment. See: In re: Complaint of Judicial Misconduct against United States District Judge Samuel B. Kent, Docket No. 07-05-351-0086 (Judicial Council of the Fifth Circuit).
Kent’s case manager, Cathy McBroom, accused the judge of touching her in a lewd manner without her permission on several occasions. “The abuse began after Judge Kent returned to work intoxicated. He attacked me in a small room not 10 feet from the command center where the court security officers worked,” McBroom stated. “He tried to undress me and force himself upon me, while I begged him to stop. He told me he didn’t care if the officers could hear him because he knew everyone was afraid of him.”
McBroom’s request for harsher sanctions against Judge Kent was denied by the Fifth Circuit in December 2007. Dissatisfied with the light punishment imposed by the appellate court, McBroom hired Houston attorney Rusty Hardin.
On August 28, 2008, Kent was indicted on one count each of abusive sexual contact, attempted aggravated sexual abuse and obstruction of justice. Kent’s secretary, Donna Wilkerson, claimed that the judge had sexually abused her, too, and Kent was indicted on three additional counts on January 6, 2009. He was the first federal judge to ever be charged with sex-related offenses.
Kent later pleaded guilty to lying to federal investigators. Although the sex charges were dropped, he admitted that he had engaged in nonconsensual sexual conduct. Kent received a 33-month prison sentence on May 11, 2009; he was also fined $1,000 and ordered to pay $6,550 in restitution to his victims. See: United States v. Kent, U.S.D.C. (S.D. Tex.), Case No. 4:08-cr-0596-RV. He was given the opportunity to further reduce that sentence by one year if he sought treatment for alcoholism while in prison.
Kent then announced his retirement from the bench due to disability – alcoholism and mental illness. By retiring rather than resigning, he would be able to continue receiving his $174,000 annual salary. However, the Fifth Circuit refused to grant him disability status, stating “a claimant should not profit from his own wrongdoing by engaging in criminal misconduct and then collecting a federal retirement salary for the disability related to the prosecution.”
After members of Congress demanded that he resign or face impeachment, Kent agreed to step down effective June 2, 2010, which would have allowed him to collect his salary for another year while he was incarcerated. Unsatisfied, the House unanimously voted to impeach him, and Kent resigned effective June 30, 2009 before the Senate could consider the articles of impeachment.
“It is now time for justice: justice for the American people who have been exploited by a judge who violated his oath of office,” stated U.S. Rep. Lamar Smith.
The lenient punishment initially imposed by the Fifth Circuit, and the secretive manner in which it was issued, caused some critics to question the conduct of the appellate court. Prior to the complaint against Kent, of the 671 judicial complaints filed in the Fifth Circuit from 2000 to 2007, none resulted in formal discipline.
Another federal judge in the Fifth Circuit, Louisiana U.S. District Court Judge G. Thomas Porteous, Jr., 62, also faces impeachment. As part of a judicial disciplinary investigation, Porteous acknowledged that he had filed a bankruptcy proceeding under a false name, made false statements, concealed assets and gambling debts, and “solicited and received” money and gifts from attorneys who had cases pending in his court.
Judge Porteous was also accused of misconduct in a bankruptcy trial, in which he “denied a motion to recuse based on his relationship with lawyers in the case” and “failed to disclose that the lawyers in question had often provided him with cash.”
On September 18, 2008, the Judicial Council of the Fifth Circuit issued a public reprimand and suspended Porteous from hearing any cases for two years. The Council had previously found that he had “engaged in conduct which might constitute one or more grounds for impeachment.” Although Judge Porteous was not charged with any criminal wrongdoing, the Judicial Conference of the United States recommended to Congress that he be impeached.
The House Judiciary Committee voted unanimously to proceed with an impeachment investigation, and the U.S. House of Representatives passed a resolution on January 13, 2009 (H.Res. 15) that authorized the Committee to determine whether Porteous should be impeached and removed from office. In May 2009, U.S. Rep. Steve Scalise urged the Judiciary Committee to “act swiftly” to complete the investigation, following a three-month delay due to a conflict of interest involving the private attorney appointed to oversee the impeachment process.
Until he is impeached, Porteous remains a federal judge and continues to collect his full salary. In defending against the disciplinary complaint, Porteous claimed he had alcohol and gambling problems, as well as a genetic pre-disposition to depression, which contributed to his misconduct.
The issues raised in the complaint against Judge Porteous were discovered during an FBI investigation of Louisiana state court judges (where Porteous served for 10 years before joining the federal bench), dubbed “Operation Wrinkled Robe.” See: In re Complaint for Judicial Misconduct against U.S. District Judge G. Thomas Porteous Jr., No. 07-05-351-0085 (Judicial Council of the Fifth Circuit).
Most recently, Alex Kozinski, 58, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, was admonished on June 5, 2009. Kozinski was accused of having “sexually explicit photos and videos” on his publicly-accessible website, including “a photo of naked women on all fours painted to look like cows,” “a video of a half-dressed man cavorting with a sexually aroused farm animal,” and “a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.”
Kozinski said the risqué material, which was never meant to be publicly available, consisted of files he had received in e-mails from friends and acquaintances over many years. The files were stored on a personal computer at his home that was connected to the Internet using web server software. It was not intended to be a public website, and site visitors had to know the specific folder where the images were located in order to access them.
The admonishment was handed down by the Judicial Council of the Third Circuit since there was a conflict of interest in the Ninth Circuit. The Council found no ethics violations as a result of Kozinski’s conduct, but said he had exercised “poor judgment” by failing to take safeguards to prevent the sexually explicit material from becoming publicly accessible, and that his carelessness was “judicially imprudent.”
Ironically, at the time the inappropriate online content was reported by the Los Angeles Times on June 11, 2008, Judge Kozinski was overseeing a high-profile obscenity trial.
Due to the resultant publicity he declared a mistrial in that case. Kozinski himself asked the Council to investigate the explicit photos and videos on his website, and apologized for causing “embarrassment to the federal judiciary.” See: In re Complaint of Judicial Misconduct, No. 09-08-90035 (Judicial Council of the Third Circuit).
State Court Corruption
State court judges are far more numerous than federal judges, and consequently there are more incidents of misconduct among the state judiciary. The following examples are only some of the cases reported within the past year.
In August 2008, the Montana Judicial Standards Commission heard testimony against Lincoln County Justice of the Peace Gary D. Hicks, alleging that he demanded sexual favors from defendants in exchange for lighter sentences.
Nine women testified before the five-member Commission. They accused Hicks of demanding sex in exchange for leniency, making inappropriate comments about their looks, and even stopping by their homes on occasion. “There certainly was a sense that if they had sex with him, they’d be treated with leniency in his court,” said Steven C. Berg, an attorney appointed to investigate the allegations.
The Commission recommended in October 2008 that Hicks be removed from the bench. He was ordered removed by the Montana Supreme Court on December 30, 2008, after the Court found the accusations had been proven by “clear and convincing evidence.”
In the meantime Hicks had filed two lawsuits against Lincoln County, accusing the county commissioners of slander and causing him emotional distress, and arguing the county was required to cover his legal fees. The county settled the latter lawsuit and agreed to pay Hicks $40,000.
New York Family Court Judge David F. Jung was removed from the bench by order of the Court of Appeals – New York’s highest state court – on October 28, 2008. Jung had repeatedly held hearings in which he revoked defendants’ parental rights, even though he knew they were incarcerated and could not appear in court. In several cases he sentenced the defendants in absentia to more jail time.
It was Jung’s policy that prisoners “would not be produced for a proceeding unless [they] specifically asked to be produced”; however, incarcerated defendants were not informed of that policy and Jung said they had to learn about it by “word of mouth.” He also enforced a policy that imposed strict deadlines on defendants who requested representation by public defenders. In one case he sentenced an illiterate and learning disabled woman to 180 days in jail after her request for counsel was made “too late.”
The Court of Appeals found that such policies “resulted in gross and repeated deprivation of the fundamental right to be heard....” Jung argued, unsuccessfully, that his actions were within the “wide discretion” afforded to Family Court judges. See: Matter of Jung, 2008 NY Slip Op 08155, 11 NY.3d 365 (NY Ct. Appeals 2008).
In December 2008, a federal grand jury indicted former New York Third Judicial District Supreme Court Justice Thomas Spargo, 65, on charges of attempted bribery and attempted extortion. The state Commission on Judicial Conduct had ruled in 2006 that Spargo should be removed from office because he handed out coupons for free gas and coffee and bought drinks for voters during one of his election campaigns. He was also accused of trying to shake down attorneys for contributions to his legal defense fund.
Spargo was removed from the bench after the Court of Appeals found he was “an active participant in raising funds for his personal benefit from lawyers with cases before him.” His federal prosecution is still pending. See: United States v. Spargo, U.S.D.C. (N.D. NY), Case No. 1:08-cr-00749-GLS.
“This case should demonstrate that the FBI will pursue all allegations of judicial corruption vigorously, as public corruption violations are among the most serious of all criminal conduct and can tear at the fabric of a democratic society,” stated FBI special agent John Pikus.
On December 10, 2008, South Carolina County Magistrate Judge William E. Gilmer, 61, was arrested and charged with filing a false police report. Gilmer had filed a report with the Honea Path Police Department in August 2007, claiming he received a threatening phone call from someone who said Gilmer’s wife was having an affair. He later admitted there had been no phone call or threat.
“This incident should not have ever happened. You expect a report made by a County Magistrate to be true,” stated police chief David King.
On January 6, 2009, Hinds County, Mississippi Circuit Court Judge Bobby DeLaughter was indicted by a federal grand jury on felony counts of conspiracy, fraud and harassment of a witness. DeLaughter, a former prosecutor, is accused of making favorable rulings in a high-stakes case in exchange for being considered for an appointment to a federal judgeship.
DeLaughter is perhaps best known for his successful 1994 prosecution of white supremacist Byron De La Beckwith for the civil rights era murder of Medgar Evers. “Is it ever too late to do the right thing? For the sake of justice and the hope of us as a civilized society, I sincerely hope and pray that it’s not,” he said at the time.
According to federal prosecutors, DeLaughter was improperly influenced by attorney Richard Scruggs – who is currently serving a 7-year prison sentence for bribing two judges, including DeLaughter – in connection with a multi million-dollar asbestos litigation fee dispute between Scruggs and a former business partner. DeLaughter allegedly had ex parte communications with Scruggs’ legal team and issued rulings in his favor; the judgment in the case saved Scruggs an estimated $15 million.
In return, Scruggs encouraged his brother-in-law, then-U.S. Senator Trent Lott, to nominate DeLaughter for a federal judgeship in the Southern District of Mississippi. Scruggs and his associates also reportedly hired one of DeLaughter’s close friends, paying him $1 million to influence the judge.
In a motion to dismiss the criminal charges, DeLaughter’s attorneys argued that Lott’s consideration of DeLaughter for a lifetime appointment to the federal bench was worth nothing of value, and thus no crime was committed. The motion was denied and DeLaughter is scheduled to go to trial on August 17, 2009. He remains free on $10,000 bond.
Florida Second District Court of Appeal Judge Thomas E. Stringer, 64, resigned on February 10, 2009 following a tabloid-style scandal related to his involvement with a stripper named Christy Yamanaka. “It is axiomatic that ‘Judge’ and ‘Stripper’ showing up in a headline is never a good thing, especially if you happen to be the ‘Judge,’” wrote a columnist for the Tampa Tribune.
Yamanaka claimed that she and the married judge had been romantically involved, that he helped her hide assets from creditors by depositing her income in his bank accounts, and that he had put her up in an apartment rented under his name. She went public after Stringer allegedly failed to repay $50,000 that he had borrowed from her.
Misconduct charges were filed against Stringer with the Judicial Qualifications Commission, but were dropped after he resigned and agreed to never serve as a judge again. He now draws retirement benefits of $8,069 per month.
Erie County, New York Supreme Court Justice Joseph G. Makowski, 55, agreed to resign on February 20, 2009. Makowski allegedly tried to help a female attorney friend avoid a DUI charge by submitting an affidavit in her case that conflicted with witness accounts. The attorney eventually pleaded guilty to DUI and tampering with evidence; Makowski, who recanted his affidavit, was not charged.
PLN previously reported on the embarrassing antics of former Mobile County, Alabama Circuit Court Judge Herman Thomas, who resigned in October 2007 after being accused of paddling or whipping male prisoners on their buttocks and making them perform sex acts. The sexual misconduct allegedly took place in a small storage room in Thomas’ judicial chambers, where semen stains were found. [See: PLN, Feb. 2008, p.30].
On March 27, 2009, Thomas was arrested on 57 counts that included kidnapping, sodomy, sex abuse and extortion; the charges involve nine victims, all current or former prisoners. His attorney described the prosecution as “racism at its very finest.” Thomas is black, as are all of the victims cited in the indictment. He has pleaded not guilty.
Another Mobile County Circuit Court judge, Joseph S. Johnston, stated in a March 9, 2009 order that Thomas had “used his office to threaten criminal defendants with jail time, penitentiary time and probation revocations if they did not engage in sexual acts with him.” Thomas has appealed that order, saying it is based on “allegations and innuendo and rumors.”
Former Pennsylvania Superior Court Judge Michael T. Joyce, 60, was sentenced to 46 months in federal prison and ordered to pay $440,000 in restitution on March 12, 2009, following his conviction on eight counts of mail fraud and money laundering last November.
Joyce was found guilty of lying about or exaggerating his neck injuries resulting from a car accident in order to collect insurance money, which he used to buy real estate, a Harley Davidson motorcycle and a partial interest in an airplane. He reportedly played golf, went scuba diving and took lessons to obtain a pilot’s license during the time he claimed he was injured.
Joyce had resigned from the bench in 2007 following his indictment; he reported to prison in April 2009. Despite his conviction, he will receive an $82,000 annual pension because the insurance fraud was not related to his employment as a judge. See: United States v. Joyce, U.S.D.C. (W.D. Penn.), Case No. 1:07-cr-00031-MBC.
On April 15, 2009, Christopher Sheldon, a Superior Court judge in Riverside County, California, agreed to resign and accept a public censure from the Commission on Judicial Performance. The Commission found that Sheldon “routinely” left court early, often before noon, and said his practice “of working part-time while being paid a full-time salary is utterly unacceptable and casts disrepute upon the judicial office.”
Sheldon had been disciplined previously for neglecting his work duties. His resignation is effective October 23, 2009, which will give him 20 years on the job and make him eligible for a full judicial pension.
Jacquelin Gibson, 57, a part-time Juvenile Court judge in Fulton County, Georgia, was arrested in May 2009 on a misdemeanor charge of battering her 92-year-old mother, Eula Mae Gibson. According to police reports, the judge and her brother tried to remove Eula from the home of one of Jacquelin’s sisters as part of a long-running family feud.
Their mother didn’t want to leave and a struggle broke out, resulting in a battery charge against Jacquelin Gibson and disorderly conduct charges against three of her family members. Eula stated that Jacquelin had injured her, and said “I don’t want her to go to jail, but she has to be punished.”
Judge Gibson has taken a leave of absence from her courtroom duties pending the outcome of the misdemeanor battery charge. She rejected a plea bargain that would have required her to attend anger management counseling.
On June 18, 2009, Texas District Court Judge Woody Ray Densen, 69, was indicted on a felony criminal mischief charge for allegedly keying a neighbor’s SUV. Densen, who serves as a visiting judge in the Houston area, was videotaped walking behind his neighbor’s vehicle and making contact with it. A surveillance camera was set up after the SUV was repeatedly scratched, resulting in $3,000 in repair bills.
Lastly, the Arizona Commission on Judicial Conduct announced on June 25, 2009 that Yavapai County Superior Court Judge Howard D. Hinson, Jr. had agreed to resign from office, effective September 30, to resolve disciplinary proceedings against him. Judges in Arizona are required to rule on matters within 60 days and certify they do not have any past-due cases in order to receive their salaries. Hinson admitted that he had issued late rulings in 25 cases and submitted inaccurate salary certifications 11 times over a three-year period.
The Commission also recommended that Judge Hinson be publicly censured; the Arizona Supreme Court will decide the outcome of that recommendation.
A Myriad of Judicial Misconduct
In addition to the above examples of judicial misconduct, PLN has recently reported on two Pennsylvania state court judges who pleaded guilty to accepting bribes in exchange for sending juveniles to private detention facilities [PLN, May 2009, p.20]; on the indictment of several judges in Georgia’s Alapaha Judicial Circuit and Fulton County on charges ranging from human trafficking to extortion [PLN, March 2009, p.48; July 2008, p.36]; and on Texas Court of Criminal Appeals judge Sharon Keller, who faces ethics charges before the Commission on Judicial Conduct after she prevented attorneys for a death row prisoner from filing a last-minute after-hours appeal, resulting in his execution [PLN, July 2008, p.22] (see related article in this issue of PLN).
In rare cases, judges are disciplined even when they try to improve the justice system – as when St. Lucie County, Florida judge Cliff Barnes filed a mandamus petition to reduce overcrowding in the local jail. The Florida Supreme Court issued a reprimand, stating Barnes had “clearly crossed the line between what is appropriate and what is not.” [PLN, June 2009, p.21].
A significant problem with the current method of judicial discipline is that the disciplinary councils or other investigative bodies are usually composed of judges who pass judgment on their peers – and often do so in secrecy with little or no public oversight. Such self-regulation results in a perception that complaints against judges are not taken seriously, and this perception is bolstered by the statistical outcome of judicial complaints.
For example, 1,163 complaints were filed against federal judges from October 1, 2007 through September 30, 2008, and 759 complaints were concluded during that time period.
The vast majority of the concluded complaints – 742 – were dismissed, nine were withdrawn, and only four resulted in any type of disciplinary action (including one public censure).
The statistics in state courts are similar. In California, 909 judicial complaints were filed in 2008 and 892 were concluded. Of the concluded complaints, only 34 (3.8%) resulted in punishment – ranging from advisory letters to removal from the bench. New York’s Commission on Judicial Conduct received 1,923 complaints last year, a record number. Of those, around 3% led to discipline, including 33 letters of caution and 26 formal charges.
Such infrequent punishment may embolden judges who engage in misconduct and encourage those who otherwise would not commit unethical or illicit acts. Further, many of the commissions that oversee judicial complaints can only impose discipline on sitting judges, and at most can order or recommend removal from the bench. Judges who resign or retire while facing misconduct charges can avoid disciplinary sanctions altogether, and sometimes retain full retirement benefits.
Judicial immunity, a legal construct that protects judges from civil liability for acts taken as part of their judicial duties, may also contribute to misconduct because it removes a safeguard that otherwise would force judges to consider the consequences of their behavior in terms of personal accountability.
Despite the sparse number of judicial complaints that are upheld, judging from the above examples it is apparent that state and federal judges are not immune to criminal acts, lapses in judgment and outright stupidity – not unlike many of the defendants who appear before them in court, who are routinely convicted and sent to prison.
Sources: National Law Journal, www.law.com, www.boston.com, www.abovethelaw.com, Washington Post, www.judicialaccountability.org, www.knowyourcourts.com, Denver Post, www.judgewatch.org, www.victimsoflaw.net, Houston Chronicle, Associated Press, CNN, The Recorder, New York Times, New York Law Journal, Atlanta Journal-Constitution, Pittsburgh Tribune-Review, Judicial Business of the U.S. Courts (2008 Annual Report)