June 30, 2020 / 12:06 PM / 10 days ago

Special Report: Thousands of U.S. judges who broke laws, oaths remained on the bench

MONTGOMERY, Alabama (Reuters) - Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson poses for a photo on the street where she was arrested at a police road block in Montgomery, Alabama, U.S., September 26, 2019. Picture taken September 26, 2019. REUTERS/Chris Aluka Berry

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.

Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”

Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.

Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”

This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.

Community activists say his departure is long overdue. Yet the decision to leave, they say, should never have been his to make, given his record of misconduct.

“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”

Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.

Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.

Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Among the cases from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.

“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

That’s how local lawyers viewed the case of a longtime Alabama judge who concurrently served on the state’s judicial oversight commission. The judge, Cullman District Court’s Kim Chaney, remained on the bench for three years after being accused of violating the same nepotism rules he was tasked with enforcing on the oversight commission. In at least 200 cases, court records show, Judge Chaney chose his own son to serve as a court-appointed defense lawyer for the indigent, enabling the younger Chaney to earn at least $105,000 in fees over two years.

In February, months after Reuters repeatedly asked Chaney and the state judicial commission about those cases, he retired from the bench as part of a deal with state authorities to end the investigation.

Tommy Drake, the lawyer who first filed a complaint against Chaney in 2016, said he doubts the judge would have been forced from the bench if Reuters hadn’t examined the case.

“You know the only reason they did anything about Chaney is because you guys started asking questions,” Drake said. “Otherwise, he’d still be there.”

BEDROCK OF AMERICAN JUSTICE

State and local judges draw little scrutiny even though their courtrooms are the bedrock of the American criminal justice system, touching the lives of millions of people every year.

The country’s approximately 1,700 federal judges hear 400,000 cases annually. The nearly 30,000 state, county and municipal court judges handle a far bigger docket: more than 100 million new cases each year, from traffic to divorce to murder. Their titles range from justice of the peace to state supreme court justice. Their powers are vast and varied – from determining whether a defendant should be jailed to deciding who deserves custody of a child.

Each U.S. state has an oversight agency that investigates misconduct complaints against judges. The authority of the oversight agencies is distinct from the power held by appellate courts, which can reverse a judge’s legal ruling and order a new trial. Judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.

Few experts dispute that the great majority of judges behave responsibly, respecting the law and those who appear before them. And some contend that, when judges do falter, oversight agencies are effective in identifying and addressing the behavior. “With a few notable exceptions, the commissions generally get it right,” said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.

Others disagree. They note that the clout of these commissions is limited, and their authority differs from state to state. To remove a judge, all but a handful of states require approval of a panel that includes other judges. And most states seldom exercise the full extent of those disciplinary powers.

As a result, the system tends to err on the side of protecting the rights and reputations of judges while overlooking the impact courtroom wrongdoing has on those most affected by it: people like Marquita Johnson.

Reuters scoured thousands of state investigative files, disciplinary proceedings and court records from the past dozen years to quantify the personal toll of judicial misconduct. The examination found at least 5,206 people who were directly affected by a judge’s misconduct. The victims cited in disciplinary documents ranged from people who were illegally jailed to those subjected to racist, sexist and other abusive comments from judges in ways that tainted the cases.

The number is a conservative estimate. The tally doesn’t include two previously reported incidents that affected thousands of defendants and prompted sweeping reviews of judicial conduct.

In Pennsylvania, the state examined the convictions of more than 3,500 teenagers sentenced by two judges. The judges were convicted of taking kickbacks as part of a scheme to fill a private juvenile detention center. In 2009, the Pennsylvania Supreme Court appointed senior judge Arthur Grim to lead a victim review, and the state later expunged criminal records for 2,251 juveniles. Grim told Reuters that every state should adopt a way to compensate victims of judicial misconduct.

“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about,” Grim said.

In another review underway in Ohio, state public defender Tim Young is scrutinizing 2,707 cases handled by a judge who retired in 2018 after being hospitalized for alcoholism. Mike Benza, a law professor at Case Western Reserve University whose students are helping identify victims, compared the work to current investigations into police abuse of power. “You see one case and then you look to see if it’s systemic,” he said.

The review, which has been limited during the coronavirus pandemic, may take a year. But Young said the time-consuming task is essential because “a fundamental injustice may have been levied against hundreds or thousands of people.”

SPECIAL RULES FOR JUDGES

Most states afford judges accused of misconduct a gentle kind of justice. Perhaps no state better illustrates the shortcomings of America’s system for overseeing judges than Alabama.

As in most states, Alabama’s nine-member Judicial Inquiry Commission is a mix of lawyers, judges and lay people. All are appointed. Their deliberations are secret and they operate under some of the most judge-friendly rules in the nation.

Alabama’s rules make even filing a complaint against a judge difficult. The complaint must be notarized, which means that in theory, anyone who makes misstatements about the judge can be prosecuted for perjury. Complaints about wrongdoing must be made in writing; those that arrive by phone, email or without a notary stamp are not investigated, although senders are notified why their complaints have been summarily rejected. Anonymous written complaints are shredded.

These rules can leave lawyers and litigants fearing retaliation, commission director Jenny Garrett noted in response to written questions.

“It’s a ridiculous system that protects judges and makes it easy for them to intimidate anyone with a legitimate complaint,” said Sue Bell Cobb, chief justice of the Alabama Supreme Court from 2007 to 2011. In 2009, she unsuccessfully championed changes to the process and commissioned an American Bar Association report that offered a scathing review of Alabama’s rules.

In most other states, commission staff members can start investigating a judge upon receiving a phone call or email, even anonymous ones, or after learning of questionable conduct from a news report or court filing. In Alabama, staff will not begin an investigation without approval from the commission itself, which convenes about every seven weeks.

By rule, the commission also must keep a judge who is under scrutiny fully informed throughout an investigation. If a subpoena is issued, the judge receives a simultaneous copy, raising fears about witness intimidation. If a witness gives investigators a statement, the judge receives a transcript. In the U.S. justice system, such deference to individuals under investigation is extremely rare.

“Why the need for special rules for judges?” said Michael Levy, a Washington lawyer who has represented clients in high-profile criminal, corporate, congressional and securities investigations. “If judges think it’s fair and appropriate to investigate others for crimes or misconduct without providing those subjects or targets with copies of witness statements and subpoenas, why don’t judges think it’s fair to investigate judges in the same way?”

Alabama judges also are given an opportunity to resolve investigations confidentially. Reuters interviews and a review of Alabama commission records show the commission has met with judges informally at least 19 times since 2011 to offer corrective “guidance.” The identities of those judges remain confidential, as does the conduct that prompted the meetings. “Not every violation warrants discipline,” commission director Garrett said.

Since 2008, the commission has brought 21 public cases against judges, including Hayes, charging two this year.

Two of the best-known cases brought by the commission involved Roy Moore, who was twice forced out as chief justice of the Alabama Supreme Court for defying federal court orders.

Another Alabama justice fared better in challenging a misconduct complaint, however. Tom Parker, first elected to the state’s high court in 2004, pushed back when the commission investigated him in 2015 for comments he made on the radio criticizing the U.S. Supreme Court’s decision legalizing gay marriage.

Parker sued the commission in federal court, arguing the agency was infringing on his First Amendment rights. He won. Although the commission had dropped its investigation before the ruling, it was ordered to cover Parker’s legal fees: $100,000, or about a fifth of the agency’s total annual budget.

In 2018, the people of Alabama elected Parker chief justice.

These days, Parker told Reuters, Alabama judges and the agency that oversees them enjoy “a much better relationship” that’s less politically tinged. “How can I say it? It’s much more respectful between the commission and the judges now.”

“GUT INSTINCT”

Montgomery, Alabama has a deep history of racial conflict, as reflected in the clashing concepts emblazoned on the city’s great seal: “Cradle of the Confederacy” and “Birthplace of the Civil Rights Movement.”

Jefferson Davis was inaugurated here as Confederate president after the South seceded from the Union in 1861, and his birthday is a state holiday. As was common throughout the South, the city was the site of the lynchings of Black men, crimes now commemorated at a national memorial based here. Police arrested civil rights icon Rosa Parks here in 1955 for refusing to give up her seat on a city bus to a white passenger.

Today, about 60% of Montgomery’s 198,000 residents are Black, U.S. census records show. Even so, Black motorists account for about 90% of those charged with unpaid traffic tickets, a Reuters examination of court records found. Much of Judge Hayes’ work in municipal court involved traffic cases and the collection of fines. Hayes, who is white, told Reuters that “the majority of people who come before the court are Black.”

City officials have said that neither race nor economics have played a role in police efforts to enforce outstanding warrants, no matter how minor the offense.

In April 2012, Marquita Johnson was among them. Appearing before Hayes on a Wednesday morning, the 28-year-old single mother pleaded for a break.

Johnson had struggled for eight years to pay dozens of tickets that began with a citation for failing to show proof of insurance. She had insurance, she said. But when she was pulled over, she couldn’t find the card to prove it.

Even a single ticket was a knockout blow on her minimum-wage waitress salary. In addition to fines, the court assessed a $155 fee to every ticket. Court records show that police often issued her multiple tickets for other infractions during every stop – a practice some residents call “stacking.”

Under state law, failing to pay even one ticket can result in the suspension of a driver’s license. Johnson’s decision to keep driving nonetheless – taking her children to school or to doctor visits, getting groceries, going to work – led to more tickets and deeper debt.

“I told Judge Hayes that I had lost my job and needed more time to pay,” she recounted.

By Hayes’ calculation, Johnson owed more than $12,000 in fines. He sentenced Johnson to 496 days in jail. Hayes arrived at that sentence by counting each day in jail as $25 toward the outstanding debt. A different judge later determined that Johnson actually owed half the amount calculated by Hayes, and that Hayes had incorrectly penalized her over fines she had already paid. To shave time off her sentence, Johnson washed police cars and performed other menial labor while jailed.

Hayes told Reuters that he generally found pleas of poverty hard to believe. “With my years of experience, I can tell when someone is being truthful with me,” Hayes said. He called it “gut instinct” - though he added, in a statement this week, that he also consulted “each defendant’s criminal and traffic history as well as their history of warrants and failures to appear in court.”

Of course, the law demands more of a judge than a gut call. In a 1983 landmark decision, Bearden v. Georgia, the U.S. Supreme Court ruled that state judges are obligated to hold a hearing to determine whether a defendant has “willfully” chosen not to pay a fine.

According to the state’s judicial oversight commission, “Judge Hayes did not make any inquiry into Ms. Johnson’s ability to pay, whether her non-payment was willful.”

From jail, “I prayed to return to my daughters,” Johnson said. “I was sure that someone would realize that Hayes had made a mistake.”

She said her worst day in jail was her youngest daughter’s 3rd birthday. From a jail telephone, she tried to sing “Happy Birthday” but slumped to the floor in grief.

“She was choking up and crying,” said Johnson’s mother, Blanche, who was on the call. “She was devastated to be away from her children so long.”

When Johnson was freed after 10 months in jail, she learned that strangers had abused her two older children. One is now a teenager; the other is in middle school.

“My kids will pay a lifetime for what the court system did to me,” Johnson said. “My daughters get frantic when I leave the house. I know they’ve had nightmares that I’m going to disappear again.”

Six months after Johnson’s release, Hayes jailed another single Black mother. Angela McCullough, then 40, had been pulled over driving home from Faulkner University, a local community college where she carried a 3.87 grade point average. As a mother of four children, including a disabled adult son, she had returned to college to pursue her dream of becoming a mental health counselor.

Police ticketed her for failing to turn on her headlights. After a background check, the officer arrested McCullough on a warrant for outstanding traffic tickets. She was later brought before Hayes.

“I can’t go to jail,” McCullough recalled pleading with the judge. “I’m a mother. I have a disabled son who needs me.”

Hayes sentenced McCullough to 100 days in jail to pay off a court debt of $1,350, court records show. Her adult son, diagnosed with schizophrenia, was held in an institution until her release.

McCullough said she cleaned jail cells in return for time off her sentence. One day, she recalled, she had to clean a blood-soaked cell where a female inmate had slit her wrists.

She was freed after 20 days, using the money she saved for tuition to pay off her tickets, she said.

Jail was the darkest chapter of her life, McCullough said, a place where “the devil was trying to take my mind.” Today, she has abandoned her pursuit of a degree. “I don’t think I’ll ever be able to afford to go back.”

A clear sign that something was amiss in Montgomery courts came in November 2013, when a federal lawsuit was filed alleging that city judges were unlawfully jailing the poor. A similar suit was filed in 2014, and two more civil rights cases were filed in 2015. Johnson and McCullough were plaintiffs.

The lawsuits detailed practices similar to those that helped fuel protests in Ferguson, Missouri, after a white police officer killed a Black teenager in 2014. In a scathing report on the origins of the unrest, the U.S. Department of Justice exposed how Ferguson had systematically used traffic enforcement to raise revenue through excessive fines, a practice that fell disproportionately hard on Black residents.

“Montgomery is just like Ferguson,” said Karen Jones, a community activist and founder of a local educational nonprofit. Jones has led recent protests in Montgomery in the wake of the killing of George Floyd, the Black man whose death under the knee of a cop in Minneapolis set off worldwide calls for racial justice.

In Montgomery, “everybody knew that the police targeted Black residents. And I sat in Hayes’ court and watched him squeeze poor people for more money, then toss them in jail where they had to work off debts with free labor to the city.”

It was years before the flurry of civil rights lawsuits against Hayes and his fellow judges had much impact on the commission. The oversight agency opened its Hayes case in summer 2015, nearly two years after plaintiffs’ lawyers in the civil rights cases filed a complaint with the body. Hayes spent another year and a half on the bench before accepting the suspension.

Under its own rules, the commission could have filed a complaint and told its staff to investigate Hayes at any time. Commission director Garrett said she is prohibited by law from explaining why the commission didn’t investigate sooner. The investigation went slowly, Garrett said, because it involved reviewing thousands of pages of court records. The commission also was busy with other cases from 2015 to early 2017, Garrett said, issuing charges against five judges, including Moore.

“SLAP IN THE FACE”

A few months after Judge Hayes’ suspension ended, his term as a municipal judge was set to expire. So, the Montgomery City Council took up the question of the judge’s future on March 6, 2018. On the agenda of its meeting: whether to reappoint Hayes to another four-year term.

Hayes wasn’t in the audience that night, but powerful supporters were. The city’s chief judge, Milton Westry, told the council that Hayes and his colleagues have changed how they handled cases involving indigent defendants, “since we learned a better way of doing things.” In the wake of the suits, Westry said, Hayes and his peers complied with reforms that required judges to make audio recordings of court hearings and notify lawyers when clients are jailed for failing to pay fines.

As part of a settlement in the civil case, the city judges agreed to implement changes for at least two years. Those reforms have since been abandoned, Reuters found. Both measures were deemed too expensive, Hayes and city officials confirmed.

Residents who addressed the council were incredulous that the city would consider reappointing Hayes. Jones, the community activist, reminded council members that Hayes had “pleaded guilty to violating the very laws he was sworn to uphold.”

The city council voted to rehire Hayes to a fifth consecutive term.

Marquita Johnson said she can’t understand why a judge whose unlawful rulings changed the lives of hundreds has himself emerged virtually unscathed.

Slideshow (7 Images)

“Hiring Hayes back to the bench was a slap in the face to everyone,” Johnson said. “It was a message that we don’t matter.”

On Thursday, Hayes will retire from the bench. In an earlier interview with Reuters, he declined to discuss the Johnson case. Asked whether he regrets any of the sentences he has handed out, he paused.

“I think, maybe, I could have been more sympathetic at times,” Hayes said. “Sometimes you miss a few.”

Reporting By Michael Berens and John Shiffman. Additional reporting by Isabella Jibilian, Andrea Januta and Blake Morrison. Edited by Morrison.

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