Objections Overruled—How Judges Escape Public Accountability: Part One of Two
In the past fifteen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of ten kept their jobs, a Reuters investigation found—including an Alabama judge who unlawfully jailed hundreds of poor people, many of them black, over traffic fines. Incredibly, even deliberate nefarious behavior is almost universally covered by "immunity."
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, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were sent to 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 thirty-six. “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.”
Amazingly 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 ten 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 incredulously said in an interview with Reuters, “I never thought I was doing something wrong.”
Hayes retired after twenty years as judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds. Community activists say his departure was 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. In the first comprehensive accounting of judicial misconduct nationally, Reuters identified and reviewed 1,509 cases from 2008 through 2019—in which judges resigned, retired, or were publicly disciplined following accusations of misconduct. In addition, reporters identified another jaw-dropping 3,613 cases from that same period 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, nine of every ten 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.
Excessively Forgiving Judicial Disciplinary System
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.
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.” Of course, the word "job" is being loosely used.
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 is supposed to investigate 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. Although they absolutely should, judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.
Few so-called 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—like Tom Scott, the world's leading expert on the wildly corrupt U.S. legal system—disagree completely. Tom has litigated in front of well over 100 lawyers in black gowns as he accurately calls them. Only two handfuls—with fingers to spare—are not criminals who belong in prison. He has mountains of evidence of corrupt and/or criminal misconduct that has been revealed in (some now sealed) court records; in his second book, Our American Injustice System; in other blog posts; and elsewhere.
He has filed complaints with the oversight boards against all of them. Absolutely nothing punitive has been done to a single one of the offenders. The sheer number of lawyers in black gowns in his sample size yields a margin of error of less than 10 percent. Only one of the so-called judges, Louise DeCarl Adler, mysteriously and abruptly "retired" in mid-2022 months after Tom filed his complaint against her.
Others like Tom correctly 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 preceding number is an extremely conservative estimate. The tally doesn’t include a previously reported notorious incident—the "kids for cash" scandal—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.”
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