Categories: The jury

How U.S judges broke laws, oaths and remained on Bench —Reuters Investigation

CONTINUED FROM LAST WEEK

“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.

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 labour 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.

“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.”

A watchdog accused, a pattern of rulings delayed, a repeat offender

Three recent cases illustrate how Alabama judges who were cited for wrongdoing were able to remain on the bench for years.

Judge Chaney: Enforced, broke rules

What happened when a trial judge who also served on the state’s judicial oversight board was accused of misbehaviour.

Alex Chaney was just a year out of law school in 2015 when he started receiving lucrative appointments at taxpayer expense. A district judge began assigning him to represent people too poor to afford a lawyer.

That judge was his dad, Kim Chaney.

Judge Chaney is a powerful figure in rural Cullman County, where he was first elected to the bench in 1992. Chaney serves on a local bank board and has led several statewide justice associations.

In 2012, the governor honoured Chaney by selecting him to also serve on Alabama’s nine-member Judicial Inquiry Commission, which investigates misconduct by judges. While on the commission, Chaney broke its ethics laws in his own courtroom.

In 2016, local attorney Tommy Drake filed a complaint against Chaney, alleging that the judge was appointing his son to represent indigent defendants, violating ethics rules that prohibit nepotism. Alex Chaney was paid $105,000 from 2015 to 2017 by the state for such court-appointed work, accounting records show.

Because Judge Chaney served on the judicial commission, Drake sent his complaint to a different state watchdog agency, the Alabama Ethics Commission. On October 4, 2017, the Ethics Commission found that Judge Chaney violated ethics rules and referred the case to the state attorney general.

The following day, records show, Judge Chaney resigned from the Judicial Inquiry Commission. But he remained a trial judge in Cullman. Eighteen months passed.

Last summer, a Reuters reporter began asking state officials about the status of the case. The officials declined to comment.

In November, Reuters sent Judge Chaney and his son queries. They did not respond. The judge’s lawyer, John Henig Jr, wrote to Reuters: “Judge Chaney is a person of remarkably good character and would never knowingly do anything unethical or wrong.”

Henig said that Judge Chaney appointed his son from a rotating list of lawyers to represent indigent defendants. Henig called the appointments “ministerial” in nature.

“If Judge Chaney’s son’s name was the next name on the list for appointments, Judge Chaney would call out his son’s name and thereafter immediately recuse himself from the case,” Henig wrote.

A Reuters review of court records showed otherwise: Judge Chaney participated in several cases after appointing his son and issued substantive decisions. For example, records show that the judge reduced bond for one of his son’s clients, and approved another’s motion to plead guilty. Henig did not respond to questions about these records.

This February 7 – eight months after Reuters began inquiring about Chaney – the commission charged the judge with appointing his son to more than 200 cases and making rulings in some of them. Chaney struck a deal with the commission and retired from the bench, avoiding a trial.

During a hearing to approve the deal, commission lawyer Elizabeth Bern said Chaney should have known better than to appoint his son, especially given that he did so while a member of the oversight agency. During Chaney’s tenure, the commission had disciplined two judges who abused their office to benefit a relative.

“The nepotism provision is clear and unequivocal without exception,” she said.

Chaney did not speak during the hearing.

Drake, the lawyer who filed the complaint in 2016, said that absent the Reuters inquiries, he doubts Chaney would have retired from the bench because he is so politically powerful.

Indeed, shortly after the judge stepped down in disgrace for steering work to his son, the local bar association issued a resolution praising him.

Of Chaney, the local lawyers said, “He has always maintained the highest ethical and moral standards of the office and has been an example to all, what a judge should represent.”

Judge Kelly: “Callous indifference”

How a judge left children in limbo by repeatedly failing to perform her most basic duty: ruling on cases.

Montgomery Circuit Court Judge Anita Kelly hears time-sensitive family matters such as child custody, adoption and divorce – cases in which a child remains in limbo until she rules.

Starting in 2014, court and judicial commission records show, word of years-long delays in her cases began to emerge from foster parents, lawyers, social workers and appeals court judges. Commission officials are barred by law from discussing the case, but Reuters pieced together the scope of the investigation through juvenile court records, public documents and interviews with people involved.

In May 2014, foster parents Cheri and Travis Norwood filed a complaint about Kelly with the judicial commission. They alleged the judge’s incompetence led to a traumatic, years-long delay in which a foster child who began living with the Norwoods as an infant was taken away from them at age 3 ½ and returned to live with her teenage biological mother.

“If Judge Kelly thought they should have been together, fine,” Travis Norwood said in an interview. “Why didn’t this happen sooner? Because children can’t wait. You can’t freeze a child, hold her in suspended animation until her mother is ready.”

Social workers who heard about the Norwood complaint forwarded their own concerns about Kelly’s conduct in several other cases. Nonetheless, the commission dismissed the Norwood complaint in early 2015, finding “no reasonable basis to charge the judge.”

Over the next year, more red flags emerged. State appeals court judges raised concerns about Kelly’s “continued neglect of her duty,” citing at least five cases that had untenable delays. In November 2015, a supreme court justice criticised the nearly three years it took to determine one child’s fate.

“I refuse to be another adult who has totally failed this child,” Justice Tommy Bryan wrote.

Another 20 months passed before the judicial commission took action. In August 2017, it charged Kelly with delays that “manifest a callous indifference or lack of comprehension” to children’s well-being. One child’s case, it noted, had dragged on for five years.

Kelly took her case to trial before the Court of the Judiciary, the special tribunal that weighs charges against judges. Her attorney argued that the judge worked hard and had shown no ill intent.

In 2018, the tribunal found Kelly failed to “maintain professional competence.” Kelly was suspended for 90 days. Still, she kept her job. The court said it likely would have removed Kelly from the bench if not for two factors: Voters re-elected her in 2016, and she exhibited “good character and the lack of evidence of scandal or corruption on her part.”

Her lawyer, Henry Lewis Gillis, applauded her reinstatement and said the delays never affected the quality of her decisions.

“Judge Kelly cannot change yesterday,” Gillis said. “Rather, she chooses to learn from her past experiences as she continues to handle the many, many, many cases that come before her today.”

Judge Wiggins: Give blood or go to jail

A judge who is a repeat offender – four times over – remains on the bench.

Circuit Judge Marvin Wiggins has been hit with misconduct charges by Alabama’s judicial conduct commission four times over the past decade. In 2009, he was reprimanded and suspended for 90 days for failing to recuse himself from a voter fraud investigation involving his relatives.

“The public must be able to trust that our judges will dispense justice fairly and impartially,” the Court of the Judiciary concluded. “Judge Wiggins, by his actions, disregarded that trust.”

In 2016 – in a case that made global headlines – Wiggins was censured for offering defendants the option of giving blood instead of going to jail for failing to pay fines. A local blood drive happened to be taking place at the courthouse that day.

“If you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today,” Wiggins told dozens of defendants, according to a recording. “Consider that as a discount rather than putting you in jail, if you do not have any money.”

Forty-one defendants gave blood that day, and the commission called Wiggins’ conduct “reprehensible and inexcusable.” Wiggins acknowledged that his comments were inappropriate, but noted he did not send anyone to jail that day for failure to pay fines.

Wiggins’ lawyer, Joe Espy III, said that the judge “has always tried to cooperate” with authorities. Espy noted that Wiggins is a community leader, an ordained pastor and has been repeatedly re-elected to the bench for more than 20 years.

“He is not only a good judge but a good person,” Espy said.

Last year, Wiggins was reprimanded for directly calling the father in a custody dispute – a conversation that violated a rule prohibiting a judge from discussing a case without both sides present. A recording of the call became a key piece of evidence against Wiggins.

In preparation for trial in that case, the commission said it found a “pattern and practice” of similar one-sided calls. The commission also said it found evidence that Wiggins was meeting with divorce litigants in his chambers without lawyers present.

In November, this prompted a new commission case against Wiggins – his fourth in 10 years.

“At a very minimum,” the commission alleged, his track record indicates a “pattern of carelessness or indifferent disregard or lack of respect for the high standards imposed on the judiciary.”

But at a pretrial hearing in January, and in a subsequent order, Wiggins scored a victory before the Alabama tribunal that issues final judgment on such cases, the Court of the Judiciary. The presiding judge raised questions about whether proper procedures had been followed in the case against Wiggins.

Three weeks later, the commission dropped the case. And Wiggins returned to the bench.

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