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| REUTERS ILLUSTRATION/Jason Schneider |
By MICHAEL BERENS and JOHN SHIFFMAN in MONTGOMERY, ALABAMA
Judge Les Hayes
once sentenced a single mother to 496 days behind bars for failing to Two
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 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.”
 |
| DAUGHTERS ABUSED: When Marquita Johnson couldn’t afford to pay traffic fines that had accumulated for some eight years, Judge Les Hayes sentenced her to more than a year in jail. Her daughters were cast into foster care. One was physically abused, court records show, and another was molested. REUTERS/Chris Aluka Berry |
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.
 |
| NEPOTISM BY WATCHDOG: While serving on a state board on judicial misconduct, Judge Kim Chaney violated the very nepotism rules he enforced on other judges, appointing his own son to more than 200 cases in his hometown. |
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.
 |
| ‘GUT INSTINCT’: Judge Les Hayes served on the Montgomery Municipal Court in Alabama since 2000. “With my years of experience, I can tell when someone is being truthful with me,” he told Reuters. Courtesy Montgomery Advertiser/Handout via REUTERS |
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.
“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.”
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 laypeople. 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.
“It’s a ridiculous system that protects judges and makes it easy for them to intimidate anyone with a legitimate complaint.”
“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.”
 |
| David Sachar, director of the Arkansas Judicial Discipline & Disability Commission: “People can be scared for their life.” |
“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.
 |
| CONFLICTING HISTORY: The great seal of Montgomery on the entrance to the city council chamber. Reuters/John Shiffman |
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.
 |
| Reiko Callner, director of the Washington state Commission on Judicial Conduct: Judges have unique power. |
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.
 |
| HOPES DASHED: Before she was pulled over for failing to turn on her headlights, Angela McCullough carried a 3.87 grade point average at a local community college. Jailed by Judge Les Hayes, she put her tuition money toward fines she owed. “I don’t think I’ll ever be able to afford to go back” to college, she says today. REUTERS/Chris Aluka Berry |
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.
 |
| OUTRAGED: Community activist Karen Jones says she watched Judge Les Hayes “squeeze poor people for more money, then toss them in jail where they had to work off debts with free labor to the city.” REUTERS/Michael Berens |
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.”
Additional reporting by Isabella Jibilian, Andrea Januta and Blake Morrison. Edited by Morrison.
Full Article & Source:
Thousands of U.S. judges who broke laws or oaths remained on the bench
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