JUDGING CRIMES

It's time to pay another visit on Alabama Circuit Judge Stuart Dubose.  (See post 191 and post 306.)  The Alabama Judicial Inquiry Commission filed a pretty spectacular complaint, but it was topped by Judge Dubose's answer -- which was then topped by the Alabama Supreme Court.  

There's such an abundance of riches in the complaint, it's hard to pick a favorite.   If one credits everything in the complaint (and of course these are mere allegations), Dubose was running hard for the title of the Worst Judge in the History of the World.  And he had a real shot at the record, too.

There's the probate matter, featured over at Death and Taxes Blog.  There's his habit of revoking probation without notice to the probationer.  Then there's the divorce case in which he took it upon himself to telephone the attorney for the father - the most elementary no-no for a judge - to inquire what visitation rights his client wanted.

The attorney told the judge, and the judge granted overnight visitation without notifying the attorney for the wife -- who, therefore, did not have the opportunity to inform the judge that the county Department of Human Services was just then investigating an allegation that the father had sexually abused the child in question.  (The attorney for the father didn't know about it, either.)  The father was also facing felony charges, but I can't tell from the complaint if those relate to the same allegation.

After his attention was brought to the salient facts, Judge Dubose convened a hearing to assign blame, stating from the bench:

It is extremely upsetting to this Court that this Court be put in a position where it is not informed of the circumstances ... until after the Court has been allowed a month to ill-advisedly or unadvisedly, in an attempt to try to accommodate lawyers and their clients to settle a dispute and to just let a daddy have some time with his youngun, when the file doesn't reflect anything out of the ordinary ...  [T]he point of this exercise today is to try to do something to ensure that, at least as far as this Judge is involved, that this don't happen again. If I have to be informed of every investigation that the Department does, then I'm going to order it done.

The other alternative, of not calling up counsel for one side and issuing ex parte orders, apparently didn't occur to the judge.   The judge's chief concern was that he might be featured on the Bill O'Reilly show, which is the most positive thing I've ever heard said about Bill O'Reilly.

When an attorney for the Department of Human Services made an appropriately smooth non-apology apology - he "apologized to the Court in the event DHR had done anything to place Judge DuBose in an awkward position" -  the judge explained the real cause of his ire: "But, considering what I have been through, this looked like a set-up to me."   When the attorney for the wife suggested politely that perhaps the problems could have been avoided if the judge had allowed his client to participate in proceedings concerning her child, the judge turned to his court reporter, poised at her stenotype machine: 

"You [Ms. Dunn] take your hands off the machine. Don't you write one thing he's saying. I'm running this show. This is my courtroom. We'll do it how I want to do it." In addition, Judge DuBose declared that he would put on the record whatever he wanted to put on the record and that nothing was going on the record unless he wanted it on the record.

He even told his court reporter to give him all her materials from the hearing and to delete the transcript from her computer (which she wisely chose not to do).  So far as the complaint reveals, Judge Dubose evinced no awareness that a child's welfare might also be involved.  Or, for that matter, a parent's.  (If you mentally remove the Phil Donahue thing from his head, Dubose even looks like a big baby.)

Then there's the judge's loudly-repeated threats to hometown Mobile attorneys in order to send a message to Mobile judges to stop obsessing about Judge Dubose:

"You need to go and let these judges know that I know they're meeting about me and how they got to stop fucking with me. They better be careful because I've got eyes and ears down there." Then he stated the following or words to the same effect: "You know John there are a lot more lawyers from Mobile that come up here than lawyers from up here that go down there. I'm going to send a message through these lawyers that come from Mobile that the judges need to stop messing with me."

After Dubose won the bitter Democratic primary - he won on the platform that his opponent was an unmarried man, nudge, nudge (see post 191) - the itty-bitty bar in his three-county district threw a reception for him at Ezell's Catfish House.  (More photos here; a U.S. Senator's invocation of the place as a reason for opposing economic development in Vietnam here.)  (The three counties in the First District have a combined population of a little over 70,000 souls, plus Dubose.)

Dubose stood up and promised to hometown opposing attorneys:

He told the Circuit's attorneys in effect that, with him as judge, they would have a "home-field advantage" over lawyers from other circuits. He also more specifically stated that they would have the home-field advantage in cases where the opposing counsel are lawyers from Mobile or Birmingham or defense attorneys.

After becoming judge, Dubose began systematically summoning lawyers who had supported his opponent in the primary and demanding that they sign pledges to support him when he ran for reelection.  Several attorneys caved, though perhaps only on the theory that it's best to humor an insane person holding a gun to your head, even if only figuratively. 

During a hearing, he peeled off his robe (apparently believing that it was the garment that imposed ethical restrictions, as a straitjacket on the conscience) and threatened any lawyer who cooperated with the Judicial Inquiry Commission: "I might be older or I may not be what I used to be, but I can still stomp a mud hole in an ass and walk it dry with the best of them."

(That right there tells you he's unqualified for his position.  Better judges deliver the same message through intermediaries, or warning-shot adverse rulings, preserving their plausible deniability.)

I'm leaving out a lot, but only because there's something even better in Dubose's answer to the complaint. After a blanket denial, he pled diminished capacity.

"Diminished capacity" is not guilty by reason of insanity lite.  A person who's not crazy enough to be acquitted may nonetheless be entitled to have charges reduced because he lacks the mental ability to appreciate the consequences of, say, shooting his estranged wife in the head.  Most of the time, naturally, the cause of the purported mental incapacity is alcohol or drugs.  Often, it comes down to asking the jury to go easy on you because, not only are you a killer, but you're a drunk, too.  It's what you might call a last ditch defense.  A before-the-current-drought kind of last ditch, at that.

In other words, Dubose's defense to the charge that he's unfit to remain a judge is that he wasn't fit to be a judge in the first place.  You have to admit, he has a point.

But just when you think things couldn't get more twisted in the poor old First District, along comes the Alabama Supreme Court to provide a final turn of the screw.   By a 5-4 majority, the court concluded that "the important constitutional issue of maintaining an independent judiciary" meant that the Alabama State Bar couldn't proceed with disciplinary proceedings against Dubose.  It didn't matter that disciplinary charges were filed before he descended the bench.

Some things are just more important than enforcing the legal profession's rules of ethics.  And immunity for judges has to rank high on anyone's list of what those things are.

(The Alabama Supreme Court makes it very difficult to view its opinions online, presumably because the justices are ashamed of their work, as indeed they should be.  The opinion is Alabama State Bar v. Dubose, issued March 14, 2008, available for only $200 from the Alabama Supreme Court.) 

Surely that's enough plot twists and turns?  Nope.