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Chip Drago
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Skies dark and threatening,
and so's Cowboy Bob Clark

Colorful criminal defense attorney doubting
not Thomas, but the ex-judge's inquisitors

By Chip Drago
Mobile Bay Times
Outside the jail mid-afternoon Friday, the skies were dark and threatening. So was attorney “Cowboy Bob” Clark.

Addressing news reporters, Clark’s face grew florid, a flaming bull’s-eye inside a smoke ring of Old Testament white hair and beard.

Dressed Friday casual -- red polo shirt, off white pants, and crimson Crocs – the lawyer railed during a news conference against the “racist” Mobile County courthouse crowd and its plans for a “high tech lynching” of his client, former Circuit Judge Herman Thomas, charged in a 57-count indictment with extortion, kidnapping, sexual abuse and the sodomy of young malefactors before his bench.

Cops congregated on the sidewalk. Bondsmen came out from their nearby storefronts for a closer look. Clerks and guards peeked from jailhouse windows.

"This is racism at its very finest," Clark thundered. "We ought to be proud we elected those bastards (Thomas’ enemies in the courthouse)."

“He looks like an out patient,” observed a criminal defense colleague of Clark.

Thomas stood tall, bald and bow-tied, quiet, behind the media scrum while Clark
stormed, until an investigator
touched Thomas’s shoulder and,
with a nod, gestured toward
the docket room. They
covered the short distance and
quickly were inside where the
ex-judge was “processed” and
released after about two hours
on bonds totaling $287,500.     

Before the day was over --
and it was a press pack scurry of
the first order -- Clark couldn’t even get himself arrested, despite his demands, and his client’s nightmarish free fall continued ever since the judge himself 2-1/2 years ago called for an investigation into his judicial conduct, apparently believing he would be exonerated. The Judicial Inquiry Commission proceeding led Thomas to resign his judgeship rather than face trial before the Court of the Judiciary. Ultimately, numerous other agencies, including the Mobile County District Attorney’s office, the Alabama Attorney General’s office, the local bar association and the FBI, picked up the investigation.

Now, for Thomas, it is not his robe, but his freedom that hangs in the balance.

Clark’s theatrics commanded the cameras, as one suspects he intended, drawing attention away from Thomas who, until his resignation 1-1/2 years ago, was the county’s longest serving, most civically active and only sitting African-American circuit judge, Mobile-born, a husband and father to two teenage daughters, the subject of scandalous reports and sensational rumors for months.   

In the end though, Clark’s tirade aside, the dark day belonged to Thomas.

All in all, it was a remarkable afternoon, almost unimaginable for any veteran of the local legal scene. It probably matched the drama of the blockbuster federal case-fixing indictment more than 25 years ago which included as defendants former Circuit Judge Elwood Hogan (whose portrait, unlike Thomas', still hangs in the jury assembly room in the courthouse) and District Judge Jimmy Sullivan, both convicted and now deceased.

Few almost 20 years ago would’ve foretold this of Thomas.

It was 1990. Republican Gov. Guy Hunt appointed Thomas, not yet 30-years-old, to a vacant district court judgeship and, seemingly, the brightest of futures. A local judicial selection committee included the assistant district attorney as one of three finalists from a field of applicants. The other two were former state Rep. Beth Marietta Lyons and current Mobile County Commissioner Merceria Ludgood. All three were Democrats, though Thomas less certainly. His background as a prosecutor, though brief, and the possibility that the political ingenue might run for the judgeship as a Republican, though unrealized, tipped the scales in Thomas’ favor.

Now Thomas faces penalties upon conviction that carry potential imprisonment for an almost geological stretch of time.

How did it come to this, noting as have Clark, Mobile County District Attorney John Tyson Jr. and virtually all commentators in between that Thomas remains innocent until proven guilty?

Chris Galanos, then district attorney, hired Thomas for a job in the state prosecutor’s office in the late 1980’s. Thomas was an excellent assistant and became a solid district judge, said Galanos. Ultimately, as a circuit judge, he “changed,” said Galanos who served on the circuit bench with Thomas before leaving to enter private practice. Without regard to Thomas’ guilt or innocence, Galanos implied that Thomas began to assert the power of the office as if it resided in him as a Caesar rather than in the office at the public’s leave. If feeling omnipotent, Thomas had come a long way from the dorky kid that grammar school classmates recall as an un-athletic "four eyes," awkward around girls.

Thomas’ elevation to the circuit bench in 1999 stemmed in part from the political climate of the time. In other states in the South, notably Georgia, a push was on to broaden diversity in the judiciary by installing single-member districts. At the time, many of the judges here lived in the same general area of town, meaning they would have to scatter or have a major free-for-all in an election to claim the judgeship for that district, leaving other districts wide open and scrambling the legal/political community. If a black judge was seated and won a county-wide election, the argument that a black could not win a county-wide judicial race here would be refuted, and the incumbent judges could all keep their addresses, or so the reasoning went. As an incumbent district judge, Thomas filled the bill. The establishment rallied around Thomas so strongly after his appointment by then Gov. Don Siegelman that no other lawyer dared to run against him in his campaigns for circuit judge.     

In addition to his widespread community service, from 100 Black Men to the University of South Alabama Board of Trustees and charities and causes by the dozen, Thomas in other ways also distinguished himself from his colleagues on the bench, imposing strikingly long probationary periods on defendants while showing initial leniency and directing them to present themselves properly in a clean-cut fashion, get an education, find employment and attend church. Other judges operated more by the numbers and inside the system, but Thomas as the court’s only African-American judge exercised a broader, unofficial role as an extra-judicial authority figure providing direction and discipline that many of the young black defendants from single-parent and/or broken homes had never known.

With Thomas, the lines between judge, probation officer, social worker and community leader were blurred, if they existed at all.

Operating outside traditional judicial boundaries in the community, Thomas' activities sparked rumblings of impropriety until finally exploding in late 2006 with the legal problems of his cousin and fraternity brother, impeached school board member David Thomas. Mobile County Circuit Judge Rusty Johnston had sentenced the ex-official to a week in jail for Mardi Gras-related misdeeds. The time could not be served in the Prichard City Jail rather than Mobile County Metro Jail, the judge ordered. But an imperious Herman Thomas cleared the way for David Thomas to stay in the more accommodating Prichard Jail anyway, later denying any role in the arrangement.

In the ensuing uproar, the judge himself called for the Judicial Inquiry Commission to investigate his actions.

JIC returned 30 counts of alleged misconduct against the judge. According to JIC, Herman Thomas "did willfully allow his family, social, political or other relationships to influence his judicial conduct or judgment," and failed to "maintain professional competence" in his dealings with colleagues on the bench and other court officials.

It developed that Thomas allegedly was taking inmates from the metro jail and paddling them in a small storage room that he had converted into a private office at the courthouse. Investigators later turned up forensic evidence of semen from stains in the carpet, according to published reports. The DNA samples came from two individuals, but neither from Thomas, according to reports. 

In transferring cases from fellow judges' dockets to his docket without their knowledge, as well as other deceptions, Thomas alienated his judicial brethren, perhaps Johnston most of all, with Judge Charlie Graddick likely just a length behind as runner-up.

Ironically, it was those three judges who played leading parts in the purported “palace intrigue” following the death in 2005 of former Presiding Judge Bob Kendall.

Traditionally, age and service have been major factors in selecting the presiding judge. Johnston, 49, is a year older than Thomas. Appointed in March 1997, Johnston also had more experience on the circuit bench. But Thomas, named to the circuit bench in June 1999, had seniority as a judge by virtue of his stint in district court.

Both sought the support of their fellow judges for the honor of presiding judge. Neither could garner enough backing to break the stalemate.

Graddick emerged as his fellow judges' choice, an older established political figure, though less experienced as a judge. Thomas, according to reports, backed Graddick, clinching a “unanimous” vote for the state’s former attorney general.

Graddick then tapped Thomas to chair the local judicial selection committee, another of the late Kendall’s duties.

In yet a further irony or coincidence, the committee received nine applications for the judicial vacancy created by Kendall’s death, including that of Joe Kulakowski. Kulakowski is credited by some, criticized by others, for his tireless and independent investigation of Thomas’ activities for months and months pursuing leads, developing information and gathering statements.

Kulakowski was not, however, one of the three finalists whose names Thomas’ committee recommended to Gov. Bob Riley. The governor ultimately picked Sarah Stewart over Randy Crane and Robert Smith for the judgeship. 

Kulakowski dedicated countless, unpaid hours to compiling evidence of Thomas’ alleged indiscretions and liberties with inmates. He has called Thomas’ behavior the biggest scandal in the history of American jurisprudence. Justice for cornered clients and society's voiceless dregs, as well as the preservation of the integrity of the local legal system, were his objectives, according to Kulakowski, who wouldn’t “dignify” any suggestions to the contrary with a comment. Besides, he said, he did not know how Thomas or the other four members of the committee voted in selecting the three names for the governor’s consideration.     

Johnston’s cooperation with JIC in its investigation of Thomas probably was as valuable as that of any other circuit judge in Mobile. Johnston also was ahead of his colleagues earlier this month in barring Thomas from appearing in his courtroom, citing as justification for the ban, allegations of sexual and ethical misconduct against Thomas, recorded in inmates’ tapes and in affidavits, as well as his personal assessment of Thomas' character.

Clark sought to have the ban overturned as an unsubstantiated attack on Thomas’ right to earn a living practicing law.

Both the ban and the appeal seem like distant echoes after the grand jury’s bombshell a few days ago, especially in light of the bar association’s immediate suspension of Thomas’ license on Monday afternoon.

The indictment cites nine inmates over whom Thomas allegedly used the power of his office improperly to obtain personal gain, including sexual gratification.

Alleged victims of Thomas, according to the indictment, include Jhordis Woods, Necester Warmack, Douglas Hill, Darrius Lane, Akil Figures, Mitee Meardry, Thaddeus Hale, Deangelo Daughtry and Marcus

“I’m personally angered that they have chosen to believe criminals who have every reason to lie about a judge and to believe them to the degree to accuse him based on their words and their words alone without any other corroborating information,” said attorney Jerome Carter outside the jail Friday afternoon while Thomas was being booked.

The prosecution will not rely solely on the testimony of convicted felons, according to the state's representatives. Other testimony from non-criminals as well as physical evidence will buttress the case against the former judge, they assert.

“We’re going to rally around the man,” said criminal defense attorney Dom Soto. “You can’t (mess) with the only black judge we’ve got and not expect a fight.”

Soto anticipated that several top local criminal defense attorneys would volunteer their services in Thomas’ behalf. At trial’s end, said Soto, the public would still be abuzz with talk of “spankings,” only then it would be about the one that Thomas’ criminal defense team had given Tyson.

By then, the air had gone out of Clark’s press conference and most everyone, including Clark, dashed off for the district attorney’s office to get Tyson’s take on the indictment.

Media, court personnel and Clark gathered in a district attorney conference room while Tyson and his lieutenants shuffled papers and squared corners before speaking publicly.

During the wait, Tyson's chief investigator Tony Goubil arrived to tell Clark that he had to leave per Tyson's order. Always the man in black, Goubil may as well have been a matador with a red cape. After several passes, having to do with whether or not Clark was under arrest because the lawyer wasn't leaving unless he was under arrest, Goubil finally satisfied Clark.

"I'm not leaving until you arrest me," Clark bellowed. "Say 'you're under arrest.'"

"You're under arrest," said Goubil, more in resignation than triumph, leaving on-lookers to wonder who had arrested whom.

The two marched out peacefully down a wide hallway.

Then Tyson and his entourage turned a corner on a collision course with Goubil and Clark. They converged and conferred for 30 seconds or so, merged herds and retreated to Tyson's office. About 10 minutes later all returned for the media session, including Clark who had apparently promised to behave himself.

With Mobile Police Chief Phillip Garrett and Mobile County Sheriff Sam Cochran on hand, Tyson recounted the indictment and the process leading to it. Cochran and Garrett, on cue, said amen and not much more.

Thomas was not to have any contact with males under the age of 21 nor was he to communicate with any witnesses or members of their families and he was to surrender his passport, Tyson said.

Tyson encouraged members of the public who may have information relevant to case against Thomas to contact law enforcement with their stories.

He said the specially empanelled grand jury had not been released.

"I have reason to believe we should continue this investigation," he said.

He dismissed Clark's charges of a racially motivated prosecution.

"Absolute nonsense," he scoffed.

Tyson said it was a case of applying the law to the facts.

"Anything else would be illegal," Tyson said. "Anything with a racial motivation would be outside what I understand the law to be."

Several criminal defense attorneys and others have questioned Clark's cries of racism in Thomas' defense. After all, Thomas served as a judge here for 17 years, appointed to the bench by a white Primitive Baptist preacher from Cullman and the first Republican governor of Alabama since Reconstruction.

Only at the very beginning was Thomas challenged politically.

In 1990, not long after Thomas' appointment, Marietta-Lyons opposed him in the Democratic primary. Now District Judge George Hardesty was the Republican nominee against Thomas in November, 1990. Thomas rebuffed their bids and continued his political career without further challenge, serving to prove, in part, that the legal and political establishment was one or both of two things: satisfied with Thomas' performance on the bench and/or desirous that at least one African-American sit as a judge in Mobile County. Lastly, all of the purported victims named in the indictment are black.

Tyson adjourned the press conference and started to leave. But he quickly returned to the podium to assure reporters that "Mr. Clark is not under arrest nor was he ever under arrest."

"As much as he would like to be," whispered Assistant District Attorney Nicki Patterson in an aside.

Later in the atrium, an uncowed Clark continued to paw the ground and snort, not backing down an inch from his opening salvo.

Asked if potential conflicts with witnesses who he had represented in the past would force him to withdraw from the case, Clark said, "After the World Court at the Hague kicks me out. I'm looking forward to this damn fight."

"I'm outraged," said Clark, adding that others in the criminal defense bar were as well and had pledged to assist in Thomas' defense.

"We can share the load," he said. "We'll be there until the last dog is down."

Retired Marengo County Judge Claud Nielson is expected to schedule Thomas for arraignment late this month upon his return from a long scheduled holiday in Europe. State Chief Justice Sue Bell Cobb tapped the veteran Democrat jurist to handle the case after all of Mobile County's circuit judges recused themselves. The judge is well regarded in legal circles, according to a number of lawyers whose practices take them to either circuit.