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Judge Thomas hit
with ethics charges

By Chip Drago
Mobile Bay Times
The Alabama Judicial Inquiry Commission Friday, March 9 lodged a 15-count complaint charging Mobile County Circuit Judge Herman Thomas with violating the Alabama Canon of Judicial Ethics.

The allegations against Thomas stem from the judge's conduct in criminal matters involving:

"Judge Thomas, while serving as Circuit Court Judge of Mobile County, Alabama, did willfully allow his family, social, political, or other relationships to influence his judicial conduct or judgment," the complaint states.

The 11-page complaint was presented for prosecution before the Alabama Court of the Judiciary.

The COJ,  a nine-member panel, five judges, two lawyers and two lay persons or non-legal profession appointees. A unanimous vote of the panel is required to remove a judge from office. Other actions, including a censure and/or a suspension, must muster six votes.

There are three vacancies on the COJ, both lay person slots as well as the presiding officer's post. Gov. Bob Riley has not yet named replacements for Mobile Mayor Sam Jones and Sue McInnish of Montgomery, whose terms expired in January and February, 2006, respectively. The Alabama Supreme Court has not tapped someone to succeed Civil Appeals Judge William C. Thompson as presiding judge over the COJ. Thompson's term expired in January 2007. The term of the alternate presiding judge for the COJ, Criminal Appeals Judge Bucky McMillan, has also expired.

Thomas has 30 days to respond to the complaint. A discovery phase then ensues as the defense and prosecution prepare their cases. The defendant is given 30 days notice of the setting of a trial date unless he waives the requirement, according to the court's Clerk John H. Wilkerson Jr.   

Thomas will be sidelined from his duties on the bench here while the case is pending.

Thomas returned a call but declined comment.

Calls to Circuit Judges Charlie Graddick and Rusty Johnston were also unsuccessful. Some of the charges against Thomas involved communications with his fellow judges.

An experienced source well-versed in JIC and COJ dealings with jurists said he believed that Thomas could emerge from the fire scathed and scarred but still berobed and on the bench. 

“He may be able to mediate it,” he said. “He (Thomas) has a smart lawyer. They ought to be able to work something out. He needs to show some contrition and commit to clean up his act. Be a judge, not a social worker. That’s my gut reaction (to the complaint). He was way overreaching (the authority of his office). Herman was never an attorney in private practice. Somebody calls you (as an attorney in private practice) on a criminal case; you make some calls (to attempt to ameliorate the situation). But that is exactly what a judge cannot do.”

A second source with equally deep knowledge of the COJ process generally concurred that Thomas will survive without the loss of his office.

"I also believe that he will get only a reprimand or a short suspension, because the only charges relate to situations where he was trying to help someone else -- not himself," he said.

That sentiment is not unanimous within the legal community, several of whose members saw "no way" for Thomas to retain his judgeship.

If the evidence confirms that Thomas was untruthful to his fellow judges, how can he be permitted to administer the oath to witnesses to swear to tell the truth, a veteran attorney asked.

"The evidence against him with the JIC appears to be overwhelming and I don’t see that he can survive," another attorney said. "Ultimately, Herman’s problems stem from a 'boundless' desire to help family and friends. His failure to secure the Federal District Court appointment years ago came from a similar situation. As far as I know, none of Herman’s (alleged) indiscretions were born of self-interest. That is reflected in his community service."  

A product of the Florida State University School of Law, Thomas is set to mark his 20th anniversary as a member of the Alabama State Bar in about six weeks.

Thomas worked as a prosecutor in the office of former Mobile County District Attorney Chris Galanos before becoming a district court judge and later moving up to circuit court.

Thomas is chairman of Mobile County's judicial nominating committee which plays a leading role in filling vacancies on the bench here.

Thomas first joined the bench here about 17 years ago in politically odd circumstances.

The judicial nominating committee, dominated at the time by Democrats, sought to befuddle and confound Gov. Guy Hunt, the first Republican governor in Alabama since Reconstruction and himself the beneficiary of some "right time, right place" political good fortune. No political giant, Hunt was just a Republican probate judge/farmer from Cullman who would be GOP fodder for the Democratic nominee, presumably Bill Baxley, the putative political heir to George Wallace.

But a funny thing happened to Baxley on his way to the mansion in Montgomery.

Graddick, now presiding judge over Mobile County Circuit Court, beat Baxley in a runoff for the Democratic gubernatorial nomination.

Graddick had held office in Mobile County as a Republican district attorney, but jumped to the Democratic Party to win office as Alabama's attorney general. Run-of-the-mill voters liked Graddick while party officials resented him.

Leaders in the Democratic Party were staunch backers of Baxley and disdained the ex-Republican prosecutor who dared spoil their party.

State Democratic officials met and declared that Baxley, not Graddick, was the party's true nominee after tossing out "illegal crossover votes" for Graddick by Republicans who had no runoff elections of their own and so were able to "cross over" unlawfully to influence the outcome of the Democrats' election.

In November, a disgusted Alabama electorate voted for Hunt -- or perhaps more accurately against Democratic nominee Baxley --  though the smart money had predicted that Alabama voters would forget all about the "cross over voting" shenanigans come the fall campaigns.

But back to Hunt and the Mobile County judicial nominating committee that would have some fun with Alabama's sad-sack governor as he sought to fill a vacancy on the district court here with a Republican appointee.

The panel sent Hunt the names of three prospects, all Democrats -- Thomas and two politically active Democratic attorneys, Beth Marietta Lyons and Merceria Ludgood.

Chuck Spurlock, then Hunt's appointments secretary, now state coordinator for U.S. Sen. Jeff Sessions, considered Thomas's background as a prosecutor and learned of his general political and social conservatism. Thomas was deemed acceptable, if not merely the least objectionable of the three, and the state's first Republican governor in more than 100 years appointed a black Democrat to a district judgeship in Mobile County.

The following year the legal community rallied to ensure Thomas's election to a full term on the bench in part to demonstrate that the at-large election of judges did not prevent the election of blacks to judgeships. Almost all of the county's judges at the time lived in Spring Hill. The prospect of scattering throughout the county to stake a claim in one district or another or to challenge one and other in a huge Spring Hill donnybrook held little appeal for the judges.

Motivated by the judiciary, legal heavyweights lined up and Thomas won. The day was saved. The judges lived at-large and, for the most part, happily ever after. Until recently.