Suspended Mobile County Circuit Judge Herman Thomas brought a well-known Mobile attorney onto his defense team as a second wave of allegations pushed any resolution of his ethics case well into the summer.
Thomas engaged Billy Kimbrough, a veteran Mobile lawyer who served as U.S. Attorney here during the Carter administration, to join Dave Boyd of the Montgomery firm Balch & Bingham in defending the judge against charges brought by the Alabama Judicial Inquiry Commission.
A second complaint upends the timetable
The immediate complication was a fresh barrage of allegations referred to the commission by what amounted to the entire circuit bench in Mobile County — an extraordinary step for judges to take against one of their own.
Under the commission’s procedures, a judge facing charges is entitled to demand mediation. Mediation in the original case had been expected to take place in Montgomery, with Thomas present. The new complaint scuttled those plans.
The reason lay in the rules governing the process. Under the commission’s alternative dispute resolution provisions, statements a judge makes in mediation are “privileged and inadmissible as either substantive evidence or impeachment evidence against the judge.” With a second, uninvestigated complaint pending, the commission was reluctant to mediate the older charges, because anything Thomas said could later be off-limits and could compromise its ability to build the newer case, according to a person familiar with the commission’s thinking. Thomas, for his part, was thought likely to prefer having both matters disposed of together rather than piecemeal.
How the process was to unfold
The commission works through an investigative arm housed in the office of the Alabama Attorney General. That office was to examine the allegations contained in the letter from Thomas’s Mobile colleagues and decide whether a formal complaint was warranted.
If a complaint were lodged — possibly at the commission’s June 15 meeting — Thomas would have 30 days to answer. A faster response could conceivably allow the commission to consolidate the two cases and mediate them together at its meeting the following month. Should mediation fail, the matter would go to trial before the Alabama Court of the Judiciary, the nine-member panel that hears disciplinary cases against Alabama judges and includes two lay members. Mobile Mayor Sam Jones and Sue H. McInnish of Montgomery remained listed on the court’s roster at the time, though their terms had expired.
Context for a case that consumed the local bench
Thomas had been suspended that spring while the commission investigated. The charges against him would eventually run to some 30 counts of ethical misconduct, centering on accusations that he used his office to favor friends, relatives and the politically connected, and that he pulled cases from the dockets of fellow judges in order to alter their outcomes.
The dispute was notable not only for its substance but for the unanimity of the judge’s colleagues. Rather than allow the commission to settle the matter quietly, the Mobile bench pressed for the allegations to be aired in a public trial — a posture that made a negotiated resolution far harder to reach.
Thomas, a Democrat first elected in the 1990s, had been an ascending figure in Mobile County’s legal and civic life. He had, in fact, chaired the local judicial selection committee, the very body that would later convene to help choose his replacement.
The case did not go to trial. Thomas resigned in the fall of 2007, a step that stripped the Judicial Inquiry Commission of jurisdiction and ended its proceeding before the Court of the Judiciary could hear it. Criminal investigations continued afterward. He was later tried on charges arising from his conduct on the bench and acquitted of the counts he faced in 2009.
In May 2007, however, none of that was settled. What was clear was that a judge suspended from the bench was assembling a serious legal team, that his fellow judges had turned decisively against him, and that the machinery for disciplining Alabama’s judiciary was moving slowly through a case with no obvious precedent in Mobile County.