Monday, June 1, 2015

Cases like the resignation of Judge Mark Fuller are so rare that they happen about once every 10 years

Mark Fuller
How rare is it for a federal judge, such as Mark Fuller in the Middle District of Alabama, to give up his lifetime appointment and resign?

We don't have precise numbers on that question, but our research indicates a case like the one involving Fuller--who announced on Friday he is stepping down, effective August 1--happens only about once a decade, in what might be called "the modern era."

For some broad historical perspective, we turn to a 1993 study titled "Why Judges Resign: Influences on Federal Judicial Service (1789 to 1992)." It states:

This study focuses on the 188 judges who, over the last 200 years, resigned from the bench for stated reasons other than age or health.

That study was conducted 22 years ago, and it showed a rate of less than one federal-judicial resignation per year. According to my math, if you draw that rate out to 2015, you get 207.68 resignations in American history. (My math can be iffy; that's why I was a journalism major. Feel free to correct my numbers in the comment section.)

A 2012 law-review article from the University of Pennsylvania brings us closer to the current day, focusing on the years 1970 to 2009. It also looks at judges who resigned in that 40-year period over allegations of misconduct. Here is what we find out, with some gory details included:

Four judges resigned after allegations of misconduct. Otto Kerner and Herbert Fogel resigned in the 1970s. In 1993, Robert Collins was convicted of bribery and imprisoned; he resigned after an impeachment resolution was introduced in Congress. In 2008, Edward Nottingham resigned in the midst of a Tenth Circuit investigation into allegations that he had told a prostitute to lie about the nature of their relationship.

Another intriguing case from the 40-year period involved impeachment, retirement, and resignation over allegations of misconduct. It apparently does not count as a strict resignation, but the allegations were dandies:

In 2009, Judge Samuel Kent was convicted and imprisoned on charges stemming from sexual misconduct with two subordinates. Although ineligible for a pension, he initially attempted to claim retirement on disability, which the Fifth Circuit denied. After his impeachment, Judge Kent attempted to submit a resignation to take effect a year later; when Congress proceeded toward trial, he resigned effective June 30, 2009.

Fuller's resignation will take effect almost exactly one year after his arrest for battery of his wife in an Atlanta hotel room last summer. The beating reportedly grew from an argument that started when Fuller's wife accused him of having an extramarital affair with a law clerk.

We've had four federal-judicial resignations over a 40-year period, so that makes the math pretty easy (even for a journalism major)--cases like the one involving Mark Fuller happen about once every 10 years, in what we will call the "modern era."

Samuel Kent
As for impeachment, that is even more rare. The Federal Judicial Center reports 15 in our nation's history. Mark Fuller apparently was headed in that direction if he had not chosen to resign. That tells us there likely is more to this story than one instance of domestic violence. Here is a rundown of impeachment cases from

What judge does Fuller most resemble in relatively recent history? Our vote would go with the notorious Samuel Kent, from the Southern District of Texas. Here is what Above the Law wrote about the august Judge Kent in 2009:

Will he stay or will he go? For the longest time, Judge Samuel Kent (S.D. Tex.), the federal judge who pleaded guilty to obstruction of justice in connection with his molestation of two female court employees, has been playing games about his departure from the bench. But now he has finally raised the white flag, resigning effective on Tuesday, June 30.

The Houston Chronicle provides more details about the Kent case. His chief accuser was a woman named Cathy McBroom:

The odds favored her silence.

Cathy McBroom, a twice-married federal court case manager with a high school degree versus a formidable federal judge, a towering mercurial man who ruled like a king over Galveston’s lone U.S. court.

U.S. District Judge Samuel Kent seemed untouchable, appointed by a U.S. president, approved by Congress to serve for a lifetime. His sentencing Monday — two years after McBroom first accused him of attempting to sexually assault her — brought both vindication and sorrow. . . .

Kent admitted to sexually molesting both McBroom and his former secretary Donna Wilkerson and pleaded guilty to obstruction of justice for lying to judges who investigated his misconduct. Wilkerson came forward after the judge’s first indictment in August. . . .

[McBroom] said the incident that prompted her to action — though it was not the first time Kent attempted to assault her — came in March 2007 when McBroom was summoned to Kent’s Galveston chambers. She says the judge, a foot taller and 150 pounds heavier, forced his mouth on her breast and pushed her head toward his crotch with an explicit and obscene oral order. She fled in tears.

It was a crime, she thought. Yet calling the cops seemed unthinkable.

“I felt like as a federal judge, he had everyone in his back pocket. Who could I report this to?”

Congratulations, Mark Fuller. You will go down in judicial infamy with Judge Samuel Kent. That is some "fine company," indeed.


Anonymous said...

I think Fuller's obvious problems with alcohol and drug were a big factor in this. I'm betting that a serious check of pharmacy records shows he is a big-time pill junkie.

legalschnauzer said...

You make an interesting point, @12:59. And it leads to this question: Can it be a crime to manipulate pharmacy records in order to obtain scrips for painkillers etc.? I don't know the answer to that question, but would welcome insight from anyone who might know.

I long have thought the divorce records that pointed to his use of 5-6 pharmacies emitted a funny smell.

Maybeline said...

How ironic that Fuller got forced out for hitting his wife, when he should have been impeached for what he did to Don Siegelman.

legalschnauzer said...

That goes back, to a great extent, to judicial immunity, Maybeline. Hitting a woman is always a bad idea, but it's particularly bad for Fuller because it was an act outside his "official capacity" as a judge. While acting as a judge, wearing the robe etc., he can screw someone to the nth degree--as he did with Siegelman--and enjoy judicial immunity. That means he can't be held accountable civilly, even for sending an innocent person to prison.

Judicial immunity, by the way, is not based in any of our country's founding documents. It's a "gift" the judiciary gave itself. It essentially is a license to cheat and steal.

The flip side is that a judge can be held accountable for criminal actions, and Fuller probably committed any number of crimes in the Siegelman case. But it takes a real FBI and a real U.S. attorney to dig into those, and I'm not sure either of those exist in Alabama.

Anonymous said...

Great article! Another recent episode of judicial misconduct, which I believe ultimately led to impeachment, was that of Judge Porteous in Louisiana.
Ultimately, I think Judge Fuller made the right call in resigning. Should be interesting to see how long it takes for his seat to be filled, as there are currently multiple vacancies in Alabama, both current and future.

Unknown said...

We have an agreement with the Executive Office of the White House to allow the seat to go unfilled until the next Republican President takes office or Alabama's Congressional Delegation gets something of value in return. Democrats don't get to put just whoever into an 11th or 5th Circuit judicial seat. We made the mistake of compromising with Democrats when it came to Don Siegelman's late law partner, the Socialist Robert Vance. Walter Leroy Moody was like me, a drop out, but he was also a patsy. My master, Senator Howell Heflin aka "Darth Jurist" was not pleased & had no choice but to clean up that mess.

Unknown said...

Well, look at dis remote viewing evil doer above me. There is much evil in the galaxy, but the Illegal Doxle got yo' back my Honky. I'm your Special Beashule & I've been keepin' my pimp paw limber so I can slash his rich, White ass with a dew claw!

Anonymous said...

This only happens when they get caught. I hope more corruption is uncovered. Justice Clarence Thomas is rewarded to the highest Court in the Nation despite what he did to Anita Hill.