Virginia's JIRC A Corrupt System Style - Article by the Virginia Pilot 1996

THEVIRGINIAN­PILOT
Copyright(c)1996,LandmarkCommunications,Inc.
 DATE:Sunday,September22,1996
TAG:9609230248 SECTION:LOCAL PAGE:B1
EDITION:FINAL SOURCE:BYMARKDAVIS LENGTH: 217lines

STATE'S BEST KEPT SECRET IS AGENCY THAT JUDGES THE JUDGES 

The complaint was filed in secret.

The public was not told that a Norfolk judge may have acted improperly.

A government agency investigated the judge in secret.
 There was no public record. A misconduct hearing was called in secret.
The location was kept quiet.

The agency would not confirm the judge's name or even that it was meeting. Witnesses against the judge were called in secret. Subpoenas were not filed in open court, as they are in criminal cases. The witnesses' testimony may never be known. They were urged not to talk after the hearing.

A newspaper reporter who showed up was asked the leave the building, a Holiday Inn. The reporter stayed out in the hallway. And in the end, Judge Luther C. Edmonds of Norfolk Circuit Court resigned under pressure.

That was nearly two weeks ago, and still nothing is known officially about the case, and probably nothing ever will be. Edmonds will go back to his private law practice in Virginia Beach and he will be eligible for a judge's pension in a few years. The exact charges against him remain sealed.

The nature of his alleged misdeeds remain unknown. The name of whoever filed the complaint against him remains confidential. The testimony against him is secret. The system worked exactly as it was intended: The public will never be told why a sitting judge left office. 

Lawyers call it The Jerk ­ that's JIRC, short for Judicial Inquiry and Review Commission. It is the most powerful and most secretive government body you've never heard of. How secret is Virginia's judicial commission? 

Consider the scene Sept. 12 when the commission heard charges against Edmonds. Nothing at the Holiday Inn Executive Center on Greenwich Road hinted at the serious proceedings inside. It was 8:30 a.m. and the hotel buzzed with activity. Several meetings were going on at once. In Parlor E, Navy officers discussed rescue techniques. In Parlor B, blue­collar workers from Georgia Pacific talked shop. Their doors were open. Across the hall in Parlor C, the door was closed and locked. 

No one was admitted without permission. There was no sign on the door or on the hotel marquee to tell visitors who was meeting there. Inside, the seven commission members ­ three judges, two lawyers and two private citizens ­ met.

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The hearing started, then stopped abruptly. JIRC's chief counsel emerged to confront a Virginian­Pilot reporter waiting outside. ``I am asking you to leave the building,'' Reno S. Harp III told the reporter. ``I can't order you to leave, but I am asking you to leave the building. Your presence here is threatening the confidentiality of the witnesses who will testify.'' 

It is that secret. For 25 years, the JIRC has been meeting out justice behind closed doors. This is required by the state constitution, under the heading of ``Disabled and unfit judges.'' It says, ``Proceedings before the Commission shall be confidential.'' How confidential are they? So confidential that, until 1993, it was a crime for witnesses to publicly discuss their testimony. So confidential that, until 1978, it was a crime for newspapers to report that an investigation existed. 

Technically, the commission is not all­powerful. Technically, it answers to the state Supreme Court, which has the real power to remove or censure judges. Technically, the commission merely makes recommendations, and technically the most serious cases become public when the charges and transcript move to the Supreme Court. But that rarely happens. 

In 25 years, only six judges statewide have been publicly punished. And only one case resulted in a judge's removal ­ a Richmond judge who gave away confiscated guns and liquor. More often, judges under investigation resign, like Edmonds, and their cases fade away. Many lawyers and judges say it is the fairest system possible. They say privacy is needed to protect judges' reputations from unfair attacks and to protect witnesses who are afraid to come forward. 

``I know there's some debate about whether the entire process should be open,'' says commission chairman Theodore J. Craddock, a Lynchburg lawyer. ``I personally feel the system should stay the way it is. I've seen it work and I feel it works best . . . ``Anybody can make an allegation. I think the reputation of a judge can be unfairly attacked.'' The system is so secret that Craddock says he cannot offer examples of cases in which confidentiality was needed. 

Richmond lawyer James C. Roberts has represented several accused judges before the commission. He agrees on the need for secrecy. He says many complaints against judges are worthless and deserve to be kept quiet. Besides, Roberts says, ``You're more apt to have people come forward and be honest and candid under those circumstances than if the process had been public.'' 

Harp, the commission's chief counsel for 25 years, refuses to get drawn into the debate. He says simply that confidentiality is required by the state constitution ``and I'm required to follow it.'' He calls the commission ``the personnel department of the judiciary,'' an agency that deals with problem employees like any other. In an interview earlier this year in the Newport News Daily Press, Harp said he sometimes works in the background to get at the root causes of judges' problems ­ medication, for example, or alcoholism, or even a hearing aid. 

Sometimes the commission simply eases a judge into retirement, sometimes for medical reasons, sometimes as a quick remedy to charges of misconduct. For example, Judge Stephen Comfort retired from Chesapeake General District Court in 1993, saying he had become bored with the job. A few days later, a friend said Comfort was forced to quit by the judicial commission. 

The friend said Comfort was being investigated for improperly intervening with another judge in the friend's child visitation dispute. As in the Edmonds case, neither the judge nor Harp could comment because the investigation was confidential. Last week, Harp said other ``personnel departments'' don't have to deal with problem employees in public. The system has its critics. Richmond lawyer David P. Baugh may be the most outspoken. In 1990, he attacked the commission's confidentiality with a federal lawsuit. He complained that his First Amendment rights were being violated because he could not talk about a complaint he had filed against a judge. 

1/11/2016 STATE'S BEST KEPT SECRET IS AGENCY THAT JUDGES THE JUDGES https://scholar.lib.vt.edu/VA­news/VA­Pilot/issues/1996/vp960922/09230248.htm 3/4 And he won. A federal judge ruled that Virginia cannot stop witnesses and complainants from talking about their cases. As a result, the General Assembly in 1993 revoked the law that made it a crime. But the legislature made no other changes, and the commission still urges witnesses to remain silent after they testify, even after hearings are over. That infuriates Baugh. ``The JIRC is the ultimate star chamber,'' Baugh says. ``I have a hard time keeping secrets from the people. We're paying the tab for this guy (a judge). We don't know the allegations against him. We don't even know if the allegations ought to be crimes . . . ``If I make a complaint against you and it's a crime, it becomes public. If I make a complaint against a judge, that's different . . . I don't like this secrecy. Secrecy and democracy don't mix.'' Norfolk City Treasurer Joseph Fitzpatrick agrees. In 1979, when Fitzpatrick was a state senator, he tried to change the rules. His anger was sparked by secret misconduct hearings against Norfolk Judge Joseph Jordan of General District Court. The investigation was no secret. 

Many lawyers in town talked openly about the case. It was debated endlessly in the press. Eventually, the commission did certify public charges against Jordan to the Supreme Court, and Jordan was publicly censured. Fitzpatrick testified for Jordan in secret. He was furious that Jordan had been ``tried in the press'' without a public hearing. In the legislature, he called for a constitutional amendment to open the system. Fitzpatrick lost that fight, but his opinion hasn't changed. ``It occurred to me that judges were subject to being found guilty without anyone ever knowing what the charges were,'' Fitzpatrick said last week. ``The more these things go on, the more convinced I am that . . . the public should know what a judge is being charged with and should be able to be a part of any action taken against a judge, through the media.'' 

Even accused judges who want their hearings open cannot change the law. In 1990, for example, Portsmouth Judge Archie Elliott Jr. of General District Court was accused of misconduct. Again, it was a poorly held secret. Lawyers, including Portsmouth's top prosecutor, talked openly about the case. Elliott asked for an open hearing. The commission said no. 

The commission never revealed the outcome of the hearing. It became public only after Elliott told a church congregation three days later that the charges against him had been dismissed. ``There were so many rumors floating around about different allegations,'' Elliott's attorney, Kenneth R. Melvin, said at the time. ``We wanted the people to know that the charges were essentially procedural allegations.'' Is there another way? 

Most states are not as secret as Virginia. All 50 keep initial investigations private. But after that, 32 states make cases public when charges are filed against a judge, according to the American Judicature Society in Chicago. Among the less­secret states are neighbors North Carolina, Maryland, West Virginia and Tennessee. Unlike Virginia, seven states and the District of Columbia also allow an accused judge to waive confidentiality. Only 13 states have systems similar to Virginia's, and six are more secret, including neighboring Kentucky. In 1978, the U.S. Supreme Court ruled that newspapers and broadcasters in Virginia cannot be prosecuted for truthfully reporting on the JIRC. 

The issue arose after The Virginian­Pilot was convicted of a misdemeanor and fined $500 for reporting that a judge was under investigation. Chief Justice Warren Burger wrote: ``The operations of the courts and the judicial conduct of judges are matters of utmost public concern. The operation of the Virginia commission (JIRC), no less than the operation of the judicial system itself, is a matter of public interest.'' 

After the ruling, JIRC's chairman breathed a sigh of relief. At least, he said, the hearings themselves will remain closed. A ruling against JIRC's secret nature ``would have killed the commission,'' he said. The American Bar Association has a different take. 

1/11/2016 STATE'S BEST KEPT SECRET IS AGENCY THAT JUDGES THE JUDGES https://scholar.lib.vt.edu/VA­news/VA­Pilot/issues/1996/vp960922/09230248.htm 4/4 In 1991, an ABA commission reported that the public is suspicious of lawyers who discipline themselves in secret. The report focused on lawyer disciplinary systems ­ not judicial discipline systems ­ but found that lawyers hold themselves to different standards than the general public. ``The irony that lawyers are protected by secret proceedings while earning their livelihoods in an open system of justice is not lost on the public,'' the ABA commission wrote. ``The public will never accept the claim that lawyers must protect their reputations by gag rules and secret proceedings.'' 

ILLUSTRATION: Graphic Color photo JUDICIAL INQUIRY AND REVIEW COMMISSION When Judge Luther C. Edmonds, left, resigned, the public never knew why. The commission kept secret the charges against him. The name of whoever filed the complaint against him, and the testimony, remains unknown, as well.

 COMMISSION MEMBERS The Virginia Judicial Inquiry and Review Commission has seven members ­ three judges, two lawyers and two laymen. They are appointed by the General Assembly to four­year terms. The members are: Chairman Theodore J. Craddock, Lynchburg lawyer. Vice Chairman Thomas E. Glascock, Hampton lawyer. Judge James H. Flippen Jr., Norfolk Juvenile and Domestic Relations Court Robert J. Grey, Richmond, retired from A.H. Robbins John S. Massad Sr., Richmond, real estate Judge Paul F. Sheridan, Arlington Circuit Court Judge Joseph S. Tate, Marion 

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