Judge not

They laughed at Gov. Sonny Perdue when he unveiled a program to build more boat docks for bass fishing tournaments as his primary policy initiative. But that’s nothing compared to the way people will be laughing if Perdue makes the wrong choice on his next Supreme Court appointment.

The esteemed members of the Judicial Nominating Commission (JNC) have sent Perdue a list of nine names they are recommending for consideration as the replacement for retired justice Leah Ward Sears on the Georgia Supreme Court.

Most of the names are the ones you’d expect for a high-level appointment such as this: former U.S. attorney David Nahmias, Superior Court Judges Billy Ray, Samuel Ozburn and Mary Staley, and Atlanta lawyer Jim Kelly. If Perdue picks one of them, the choice won’t raise much controversy, if any.

And then there’s that other name on the short list: Fulton County Superior Court Craig Schwall, former head of the Fulton Republican Party.

Schwall’s behavior as a judge has been, well, a little unusual. In fact, his actions on the bench prompted the Georgia Supreme Court, the court to which he has applied to be appointed, to issue a stinging written rebuke of him last year.

The Supreme Court’s seven justices signed off unanimously on a ruling that said Schwall’s conduct in handling a civil lawsuit between two factions of a church was “clearly improper” and “abusive.”

The ruling written by Justice Carol Hunstein said that Schwall elicited hearsay evidence on his own, breached strictures against ex parte communications, and failed to give the defense a chance to cross-examine unsworn witnesses.

Schwall also called a defendant to the stand in that case, questioned him from the bench, accused him of theft and perjury, and then had the man jailed on contempt charges, according to the Supreme Court’s ruling. Schwall’s actions “violated [the defendants’] rights to due process and access to the courts,” the justices said.

“The trial judge’s conduct of the injunction hearing was clearly improper,” Hunstein wrote. “In addition, by attempting to himself procure evidence and elicit testimony in the case, the trial judge stepped beyond the role of arbiter and into that of advocate.”

The justices added: “Equally disturbing is the fact that the perjury finding [by Schwall] was premised at least in part on unsworn statements, unauthenticated bank documents, and other unreliable ‘evidence’ improperly obtained by the judge in an ex parte manner. Criminal contempt is a crime in the ordinary sense, requiring proof of the elements of the alleged contempt – here, perjury – beyond a reasonable doubt.”

Not surprisingly, the Supreme Court reversed an order Schwall had issued in that case.

In another incident where he sentenced a child molester to life imprisonment, Schwall yelled at the victim’s mother: “You know what? You’re the cause of this. You are the cause of this and you’re just as guilty as he is.”

Schwall evidently was angry at the woman because her boyfriend had molested the two girls and shouted, “That’s despicable and you are an atrocious mother . . . you don’t deserve to have any children.” (Schwall’s angry courtroom speech can be viewed on YouTube.)

There’s no question that the victim’s mother shared some of the blame in this unfortunate case. But when the judge loses control and starts yelling at her from the bench, it tends to lower the decorum of the proceedings.

In the controversial criminal case of courthouse shooter Brian Nichols, Schwall sent an email to other Fulton judges attacking the former judge in the trial as a “fool” and a “disgrace.”

Peter J. Pearson, a personal injury lawyer who blogs about legal issues, posted this assessment of Schwall’s courtroom demeanor:

There is such a thing as judicial temperament. It assures the public that a judge is making rational decisions instead of just spouting off unsupported views to degrade people who cannot defend themselves. Unfortunately this judge does not have it and he never will.

But wait, as they say in the cable TV commercials, there’s more.

We haven’t yet mentioned the medical malpractice lawsuit filed several years ago against Piedmont Hospital and several physicians affiliated with Piedmont.

Schwall was the presiding judge in that case and during the course of the trial, the plaintiffs’ lawyers pointed out that Schwall had several personal connections to the defendants they were suing:

• Schwall has been hospitalized and treated at Piedmont Hospital.
• Schwall’s son was born at Piedmont Hospital.
• Schwall’s personal cardiologist practices at Piedmont and is a member of one of the doctors’ groups that was being sued.
• Schwall’s personal pediatrician was the father of one of the attorneys for the defendants.
• Schwall’s parents are major benefactors of the Shepherd Center, which shares several physicians with Piedmont Hospital.

The plaintiffs’ attorney filed a motion asking Schwall either to disqualify himself from the case because of these personal connections or have another judge hear the motion to disqualify. Schwall denied the motion to disqualify himself, declined to assign the motion to another judge, and then granted a summary judgment dismissing the malpractice lawsuit against all defendants.

All governors, Republican and Democrat alike, make questionable appointments to the bench. Roy Barnes still deserves to be criticized for appointing the likes of Penny Brown Reynolds to a State Court judgeship (she can now be seen playing a make-believe judge on TV, which seems oddly appropriate).

You might think that surely Perdue would not appoint a judge with the temperament described above to the state’s highest court. But Perdue appointed him to the bench in the first place, naming Schwall a State Court judge in 2003 and a Superior Court judge in 2005.

Perdue will obviously do what he wants to do. But one has to ask: what the hell were the members of the Judicial Nominating Commission thinking?