Bob Barr

Verdict Is in: Fulton Judge Way over Line

The Atlanta Journal-Constitution

April 26, 2006

The recent incident in Fulton County Superior Court when Judge T. Jackson Bedford ordered District Attorney Paul Howard handcuffed and detained in a holding cell is not only unseemly and bordering on bizarre, but also highly corrosive of the respect for the law and for our judicial process that is essential to the proper functioning of civil society.

It was bad enough that the initial altercation on March 31 involved a supposedly impartial judge displaying rather clear prejudice against, if not outright animosity toward, Howard.

The ramifications were compounded a few days later when the Fulton Sheriff's Office, which already had enough problems of its own, unfortunately jumped into the fray. A deputy claimed physical injury as she was herding the DA into a holding cell and is now seeking to have Howard charged criminally for the claimed hurt.

The roots of the dispute between the judge and the DA go back even before January, when Bedford suppressed an incriminating statement by a defendant charged with a violent murder over the objections of the assistant district attorney trying the case on Howard's behalf. The judge, in refusing to allow the DA's office to appeal his ruling (as is allowed), berated Howard for questioning the court's decision. The defendant was subsequently acquitted.

Howard, who, like other prosecutors rarely loses a case, was understandably upset. Then, in the same judge's courtroom less than two months later, a jury found a defendant accused in a series of rapes not guilty in the first of those trials.

In an apparent effort to find out what might have led the jury to acquit the defendant, Howard, along with his assistant who actually tried the case, tried to talk to some of the jurors in the courtroom immediately following the verdict. That's when the judge blew up at Howard.

Discussing a case with jurors — especially one you lose — is a long-standing and common practice in courtrooms throughout Georgia and across the United States. Indeed, for a district attorney who has just lost a case — especially one that will be followed by others involving the same defendant — not to seek insights from such a jury would be highly irresponsible.

Yet, apparently based on prior bad blood between these two elected officials, Bedford tried to prohibit the district attorney himself from speaking with jurors, insisting that only the assistant district attorney who actually tried the case could do so.

While a judge, based on sound rules of procedures as well as common sense, is responsible for the proper administration of all official proceedings in his or her courtroom, there are — or ought to be — limits to such power.

Telling an elected district attorney that he cannot — along with one of his assistants — discuss a case with jurors willing to do so would appear to constitute such an overstep.

Employing the power of sheriff's deputies — whose allegiance ought to be to the system of ensuring order and safety in the courtroom, not operating as personal Praetorian Guards for judges — to forcibly handcuff and detain an elected district attorney for doing nothing more than what he is not only allowed, but essentially obligated to do, raises further serious questions about personal judicial power that truly must be addressed by higher — and more temperate — authorities.

Although Bedford apparently has enlisted the public support of at least one former judge to defend his actions and to explain publicly that a judge's power to control everything that takes place in "their" courtroom is absolute, those tasked with addressing the fallout from this latest incident probably will take a more learned and reasonable approach.

One small step in that direction has already been taken. Cobb Superior Court Judge James Bodiford has been assigned the responsibility to decide whether the Fulton County deputy's misdirected effort to have the DA criminally charged for allegedly injuring her should move forward. Bodiford has a widely held and well-deserved reputation as one of the state's finest trial judges, and as one of the most courteous and respectful of jurists.

Perhaps other judges around our state should sit in on some of Bodiford's seminars on courtroom decorum. It might cure some of the "robe-itis" that clearly infects some of his colleagues.

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.