When senior judges, like every other person on the state's payroll, turn in their monthly expense reports, they certify their claims' accuracy.
But an investigation by The Augusta Chronicle reveals discrepancies in some reports submitted by Senior Judge Bernard J. Mulherin Sr., of the Augusta Judicial Circuit.
No truly accurate accounting of the work performed by any of the Augusta circuit superior court judges who do criminal and civil cases is possible. Because those cases are not assigned to specific judges, no records document how they spend their time on the job.
However, two aspects stand out in Senior Judge Mulherin's expense reports: what he charged state taxpayers for mileage and the days he presided over jury trials.
Senior Judge Mulherin said that his secretary keeps accurate accounts of his time at work and that he has performed judicial work without charge.
"If we put it down there, we worked that day. That's all that I can tell you," he said.
The Council of Superior Court Judges would not release the senior judges' expense reports, but the state audit division provided The Chronicle with the reports for a two-year period.
According to Molly Perry, the director of the Council of Superior Court Judges, when senior judges sign their monthly sheets for compensation, they are assuring the state taxpayers under oath that the information is accurate.
Senior judges are paid for each day they preside in court, regardless of the length of the day, under the council's guidelines for senior judges.
They also are paid by hourly increments for working in their offices preparing for upcoming cases, writing orders and researching and studying legal issues.
On at least 21 occasions, however, Senior Judge Mulherin reported on his personal expense sheets that he was presiding over trials that did not occur on the days indicated, according to court records. At a rate of $467 a day, taxpayers have paid him more than $9,800 for work that apparently didn't happen when he said it did.
Senior Judge Mulherin said he doesn't break down the hours he spends on various judicial tasks, and if he works two half-days, for example, he would simply list it as one day on his expense statement.
The week of May 10 in Richmond County Superior Court, criminal trials were scheduled with Senior Judge Mulherin presiding, but no trials were held, according to court records and a reporter's observation.
Records show that the judge sentenced defendants on one day, but he claimed compensation for all five days as "jury trials" that week.
Sometimes, Senior Judge Mulherin said, cases fall through and he finishes early. Every time that happens, he said, he goes to the regular judges and volunteers to help with other duties.
That is not reflected in his reports.
The week of March 15 in Columbia County Superior Court, one trial began March 18 and ended the next day after one hour in court, according to court records. Senior Judge Mulherin charged for five days' compensation, per diem and mileage. Per diem is an allowance for daily expenses typically given when working away from home.
The week of Dec. 8, a trial began in Columbia County Superior Court and ended in a mistrial Dec. 11, according to court records. Senior Judge Mulherin filed for compensation and per diem, a total of $595 daily, for the day of the mistrial, which was declared after six minutes. No other court activities are listed on the judge's voucher for that day.
Senior Judge Mulherin said that there are days when he finishes early, even after helping other judges, but that there are also days when he works past an eight-hour shift. He noted a Richmond County Superior Court trial he presided over in 2000 that lasted nearly three months as an example.
On Nov. 11, 2003, which was Veterans Day and a state holiday, the Richmond County grand jury was to have considered a possible indictment against Superior Court Judge Duncan Wheale.
For that day, Senior Judge Mulherin claimed compensation for "hearings and grand jury indictments.''
According to court records, the senior judge reviewed and signed off on the grand jury indictments returned that day.
According to an investigation by a legal team hired by Judge Wheale, Senior Judge Mulherin actually appeared before the grand jury as a witness, "Citizen Mulherin,'' as opposed to Judge Mulherin, and insisted that jurors proceed on the indictment against Judge Wheale. The day before, the special prosecutor had deemed the case, which alleged terroristic threats, alteration of public records and malfeasance in office, to be insufficient even to qualify as probable cause.
Senior Judge Mulherin said he spoke to the grand jurors as a judge, not as a private citizen, at the jurors' request for additional instructions.
"We're asked to do it all the time,'' he said.
That he reported having hearings on a state holiday is not unusual; he's worked on holidays before and since, he said.
On Oct. 15 and 16, 2003, Senior Judge Mulherin was paid by Richmond County and by the state of Georgia for presiding in state and superior courts. Asked how he could be in two different courts at once, Senior Judge Mulherin said he spent half the day in one court and half in the other. The fact he charged both the state and the court each for full pay on each of those days was an oversight, he said.
He would, Senior Judge Mulherin said, return $934 to Richmond County.
THEN THERE ARE the judge's mileage reports. He repeatedly has claimed at least 40 miles for round-trip drives from his Monte Sano Avenue home or his office in the Augusta-Richmond County Municipal Building to the new Columbia County Courthouse on Ronald Reagan Drive in Evans.
But according to Internet programs such as MapQuest and test drives by The Chronicle, a round trip between the two courthouses is 27 miles, which is near the mileage reported by the eight sitting superior court judges for that trip. A judge working outside his home county may also charge mileage for driving to lunch.
Senior Judge Mulherin said his mileage to Columbia County might be more than anyone else's because he also drives to lunch.
The state's audits department requires senior judges to show actual odometer readings to collect mileage, said Lee Whitesides, the director of the administration division. But auditors do not determine the veracity of the claims.
Speaking hypothetically, District Attorney Danny Craig said fraudulent claims on expense statements could be a felony - knowingly making false statements in government matters. Each violation is punishable by five years in prison. In the strict sense of the word, it also would be theft, especially if there's a pattern, Mr. Craig said.
Mr. Craig, who has prosecuted government employees in the past, said he would be obligated to recuse himself if such allegations were raised against anyone holding a constitutional office, as he does. A superior court judge is a constitutional officer.
Roger Wade, the president of the Public Policy Foundation, said his nonprofit watchdog agency needs to start asking questions. He recalled that a state legislator claimed compensation for attending meetings that weren't held, but he didn't remember the name.
Georgia Sen. Ralph D. Abernathy III filed suit in 1998 to try to keep his expense reports closed from public view. The state Attorney General's Office investigated and discovered he had submitted false expense reimbursement requests to the General Assembly and forged documents used to substantiate those expenses, according to a news release from the attorney general that year. Mr. Abernathy was convicted of theft, false statements and violation of his oath of office. He was sentenced in 2000 to four years in prison, followed by six years' probation.
MANY OF GEORGIA'S SENIOR JUDGES carefully detail their workdays, listing specific cases and how they divided individual days from courtroom to office. At least two senior judges even included handwritten notes explaining why their mileage was more than usual.
One senior judge noted that, on several days when he traveled to another county, he did not charge for mileage because he was going for personal business as well. And Senior Judge Jere F. White, of the Cherokee Judicial Circuit, wrote to auditors that he realized he shouldn't have listed per diem for two of the three days he worked in February. He returned the money.
Senior Judge Mulherin always claims $128 per diem when he travels to Columbia and Burke counties, which is allowed under the Council of Superior Court Judges' guidelines.
Senior judges also are allowed to claim a full day's compensation and per diem even if their days end early, said Ms. Perry, of the Council of Superior Court Judges.
On many days that Senior Judge Mulherin claimed to have presided over a trial for a full day, his presence on the bench ended long before the courthouse closed. In December 2003, for example, court records show he was in court for only six minutes. He claimed the $467 compensation and $128 per diem for that day.
Only three times in the two-year period did Senior Judge Mulherin claim less than the full amount for daily compensation - on days he traveled outside the Augusta Judicial Circuit. Senior Judge Mulherin said that when he finishes early, he helps other judges with their duties.
Georgia Sen. Charles Tanksley, R-Marietta, the chairman of the Senate Judiciary Committee, said he thinks judges should break down their days into time periods. But if a judge presides in court for three hours and then does paperwork in his office for another three hours, for example, Mr. Tanksley said he wouldn't object to a senior judge charging for a full day.
Still, there should be limits, he said.
"It is insufficient to have a judge appearing for six minutes, and then charging for having worked a whole day," he said.
Reach Sandy Hodson at (706) 823-3226 or sandy.hodson@augustachronicle.com.
