Article unfairly smeared an outstanding judge

The Executive Committee of the Augusta Bar Association has determined that it cannot sit back and allow to go unchallenged the article by Sandy Hodson titled, "Is our judgment too costly?" (Dec. 5). Ms. Hodson was apparently trying to question the statutory authorization for the use of senior status judges. But for some reason, known only to her, she turned this and related articles into an attempt to malign the character and service of one of the best judges and public servants in the state.

We are keenly aware of the freedom of the press that Ms. Hodson has chosen to exploit. However, Ms. Hodson is duty-bound - or should be - to report all of the facts, get the facts right and avoid innuendos that have no factual basis. This she utterly failed to do; hence, we feel compelled to report the truth about Judge Bernard Mulherin, his billing practices and work ethics.

MS. HODSON references four instances wherein she believed Judge Mulherin improperly billed the state. The first is the week of March 15, 2004, in Columbia County Superior Court. This was a scheduled week to handle only misdemeanor matters. Sixty-one cases were scheduled for trial on Monday morning, March 15. The standard procedure, which Ms. Hodson knows well, is for the parties, attorneys and witnesses to appear Monday morning. For the entire day, Judge Mulherin took guilty pleas, entered sentences and handled bench or nonjury trials for these cases. On Tuesday, March 16, and Wednesday, March 17, he had calendar calls at 9:30 a.m. and began sentencings at 10 a.m. Of the 61 cases, only one case was announced ready for trial, and that began March 18. The trial lasted for the full day, but could not be completed. The jury returned March 19 and deliberated another hour before returning its verdict. Judge Mulherin did appear every day for court, and for the week disposed of all but 15 of the cases.

The week of Dec. 8, 2003, was a scheduled term of jury trials in Columbia County, initially assigned to Judge William M. Fleming Jr. Judge Fleming was called out of town and asked Judge Mulherin to preside in his place. Judge Mulherin had hearings previously scheduled for that week; therefore, he requested Judge Blanchard's assistance with these hearings. Judge Mulherin called the calendar Dec. 8. The trial scheduled for that day was postponed because of the unexpected illness of the defendant.

ON DEC. 9, a trial began and lasted all day. The court resumed at 10 a.m. Wednesday, Dec. 10, and continued until 6 p.m. Judge Mulherin excused the jury for the evening and instructed them to return at 10 a.m. on the 11th, which they did. After returning, the jury deliberated until 11:40 a.m., then announced it was hopelessly deadlocked. Judge Mulherin, as required by law, declared a mistrial.

Not only did Ms. Hodson incorrectly report that a mistrial was declared after only six minutes of deliberation, she failed to check Judge Mulherin's calendar for the rest of that day. If she had done so, she would have known that Judge Mulherin, after declaring a mistrial, traveled to Appling and handled nine hearings. In other words, he worked all day, not six minutes.

Ms. Hodson also questioned Judge Mulherin's billing on the day the grand jury was meeting to consider the indictment against Judge Duncan Wheale. Not only does she find fault in Judge Mulherin working on a holiday, but she even goes so far as to imply Judge Mulherin was at work for the sole reason of appearing before the grand jury as a witness. Judge Mulherin, who swore into duty this particular grand jury, was asked by them to give further instructions regarding their duties. He never appeared as a witness before the grand jury. Indeed, someone such as Ms. Hodson, who has reported on legal matters for many years, knows any "investigative team" stating otherwise would have no credibility at all, for grand jury proceedings are confidential.

THE LAST challenge by Ms. Hodson was the week of May 10, 2004. Judge Mulherin reported on Monday morning at 9 a.m. and called the criminal calendar composed of 80 assigned cases. Because of other scheduled matters, Judge Mulherin could not begin a trial Monday, and therefore excused everyone until Tuesday, May 11. The jury reported the next day and the calendar was again called. Many cases were disposed of by plea agreements or dismissals. Because of conflicts in cases remaining on the calendar, no trial could begin that day. The jury was instructed to return the next day. Judge Mulherin then conducted bond hearings and sentencings.

On May 12, Judge Mulherin appeared in court and called his calendar. Because of various conflicts, no case could be tried. He excused the jury to return the next day and then worked in his office.

On May 13, the scenario was basically the same. Judge Mulherin called the calendar, excused one jury and conducted more bond hearings and sentencings. On May 14, there was no calendar to be called; therefore, Judge Mulherin returned to his office and worked all day.

Although Ms. Hodson refers to "at least 21 occasions" in which Judge Mulherin stated he was presiding over trials that did not occur on the days indicated, she limits her article to these four specific time frames. As shown above, her facts are wrong; hence, we can only wonder about the remaining 17.

THE PREPARATION required by judges for hearings and trials is much like that required of an attorney. When most cases are tried in front of a jury, while the trial may take only a few days, the preparation to get the case ready for trial, and in a posture that the jury can understand easily, can take weeks, if not longer. Judges, particularly in criminal cases, are faced with numerous motions that must be dealt with effectively to minimize the risk of error and reversal on appeal.

Another glaring omission in Ms. Hodson's analysis is the existence of the "unknown" in the legal system. Hearings and trials are scheduled months in advance, both in civil and criminal divisions. Guilty pleas in criminal cases and settlements in civil cases frequently occur only on the courthouse steps and only because the litigants realize that they are preparing to have the matter dealt with by a judge and jury. In most instances, cases are resolved because the parties and their attorneys know that there will be a judge in the courtroom who is ready to proceed. If the justice system does not provide a judge to keep the pressure on litigants, matters could languish indefinitely. Ironically, the docket - the roster of cases - moves along only because judges schedule trials that force the various parties to either resolve the issues or proceed to trial.

MS. HODSON compares the case load in the Augusta Judicial Circuit to those of other circuits. Lawyers who practice throughout the state are well aware that, while it may take five years to get a case to trial in places such as Atlanta, the Augusta Circuit enjoys one of the smallest backlogs of pending cases in spite of having only two courtrooms in Richmond County. The citizens of our circuit should be proud that the judicial process, in part because of the use of senior judges, can move forward at a much more reasonable pace. Without senior judges the criminal system could be severely affected, if not disabled, by every criminal defendant making a demand for a speedy trial. Failure to accomplish this on the part of the prosecution results in a dismissal of the state's case, putting criminals back on the street.

The concept of senior judges is statutory, and hence we reject out of hand Ms. Hodson's suggestion that the existence of senior judges subverts the will of voters. The judges in this state did not create senior judge status, the Georgia General Assembly did. See the Official Code of Georgia Annotated, 15-1-9.3. Our Legislature created their rate of pay, compensation, per diem, mileage and reimbursement which, for all to know, is the same rate authorized for all state employees. Judge Mulherin had absolutely nothing to do with setting the parameters of compensation. Ms. Hodson correctly points out that any senior judge is allowed to claim compensation and per diem for a day's work, even if that day ends early, or extends beyond the normal working hours, yet she criticizes Judge Mulherin for doing precisely what the law allows.

THE CONCEPT of paying a retired judge who is willing to come back and work is no different from paying military personnel who have retired from the military, then return to work for federal, state or local government. These military personnel receive not only the retirement they have earned, but also the pay for the work they perform.

Judge Mulherin has been on the bench for many years, and is one of the most respected judges in our state. In fact, he is frequently requested to preside in matters outside our judicial circuit because of his wisdom, temperament and availability as a senior judge. The Augusta Judicial Circuit is lucky to have a judge with such outstanding character and integrity.

The judicial canons of ethics tie the hands of judges when logic and circumstance would otherwise compel them to respond to erroneous and misleading articles. Because of this, the Augusta Bar Association takes this opportunity to respond instead. If Ms. Hodson had printed all of the facts, perhaps she would have titled her article, "Mulherin, justice at its best." That, however, would not sell newspapers.

(Editor's note: The writer is president of the Augusta Bar Association.)