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Ex D.A.’s prosecutor says Thomas being saved from jail by politics
<p>By Rob Holbert
Managing editor
<p>For 12 years, John Furman was Mobile County District Attorney John Tyson&#8217;s go-to guy when it came to prosecuting some of the biggest, splashiest crimes this area has seen. So it came as something of a surprise when Furman called Lagniappe last week to offer his take on the continuing saga of former Circuit Court Judge Herman Thomas.
Thomas resigned his position in 2007 amid a state Judicial Inquiries Commission investigation that he was checking inmates out of the county jail and taking them to a secret office in the courthouse where he would spank them. Upon his resignation, the JIC investigation was terminated and to date no other local, state or federal jurisdiction has appeared to be moving forward with any investigation into Thomas’ actions on the bench. Saying he believes it is time for something to be done, Furman said he would discuss his experiences with Thomas while he was a prosecutor and offer some insight into why he thinks Thomas has thus far avoided investigation:
<p>L: Let&#8217;s start with the background of what you saw in your time down there in the DA&#8217;s Office concerning Herman Thomas.
JF: I worked in the DA’s office – I left private practice… I’d been in private practice for about 13 years and was a casual friendly acquaintance of John Tyson. I went to the DA’s office. I’d done every job the DA’s office has, everything from district court to charging to murder prosecution, so basically I know the courthouse. I appeared in front of Herman Thomas hundreds of times, both when he was a district court judge and a circuit court judge, and I’ve appeared in front of him as both a prosecutor and a defense lawyer. In the early days, especially when Herman was a district court judge, there were times when he appeared somewhat erratic and abrupt, but, frankly, the extent of damage a district court judge can do is fairly limited. They handle only small non-jury matters, preliminary hearings, things like that. Things usually progress to circuit court. You respect the office of judge and judges come in all different stripes, whether they are easy going or whether they’re hard. In and of itself, saying he tried to absolutely rule with an iron fist in his courtroom, it was his way or the highway, that in and of itself was not necessarily a bad thing. But it became very clear he was a megalomaniac, that what he did on many cases really had more to do with his own sense of self-importance than it did with trying to handle the cases fairly. He treated young, white, male defendants clearly much more harshly than he did young, black, male defendants. Anecdotally, that was commented upon by attorneys. A number of times particular incidents occurred where I would actually talk to (John) Tyson about Judge Thomas, and I made it very clear number one that I thought he was unfit for the bench and mentally unstable. But you have to understand taking on a sitting judge or trying to get a sitting judge removed is very difficult. Basically what we tried to do over the years was by being prepared, by using the power of our office and the force of our office, to make the right things happen. And again, sometimes the miscarriages were that he was being too harsh, as opposed to too lenient. It was not necessarily about whether he favored the prosecution or the defense, it was more about his whims at that particular time. At that point we knew, number one, that he was absolutely a megalomaniac, and that he was a menace on the bench. But none of us in the DA’s office or on the bench or in private practice had any idea that he might be a sexual pervert. We knew he was checking young black men out of the jail, sometimes personally. At other times having them brought to his office. I know of one occasion where he took a young black male defendant out and checked him out and took him to Atlanta for the weekend. I don’t recall the name of the particular individual. Frankly it should have been apparent at that point, in retrospect, somebody should have suspected the sexual abuse angle, but we just didn’t. It was right there in front of us, but we just didn’t know it.
<p>L: Did other judges know he was doing this (checking inmates out) at this time?
JF: Yes.
<p>L: So they were aware he was checking young men out of jail?
JF: It was common knowledge at the courthouse. The idea was that he was exhibiting favoritism to these young, black males. The fact is if judges want to do mentoring in the community, or be some kind of role model, whether it was misguided or not, people understood it as being that. Really nobody understood, because it was incomprehensible, that he might be sexually abusing these young men.
<p>L: When it became comprehensible that this was going on, that he&#8217;s been spanking people&#8230;.
JF: I’d already left the DA’s office.
<p>L: In your opinion why hasn&#8217;t more been done?
JF: I think it’s clearly politics.
<p>L: In what way?
JF: Tyson ran for Attorney General in 2006. Because Tyson had prosecuted David Thomas and also was heavily involved in the investigation in Bishop State and the criminal activities over there, Joe Reed and the Alabama Democratic Conference withheld their support from John as a statewide candidate and caused him to lose to Troy King. There’s no question Tyson would have beaten Troy King and been attorney general had not the ADC withheld their support. Whether it’s to be re-elected district attorney or running for governor as some have speculated that he might want to do, he has no chance without the ADC. And frankly, in my opinion he simply doesn’t have the stomach for this. He’s not going to risk his political career prosecuting Herman Thomas.
<p>L: Why don&#8217;t the judges stand up and call for an investigation in this case?
JF: I want to make it clear. Presently, both state and federal we have the best bench in terms of quality and temperament in the 27 years I’ve been practicing law. Herman Thomas is a disgrace and embarrassment to the bench and to the entire legal establishment in Mobile County. Frankly there’s a strong sentiment that everyone wishes he’d just go away. The second part of that is frankly there was a state judicial inquiry into Herman Thomas and that was initiated by our local bench, and that’s all they can our should do. Judges are supposed to be non-partisan. Our local judges did their part. The biggest problem I see is apparently a backroom deal was made that if he resigned that the judicial inquiry investigation would go away because he was no longer a judge. And at that point, nothing else has happened. Whatever happened behind closed doors between the state prosecutors or federal prosecutors and Judge Thomas’ lawyers, I’m not privy to. You’d have to ask John Tyson that. And I hope he’ll come forward and explain what was the behind-the-scenes deal. I think the community needs that and expects that.
<p>L: Do you think that, as a former prosecutor, is it an absolute that this should be an investigation?
JF: Number one, it should be an investigation. Number two, it should be presented to a grand jury, state or federal or both. I think the excuse – because that’s what it would be – if the case was not prosecuted or not indicted, would be because the witnesses in this particular case are inmates. Most of them have bad backgrounds. Some of them obviously may be dishonest. Some of them may have reasons to lie or exaggerate. But the case absolutely should be presented to a grand jury, both federal or state, and let a grand jury interrogate these witnesses and if they believe there’s probable cause to indict or probable cause a crime has been committed, I think Herman Thomas should be indicted. If they don’t, frankly, he would be cleared. A grand jury would deliver a no bill, which says there’s not enough evidence here of a crime.
<p>L: What crimes do you think possibly were committed?
JF: Under state law there’s not a specific statute that’s dead on point on this because it’s so bizarre. You’ve got ethics statutes using public office for private gain and you’ve also got the criminal extortion statute, which essentially you’re making someone do or not do something by threatening to do or not do something. An extortion statute would clearly cover it in state court. In federal law there is what they call the federal civil right statutes that specifically deals with the situation of depriving someone of their rights under color of law and it specifically applies to law enforcement officials, court officials, judges, prosecutors and so forth. So it’s very clear that he could, and in my opinion should, be investigated by both systems. Because he was a state judge, and as state law enforcement officials we have a certain responsibility to police our own house. Now I believe the judges have absolutely done everything they could and should have. The fact that there is nothing happening now is strictly on the district attorney and the U.S. attorney. And you’d have to ask them why this case has not been presented before a state grand jury and a federal grand jury. I cannot think of any legitimate reason this case would not have been presented before both a state and federal grand jury.
<p>L: Why do you think the U.S. Attorney hasn&#8217;t taken this up either?
JF: I think because Deborah Rhodes, who is a fine U.S. Attorney, is essentially a caretaker. She was appointed to fill out David York’s term after he resigned, and her job was simply to finish out the remainder of the Republican term and restore morale in the U.S. Attorney’s office. It was pretty clear by the time the allegations about sexual abuse by Judge Thomas of the young black male inmates that Bush was on his way out and that there would likely be a Democratic president. It is a partisan position and all the U.S. Attorneys tender their resignation upon the new president taking office and then the new president appoints new U.S. Attorneys. Obviously the new U.S. Attorney will be a Democrat, probably a black Democrat, and rightly or wrongly I suspect if there’s going to be a prosecution of a black Democrat corrupt official that the policy decision was made that that decision should be made by the new incoming U.S. Attorney. Of course the new U.S. Attorney has not even been appointed so we don’t know what, if anything, that new U.S. Attorney will do.
<p>L: If someone were to say to me in the District Attorney&#8217;s Office that &quot;This is still under investigation. We&#8217;re still working on this,&quot; are we within a reasonable time frame still for that?
JF: No, we’re past that. Let me make this clear. The reason I’m saying this is because the entire legal community, the bench the bar, is suffering in the eyes of the community because the system appears to play favorites – to prosecute or not prosecute persons based on their race and political party. We deal with matters of life and death down there. In the court system people’s liberty is at stake, people’s money is at stake on the civil side. And if the District Attorney is not doing his job and is apparently running scared then what do we tell the poor schmo who is prosecuted by the District Attorney and gets a 20-year sentence? Sorry, you’re just not politically connected enough? The whole thing stinks. Editor’s note: John Furman was a prosecutor in the Mobile County District Attorney’s Office from 1996-2007 specializing in murder prosecutions. He has been an attorney since 1982 and worked for the Southern Poverty Law Center before entering private practice, and is currently the senior partner in a criminal defense and personal injury firm with offices in Mobile and Daphne.
<p><strong>Tyson responds to criticism</strong></p>
<p>By Rob Holbert
Managing editor
<p>Mobile County District Attorney John Tyson maintains that his office, as well as other law enforcement offices, continue to be &quot;interested&quot; in the circumstances surrounding the resignation of ex Circuit Court Judge Herman Thomas.
Thomas was being investigated by the Alabama Judicial Inquiry Commission for allegedly checking inmates out of the county jail and spanking them in a secret room in the courthouse. The investigation was dropped when Thomas resigned and as yet Thomas has not been charged with any wrongdoing. "This office and several other law enforcement agencies continue to be intensely interested in Mr. Thomas," Tyson said, "But it would be inappropriate for me to discuss it further." Asked whether his office has brought any evidence against Thomas before a grand jury, Tyson again said it would be inappropriate to discuss the matter. Asked whether the length of time since Thomas’ alleged misconduct came to light has been excessive for an investigation, Tyson said, "Sometimes it takes a long time. Every time I put a deadline on myself I find I can’t keep up." Informed of specific complaints by his former prosecutor John Furman, as well as court officials who have contacted Lagniappe on condition of anonymity, that Tyson’s office is not pursuing the case as it should because Thomas was a fellow Democrat, Tyson was dismissive. "Cases here rise and fall on their merits, not on political affiliations. That never has happened and never will as long as I am D.A.," Tyson said. "Facts are facts and law is law. That’s how we will proceed here."