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Lying Canaries and Dwindling Charges

By Ashley Toland Trice and Pete Teske

Issue#
OCTOBER 21, 2009

 

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Herman Young Thomas' best friend could turn out to be his worst enemy, as one of the defense's own witnesses admitted the former judge had spanked her adult nephew during what was a very rough morning for the defense.

But even with that seemingly damning testimony, at the end of the day, the defense probably looked back on this, the ninth day of the trial, as an overall win - as Judge Claud Nielson spent the afternoon throwing out roughly half of the remaining charges.

Angela Shine, the third witness called by the defense today, testified she had known Judge Thomas since junior high school, and they had remained very close over the years. She described how they had been in the SGA together in high school and would visit each other in college.

Shine also testified she was acquainted with one of Thomas's alleged victims, Akil Figures, who she said was good friends, or rather, partners in crime with her nephew.

While being questioned by defense attorney Jeff Deen, Shine testified Figures called her while he was in Metro Jail. She said Figures had been transported there from federal prison to testify against Thomas in grand jury proceedings.

"He said he would sing like a canary, and he would say whatever it took because he was tired of being in jail. And he hoped I wouldn't be mad because he knew I was friends with the judge."

During cross examination, ADA Nicki Patterson asked Shine if she happened to ask Akil what he was going to sing about. Shine said she hadn't and just repeated her previous statement.

Then Patterson asked, "Well would it surprise you to know that Akil Figures was never brought back to Mobile to testify in front of the grand jury for anything having to do with Herman Thomas?"

Patterson explained the only grand jury Figures had been in front of was a federal grand jury involving the murder of a witness before the case went to trial.

Shine said that did surprise her (as well as just about everyone else in Room 4500) but maintained Figures called her from somewhere and said that and maybe she was just confused.

Patterson continued to press her on her statement, "Did Akil say he was going to make things up?" Shine said again that Akil said he was going to "sing like a canary."

Patterson asked her if that statement necessarily meant he was going to make things up and if it was possible he was just going to tell what he knew.

Patterson would later say she didn't know any lying canaries.

But Shine said she took it to mean that he was going to make things up.

When establishing the connection between Akil Figures and her nephew, who were friends and were in and out of jail together, Patterson asked if she knew if Thomas had ever whipped her nephew.

"I know he whipped my nephew," Shine said, stunning many members of the gallery.

Patterson would later say outside the courtroom she was just as shocked as everyone else at Shine's answer. Cowboy Bob Clark was not surprised, saying they knew that but "they were going to let it all hang out."

"How old was your nephew when Judge Thomas spanked him?" Patterson grilled.

"He was out of high school. My mother and I gave him permission to whip him," Shine testified.

"Well was your nephew OK with it?" Patterson asked.

Shine said he was.

"So your nephew, a grown man, was just fine with getting whipped by another grown man?"

Shine didn't answer.

When asked where Judge Thomas whipped her nephew she said she knew it was at their house at least one time.

"Did you ever ask your nephew if the judge spanked his bare bottom," Patterson asked.

"I did and he said he didn't," Shine said.

"Well why did you ask him that?"

Before Shine could answer the fiery prosecutor's question, Patterson answered for her, "Because you thought it might have happened, didn't you?"

There was no response.

Deen got back up and asked, "Why did you and your mom give the judge permission?"

"We wanted to get him on the right track," Shine said.

Patterson got up and asked one more question.

"If Akil came in and testified he was whipped by Judge Thomas why would there be any reason for you to believe it was a lie?"

Shine did not respond.

Patterson excused her.

One of the more unintentionally comedic and disturbing moments of the morning came with the testimony of Mobile attorney Skip Brutkiewicz.

Brutkiewicz, who often had clients come up before Judge Thomas, told the defense he knew the judge would often tell people on probation he was going to check up on them.

Brutkiewicz said he thought people generally gave the judge "kudos" for this and that no one considered there was anything "sinister" going on.

Patterson asked him if under the rules of ethics if a judge can have extrajudicial contact with someone one his docket. Brutkiewicz was evasive and said he wasn't sure.

"Apparently you haven't seen the code of ethics recently, Skip," Patterson charged.

"I am not an expert on ethics," Brutkiewicz declared.

Patterson said that was apparent.

She then went on to ask him, "As an attorney it wouldn't bother you if a judge met with your client in a private setting without you present?"

"It would bother me if he got information and used it against them," Brutkiewicz said.

"So It would all be OK, he can spank them or do whatever he wants, as long as they don't go to jail or was to their benefit," she asked with great disdain.

The self-declared ethics novice did not really answer the question and was excused.

The defense spent the rest of the morning calling numerous area teachers and principals, as well as other character witnesses, asking each of them about Thomas' work as a mentor of young men. They all said they knew him to have a great reputation as such and each related stories of his work.

The prosecution generally countered by asking each of them if he only seemed interested in young men and if they knew how the semen of two of the troubled kids he mentored ended up on his office floor.

The answers were pretty consistently "yes" to the former question and "I don't know" to the latter.

Conspicuously absent from the defenses witness list was the judge himself, who did not testify in his own defense.

Just after the court broke for lunch, defense attorney Cowboy Bob Clark said he was pleased with all of the testimony of their witnesses from the "archbishop all the way down," and he once again called all of Thomas' accusers "felonious liars."

"We think the jury got to find out who Judge Thomas is - that he was just trying to help these young men become productive members of society."

After being quizzed by the media on some of the defense's low points of the day, including Angela Shine's shocking revelation, Clark seemed unfazed and said with great confidence "we are going to prevail."

After lunch, Nielson dismissed jurors for the day to attend to a little more housecleaning.

Lead prosecutor Nicki Patterson estimated her closing argument to take about two-and-a-half hours while defense attorneys said they would only need about an hour-and-a-half.

Shortly after procedural decisions were made, housecleaning turned into full on spring-cleaning for the defense when Thomas's lawyers motioned for the dismissal of all kidnapping and extortion charges.

The first of those motions, regarding kidnapping, found the prosecution arguing whether or not Room 806, where the alleged victims were held, would constitute "substantial isolation" under the statute.

Kidnapping charges, prosecutors argued, were valid because Thomas took the alleged victims to a "location of the judge's choice, not theirs."

"It's secret enough for him to choose to whip them there," Patterson said.

Neilson argued, saying the door was never locked in any of the testimony.

"Three or four of them said they weren't kidnapped," Neilson offered. "I don't think kidnapping occurred in the Mobile County Courthouse."

Patterson argued Judge Thomas would stand between the allegedly bent-over, bare-bottomed victims, and the door, thus creating a barrier.

Neilson would eventually dismiss all kidnapping charges.

Things got more metaphorical when the extortion charges were challenged. Neilson, who admitted the statute for extortion was poorly written, said he couldn't ask the jury to find Thomas innocent or guilty of "permanently" depriving the alleged victims of their sexual services.

Prosecutors, after a few cursory attempts to explain the ability to offer sexual services during a "distinct moment in time," turned to more abstract examples of how a moment in time can be obtained permanently.

Thomas's one-time alleged extortion of 11 young men was likened to visiting Ruby Falls, picking cotton, singing a song and sexual art. Once a piece of cotton is picked, it can never be picked again, Patterson would argue at one point in the discussion.

The requirements for extortion, the Judge argued, were not met because he couldn't see how sexual favors were obtained permanently as the statute states.

Shortly after one of Patterson's attempts to explain the theft of services, Thomas had allegedly committed, prosecutor Martha Tierney asked the judge to imagine the paddlings and masturbation Thomas ordered inmates to perform happening to females. Neilson quickly responded, letting Tierney know he didn't wish to visualize any such events happening.

Before Neilson waived all of the remaining extortion charges, he asked the defense if they had any input regarding the discussion.

"We think you're doing a great job, Deen told Neilson before saying he felt the prosecution was making great arguments, but for the wrong statute.

Thomas exited Government Plaza this afternoon with less than 25 charges left against him, all of which are felonies. They include one attempted sodomy charge, one sodomy charge and several sexual abuse and assault charges.

But, depending on how the jury finds Thomas on the assault charges filed against him, a chance exists that Thomas could be charged with assault in the third degree, which is a misdemeanor and wouldn't be enforceable as the statute of limitations has run its course.

"That's inviting error," Patterson said of the possibility of jurors downgrading the assault charges.

Neilson would tell prosecutors the matter was an issue for the defense to raise. The defense sat silent.

At the end of this afternoon there are no charges against Thomas that involve the former judge using his position, but Patterson commented on that, saying "They've heard the testimony, and I think they'll take it into consideration."

Closing arguments will begin at 9 a.m. Friday.








 
okrapod says:

OCTOBER 23, 2009
7:55 PM
  Why are these young men offered up to this pervert? The black community has known for years that Thomas was on the "down low" and Vivian Figures knew exactly what her own son was going to get when she offered him up to Thomas. How can anyone stand by and let this continue?
 
 
bama478 says:

OCTOBER 22, 2009
3:05 PM
  Kulakowski really hurt the prosecution they need to pull his license.
 
 
bama478 says:

OCTOBER 22, 2009
2:55 PM
  Yes he is...did we expect anything different from Mobile. The State did a good job but the evidence is not adding up to the charges. Im disappointed because the pervert is GUILTY!!!
 
 
anmanty21 says:

OCTOBER 22, 2009
4:52 AM
  He is going to get away with it!
 

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What records should the Police Department conceal?

Department policies and memos.
Victims' names.
Crime statistics and data.
Financial expenditures.
None of the above.

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