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Thomas case handed to jury

By Rob Holbert

OCTOBER 22, 2009



Assistant District Attorney Nicki Patterson painted a portrait of ex-judge Herman Thomas as a sadomasochist whose sickness was akin to someone who likes wearing women's underwear or sniffing women's shoes during closing arguments today, but the judge's final instructions to the jury leave some question as to whether they will find him guilty of any of the 23 charges still remaining.

In the final day of a nearly three-week trial - counting jury selection - both the prosecutors and defense made their final pleas to the jurors to consider arguments for his guilt or innocence. Thomas, who originally faced 103 charges has seen that number dwindle to just over 20, leading defense attorney Robert "Cowboy Bob" Clark to say the prosecution had just thrown so many charges at him in an effort to "scuff him up" before the case ultimately went to jurors.

"The only thing that stands between Judge Thomas and the tyranny of aggressive prosecution is 12 good people," Clark said in his final argument.

The defense seemed to hang a good bit of its case upon those character witnesses who talked about Thomas' good works in the community and his good nature. At the center of that was Archbishop Oscar Lipscomb who took the stand in support of Thomas and talked about the good things he'd done. Lipscomb's own brush with allegations of sexual abuse, namely of priests under his jurisdiction while he was in charge of the diocese, was ruled non-admissible by Special Judge Claud Neilson.

"We have the archbishop and principals, they have 11 convicted felons!" Clark thundered referring to the various witnesses on both sides of the case.

The initial closing for the prosecution was done by prosecutor Barry Matson, who is from the state prosecutors office. He made the point he was from Montgomery and not part of any alleged conspiracy proffered by the defense. Matson also pointed out that though the defense claimed in its opening statements it would show the workings of such a political conspiracy, no such evidence was offered during the trial.

But it was Patterson's finale that was the show-stopper for the prosecution. She expertly laid out the state's case in, refuting any desire to see Thomas fall from grace.

"I'd like to say that in spite of Mr. Clark's comments about our motives, there is no joy in this courtroom today. Judge Thomas was a respected member of the bar," Patterson said. "There is no sense of fulfillment or pride in exposing something that's gone horribly wrong. The state of Alabama had no choice.... Herman Thomas was a bad apple who let the community down."

Patterson spoke of the double lives of sexual predators, painting a picture of Thomas as someone who gained sexual arousal from spanking men who were in his power. She said his sexual arousal was based on power and humiliation.

"Most of us don't get aroused by putting on women's underwear, but some people do. Most of us don't get aroused by sniffing women's shoes, but some people do. And thankfully, most of us don't get aroused by causing pain in other people," she said.

Patterson also pointed out that the defense tried to discredit State Sen. Vivian Davis Figures, whose son Akil was one of the witnesses and alleged victims. Sen. Figures testified that Thomas asked her if he could spank Akil, and she agreed he could, even though Akil was far past the age of majority.

All the while Patterson spoke about his alleged crimes, Thomas sat stoically at the defense table in a grey suit with his chin held high.

"I don't think we'll ever know how this happens, that you start out as a good man with weaknesses," Patterson said. "Maybe as he got more power and started whipping some people, he started realizing he liked it. Maybe it started taking over his life. It almost took over the justice system."

Clark strongly went after the state's witnesses, talking about the alleged victims, all of whom are convicted felons.

"They want you to believe these 11 felons before we believe the archbishop," Clark said.

He also hammered the state's first witness, Presiding Mobile County Circuit Court Judge Charlie Graddick, who had testified on the first day of arguments about judicial ethics and Thomas' behavior. Graddick had testified that he wouldn't have anything to do with someone who had cases pending before the court, but Clark confronted him with having had dinner with attorney Lee Hale, Jr. when he was facing some legal difficulties of his own, and also with giving Hale a large number of indigent defense appointments.

Calling him "The Great Charles Graddick," Clark blustered, "He didn't stop going to dinner with Lee Hale, Jr., who had picked up a cocaine case, and he didn't stop giving Lee Hale 200 cases!"

Clark also scoffed a the notion that men being whipped would turn around and notice that Thomas had an erection, or that the judge could masturbate and paddle people at the same time, which he liked to patting one's head and rubbing one's belly at the same time.

When Neilson sent the case to the jury, he gave the jury specific instructions as to the way they are allowed to interpret the charges against Thomas. Most troubling for the prosecution is probably the several charges of Assault in the Second Degree against the ex-judge. While it is described as causing physical harm to another person with a deadly weapon with intent to cause physical injury, the description of a belt or fraternity paddle as a deadly weapon may be a tripping point for prosecutors.

Similarly, the defense is likely most worried about the First Degree Sodomy and Second Degree Sodomy charges against Thomas, since one witness testified Thomas forced his mouth to touch the ex-judge's penis, and another testified he felt something "like a hand" on his anus during a spanking.

The defense seemed to all-but-concede that Thomas spanked or paddled the men, but also claimed he is not on trial for spanking anyone. At the close of the day, Clark predicted there would be a verdict by 5 p.m. today, and the jury would find Thomas not guilty on all counts.

Patterson was not willing to get into the guessing game when it comes to when the jury will come back or what they will find, saying only she was satisfied the state had proven its case. As for the loss of several ethical charges against Thomas due to the statute of limitations expiring, Patterson said the reason the District Attorney's Office had to wait to file charges was primarily due to an investigation from federal authorities, which the feds then handed back to local officials.

"The abuse of power is very well defined in the federal statute. We felt we were deferring to the superior law," Patterson explained.

Three alternate jurors were held out of the final deliberations - two African-American men and one Caucasian woman. The final jury is predominately African-American and slightly more female. If the jury does not reach a verdict this evening, they are expected to begin deliberation again at 9 a.m. Friday.

proud says:

OCTOBER 27, 2009
1:59 PM
  This is a terrible day in the City of Mobile. I am outraged!!! This case is embarrassing I feel for the victims. Think about it... if you were a man how much would you really say in public that happened to you by another man, a judge would you tell if he penetrated you, I dont think so. So who is taking into account that these guys are still in prison or jail and they were not able to tell all out of fear that this would happen to them again in lock up. I am a Angry Black Educated Man and I am MADD AS HELL!!!! I hope they sue the hell out of Thomas. I hope the Feds prosecute him. I hope he is never able to practice law again. If thinks now that he is free to do as he please. Out of 100 cases none of them stuck what the hell? I would not be surprised if he ends up shot. The DA in this conty must go. I like John Tyson... but its time for him toi go. His office has lost its power, he only goes after the little man. Where is Steve Garidian? Was this a host all along? Who believes in the system now Tyson Must Go!!!!! Tyson Must Go!!!!! Tyson Must Go!!!! I am so Damm angry I can hardly type this message. What the Hell? It could be hundreds of guys out there, was the county and state afraid that they would have to go back and review all of Thomases cases? I think so. was they afraid they would be sued? This will have terrible backlash!! Cant wait until election time!!
mobeeleel says:

OCTOBER 26, 2009
1:29 AM
  Bluedot, you obviously havent really been reading closely or at least need it explained to you. The only mention in the trials of Joe Kulakowski have been from the defense attorneys making wild allegations. These are the same defenders whove alleged a massive political conspiracy and all other manner of BS. None of the witnesses said Kulakowski gave them anything or even spoke with them. Frankly, all but one, I believe, said they didnt even know him or hadnt heard of him. He played no role in this trial, other than the defenses attempts to drag his name into it. Joes efforts were the only thing that got this thing going and you may not believe it -- but youre just wrong. Sorry.
bluedotbama says:

OCTOBER 24, 2009
6:03 PM
  I am not sure how making an observation from Robs story about how Patterson characterized her arguments translates into being an apologist for anyone but I am still concerned about Mr. K.   He still strikes me as a lose cannon roaming around trying to make a personal investigation when in reality it appears to me he handicapped the investigation.  How else do explain what I read about him trying to manipulate witnesses, offer them money, bribes, promises he could not deliver in exchange for testimony, divulging his own client confidences, playing confidential phone recordings with his own clients on TV and being sued by his own client over same.  While I agree with the principle that a private citizen can often help expose many wrongs that otherwise might go undiscovered, I still believe K was an impediment to the investigation.  He so tainted so many of the witnesses they became unusable for the prosecution and that did not help anyone.  He enjoyed patting himself on the back but little else.
judicial_watch says:

OCTOBER 24, 2009
4:23 PM
  To “bluedotbamaâ€Â? and others who has been apologists for the Tyson administration, and criticized the role of lawyer Joe K., read: When Good Men Do Nothing: The Assassination of Albert Patterson by Alan Grady. You will get the feel for how important it is for citizens who can’t get law enforcement to discharge the duties of their office to begin compiling evidence and making an investigation. When the government will not enforce the law, a citizen has every right to and not let the community be taken over by the corrupt, as happened in Phenix City, Alabama. 1. Because Tyson did not begin these prosecutions in the Spring of 2007 (when the affidavits of the victims introduced at the attorneys conflicts hearing were produced, they were dated March-May 2007) the ethics cases statute of limitations expired. I do not give Atty. King or the federal authorities a pass on this either, shame on them, too! 2. Tyson was told years ago that Thomas had violated almost every one of the Alabama Fair Campaign Financing laws. In effect, he appears to have used his campaign funds as a slush fund to buy off charities, schools, people, etc. The law simply does not allow this. Campaign funds can only be used for very specific campaign uses and if the campaign committee is dissolved (which his has never been) then the balance can be donated to another campaign committee of a 501(c)3 charity. If what Herman Thomas was doing to his campaign fund was legal, then Gov. Hunt would have served two full terms. Besides, does anyone think that Herman making a purchase from “Zoghby’s Uniformsâ€Â? on August 12, 2006 for $255.00 had anything to do with a campaign? The statute of limitations has run on all of this. 3. The prosecutors, Patterson and Tierney NEVER talked to any of their witness before calling them to the stand. This led to the debacle of Judge Graddick being crossed about going to dinner “with criminalsâ€Â?. The proper question was “Judge Graddick, have you ever been to dinner, lunch, or otherwise socialized with any criminal defendants who were on your docket?â€Â? All of this will Lee Hale, Jr. made Graddick look real bad. 4. With all of Herman character witnesses bragging about his “young peopleâ€Â?, why didn’t the prosecutors ask those witness “Have you ever seen Herman Thomas mentoring a girl?â€Â? Of the hundreds of cases that Thomas transferred, I understand that there was only ONE FEMALE. This would have shown that he was after young men. 5. Martha Thieney, a nice lady, but she should not get near this case. In 2001 or 2002 Michael Anderson, Sr. filed a series of Rule 32 motions alleging that Herman Thomas had wrongfully heard his murder case (Anderson is the man who sued Thomas in 2001 and first brought Thomas’ evil deeds to light). In Anderson Rule 32s he said that Thomas was trying to bury him in prison since Anderson knew all of his dirty secrets. Tierney defended this action in court and argued that Thomas’ sentence was fair, etc. Thus, she (Tierney) knew all about these allegations 7 or 8 years ago but did nothing. 6. Finally, why the stony silence from the “mainstream pressâ€Â?. The Apple Snails continue to get more press than this story. Judges Hogan and Sullivan were convicted in 1984 of being thieves but it was front page for weeks. Is there a collective guilt in this community? Herman Thomas was on the board of directors of a statewide bank, Springhill College, the University of South Alabama, two dozen civic boards, and “gave advice to the Archbishopâ€Â?. Are the leading citizens of the community embarrassed and ashamed that he pulled the wool over their eyes for 20 years? Is the Mobile Press-Register embarrassed that it never even talked to Michael Anderson, Sr. in 2001 when he filed a sworn lawsuit, with attached affidavits and sent them copies every few months? We should all be embarrassed by this. If the local prostitute claims that the well respected preacher raped her, it should be investigated. If a mental patient at Searcy claims that a doctor or nurse has been sexually abusing him, it should be investigated. And yes, if a convict of felon says judge has abused him, it should be investigated.
bama478 says:

OCTOBER 23, 2009
3:12 PM
  It looks as if he will get a slap on the hand. Very disappointing...All of the supposingly evidence Tyson spoke of when the inditements came down. Well its in the hands of the jury based on what they have Thomas will walk.
skunkape says:

OCTOBER 23, 2009
12:51 PM
  swapping cases happens all the time all over this country. You just have to be friends with the judge. i think he walks. maybe a third degree assault thats it.
bluedotbama says:

OCTOBER 23, 2009
12:48 AM
  I have only followed the trial somewhat but assuming the rendition of the arguments are accurate  think that Patterson made a brilliant move by undercutting the defense arguments that this has always been a politically motivated prosecution.   I would hope that after all is said and done and this matter is behind us that Rob would devote an investigative article to how the dogged pursuit of the case by that lawyer almost sabotaged the prosecution.  The more I read about what the witnesses said about him including his own clients the more I became convinced he is a dangerous lunatic.
diogenes says:

OCTOBER 23, 2009
12:23 AM
  Tyson was AWOL on the 4th floor. Where was he? Was he on a trip? Was he ill? Rank amateurs. It was of note that Matson was sent down by no other that Troy King to assure that Tyson didnt throw this case. The ethics, kidnapping, and extortion counts were laughable; the Judge did what he had to do in throwing them out. No book people or brain trust in Tysons office. Garbage in garbage out. The assault 2nd counts included the lesser charge of assault 3rd which is what the paddling and belting will be, or held to be, if Thomas is convicted and he appeals. Assault 3rd elements, Sec.13A-6-21(a) (1) require the intentional causing of physical injury. No serious injuries as defined by Sec.13A-1-2(14) meaning "substantial risk of death, protracted disfigurement, protracted impairment of health, or loss of bodily function". The victims did not prove any of those elements to even establish a prima facie case. Sec.13A-6-21(a) (2) which requires a deadly weapon was used to inflict a physical injury. An ass whipping, via belts or paddles, isnt a deadly weapon in this context. A deadly weapon is defined by Sec 13A-1-2(7) which includes: firearms, knives, blackjacks, brass knuckles, etc. However, the ass whipping via belts or paddles can cause physical injury as defined by Sec. 13A-6-22 which is assault in the 3rd degree. Easily Herman is undeniably guilty of assault in the 3rd degree. Great, Tysons crew proved beyond a reasonable doubt a blatant violation of a law. But what they proved was a misdemeanor which is barred by the Statute of Limitations contained in Sec 15-3-2 as the charge was not brought within 12 months. So justice now hinges on sodomy and attempted sodomy. Here the victims were treated like dirt by the Tyson office. No considerations for the victims Patterson decreed not even if they cooperated and told the truth. These victims had no hope of their day of justice even if Thomas illegally sentenced them beyond what the law provides. The victims are humiliated, were not shepherded, and were treated like dirt by the prosecution. All the victims hedged their testimony, being too humiliated to describe the degrading acts and conduct forced upon them. If there are any convictions, it will not be much. In a nation where no man is above the law, Tyson was AWOL. Thomas will be be convicted of something hopefully and Tyson should be put to pasture. He didnt want to get in the ring but when Lagniappe called him out, he still was a no show at trial. Tyson sat on his watch and the train ran off its tracks except for a couple of counts. The office needs a new engineer.
mimoman says:

OCTOBER 22, 2009
10:54 PM
  Even if there were no spankings, what was this idiot doing removing dangerous criminals from other judges dockets and giving them "Get Out of Jail - free" cards? Is Alabama so corrupt that obstruction of justice doesnt matter? Cowboy Bob likes to make a big deal about the character of the witnesses. Well Bob, why was Thomas cutting their sentences short and putting them back on OUR streets?

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