The jury was absent for a sizable portion of the eighth day in the trial of former judge Herman Thomas as attorneys debated the interpretation of statutes and the defendant's actions in light of such before Judge Claud Neilson and an empty jury box. Some charges were dropped, others lessened, some will be sent to the jury and some are still being contemplated by Nielson.
They also presented arguments on the defense's motion to exclude a sex expert for the State from testifying.
After procedural issues concluded, the state's case concluded and Thomas' defense began with afternoon appearances on the stand from Archbishop Emeritus Oscar Lipscomb and a pro basketball player, among others.
The morning began with brief testimony in front of the jury from Mobile County circuit clerk JoJo Schwarzauer. Schwarzauer, who ADA Nicki Patterson accidentally called Schwarzenegger to laughter from the gallery, testified she saw a fraternity paddle in the judge's chambers during the time she worked as a court administrator, a position she held from 2000-2007.
Defense attorney Bob Clark asked her if a psychologist used by the state also used Room 806 as his office for some period of time. Room 806 is the small office Thomas set up for himself and where he allegedly paddled some of his accusers. Schwarzauer said she did not believe it was the same office he used.
At the conclusion of her testimony, the jury was excused so the court could do a little housekeeping.
The state said they would not be offering testimony from the final three alleged victims. The defense moved those charges be dropped and Nielson obliged.
Patterson later told media they could not find one of the witnesses, and the other two were just testifying to spankings and the prosecution felt they were just "cumulative." She said the jury was beginning to look tired and they were ready to do all they could to turn this case over to them.
When these charges were dropped, all but one of the remaining ethics charges were attached to those cases, so they were also dismissed. Since only one ethics charge remained, Nielson dismissed it as well, rhetorically asking the prosecution if they really wanted to deal with only one ethics charge.
The next discussion focused on the legal definition of sodomy.
The judge questioned whether or not the anus or mouth needed to be penetrated or just touched. ADA Martha Tierney said she had case law stating it only had to be touched not penetrated.
Witness One testified that he began crying while Thomas hit him as hard as he could. Then, he said, he felt something near his anus that, "felt like a hand or something."
"I turned around and his penis was out and it was erect. I kind of buckled and I said, 'Please.' He told me to turn around. I was crying," he said. "When I stood back up he started whipping me again. I was like, 'Judge Thomas no! Don't do this!' He just kept whipping me."
The judge said he didn't feel this testimony supported the sodomy charge, especially since the witness was not sure what was touching his anus.
Prosecutors argued to keep the lesser charge of attempted sodomy. They maintained it was clear the witness feared he was about to be victimized in this manner because he testified "Judge Thomas, No," before running out of the room.
The judge said he would indeed send this to the jury as attempted sodomy.
The other sodomy charge involved Victim Four, who has an IQ of 55. The witness recalled Thomas holding something that resembled "a KY bottle" as he had his head turned and then, he claimed, Thomas pulled him toward his person forcing Witness Four's mouth to touch Thomas's penis. Witness Four then claimed he tried to touch him, "but then I ran out the door."
Again, the attorneys debated whether or not this interaction constituted the legal definition of sodomy. Patterson argued that was a question for the jury to decide and the judge agreed.
The next legal debate came on the kidnapping charges.
Patterson said Thomas held them in a place (the little room, among other places) where he and his alleged victims could not be found. She also argued the times in which he took them to these secret locations indicated he was hiding them and didn't want to be found, which she said constitutes kidnapping.
Defense attorney Jeff Deen argued the alleged victims were not taken to a "Silence of the Lambs"-like place where they were restrained. "He took them to his office and then home to their mothers," Deen said. He argued the statute says they have to be deprived from their liberty for an extended or substantial period, which he said they were not.
Patterson said "substantial" is a question for the jury.
Deen maintained "restraint" is also required for kidnapping.
Patterson argued he intimidated them with the threat of jail time, psychologically restraining them in his little room, where they consented to acts they were not comfortable with so they would not go to jail.
In a discussion on the definitions of the lesser charge of kidnapping in the 2nd degree, Deen questioned how they could be kidnapped when some of them testified they showed up themselves to get paddled or spanked.
Patterson says they only have to be concealed for the amount of time the alleged acts took place for it to meet the statute's criteria. She equated it to a pedophile who would hold up a cute puppy to lure a child in a van to rape them. Even if the child is dropped back off, the pedophile still kidnapped the child. She said Thomas lured these alleged victims into his office by dangling no jail time and then violated them once he got them into a metaphorical van.
The judge also asked Patterson how she planned to address the testimony of several of the victims who themselves testified that they were not kidnapped. She said they were not familiar with the legal definition.
The judge made no immediate decision on either the kidnapping charges or the extortion charges, which brought up the next debate. In this round, the attorneys discussed whether or not a spanking on a bare bottom is a "thing of value," which is what the extortion statute requires.
Patterson said Thomas was sexually gratified by this act so he valued it. He bartered with these people to get what he wanted. It was an exchange of "no jail time" for a sexual favor. ADA Barry Matson added there are brothels where one can purchase a spanking - lending credibility it is a thing of value - to some people.
"These people bought their way out back into our community by exposing their bare bottoms. He let these people out to commit crimes against all of us to gratify his sexual fantasy," Patterson said.
Deen continued to question whether a sexual favor really constituted property.
The final legal vocabulary lesson of the day came with the definition of Assault in the 2nd degree. The judge read the statute to the court saying, it must involve a "dangerous instrument highly capable of causing death or serious physical injury."
So the question, of course, is a belt or paddle capable of inflicting such an injury. The judge said certainly it was if he was hitting his victims on the head but he questioned since he was spanking their behinds if "serious physical injury or death" could be caused.
Nielson did not make a final call on this, though he did say the jury would not be able to consider a lesser charge than this because Assault in the 3rd degree is a misdemeanor and has a one-year statute of limitations, which has expired on all of the charges.
After legal terminology class was dismissed for the day, the judge called for a brief recess while the defense tried to locate one of their lawyers, Chris Galanos, who they wanted to argue against the State's sex expert testifying.
During the recess, Patterson said they were "very pleased" with the state of the case. "We have numerous felonies that will be going to the jury," she said.
When asked if the judge raising all of these questions seemed to indicate that their case was unraveling she said, "Oh no, he is just doing his job. This happens in all cases."
"The judge is just making sure we can jump all of our hurdles before he turns them over to the jury," she added.
After the recess and after the defense found their missing colleague, they presented arguments to Nielson so he could rule on the defense's motion to exclude testimony from the state's sex expert.
Tierney said she felt the witness could help explain some of the behaviors and patterns associated with this sort of sexual abuse and illuminate the jury on paraphilia - fetishes, sadists, etc.
Galanos argued she would be speaking about what was going on in the minds of people she had never spoken with - the defendant and the alleged victims.
"She's going to saying 'I'm not saying he is a sexual predator but these are the characteristics of a sexual predator, A, B, C and D.' But she can't say if the defendant is A, B, C, or D."
The judge agreed and said he had real concerns about letting an expert testify who hasn't talked to any of the victims.
Patterson then asked if the expert could be called to give definitions of the sexual aspects of the case.
Galanos said, "She is just trying to get in the back door, when the front door has been locked."
Nielson declined Patterson's "back door" offer, and the morning session ended with the State resting their case.
The post-lunch resumption found proceedings in much the same spot, before the bench sans jury. Defense attorney Jeff Deen went through a procedural matter where he ticked down the list of remaining charges and moved that each be dismissed. At one point, Nielson's impatience showed when he told Deen he could save time by making a single motion to dismiss all charges unless there were specific cases he wished to address.
The previous arguments over the interpretation of kidnapping, abduction and extortion arose again with both sides making the same contentions. Deen called into question the phrase "exchange of sexual favors" maintaining there appeared no such thing.
The state insisted Thomas used the power of law enforcement as accomplices in his abduction and restraint. "What about the ones held against their will in the jail until the judge comes to pick them up?" Patterson asked. "As one said, 'When the judge say 'go,' you go.'"
Ultimately, Nielson rulesd that kidnapping charges will stand as will sexual abuse allegations and at least one assault charge. He then ruled a recess until 2 p.m. at which time the defense would begin calling its witnesses.
With the jury back in place, the defense began by calling Archbishop Emeritus Oscar Lipscomb to the stand and the emotional level in the room ratcheted. Under Deen's direction, Lipscomb described his present and former duties as leader of the archdiocese, including those pertaining to personnel matters.
Lipscomb stated that he knew the defendant since the 1990s due to Thomas' membership in St. James Catholic Church in Prichard. The archbishop testified he sought the former judge's consultation for problems within the Catholic school system. Lipscomb described Thomas as providing "expert testimony" and said his advice was "comfortable and useful."
"I knew him as a member of the Board of Trustees of Spring Hill College and he also served on the school board at McGill-Toolen High School. For him to do so, he would have to meet my approval," Lipscomb said.
He also described Thomas' involvement in the Knights of St. Peter Clavier, an African-American version of the Knights of Columbus and told of a mentoring program at place in that society.
"I would say he was a peaceful, non-violent man," Lipscomb characterized. "I trust his integrity and it has never come into question."
On cross-examination, state's attorney Barry Matson established via Lipscomb's recollection that he saw Thomas less than 20 times a year, sometimes formally, other times at "churches and funerals."
"Well, don't you think someone would be on their best behavior then?" Matson asked as Lipscomb hedged at his answer. "You've never seen him in his home then?"
"No," Lipscomb answered.
You've never seen him with a young man on his docket, have you?" Matson asked.
"No, I have not," Lipscomb replied.
"Would you be disturbed by a judge that was going to the jail and picking up young men?" Matson asked.
"Yes, I would," Lipscomb said.
"Certainly you're aware that people can lead double lives?" Matson asked.
Lipscomb's pallor changed. "It can happen," he answered.
The intensity rose. Lipscomb's reign in the archdiocese was marked by well-known scandals wherein sexual predators were revealed to have worn priests' collars for years, seemingly under the knowledge of the church hierarchy. Allegations against several priests in Lipscomb's archdiocese resulted in not only their mere reassignment but in Lipscomb's public defense of their inclusion in the church. One of the men, Nicholas "Brother Vic" Bendillo, was a counselor at McGill-Toolen High School and upon discovery of his years of sexual predation, he was reassigned then later convicted in a court of law.
"Unfortunately it's happened in this diocese. Isnt it true Brother Vic, a long time teacher and counselor at McGill-Toolen..." Matson began.
Deen leaped to an objection sustained by the bench. Matson attempted to rephrase the question and was reminded by the judge of the objection.
Lipscomb looked at Matson, an open-mouthed grin stretched across his face in quietly defiant laughter at the prosecution's impingement.
A pair of Thomas' neighbors, Dorothy and Frederick McIver, were next. Dorothy, a former professor at the University of South Alabama stated she never saw violent tendencies in Thomas in her 17 years of close residence. She told of witnessing his status at his church, on the Board of Trustees at U.S.A., of his lecturing in her Black Studies class at the university and his general high esteem. "The people I know in the community are upset," she said. "They don't want to believe the things about him."
Her husband Frederick, a civil engineer and former professor, took the stand and told a nearly identical story. He elaborated on his membership in a service fraternity similar to Thomas' Kappa Alpha Psi. He admitted that paddles are a part of fraternity life but that they are entirely decorative and ceremonial.
McIver claimed no direct knowledge of Thomas' possession of such. "I've never seen it, but if he's in a fraternity, he's got a paddle," he said.
His knowledge of Thomas' mentor relationship was as limited. McIver testified Thomas mentored one young man because the former engineer assumed those duties later.
"Do you know his opinion or philosophy about whipping these men he mentored?" Matson asked.
"I would only believe that if the judge got up and said, 'Yes, Fred, I did that,'" McIver replied.
Neither McIver said they ever witnessed Thomas in the presence of young men or saw his yard work performed by anyone other than Thomas or his family members.
The fourth witness, Yulandar Marshall, was Thomas' court reporter for seven years and described being fired two days after Thomas' resignation with an animated an unflattering characterization of Judge Graddick's staff.
Marshall described her duties under Thomas and said she often used the famous Room 806 for privacy during work, declaring it wasn't a "secret room."
"I had a key to it," she told Deen. "We all did. The office key opened it."
"Do you have any idea why the light bulb changer wouldn't be able to open it?" Deen asked.
"I don't know," Marshall said. "He should."
Marshall said she was roughly familiar with some of the victims in the case. The mention of the name Figures brought a knowing smile from her and she described Vivian's frequent calls to the office.
"She called quite a bit," Marshall said. "Sometimes she didn't even give him (Thomas) time to call back before she called again."
Marshall said one victim's parents were in the office a bit and also characterized Witness Nine's mother as "obsessed" with Thomas and said she had "a mental problem."
Marshall described the entrance to the judge's parking lot through the private garage via card key and the elevators to the eighth floor offices.
Obvious in her distaste with the prosecution, Marshall said Thomas never called Room 806 his "outer office." She described the room as bearing decorations of Thomas and his predilections and said it was a "good, quiet place."
Marshall claimed ignorance as to whether she ever talked about paddling with the former judge. The state took exception and produced grand jury transcripts that showed her previous testimony that she asked Thomas about the alleged incidents and that he told her explicitly, "I never paddled anybody."
The last witness of the day was absent in body but his stand-in made an impression. Quincy Davis, a six-foot, nine-inch pro basketball player took the stand to read the deposition testimony of federal inmate Macourtney Mongham. Mongham is currently incarcerated in Springfield, Mo. and undergoing dialysis that prevented his attendance. Davis, a former student at McGill-Toolen and Tulane, is currently playing in Beijing and was brought in for the duty by attorneys Deen and Clark for whom he once worked.
Davis read Mongham's role while Deen played the part of defense attorney and Matson read the lines of the prosecutor on hand for the deposition.
Mongham claimed to have been a cellmate in Mobile County Metro Jail with Akil Figures, supposedly hearing Figures divulge a fabricated scheme to testify against Thomas in exchange for leniency.
"He told me, Man, Im going to tell these people the sky's falling, whatever they want to hear and get my time cut,'" Davis read. "He said he heard the judge played with a couple of white boys spanking them. We knew he was lying about most of the stuff."
Mongham claimed Akil denied Thomas actually did anything to him. "I would whoop that judge," Monghan said Figures told him.
The prosecution later pointed out the discrepancies in Mongham's story and the reality of the situation. The federal inmate claimed Figures said Thomas plucked the victims from the state prison and that they were white and neither was the actual case.
They also said Mongham's testimony revealed that Akil never broached the subject of Thomas himself.
The defense reiterated that Mongham received nothing in exchange for his testimony.
Court was adjourned around 4:45 p.m. and set to resume at 9 a.m. Wednesday morning.