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Wild Day in the Thomas Trial

By Kevin Lee and Pete Teske

OCTOBER 19, 2009



Denial, disappearance and discord marked the opening of the third week in the trial of former judge Herman Thomas on charges of sexual improprieties with Mobile County criminal offenders. It's become customary in a process that has been long on spectacle since its inception.

The initial witness of the morning was Andrea Pennington, a juvenile court referee for the Strickland Youth Center. An attorney for 26 years, Pennington described her duties for the court, a role that includes presiding over hearings and adjudications for youthful offenders.

She also told prosecuting attorney Barry Matson that she had known Thomas for 20 years and could recognize his voice over the phone.

Pennington went on to describe an incident in which Thomas contacted her on behalf of one victim named in the state's case against the former judge, that Thomas intervened saying he was working with the offender who would be Witness Nine. She testified Thomas told her he kept drug screening kits in his truck and did the tests himself when he was in the alleged victim's neighborhood near the judge's mother's house.

The defense waived any cross-examination.

Probationary officer Fred Dixon was recalled to the stand to interpret various probationary records for the court, records that revealed the Witness Nine discussed by Pennington was entered into a Community Corrections program with no evident case number. He said Thomas referred the man to Dixon for supervision and later for arrest on probation violation, although he wasn't currently on probation.

"Did anybody ever tell you that Judge Thomas did drug testing himself?" Defense attorney Bob Clark asked Dixon.

"No," Dixon replied.

Clark then asked the officer to elaborate on Witness Nine's record and he outlined a history of drug
violations and sentences.

"That was the point, wasn't it?" prosecutor Matson asked, "He went into the system under supervision and never got out?"

Matson would later bolt after Dixon as he exited the courtroom, seeking a final question on the drug testing process that he forgot.

The state next called Steve Chaney to the stand, but the witness had disappeared from the hallway just outside the courtroom. Lead prosecutor Nicki Patterson repeatedly apologized to the bench for the delay as officers of the court searched the building for the errant witness. Presiding Judge Claud Neilson recessed the court while the search continued.

After the five-minute break ended, Witness Nine was the next to take the stand for the state. He gave his age as 26-years-old and relayed a past that included graduation from Blount High School and experience on the Leopards' football team. "Just like your daddy," Matson added.

Witness Nine said he had known Thomas since roughly 2000, when he met the then-judge who attended an event at the high school. After school, Witness Nine rode with a friend to meet Thomas.

The man began a close relationship with Thomas, stating the Thomas treated he and a friend to dinner at Darryl's restaurant for Victim Nine's birthday. He said phone calls between Thomas and his family members were common.

"Everybody was pretty cool then," he said.

He went on to say his first offense revolved tickets for a 2001 charge of leaving-the-scene-of-an-accident when he was incarcerated in Metro Jail. Thomas appeared at the jail.

"He took me in this room and said I was going to court the next day," Witness Nine said. Thomas arranged for him to sign his own bond the next day. "He came and got me and dropped me off at home, but the next day he got me and took me to his office. He said he needed to whoop me or I was going back to jail."

"At first I thought he was looking out for my best interests, like a father figure," the victim explained.

The alleged victim described the incident "in a jury room" wherein he was told to drop his pants and underwear and stand with his hands on a table, then stood and demonstrated his stance for the court. He said the judge used the belt from his pants to strike him "about five or six times."

"Did it hurt?" Matson asked.

"Yes sir," the victim replied.

Witness Nine described a succession of drug violations and incarcerations, each followed by a jailhouse visit from and release via Thomas. The victim said the incidents _ "eight to ten times" by his testimony - occurred at the courthouse, both in Thomas' office and "jury rooms" with one exception being at the Kappa house, a fraternity in which Thomas is a member.

On one trip, he turned during the corporal punishment and noticed that Thomas was sexually aroused.
"Were his pants off?" Matson asked.

"No," the victim said, "but you could tell."

Witness Nine said one whipping was worse than the others. "It was the fourth time," the alleged victim described. "I blocked one lick and it hit my arm," he said. "I told him to stop but he said I had to take the rest or go to jail."

When Matson asked how the victim's semen - established via later DNA testing - ended up in Thomas's small private office in Room 806 of the courthouse, the answer was unexpected.

"I don't know how it got in there," Witness Nine said. "It surprised me, a lot."

Matson pressed. "I want you to look at that jury and tell them how it got in there."

The victim turned to the jury box. "I don't know," he said.

On cross-examination, Clark attacked the alleged victim's accusations of Thomas' jailhouse visit, citing that the victim would have appeared before a city judge, not a circuit judge. The man maintained Thomas' involvement.

Clark then called into question the alleged victim's cooperation, alleging attorney Joe Kulakowski bribed him with funds in exchange for damning testimony. The man denied taking money offered though he did say Kulakowski "tried to get me to say things that weren't true."

"I was too embarrassed to say anything," Witness Nine said. "I ain't denied paddling, but I denied the sexual abuse." He credited his ignorance of the sexual aspects to his relative youth at the time.

Clark then pointed out discrepancies in Witness Nine's testimony, citing to some agencies that he was ordered to masturbate by Thomas and complied, while he denied that aspect to other investigators.

"I don't even like being here," Witness Nine said. "I'm just here to tell the truth."

The man later testified that Thomas cooled on their relationship as he became less compliant with the whippings.

When the state attempted to call into question Witness Nine's inconsistent testimony, acrimony between prosecutors and defense resulted in the jury being dismissed while the attorneys hashed out their differences. Judge Nielson showed irritation at the state's attempt to impeach their own witness.

The missing witness, Government Plaza maintenance worker Steve Chaney was located and placed on the stand. The electrician testified that "85 percent" of his job is "keeping the lights going."

As an aspect of his job, he has a master key for the building.

"Are you aware of Room 806?" Nicki Patterson asked.

"I am now," Chaney chuckled as the audience laughed along. He divulged that his master key didn't work on that room.

Dixon was recalled to the stand again to reiterate the lack of sufficient records on Witness Nine.
A correctional officer from Metro Jail, 15-year veteran Sgt. Hawkins, next testified that Thomas appeared "several times" during her stint in the docket room.

"We never questioned it," the sergeant said. "He was a judge." She clarified that there was no standard procedure in place for judges picking up prisoners.

Hawkins then went on to read from records that detailed a lengthy series of incidents whereby Thomas appeared and arranged the release of inmates into his custody, where he arranged for them signing their own bonds or bonds being waived altogether. The litany of incidents included multiple Thomas interventions on behalf of at least four of the victims named in the charges.

Judge Nielson then called for lunch recess before cross-examination.

In statements to media, Patterson addressed claims against Kulakowski. "The defense keeps bringing that up but he was never a member of the state," she said.

The afternoon session began with the prosecution calling a quiet 27-year-old Witness 10 to the stand and would end with the cantankerous testimony of Witness 11, just two witnesses away from the 14 total cases against Thomas.

Witness 10, like many before him, testified to having caught charges for possession of drugs including marijuana and cocaine.

On the fourth formal charge against Witness 10, he testified, his case went before Judge Thomas. When Witness 10 caught his charge for possession of marijuana, cocaine and false information, he said he was taken to Thomas's chambers where he would meet several of Thomas's secretaries and where Thomas would "just talk to me about problems I was going through."

Witness 10 said after they talked, Thomas would check up on him "every other week or something like that," and one morning, "real early, like around 9 o'clock" Thomas showed up at his house to take him to his chambers.

The man said he proceeded to talk with the judge for about 30 minutes and then "he told me he wanted to paddle me."

"I was shocked for a minute," he added, then he said Thomas told him to pull down his pants as well as his underwear.

"I was getting real scared," the man said.

After getting scared, the Witness said Thomas, "gave me about five or six licks and that was it. I turned around and I reared up and got mad. It was just sorta embarrassing."

Witness 10 then testified Thomas told him he was spanking him for his own good.

Again, like other alleged victims who have previously taken the stand, Witness 10 said he would be incarcerated again for violating probation and would begin writing to Thomas. He would also tell prosecutors he was placed on probation for five or six years.

"Every time I came back it was extended," he would tell jurors.

In the letter he would write to Thomas, Victim 10 admitted asking the former judge how he and his family were doing as well as telling him "I love you." The man also admitted to calling himself Thomas's son in one of his letters. Among his misconceptions of false familial ties, Witness 10 also admitted to asking the Warden at the prison he was in whether he thought it was wrong for him to tell the former judge he loved him.

"I feel like I'm a part of the family now. I love you like a father figure," he would write to the judge.
Witness 10 also wrote to Thomas once asking him to buy him a church suit at Sam's Club.

After hearing of more alleged paddling followed by the now-repetitive cycle of re-incarceration and letter writing yet again, it was "Cowboy Bob" Clark's turn to cross examine Witness 10.

Clark led off his questioning asking Witness 10 if he had ever been kidnapped or sexually assaulted.

"No sir," Witness 10 replied.

"Judge Thomas had nothing to do with you getting in trouble did he?" Clark followed up. "No sir," the man replied.

"He was trying to get you to be a productive citizen, wasn't he?" Clark continued.

The man answered positively.

Clark had no further questions.

Shortly after, Witness 11 would take the stand adorned in Mobile county Metro Blues and shackles. The audience and jury could not have expected some of the verbal sparring that would take place over the course of the remainder of the afternoon.

Witness 11 is currently incarcerated for attempted murder as well as murder and at one point early in his testimony when Clark requested the defense approach the bench and both the prosecution and defense were unaware, the man stared down Thomas, lifting his eyebrows at him at the conclusion. Thomas appeared to be staring back at the man.

Witness 11's mother had worked with Thomas over the course of a campaign that was neither her nor Thomas's, a relatively well-spoken Witness 11 would tell jurors. His mom is still a very "big fan" he would continue.

Witness 11 said his mother and other members of the community in which he grew up had pressured him to not testify against the judge. But, when Witness 11 walked in front of potential jurors in a jury selection practice, he said the look he exchanged with Thomas " a bunch of bullshit." There was a notion of intimidation in the air as Witness 11 stated his visual interaction that day.

His initial interaction as well as the remainder of Witness 11's interactions with Thomas would follow much the same general cycle as Witness 10's.

At first, hen Witness 11 was being tried on a robbery and kidnapping charge Thomas "came off the bench and he came down and sat down and talked to me."

Then, consistent with the patternistic behavior of most other alleged victims' accusations, Thomas came to visit Witness 11 in the docket room at the metro jail.

When asked how he knew Thomas was coming to see him he replied, " I kinda wouldn't, they would just call me."

When they talked in the docket room Witness 11 said they didn't talk about much, "probably about just whatever was on my mind. Initially it was small talk."

Then when it came time for his burglary and kidnapping charges to go to court, Witness 11 said he decided on a bench trial instead of a jury trial because "judge Thomas instructed me to." In a bench trial, the judge is the finder of guilt as opposed to the jury trial where the public is charged with the same task.

The result, Witness 11 said, Judge Thomas, "found me guilty of lesser charges, I believe."

When sentencing came along, Witness 11 said Thomas offered him a 10-year split sentence. The man smiled as he told jurors. Ultimately he was advised to not take the deal and he received a five-year split sentence where he would walk away only having to serve 90 days at a boot camp.

"What happened there?" prosecutor Nicki Patterson asked.

"I caused more trouble and got kicked out," Witness 11 would respond.

Witness 11 would then begin to tell jurors and the audience how he had been so troublesome at the boot camp that officials refused to keep him there. His fighting would earn him a spot at a maximum-security prison not far away. From there, he testified, he would return to Mobile County Metro for one week before going to court. In that time, Witness 11 said he wrote Thomas the first of many letters. Thomas then brought him to court and told him he'd be release in a couple of days, Witness 11 testified.

When it came time to be picked up, the man said his dad was the one who came. Shortly after, Thomas called him on the phone and told him to come by, but before that could happen Witness 11 went back to jail for violation of probation.

Ultimately Witness 11 would be in and out of jail 3 times for violation of his probation set by Thomas, and during the last of those three stints in metro, Witness 11 said Thomas came by, picked him up and took him to his chambers.

"I thought being released was a mistake," he said. At that point Witness 11 remembered thinking, "I'm trying to get out of building before they change their mind."

But when another inmate was sent to the same room to put on his civilian clothing, Witness 11 realized he might be going to get paddled.

Upon Thomas's arrival at the jail, Witness 11 and his counterpart were released at the order of Judge Thomas, he stated, but noticed something strange about the vehicle Thomas would take them to Government Plaza in - a pink Lexus.

Upon arrival at Thomas's chambers, Witness 11 said he was separated from the other man who came with them and Thomas asked him, "When was the last time you had your ass whooped?" At first, the Witness said, he thought Thomas was asking him when the last time he lost a fight was. The Thomas clarified, he said.

"He told me he felt I needed a spanking," the man remembered hearing. "That didn't leave much room for debate.

The man then proceeded to go to Thomas's outer office pull down his pants and boxers and take his licks as Thomas used his belt, he said.

" I can't say it was something I was comfortable with. That's homosexual if you ask me."

As he turned around at one point after feeling as if he couldn't take any more, Witness 11 said he noticed Thomas was sweating, had an erection and "had a shit-eating grin on his face."

Upon taking his licks, Witness 11 said he left, because "physically he knew he couldn't overpower me."
Witness 11 would eventually appear before Thomas again in court where he said he would proceed to ask Thomas to revoke his probation and let him serve his time.

"I asked him to revoke me several times. I got tired of seeing him," Witness 11 said.

"When probation wasn't revoked and Thomas ordered Witness 11 to go to school at Bishop State he said Thomas also requested that they meet weekly. Witness 11 would eventually stop going to school and end up back in jail on violation of parole. He continued to write Thomas letters because, " I saw something in him that I intended to manipulate," Witness 11 said about the attraction he felt Thomas had for him.

The petulant side of Witness 11 came out shortly after Thomas defense attorney Jeff Deen began probing him regarding his letter writing, and his revocation of statements he made in depositions to the FBI and a D.A.'s office investigator.

At one point Deen's strategy led him to ask Witness 11 if he knew was he was doing on April 4, 2003. Witness 11 responded by asking him the same question. Deen responded slyly, "It's my birthday," opening any figurative floodgates.

One difference, Deen pointed out between Witness 11's testimony and his previous statements was that he had previously left out Thomas asking him to pull down his underwear during one of his paddlings. He also excluded mentioning Thomas's erection.

When Deen asked why, the man responded, "The more you talk the more I actually like you. You're the best."

Deen took the moment to point out Witness 11 saying he decided to testify against Thomas when he looked at him wrong during jury selection.

"I'm a victim of this as well," Witness 11 offered.

Then Deen brought up an incident reported at Mobile County Metro Jail, where the men had apparently been caught masturbating in his cell.

"Yeah, I remember this," he said smiling. "I was trying to correct a problem. I talked to judge Thomas about that too."

"It was your erection ya'll were talking about, not his?" Deen countered before delving into letters sent to Thomas with statements like "I love you as a brother/father."

"I sent him Father's Day cards and I told you I did," Witness 11 said.

The trial will continue tomorrow morning at 9 a.m. in courtroom 4500 at Government Plaza.

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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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