Because He's Not Above or Below the Law

What should he do if it's true?  If he actually beat his wife?

That's what Judge Kopf asks at his blog, Hercules and the Umpire.  He's asking about Mark Fuller. That's The Honorable Mark Fuller, Judge of the United States District Court for the Middle District of Alabama.  

Jay Reeves in the Montgomery Advertiser.

Atlanta police arrested Fuller, 55, early Sunday and charged him with misdemeanor battery after his wife called 911 from a hotel and said he was beating her. Mark Fuller told police that his wife became violent as she confronted him with allegations of cheating.

Judge Fuller, of course, isn't the only judge to find himself facing criminal charges.

Here in Cuyahoga County, Judge Harry Jacob is waiting for the verdict on the charges of tampering with evidence and with records. (They dropped the far more salacious charges including promoting prostitution.) And Judge Lance Mason is out on $65,000 bond on charges of felonious assault against his wife.

None of this is, or should be, startling.  We might like to think that judges (especially federal, I suppose since they're appointed for life, but state and local, too) should be, like Caesar's wife, above reproach. The reality is that judges are no different than the rest of us.  Most are generally honest but probably break the speed limit on a regular basis, sometimes drink too much, maybe blow a little weed now and again, and probably take home a government issued pen or paper clip now and again for personal rather than official use.

Others likely cheat at cards and on their taxes.  They take hard drugs.  Maybe deal them.  They cheat on their wives and husbands, take bribes, extort campaign contributions and fix everything from parking tickets to rape charges.  And yeah, they beat their spouses.

They're also rude, intemperate, egomaniacal, power mad.  Some of them.

What to do?  What should they do?

Let's start with the obvious.  They should obey the law.  They should be ethical and honest.  If their impartiality could fairly be questioned in a case, or in all cases, they should recuse themselves.  If they can't do the job properly, they should resign.

But all that rather misses the point, and I think Judge Kopf's point.

Does the judge, any judge, have some special obligation to disavow himself of the protections of our criminal justice, or "(in)justice" as Paul Kennedy would say, system?  Is he ethically bound to plead guilty if he is factually guilty where the rest of the world is ethically free (and often wise) to make the prosecutor provide proof beyond a reasonable doubt of every element of the offense?  If convicted, does the judge have some obligation to refuse to appeal?

Must the judge who has committed any crime step down from the bench?  If the crime is malum in se rather than malum prohibitum (bad in itself rather than bad simply because some legislature declared it so), does that change the calculus?  Is the judge who isn't perfect fit to judge the imperfections of others?

Or do we actually honor the equal justice principles we ostensibly espouse?  Do we believe in paying one's debt and moving on, or are we committed to the scarlet letter and eternal punishment?

If Judge Fuller beat his wife, must he  be sent to the leper colony?  Does it matter why?  Does it matter how badly?  Does it matter if he was drunk or stoned or suffering a psychotic breakdown?  If she was?

Must the punishment be eternal banishment?  Should it be greater because he's a judge? Will that send a message?  Will the next person who's drunk or stoned or just out of control or just a mean SOB decide not to throw that punch because he'd heard a judge was stripped of his robe or sent to Siberia or locked up for a few days?  Weeks?  Months? Years?  

Or is the shame enough?  Most people charged with domestic violence crimes don't get their picture in the paper for it.  Most won't make news when their cases are resolved.  But the shame here.  Surely that's punishment enough.  Surely he's learned his lesson.  Hell, do we even need a trial.  Everyone already knows that he's guilty, regardless of whether he is.  He'll always be known as the judge who beat his wife, as a punk a brutalizer.  Reputation ruined.  No shot now at the court of appeals.  No chance he'll get any gold stars.  

So Judge Kopf asks,

What, if anything, should the judge do if he is guilty of assaulting his wife?

Right now, if there's a chance he's going to be found guilty, and there is (truth be damned), he should probably be getting into some anger management programs. 

Perhaps he should recuse himself from domestic violence cases, though as a federal judge they'd rarely work their way before him, and in any event, he's now been relieved of his entire docket.

Then he should do what any citizen should do when accused of a crime.  He should get a lawyer.  And he should see what happens.  Maybe he should go to trial.  Maybe not.  Maybe he should go to jail or prison.  Or spend 100 hours wearing a jump suit and cleaning rubbish from the side of the interstate under the watchful gaze of a Deputy Sheriff.  Or maybe he should behave himself on probation.  

Whatever should happen to anyone else who did what he did with a sentence based on the specific and individualized circumstances of the crime and of the criminal.

No more.  And no less.

And then he should, and should  be allowed to, get on with his life.