In Defense of Judge James Michael Shull (Part III)
Background: Conscientious Virginia judge James Michael Shull, who smoked out a woman who sought to extend a restraining order based on false charges of domestic violence, was just removed from the bench by this Virginia Supreme Court ruling.
To learn more about the case, see my blog posts In Defense of Judge James Michael Shull (Part I) and In Defense of Judge James Michael Shull (Part II), or read my co-authored newspaper column defending Shull here.
The Virginia Supreme Court’s opinion criticizes Shull for “making an improper ex parte telephone call during a recess in the custody hearing to obtain information on a disputed factual matter” and that this “ex parte communication serves to illustrate again Judge Shull’s lack of concern for litigants appearing before him.”
Nothing could be further form the truth–Shull made the phone call out of concern for the litigants before him, principally the two young children whose placement he had to decide. Shull had to give the children either to the husband, who the wife claimed stabbed her, or the wife, who the husband claimed was a mentally-disturbed cutter.
In the case, Tammy G. claimed that her husband had stabbed her and that she went to a local emergency room for treatment. Shull’s violation consisted of–brace yourself–calling the local hospital to confirm that Tammy G. had been admitted. Once again, Shull is in trouble for examining the facts in the case before him–he made the call as part of his duty to protect the G. children.
Shull also says that he informed everyone in the courtroom that he planned to do call before he made the call.
It is true that the Virginia Canons of Judicial Conduct states:
“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.”
Shull says, “It is not uncommon for judges in the juvenile and domestic relations court to place telephone calls to ascertain the truth when resolving a factual dispute.”
The Virginia Lawyers Weekly article JIRC: Censure or remove J&DR judge (5/28/07) contains an interesting tidbit about this issue. The lead judge in the court where Shull heard this case, Elizabeth S. Wills, ”testified that she very seldom makes such calls.”
“Seldom?” So Wills, who is Shull’s boss and who is largely responsible for him being railroaded, admits to the Judicial Commission that she too has made the same kind of phone calls–the type of calls which Shull is in trouble for doing once and only once.
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November 5th, 2007 at 3:11 am
It sounds like he wasn’t outside the presence of the parties. They knew about it. They were present. They didn’t object. He didn’t violate the rule.
It seems more than evident to me that he is being punished for not doing what the unwritten rule requires — rule for the woman. He also violated the correllary of this Rule — never rule against the woman. Particularly, don’t find she lied.
November 5th, 2007 at 5:47 am
Of course, you fail to report the rest of the story Sacks. This is not the first time that the “good judge” has been brought up on charges before the Court.
Where was your outrage when he was brought up on charges for flipping a coin to determine who would have custody of a child for Christmas?
November 5th, 2007 at 7:37 am
Wow!
How come all I can hear from the talking heads is-
He MADE her drop her pants!
He made a comment about her UNDER WARE!
He TOLD a woman to marry her abusive boyfriend!
And of course, He FLIPPED A COIN!
Strangely, no one but Mr. Sacks seems to want the details to
accompany the outrage fodder for New World Order dupes.
November 5th, 2007 at 7:43 am
Sheesh, now I’m going to have to examine what ELSE
the current members of The Virginia Supreme Court have
graced us with in the last 10 years, as well as exactly
WHO ensconced them.
November 5th, 2007 at 8:51 am
FamilyLawyer
Apparently you failed to read all parts of Glen’s article in which he supports the “good judge’s” flipping a coin to determent Christmas visitation schedule.
After the thousands of cases I have observed, the only problem I can see with flipping a coin to settle most family disputes is that it doesn’t give family law attorneys the opportunity to bill clients for additional litigation. As all that experience a divorce will acknowledge, the primary objective is of custody litigation is to make work for attorneys.
If disputed primary residential custody between two equally fit parents were determined buy flip a coin, the outcome would serve justice far better than the current system.
November 5th, 2007 at 11:28 am
I agree that there is nothing offensive about fliing a coin.
If the parties are equally suitable, it is entirely appropriate.
It is the ultimate in equalty — both have an equal chance.
The judge is just being honest — neither parent is superior and both have good points or similar bad points. A coin flip is down right fair.
If women knew they had a 50% chance of losing a coin flip, they might be less flippant about filing for divorce anyway.
Besides, wasn’t the coin flip just about Christimas — not total custody.
November 5th, 2007 at 1:09 pm
The doctrine of judicial immunity is a sham. No matter how badly a judge fouls up your case, you, as a citizen, cannot personally hold him accountable.
Only the federal grand jury can hold a judge accountable for such crimes as bribery or peonage.
But let a judge do the right thing in a child custody case that is politically incorrect, and he will be disciplined. The state of Virginia has proven itself that there is no independent judiciary and that its judges are not free to render lawfully correct decisions where they are politically incorrect.
Family Lawyer, while it is not the first time Judge Shull been hot water for judicial “misconduct”, I will say that had he not found in favor of the father in consideration of the patently false DV allegation, he would not have been disciplined. Everything else is just pretext. Ask your collegues in employment discrimination law about pretext and they can tell you what the term means.
The stated reason for a firing is not always the actual reason for the firing.
Should a litigant’s right to a fair hearing depend whether the judge’s professional life is “above reproach” or that he has a history of human mistakes already made?
Here is the thing that strikes me as particualry odd about this DV case. In many DV cases, medical personnel at hospitals and emergency clinics photograph the injuries. Prosecutors love to present such evidence because juries have heard all about the false accusations. In the Wenatchee Witch Hunt cases, the question was where are the injuries that would have resulted from such terrible things that were alleged? How did the defendants commit such horrible acts upon the children without leaving any physical marks or injuries?
Present photographs, get conviction. No photographs and acquittal sometimes happens as the jury is instructed that lack of evidence can be the basis of a reasonable doubt.
Why were such clinic or hospital photographs not placed into evidence and authenticated by impartial medical personnel and thus avoid the need for Judge Shull to view the injuries himself?
Good question, I believe.
November 5th, 2007 at 3:35 pm
Roger,
I, too, have been wondering about the apparently absent photographs. Had photos been presented in court, pants-dropping would not have been necessary. Perhaps litigants knew that photos would not be convincing enough, given the extent of injury, so they opted to hope that the judge wouldn’t ask and would just take “her” word? Knowing they could make a fuss about not being believed, because what judge in his right mind, given the state of affairs, would ever choose to make an accusing woman prove her accusation?
Case could have been extended, with the judge asking for photos, but then there would have been additional lawyerly fees incurred, as well as opportunity to enhance said injuries, and perhaps the judge didn’t wish to make the parties pay more to lawyers.
As for coin-flipping, it is not the best of judicial techniques, but as I understand it the flip was just about who got the FIRST Christmas, on an alternating schedule, not all Christmases. Is that not what it was about (someone….?)?
The whole thing stinks to high heaven. I feel a letter to the editor coming on.