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August 29, 2006

The Tear Sheet: Stinkin’ thinkin’ - Stench lingers two years after secret letter aimed at circuit judge

[img_assist|nid=2448|title=William Stewart and Sarah Dutton|desc=with their lawyers during the last day of their trial, which ended with a hung jury. PHOTO BY WALT REICHERT/SENTINEL NEWS|link=|align=left|width=200|height=146]As voters go to the polls in Shelby, Anderson and Spencer counties this fall, they might want to bring their own air freshener to cover the stench still wafting from the corridors of power in Shelbyville, specifically from the heart of the 53rd Judicial Circuit. It’s the angry residue of rotten choices by courthouse leaders in one of the state’s busiest circuits.Of the four officials connected to the stink, three are up for election; one is running for circuit judge and two for prosecutor. The lingering smell emanates from a gutless courthouse rebellion that began in 2004, taking down the top judge in the circuit and starting an only-in-Kentucky game of musical courthouse chairs. The music has yet to stop.It’s an unseemly and complicated tale, but worth retelling if for no other reason than to remind voters in those three counties to hold their noses come November.Earlier this month, the former judge who took the fall — longtime Circuit Judge William F. Stewart — gained some closure when prosecutors from the Attorney General’s office dropped 14 felony charges, which related to allegations that he fraudulently signed time sheets overstating his wife’s hours at work. Last winter, a hung jury had voted 8-4 to acquit Stewart and his wife, but prosecutors had promised to try the pair again this fall.As part of the deal, Stewart agreed to stay retired and never again seek election as a judge.Assistant Attorney General Scott Crawford-Sutherland said in an interview that he agreed to drop the charges against Stewart because he didn’t like his chances of winning a second trial either. He also said the provision that keeps Stewart out of black robes was an important victory for the integrity of the bench, as well as a prudent decision to not waste state money.In an interview conducted in his new law office in the Cherokee Triangle, Stewart noted that he is already a retired judge and had planned to stay that way.The deal also dismissed felony charges against Stewart’s wife, Sarah Dutton, who worked as his legal assistant. She entered an Alford plea on two misdemeanors, and her one-year jail sentence was suspended.Dutton wept after the plea agreement was announced on Aug. 1, according to the Shelbyville Sentinel News.“We did absolutely nothing wrong,” she said in the story. “In a fetid pool of secrets and lies, we had no choice but to get out.”Whether Stewart and his wife got off easy or were the victims of unscrupulous adversaries, this much is undeniable: They took their medicine in public, over two years, as their legal saga played out in front of a Greek chorus of friend and foe alike.By contrast, the actions that triggered the termination of Judge Stewart’s career began secretly, and were so lacking in public integrity that the secretive Kentucky Bar Association, which won’t discuss possible investigations, should be ashamed of itself if it does not look into this case.By the spring of 2004, Stewart had served as a circuit judge for 16 years, and had been district judge for five years before that.Senior Judge William Knopf, who retired earlier this year from the Court of Appeals, told me that Stewart’s work as a judge was exceptional, and he called him a fine jurist. Knopf had never heard complaints about Stewart’s conduct before the events that began in 2004.Stewart did have a history of liberal-leaning rulings, a record for which he does not apologize. He told me he always wanted to be sure that the poor and minorities got a fair shake in his courtroom.That approach created enemies.Mike Harrod was the senior district judge in the circuit, and his tough-as-nails approach clashed with Stewart’s more forgiving orientation. Harrod, who is retiring, would later complain to investigators that Stewart treated the “scum that come before us” too gently.While Stewart said he simply refused to stack the deck in favor of prosecutors, Fielding Ballard III, the commonwealth’s attorney, would, like Harrod, tell investigators that Stewart was insufficiently stern with defendants.The differences in style flashed to the surface in March 2004 when Stewart openly angered Harrod by maneuvering to block a Harrod’s efforts to jail drivers who paid traffic fines too late. (Typically, the only such drivers that judges order to jail are those who don’t pay at all. The threat of jail time is generally an incentive to pay a fine, even if it’s late.)By that time, according to Ballard, four men — Ballard, Harrod, county attorney Chuck Hickman and Hickman’s then-assistant, Hart Megibben — had held a series of impromptu meetings in Harrod’s chambers to discuss complaints about Stewart. From those meetings, Ballard said, he drafted a letter full of hyperbolic language and a litany of complaints about Stewart.The letter was sent anonymously, and Ballard kept his role secret for more than a year, until well after the ethics investigation that it sparked had forced Stewart off the bench. During an interview with Ballard last winter, while I was still on staff at The Courier-Journal, he told me that he functioned as a kind of secretary to compile complaints provided by himself and each of the others.The letter, signed by “many concerned citizens,” warned of “blood on the streets” if Stewart was not removed from office immediately, and hinted that at least one citizen feared he’d be murdered by Stewart if his complaints became known.Ballard would eventually admit, in court, to writing the letter, and said he had taken it to Hickman for review before following the group’s suggestion that he fax it anonymously to Jefferson Circuit Judge Stephen Ryan, a close friend of Harrod’s who sat on the Judicial Conduct Commission.Ryan immediately forwarded the inflammatory letter to the JCC staff, which in turn sent investigators to Shelby County seeking corroboration.They got what they were looking for, although whether the JCC investigators knew it or not, the deck had been stacked in their favor. The first four people they interviewed were none other than Ballard, Hickman, Harrod and Megibben — the four men who, Ballard insisted, helped formulate the letter.In an interview after the charges against Stewart were dropped on Aug. 1, Ballard defended sending the letter in the manner he did, arguing that he merely did his job of reporting wrongdoing on the bench.He also insisted again, despite flat denials from Hickman and Megibben, that they helped author the letter.Whatever individual roles they may have played, it’s no surprise that the three prosecutors and the judge would not want their names connected to the letter. In addition to forecasts of murder and mayhem, it included more than 12 specific allegations of misconduct.The commission ultimately said that only three of the allegations could be substantiated, so when Stewart was dragged before the JCC in December 2004, he faced but three charges. Still in the dark about who wrote the letter that triggered the investigation, Stewart was charged with having moved to Louisville, with arranging for his wife to draw full-time pay for part-time work, and with failing to recuse himself from a child-support case that involved a woman who cleaned his office.Stewart said he’d already decided to retire on his 60th birthday, in February 2005. So at the December hearing he quickly accepted a deal he thought he couldn’t refuse. In return for retiring the following February and for accepting a public reprimand for failing to step aside from the child support case, the other two charges were dropped.“It was a classic star chamber,” Stewart said this month, still maintaining innocence, and noting that at the time Ballard and Hickman kept secret their connection to the letter.At that point, Stewart thought his ordeal was over, but he found out soon enough it had only just begun. Walking out of the December hearing, Ballard introduced him to the Kentucky State Police investigator who had come to watch.After WHAS-TV’s Mark Hebert had reported on the JCC investigation in late summer, Ballard sent a letter to the state police asking for an investigation and citing as grounds the ongoing JCC inquiry. He didn’t mention that he had created those grounds himself through the unsigned letter.The KSP investigation led to an indictment on a host of charges related to the time sheets. Dutton was accused of having arranged for more than $30,000 in extra salary over a three-year period. Stewart was accused of knowingly signing those time sheets. Both maintain their innocence, and have done so in interviews with me stretching back more than two years.But with the case now behind them, what remains for voters to consider — and others, perhaps — is the role played by the courthouse crew that helped bring him down, whether he deserved it or not.They might wonder, too, on the way to the polls in November, whether it makes sense to maintain the ruse that judicial elections are non-partisan.Hickman, who was Shelby County chairman for Ben Chandler’s 2003 gubernatorial race, has said goodbye to his old political party — and, as a result, his old office. Two days after Stewart announced his retirement in December 2004, Hickman announced a change of conscience and became a Republican.Quickly appointed circuit judge by Gov. Ernie Fletcher, Hickman is now running as an incumbent as he seeks a full term. Proving that some folks have all the luck, or something, he’s unopposed.Megibben, his former assistant, got religion the same day Hickman did, and is now a Republican too. Once Stewart was out of the way, he was bounced up to county attorney, a job he apparently likes, as he is on the ballot seeking the endorsement of the voters for a full term.And what of Ballard, poor old Ballard?It’s hard to feel sorry for him, for he is in a stew of his own making, but I do anyway.After having written the letter that got Stewart out of the way — and freed up his job — Ballard is the only one who hasn’t seen a reward. Indeed, having missed the memo about switching parties, he has remained a Democrat and faces stiff competition for a third full term. His opponent, of course, is another of Hickman’s assistants, Laura Donnell, who also switched parties on Dec. 17.Ballard finds himself with no allies, seeking to keep a job that absolutely demands them, and in a courthouse still awash with seething recriminations.On the other hand, in my book, any attorney, much less a prosecutor, who writes the kind of blatantly deceptive letter that he wrote to the JCC is fortunate to have a license at all.Knopf, the retired appeals judge, said any complaint about a judge should be “honest, straightforward, transparent and fair.”So, next time, fellas — and I mean all of you, wherever you are — if you have a complaint about a judge you think has gone bad, grow a pair and sign the complaint with your own name. Leave out cheap ploys like “blood on the streets.”After all, no one really wants to wade through that kind of stink just to get to the voting booth. Contact the writer at michael.lindenberger@gmail.com