“A huge unknown called ‘Court'”

Based on an agreement that included the judge’s resignation and agreement to never seek judicial office in the state, the West Virginia Judicial Investigation Commission publicly admonished a former judge for (1) in in camera interviews of 2 girls whose father had been accused of sexually abusing them, calling the 7-year-old girl a liar and suggesting that the 6-year-old girl had taken part in a “sinister plan;” (2) spending thousands of dollars for improper purposes; and (3) pulling out a gun and showing it in the courtroom.  In the Matter of Hummel, Public admonishment (West Virginia Judicial Investigation Commission December 2, 2022).

(1) On July 28 and August 18, 2020, the judge presided over a hearing on allegations that 2 minor girls had been sexually abused by their father, which were made in a petition filed by the state Department of Health and Human Resources.  At least 3 witnesses testified that the girls had been consistent in their reports of the alleged abuse, and the record included video-recordings of the girls’ interviews with the child advocacy center.

The judge held in camera interviews with both girls, with only members of his staff and the guardian ad litem also present.  The Commission found that both girls were reluctant witnesses who were “easily distracted during their respective interviews;” the elder girl indicated at the beginning of her interview that “she did not want to discuss the allegations,” and both girls hid under a table in the judge’s chambers at times.  During the interview, the judge repeatedly accused the elder daughter, then age 7, of lying, which “brought her to tears.”  The judge concluded that the younger daughter, then age 6, “had implicated the mother in a ‘sinister’ plot to falsify allegations against the father even though the judge was the first person to use the word ‘plan’ when questioning the little girl.”

After the interviews, the judge held that the girls had not been abused or neglected and dismissed the petition without making the findings of fact and conclusions of law required by statute.  In March 2021, the West Virginia Supreme Court of Appeals remanded the matter to the judge with instructions to “forthwith issue a new order containing the findings of fact and conclusions of law necessary to establish whether the children were abused and/or neglected.”

In a revised final order in April 2021, the judge held that there was no clear and convincing evidence of any abuse or neglect by the father  and dismissed the action from the active docket.

On appeal, the Supreme Court vacated the judge’s order and remanded the matter to a different judge for further proceedings.  The Court found that the manner in which the judge interviewed the girls violated the protection from psychological harm afforded by the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the rules of evidence, and established caselaw.  The Court concluded that the judge not only failed to protect the older girl from harassment but had “perpetrat[ed]” the harassment by repeatedly accusing her of lying and leaving her in tears.  The Court explained that, “[e]ven assuming, arguendo, that [the elder girl’s] bursting into tears was an acceptable risk in taking the child’s testimony, we cannot conceive of any reasonable method or purpose of questioning a child which involves openly and directly accusing the child of lying.”  With respect to the younger child, the Court found that the judge erred in asking her “leading questions that cause a reviewer to question whether they were calculated to confirm a pre-existing suspicion rather than elicit truthful testimony.”

The Commission concluded that the judge “knew or should have known better.”  It explained:

He is a longtime lawyer and former assistant prosecutor.  At the time of the incident, he was a seasoned veteran of the Court.  He had absolutely no business calling a child of tender years a liar or suggesting to an impressionable six-year-old that she had engaged in some “sinister plan” regarding her father. . . .  When dealing with young children, judges should remember at all times that they are not wooden toys that can be repaired with ease.  They are living beings with thoughts and feelings who are coming into a huge unknown called “Court” to talk to what the child may perceive as a scary individual called “Judge” and must be treated with charity, understanding and patience.

(2) In 2019, the judge asked the 3 county commissions in his circuit to reallocate $15,000 to fund a case coordinator at a private mental health facility for adult drug court or to provide new funding and also asked for an additional $15,000 each for other adult drug court expenses.  The 3 county commissions agreed and provided $30,000 each for a total of $90,000.

The Commission found that, “Unbeknownst to the County Commissions,” in 2019 and 2020, the judge requested and received half of that money back from the mental health provider and improperly placed it with a general receiver, even though a court rule provides that a receiver may only be appointed in a pending case.  The judge had direct control over the money and used thousands of dollars from the funds for improper purposes.

(3) In April 2013, the judge, as chief judge, entered an order allowing all judicial officers to possess a firearm in the courthouse but directed that they “take reasonable and necessary measures to ensure that any firearm he or she may possess on the aforesaid premises is concealed such that same is not displayed.”

During a rare Saturday hearing in a civil case on March 12, 2022, the judge removed a firearm from where it was concealed on his person, put it on the bench in open view for the remainder of the proceeding, and at one point, “picked up the gun and displayed it for all to see.”  His act was captured on court security video.  The incident went viral in the national news.  (See, e.g., “A Judge Pulled a Gun in the Courtroom—and Then It Got Weird,” The Daily Beast (July 15, 2022); “West Virginia judge accused of waving pistol at defense lawyers and mocking security team for having smaller guns,” NBCnews.com (July 15, 2022).

The Commission found that it was hard to believe that a judge would “violate his own administrative order but that is what Respondent did when he pulled out a gun and showed it in the courtroom.  It is no wonder to this Commission that his conduct resulted in nationwide publicity.  He not only humiliated himself but he also caused great embarrassment to the court system as a whole . . . .”

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