In September 2008, U.S. District Judge Samuel B. Kent of the Southern District of Texas spoke loudly and forcefully when entering a not guilty plea to sex abuse charges. But last week in a Houston courtroom his tone was markedly different as a clearly beaten Kent whispered "guilty" to an obstruction-of-justice charge.
"I accept your guilty plea," U.S. District Judge Roger Vinson of the Northern District of Florida told Kent in court.
Kent's decision to plead guilty to the obstruction charge on Feb. 23 in exchange for the government dropping five sex abuse charges -- combined with his lawyer's announcement that Kent was "retiring" from the bench -- will cost Kent any chance at a standard judicial retirement salary and most likely his bar card and freedom, five experts say.
The guilty plea likely wouldn't have happened if Kent's former Galveston case manager, Cathy McBroom, hadn't decided to file a complaint against him with the 5th U.S. Circuit Court of Appeals two years ago. While Kent's judicial superiors couldn't take his job away from him, that's what McBroom's allegations -- which formed the basis for some of the criminal charges against him -- did on Feb. 23, the day jury selection would have begun in Kent's criminal trial.
"I'm very happy this part of the process is over. I feel extremely relieved, and I look forward to the sentencing," McBroom said outside the Bob Casey U.S. Court House in Houston on Feb. 23. Specifically, Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating McBroom's complaint.
"It's a fall that has been hard and fast," says Matt Orwig, a former U.S. Attorney for the Eastern District of Texas. Protecting his career and reputation may have been Kent's priority during his September 2008 not guilty plea, but that changed at some point during the ensuing months, Orwig says.
"The job became less important to him," say Orwig, now managing partner of the Dallas office of Sonnenschein Nath & Rosenthal. "And he quit caring about the cheese; he just wanted to get out of the trap" by minimizing any prison time.
Kent, who is the first federal judge in history to be indicted for alleged sexual crimes, will be sentenced on May 11 by Vinson, who is sitting by assignment. While the maximum sentence for obstruction of justice is 20 years, the 12-page plea agreement notes that the government agrees the maximum term of imprisonment that it may seek is three years and it may seek a lesser sentence.
Kent, whose wife was not in the courtroom on Feb. 23, did not comment after the hearing. Vinson made a point during the plea hearing to address Kent as Mr. Kent instead of Judge Kent.
"Everyone in the courtroom calls you Judge Kent. Today for purposes of this proceeding, it's going to be Mr. Kent," Vinson said.
Prosecutors Peter J. Ainsworth, John Pearson and AnnaLou Tirol of the U.S. Department of Justice's Public Integrity Section in Washington, D.C., did not comment after the hearing.
"Judge Kent believes that this compromise settlement is best for all involved, the complainants and their families, Judge Kent and his family, and the court and the judicial system," Dick DeGuerin, a partner in Houston's DeGuerin & Dickson who represents Kent, said after the plea hearing. "A trial would have been long, embarrassing, and difficult for all involved and this avoids that."
DeGuerin added that Kent had notified President Barack Obama and Edith Jones, chief judge of the 5th Circuit, that he is retiring from the bench effective immediately.
"He's been a walking basket case for a couple of years since this all came crashing in on him," DeGuerin says in an interview. "I'm not trying to milk any kind of sympathy here. The fact is his whole life has been irretrievably changed. And it's had an effect on him.
"It all started with his first wife dying. ... But he's had some very serious health problems that were greatly exacerbated by his legal problems, which I believe makes him qualified for a medical disability retirement," DeGuerin says.
For Kent to qualify for medical disability, Jones must certify his disability and it must also be approved by Obama. DeGuerin declines to comment about whether Kent will apply for disability.
"This is a matter between Judge Kent and the chief judge of the 5th Circuit and the president. And I have really said all I have to say about that, with this one addition: Whether you're a weekly wage earner or a yearly salary earner or self-employed, most people have retirement or pension plans that they work hard for years to build up. It's no different for a judge. He's worked as a judge for 18 years. His wife has no income. And for 18 years he worked hard at being a judge. His plea of guilty and misconduct really had nothing to do with that. And so, I'm simply trying to preserve what life he might have left once he serves his sentence whatever that is."
McBroom's lawyer, Rusty Hardin, was traveling on Feb. 26, the day Vinson lifted a gag order in the Kent case, and therefore was not available for comment.
Only Congress can impeach a federal judge and applying for disability opens the possibility that Congress will impeach Kent, say Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial discipline. While Congress would have no reason to impeach a judge who has resigned from the bench because that judge has forfeited his title and salary, it would be different for a judge who retires and applies for judicial disability. A judge who is disabled retains his status as an Article III judge, his status as a civil officer of the United States and his salary, Hellman says. As a judge, Kent earns more than $160,000 a year.
And claiming a disability is the only way that Kent can continue to draw a judicial salary, Hellman says. During his plea hearing last week, Kent told Vinson that he had been treated by a psychologist.
In response to questions by Vinson, Kent said he was competent to enter a guilty plea even though he had taken prescription medications before coming to court on Feb. 23. DeGuerin read off a list of at least six drugs, and told Vinson that some were for depression, anxiety and diabetes.
"It's a Pyrrhic victory for him because it [disability] will immediately lead to impeachment," Hellman says. "What would be the good of giving him the benefit of a certificate of disability?"
That's exactly what one congressman intends to do. In a Thursday letter to Jones, U.S. Rep. James Sensenbrenner, R-Wisconsin, a member of the House Judiciary Committee, said he'll introduce articles of impeachment against Kent following his May 11 sentencing hearing if Kent "does not resign his bench."
"It is my understanding that Judge Kent will attempt to have a disability certified in order to receive pay and benefits as a senior judge," Sensenbrenner wrote. "If Judge Kent's claim is granted, it will likely result in attempts to re-open countless cases he has presided over during the past few years.
"Given the circumstances, it is outrageous that he is asking to retire under a disability exception so that he can continue to draw a paycheck for the rest of his life at taxpayer expense, including while he is incarcerated. I trust you will examine all of these issues carefully before considering Judge Kent's disability request." (See Sensenbrenner's letter to Jones.)
In an interview, Sensenbrenner warns that fighting impeachment is a long and expensive process. "He will be facing that expense, together with the embarrassment. I don't see how the House can fail to impeach him, given what he has pleaded to," Sensenbrenner says.
Hellman says Kent does not qualify for standard federal judicial retirement. Federal judges must adhere to what is known as "the rule of 80" before qualifying for retirement pay: They must be at least 65 years old and must have served at least 15 years on the bench. While Kent has been on the bench for 19 years, he is 59 years old.
"He cannot retire on salary because he doesn't have the age," says Hellman.
If Kent applies for disability, it would put Jones in an interesting position, Hellman says. "In a way I do feel for Chief Judge Jones because she's really caught in the middle here. If she believes he is genuinely disabled then he does have a claim," Hellman says.
"If she does grant it, Judge Kent finds himself as a target for the impeachment, but Judge Jones opens herself up to criticism as allowing her sympathy to overcome a crime that he has admitted to," Hellman says.
However because Kent pleaded guilty to a charge that he lied to a Special Investigatory Panel of the 5th Circuit, it may not be that tough of a choice for Jones, he adds. Kent was "accused of lying to her and her colleagues," Hellman says. "That's exactly it. And in some ways that may make it ironically easier."
Jones did not return a telephone call seeking comment.
Joe St. Amant, senior appellate conference attorney for the 5th Circuit, says Kent's status as a judge "right now is not certain."
Federal judges who "retire" generally continue to be judges and draw a salary or a pension, St. Amant says. Federal judges who "resign" do not continue to draw a salary or a pension, do not hold the title of judge and usually return to the practice of law, he says.
"I don't think you can make any assumptions at all about what the [5th Circuit Judicial] Council is going to do," St. Amant says.
CRIMINAL CHARGES
In September 2008, Kent pleaded not guilty to three charges -- two counts of abusive sexual contact and one count of attempted aggravated sexual abuse -- that stem from the complaint McBroom filed with the 5th Circuit.
On Jan. 6, a federal grand jury issued a superseding indictment in United States v. Samuel B. Kent that added three criminal charges against him -- one count of aggravated sexual abuse, one count of abusive sexual contact and one count of obstruction of justice. The alleged victim in the superseding indictment was only identified as "Person B," but on Feb. 23 her identity became known -- Donna Wilkerson, Kent's legal secretary in Galveston, stood outside the courthouse with her lawyer Terry W. Yates of Houston.
Wilkerson did not comment, but Yates told reporters after Kent's plea that his client is glad the process is over. "She will tell her story in due time," Yates said.
Yates says it would be "unjust" for Kent to go on disability and draw a judicial salary.
The obstruction charge in the superseding indictment alleged that Kent obstructed justice when he falsely stated to the Special Investigative Committee that "the extent of his unwanted sexual contact with Person B was one kiss and that when told by Person B his advances were unwelcome no further contact occurred, when in fact and as he well knew defendant Kent had engaged in repeated unwanted sexual assaults of Person B, in order to obstruct, influence and impede" the investigation. On Jan. 7, Kent pleaded not guilty to the three additional charges.
But in the Feb. 23 Factual Basis for the Plea, Kent stipulated that in August 2003 and in March 2007, he engaged in nonconsensual sexual contact with McBroom without her permission, and from 2004 through at least 2005, he engaged in nonconsensual sexual contact with Wilkerson without her permission. (See the Factual Basis for the Plea.)
The three additional charges in the superseding indictment prompted the Judicial Council of the 5th Circuit to reopen a disciplinary case against Kent on Jan. 9, according to an order from the Judicial Council of the 5th Circuit.
On Sept. 28, 2007, the Judicial Council of the 5th Circuit reprimanded Kent after a Special Investigator Committee looked into McBroom's "sexual harassment" complaint and other "instances of alleged inappropriate behavior toward other employees of the federal judicial system." The committee recommended that Kent be reprimanded "along with the accomplishment of other remedial courses of action," and by a majority vote the Judicial Council accepted the recommendations.
The council concluded the proceedings "because appropriate remedial action had been and will be taken, including but not limited to the judge's four-month leave of absence from the bench, reallocation of the Galveston/Houston docket and other measures," wrote Jones, who signed the order reprimanding Kent.
In October 2007, before Kent returned to the bench, an executive session of the judges of the U.S. District Court for the Southern District decided to transfer Kent's Galveston Division to the Houston Division. He only received civil suits when he returned to the bench in January 2008.
PRISON TIME?
Kent's felony guilty plea to the obstruction charge potentially cuts off another source of income for Kent -- practicing law. Lawyers and judges who are convicted of felonies that are considered "serious" crimes may be subject to compulsory discipline by the State Bar of Texas -- a streamlined process that bypasses the normal grievance panel system and allows the Bar to automatically suspend or disbar a lawyer.
"We are in the process of getting the papers related to Judge Kent's plea. And when we get the papers we will evaluate what to do next," says Maureen Ray, special administrative counsel for the State Bar's Office of Chief Disciplinary Counsel.
"I really can't comment as to what will occur to Judge Kent against his law license," Ray says.
Kent currently has an inactive law license, Ray says, but judges are allowed to sit on the bench with inactive bar cards. "Inactive status would not deter prosecution in an otherwise proper case," Ray says.
Because the State Bar considers obstruction of justice a serious crime, it may have little choice but to disbar Kent, says Robert Hinton of Dallas' Robert Hinton & Associates who defends lawyers in Bar disciplinary cases.
"That will pretty much tie the State Bar's hands," Hinton says. "I would believe he would be disbarred because that would be a serious offense and it would be an intentional offense."
Three criminal defense lawyers say that Kent most likely will receive at least some prison time.
"Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl. "I'll be surprised if he gets straight probation."
A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says. If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says. If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.
But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison.
To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement. Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.
However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime.
"They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.
CIVIL SUITS?
At the plea hearing, Vinson extended until sentencing in May a gag order he had imposed in the case sua sponte in September 2008 to shield the jury from potentially prejudicial statements. But on Feb. 26, Vinson dissolved it.
Vinson wrote that he lifted the order because "it now appears that some of those who are entitled to privacy under the evidentiary rules do not seek or desire continued privacy protection, and those who do desire continued privacy protection do not need or require any further protection by way of this court's order."
Vinson wrote that he is "reasonably confident" he has the ability to consider the evidence and issues dispassionately at sentencing, so any statements to the media will not affect Kent's sentencing.
In the order, Vinson wrote that he extended the gag order on Feb. 23, even though no jury would hear Kent's case, over concern that media reports "might lead to public dissemination and a discussion of matters that had been filed under seal to protect the privacy rights of a number of individuals."
Yates, who represents Wilkerson, says he's pleased Vinson lifted the gag order. He says Wilkerson is undecided if she will make public statements before Kent's sentencing.
"It was very traumatic for her and she wants to think about it," he says.
While federal judges have broad immunity against civil suits, they can be sued individually in state court for criminal conduct, according to a plaintiffs lawyer and three labor and employment lawyers in Texas. However, lawyers for both women say their clients aren't currently considering that.
Yates says his client "doesn't have any plans to file any civil action against Kent at this point."
Civil litigation against Kent hasn't been on McBroom's radar either, says Hardin of Houston's Rusty Hardin & Associates.
"I don't know that she is considering it," Hardin says. "We have deliberately never talked about it or considered it, because neither she nor I have wanted to undermine the legitimacy" of the criminal prosecution, he says.
In an order signed on Feb. 24, Chief Judge Hayden Head of the Southern District of Texas reassigned all 217 cases on Kent's docket -- all civil suits -- to the 11 Southern District judges who preside over the Houston and Galveston dockets.
Head declines to comment about Kent's plea. However, he notes that he and his fellow Southern District judges have not yet determined whether to staff the Galveston Division with a permanent judge. "The judicial services aren't going to be abandoned," Head says. "Whether there will be a sitting judge in Galveston will need to be decided."
Head says that he and the other Southern District judges will examine whether the Galveston Division workload justifies a permanent judge or whether the work will continue to be handled by judges in the Houston Division.
Kent still heard cases while he was under indictment, but he did not hear criminal cases or cases in which the U.S. government was a party.
Regardless of what happens to Kent in the future, his indictment and guilty plea have damaged the federal judiciary, says U.S. District Judge W. Royal Furgeson Jr. of San Antonio.
"I just think it's such a bad thing for all of us -- for every one of us. I'm sure Sam Kent wanted to have a good career and retire with honor," Furgeson says. "And I can't comment on anything he's done, but it's sadness where someone has done that and it really makes the situation one of dishonor.
"It's a tragedy all around and it's certainly a tragedy for the women who were placed in the position they were placed in. It's a situation where nobody wins. I think it's a terrible thing for the courts," Furgeson says. "There is nothing good that comes from this."
