Samuel B. Kent is set to report to federal prison on June 15, but even before the disgraced retired U.S. district judge begins to serve a 33-month sentence, the U.S. House will crank into high gear proceedings that could lead to Kent's impeachment.
The House Judiciary Committee Task Force on Impeachment has scheduled an evidentiary hearing on Kent's impeachment for Wednesday in Washington, D.C. Kent as well as Cathy McBroom and Donna Wilkerson -- the two former staff members he has admitted to sexually assaulting, as part of pleading guilty to obstruction of justice -- will testify, according to two Republican staff counsel for the committee. Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on judicial discipline, also is scheduled to testify about the impeachment process, the staff counsel say.
In February, Kent pleaded guilty to an obstruction-of-justice charge in exchange for the government dropping five sex abuse charges lodged against him in two separate indictments. Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating a complaint filed by McBroom, Kent's former case manager in Galveston.
Kent's criminal defense attorney, Dick DeGuerin, a partner in DeGuerin & Dickson of Houston, was in France last week and could not be reached for comment before press time, but lawyers for McBroom and Wilkerson confirm the women will testify at the hearing.
"We've already met with representatives on the task force and she is planning to attend and testify," says Rusty Hardin, McBroom's attorney, noting that the hearing will not be necessary if Kent resigns before then.
Hardin, of Houston's Rusty Hardin & Associates, says he and more importantly, McBroom, are pleased that the Judiciary Committee is moving so quickly to launch impeachment proceedings following Kent's sentencing on May 11.
"It's far more important Cathy be pleased -- the victims be pleased," Hardin says.
Terry Yates, of Terry Yates & Associates in Houston who represents Wilkerson, says he is surprised and pleased the committee is holding a hearing so soon after the sentencing.
The committee put the impeachment process into gear after Kent was sentenced for two reasons: The House normally waits for criminal proceedings to be concluded before moving forward on an impeachment, and the committee members want to ensure Kent is no longer receiving his judicial salary, the two staff counsel say. The only way to stop the pay is through impeachment or through Kent's voluntary resignation. Kent has so far refused to resign. In February, when Kent pleaded guilty to one count of obstruction of justice for making false statements to the Special Investigative Committee of the 5th Circuit, Kent said he would retire from the bench and he asked Jones to certify him as medically disabled, which would allow him to collect retirement.
After the evidentiary hearing, the task force will make recommendations to the Judiciary Committee and the Judiciary Committee will vote on articles of impeachment. If the articles of impeachment receive a favorable House floor vote, the impeachment will move to the Senate for a trial.
In September 2007, the Judicial Council reprimanded Kent after a Special Investigative Committee looked into McBroom's "sexual harassment" complaint and other "instances of alleged inappropriate behavior toward other employees of the federal judicial system." He was ordered off the bench until January 2008, and transferred from Galveston to Houston. But in August 2008, a federal grand jury indicted him on three federal criminal charges stemming from McBroom's complaint, and in January, a superseding indictment in United States v. Samuel B. Kent added three more charges including the obstruction of justice charge.
It has been two years since McBroom, Kent's former case manager, filed a complaint against him with the 5th Circuit. So the pressing question is whether the federal judicial discipline system did its job efficiently. While the Judicial Council reprimanded Kent, it wasn't until May 27 -- after he pleaded guilty to obstruction of justice and was sentenced to prison -- that it found that Kent had admitted to conduct that was an impeachable offense. The Judicial Council urged the Judicial Conference of the United States to take expeditious action on the matter pursuant to 28 U.S.C. §355(b).
In its May 27 order (pdf), the Judicial Council wrote that Kent "by his own admission engaged in conduct which constitutes one or more grounds for impeachment under Article II of the Constitution" and certified its determination to the Judicial Conference of the United States.
Also on May 27, 5th Circuit Chief Judge Edith Jones denied Kent's request to be certified as disabled (pdf), a designation that could have allowed him to collect a federal retirement salary. Jones informed Kent's criminal defense attorney, DeGuerin, that the "criminal investigation, indictment and the attendant publicity and shame" have triggered Kent's current inability to function as a judge. She wrote that because Kent's present disability is interrelated with his criminal prosecution, federal law does not permit him to retire on disability. She noted that the law allowing a judge to retire on disability assumes the judge is in good standing, and Kent forfeited that by pleading guilty to a felony, which is an impeachable offense. Jones wrote that Kent "suffers from alcoholism and diabetes, both of which may have contributed to his mental instability."
Kent testified during his sentencing hearing that he has been sober for 26 months.
McBroom's lawyer, Hardin, says Jones made the right call in denying the disability request.
"We are very satisfied with that," he says.
But the fact that the 5th Circuit Judicial Council declined to recommend Kent's impeachment in its original disciplinary order issued in September 2007 makes the federal judicial disciplinary system look bad, says Hellman.
"I have to admit that it certainly looks that way. But I'm reluctant to criticize the 5th Circuit. We know that Judge Kent made false statements," Hellman says. "And judges would assume that a fellow judge was telling the truth. But we don't know if they had enough information to tell that a fellow judge wasn't telling the truth.
"It seems to me the real weakness was a system that put Cathy McBroom in a position she was in for so long -- feeling there was no one she could complain to without risking her job," Hellman says. "That, to me, was the most troubling thing."
Kent's case should serve as a wakeup call to the federal judiciary, Hellman says. And the chief judges of U.S. Circuit Courts of Appeals should make adjustments to how they handle the Judicial Conduct and Disability Act of 1980, which likely never contemplated sexual abuse complaints when it was written nearly 30 years ago, he says. Chief judges of U.S. Circuit Courts of Appeals decide whether judicial misconduct complaints should be investigated.
"Maybe there does need to be a set of procedures that are distinct from the complaint process that deals with employees," Hellman says. "The courts don't have to reinvent the wheel. Every corporation had to deal with the same thing. "The sad thing is if she [McBroom] had complained when he started doing this, there might have been some intervention and it might not have gone so far," Hellman says. Robert Schuwerk, a professor at the University of Houston Law Center who teaches ethics, says the system of federal judicial discipline may work better for complaints that aren't necessarily impeachable offenses.
"Could it be better? It's hard to say," he says, because the Constitution provides that only Congress can impeach.
Schuwerk says part of the problem for the 5th Circuit was the fact that Kent "initially admitted to very little" and it took time to investigate McBroom's complaints.
PROTECT THE PUBLIC
Sexual abuse and harassment complaints are some of the most difficult cases the State Commission on Judicial Conduct handles, says executive director Seana Willing. At least six judges have been disciplined by the commission, or have resigned in lieu of discipline, over sexual harassment allegations over the past 10 years, she says.
"They are more difficult than the average cases because we're dealing with an elected official who has a lot of power and the victims don't have a lot of power," Willing says. "And the perpetrator seeks the victim out because they know the victim is not going to have a lot of credibility ... or they need the job so badly, they are not willing to speak out."
It's easier for judicial discipline to be carried out after a criminal case has been concluded against a judge, Willing says.
"On the state level, our primary goal is to protect the public. It does look bad in hindsight that the judge is convicted, but the judge is allowed to stay in public for several years. How have we protected the public?" Willing says. "But the flip side of that is what if the judge is exonerated? How do you restore the judge's reputation? There are issues and concerns on both sides. It's easy to be a Monday morning quarterback ... but in any criminal case, you're presumed innocent until proven guilty. The system can't work if we don't operate with due process."
Lillian Hardwick, a solo practitioner in Houston who does consulting on judicial ethics, says the judicial discipline system -- on the state or federal level -- can't work unless victims file complaints with the proper authorities.
"Quite frankly, any kind of reporting authority cannot do anything until people come forward," she says, adding that "it's great there is publicity out there" about Kent because it may prompt others with complaints about judges to file them.
One U.S. district judge in Texas who requests anonymity says that although the disciplinary case against Kent has not moved fast enough, the system did work.
"No system is perfect and generally speaking I would say the wheels ground slowly. But they got where they needed to get," the judge says. "It would have saved everyone some grief if he [Kent] would have resigned."