For many months, U.S. District Judge Samuel B. Kent of the Southern District of Texas kept quiet as the legal community gossiped. He stayed largely mum while the 5th U.S. Circuit Court of Appeals Judicial Council reprimanded and admonished him in 2007 in connection with “sexual harassment” allegations, as he served a four-month suspension, and as he was ordered to work in Houston instead of Galveston when he returned to the bench in January.
Kent, 59, didn’t speak up after a federal grand jury indicted him on Aug. 28 on three federal criminal charges stemming from a complaint filed by Cathy McBroom, a former case manager in Kent’s Galveston court.
But on Sept. 3, at an arraignment in the same courthouse where he works, Kent spoke loudly and forcefully when he pleaded not guilty to two counts of abusive sexual contact and one count of attempted aggravated sexual abuse, and said he looks forward to a trial.
“I plead absolutely, unequivocally not guilty and will very much look forward to a trial on the merits . . . of what I consider to be flagrant, scurrilous charges,” Kent told 5th Circuit Judge Edward Prado, who, sitting by designation, heard Kent’s plea.
While waiting for Prado to start the hearing, Kent rocked in his chair in court and shook his crossed leg, but when it came time to stand before the judge, Kent stood tall and answered questions with volume.
On Aug. 28, a federal grand jury indicted Kent on the three charges, which resulted from a complaint McBroom filed with the 5th Circuit in May 2007. Kent faces a maximum sentence of two years in prison on each of the two counts of abusive sexual contact and up to life in prison on the other, more serious charge. The maximum fine on each charge is $250,000.
Kent’s attorney, Dick DeGuerin, a partner in DeGuerin & Dickson in Houston, told reporters after the arraignment on the 11th floor of the Bob Casey Federal Courthouse in downtown Houston that Kent has been anxious to speak his mind about McBroom’s allegations ever since the 5th Circuit Judicial Council reprimanded and admonished him a year ago. Over the past several months, DeGuerin was adamant that Kent’s disciplinary matter should remain confidential as required by §360 of the Judicial Conduct and Disability Act of 1980.
On Sept. 3, Kent took advantage of his opportunity to talk. In court, Kent told Prado, “I absolutely intend to testify, and we’re going to bring a horde of witnesses.” Kent even spoke up before his lawyer could to correct prosecutor Peter Ainsworth, senior deputy chief for the U.S. Department of Justice Public Integrity Section in Washington, D.C., after Ainsworth incorrectly described two of the charges. Kent also told Prado that he believes one of the abusive sexual contact charges, which the indictment alleges occurred in August 2003, is time-barred by the statute of limitations.
DeGuerin told Prado he intended to point out Ainsworth’s misstatements about the charges, but Kent spoke first. “Your honor, you will see I have very little client control,” DeGuerin said.
Gregg Rosenberg, a Houston employment lawyer who socializes with Kent and practices in his court, says he is glad the judge will soon get to defend himself in court and had opportunity to speak during his arraignment.
“I commend his silence. There’s a natural reaction to want to tell your story, and I’m glad he’s followed the advice of his able counsel in resisting that urge,” says Rosenberg, a partner in Rosenberg & Sprovach.
After Prado approved Kent’s personal recognizance bond, Kent said, “I will scrupulously appear at any schedule the court may set.”
Making court appearances in his criminal case won’t require much effort. DeGuerin says Kent will stay on his bench in the Houston courthouse while fighting the charges. Kent, who declined comment after his arraignment, has been working in the Houston courthouse since January and hears only civil suits.
Last week may have been the first and last time Kent appears before Prado. At the arraignment, Prado told Kent that it’s his understanding that a judge from outside the 5th Circuit will be appointed to preside over the case, and it will be U.S. District Judge Roger Vinson of the Northern District of Florida, which is in the 11th Circuit. After the hearing, Vinson’s office confirmed that he has been appointed.
Joseph St. Amant, the senior appellate conference attorney for the 5th Circuit, did not return a telephone call seeking comment before presstime on Sept. 4. Neither did Edith Jones, chief judge of the 5th Circuit. Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts, says the Judicial Conference of the United States regularly makes inter-circuit appointments, but she had no specific information about Vinson’s appointment.
On the day he was arraigned, Kent didn’t have a docket in his courtroom. Holding hands with his wife, Sarah, Kent walked out the back door of the courthouse shortly after he was released on a personal recognizance bond. He had to surrender his passport as a condition of his bond, and his travel is restricted to Texas, according to Prado’s order setting the conditions of release. Kent must avoid all contact with McBroom, who also works in the Houston federal courthouse.
McBroom’s attorney, Rusty Hardin, says he’s not quite sure how Kent has avoided contact with his client at the Houston courthouse, but he has. Hardin, of Rusty Hardin & Associates in Houston, says McBroom is a coordinator for a U.S. magistrate judge.
Chief U.S. District Judge Hayden W. Head Jr. declines to comment on why McBroom and Kent are currently working in the same courthouse.
Cases in Kent’s Court
Nine lawyers working on suits that were filed over the last month in the Southern District of Texas that were randomly assigned to Kent say they aren’t concerned about having a judge facing three criminal charges preside over their clients’ litigation.
“Judge Kent is fine with me,” says Michael Callahan, who represents the plaintiff in Guzman v. Forged Components Inc., filed on Aug. 4.
“I’ve had other cases with him in Galveston, and I’ve always thought he was quite fair,” says Callahan, of the Callahan Law Firm in Houston.
James McMillen, a solo practitioner in Houston with a consumer law practice, says he has never appeared before Kent, but he has only heard good comments about the judge — that he’s fair and moderate — from other lawyers who have seen Kent on the bench. McMillen, also an adjunct professor at the University of Houston Law Center, represents the plaintiff in Barringer v. Tyler and Morgan Acquisitions Inc., et al., filed on Aug. 11.
Plaintiffs lawyer Arthur Sadin, who has practiced in Galveston County for 25 years, says he has represented numerous injured railroad workers who have sued their employer under the Federal Employer’s Liability Act, and Kent is a “leading jurist in this area.”
“I have won, and I have lost, and I always found him to be eminently fair, and for those cases that have been appealed to the 5th Circuit, his decisions have always been affirmed to my knowledge,” says Sadin of the Sadin Law Firm in Friendswood, who represents the plaintiff in Dominguez v. Union Pacific Railroad Co., filed on Aug. 7.
As to the charges against Kent, Sadin says, “I believe in the presumption of innocence until proven guilty. I have no knowledge of any of the facts.”
Dana Blackmore of the Law Offices of Dana T. Blackmore in Houston also has high praise for Kent’s abilities on the bench, and she’s pleased Kent is working in Houston, because she doesn’t have to drive to Galveston to appear before him.
“I have been before him on numerous occasions. I have read his opinions he has written. He’s brilliant,” Blackmore says. “I have no doubt Dick DeGuerin will get him out of this.”
Blackmore is the defense attorney in Guzman and the plaintiff’s attorney in Whitfield v. ITRON Inc., et al., filed on Aug. 8.
Beaumont lawyer Christopher Kirchmer represents the plaintiff in two suits filed on Aug. 21 and assigned to Kent — Kelley v. AstraZeneca Pharmaceuticals LP, et al. and Taul v. AstraZeneca Pharmaceuticals LP, et al. Kirchmer, a partner in Provost � Umphrey, says he’s not concerned about Kent’s involvement, because both suits will be handled in multidistrict litigation pending in the Northern District of Florida that involves the medication Seroquel.
“By the time they are likely to be remanded for trial, the issues with Judge Kent will be resolved,” Kirchmer says.
The Judicial Council
Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial ethics and discipline, says Kent’s case is the first time a federal judge ever has been charged with abusive sexual contact and attempted aggravated sexual abuse. Historically, federal judges have been charged with crimes associated with the abuse of power or money, Hellman says.
The 5th Circuit Judicial Council’s discipline of Kent is troubling when compared to its recent discipline of U.S. District Judge G. Thomas Porteous, who sits in the Eastern District of Louisiana, Hellman says.
On Dec. 20, 2007, the 5th Circuit Judicial Council issued an order finding Porteous had lied in a Chapter 13 bankruptcy petition. He allegedly filed a petition under a false name, hid assets from the bankruptcy estate and concealed gambling debts, according to the order. The 5th Circuit Judicial Council referred his disciplinary case to the U.S. Judicial Conference to consider whether to recommend that Congress impeach him. The 5th Circuit Judicial Council order also prevented Porteous from hearing bankruptcy and criminal cases and any civil case in which the U.S. government is a party. On June 17, the Judicial Conference sent a letter to Speaker of the House Nancy Pelosi recommending Porteous’ impeachment. Only Congress can impeach federal judges who have lifetime appointments. Porteous did not return a telephone call for comment.
The 5th Circuit did not refer Kent’s disciplinary case to the Judicial Council to consider whether he should be impeached. While Kent has been indicted for his alleged conduct, Porteous has not, Hellman points out.
“It’s troubling that their [the 5th Circuit Judicial Council] investigation stopped short to what was apparently available to the Justice Department and the FBI. You could say that the system did work where the FBI stepped in,” Hellman says. “It’s part of the whole theory of the separation of powers. If one falls down, the other steps in. In both instances it’s important to note that we have accusation, not proof. And it’s important to get those accusations tested.
“And I hope the Kent trial will happen sooner [rather] than later, so we don’t have this dragging on,” Hellman says.
In August 2007, Chief Judge Head signed an order noting that Kent would be absent from the bench from Sept. 1, 2007, to Jan. 1, 2008. [ See "5th Circuit Judicial Council Reprimands Judge Samuel B. Kent," Texas Lawyer , Oct. 8, 2007, page 1.]
Jones, chief judge of the 5th Circuit — which covers Texas, Louisiana and Mississippi — wrote in the Sept. 28 order reprimanding Kent that a Special Investigatory Committee appointed to investigate McBroom’s complaint had expanded the original complaint under Rule 9(A) of the 5th Circuit Rules Governing Complaints of Judicial Misconduct or Disability. The committee investigated 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.
In October, 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. Kent, a judge in the Southern District of Texas since 1990, received only civil cases in the Houston Division after he returned to the bench.
Two former federal prosecutors say it’s rare for sexual abuse cases to be tried in federal courts. Such cases usually are tried in state courts, but because Kent’s alleged offenses occurred on federal property, the federal government has jurisdiction, they say.
Mike Uhl, a former assistant U.S. attorney in the Northern District of Texas who has prosecuted several public officials, believes it will be difficult to win a conviction against a sitting federal judge.
“It will be a challenge, because they are obviously a person of stature in the community and certainly in the legal community,” says Uhl, now a partner in Dallas’ Fitzpatrick Hagood Smith & Uhl. “They will start out with a little higher presumption of innocence.”
Matt Orwig, the former U.S. attorney for the Eastern District of Texas, agrees. “I think it’s going to be a classic ‘he said, she said’ case,” says Orwig, now managing partner of the Dallas office of Sonnenschein Nath & Rosenthal. “Apparently there is rough agreement as to what acts took place; it’s just people’s intentions and motives” that will be at issue at trial, he says.
“Even taking the parties — aside from the credibility of the parties — out of the equation, these are typically cases that are very difficult to prove,” Orwig says. “The proof of consent or lack of consent is proved by circumstantial evidence that is, by its very nature, conflicting testimony.”
The Texas Code of Criminal Procedure requires defendants convicted of various state sex crimes, and comparable federal crimes, to register with the state as sex offenders.
But because such offenses are rarely prosecuted in federal courts, it’s not known if Kent — if convicted on any of the charges — would be required to register as a sex offender.
“This is the first one I’ve ever even heard of,” says Gary Udashen, a criminal-defense attorney in Dallas’ Sorrels Udashen Anton, referring to the unusual federal charges against Kent.
Udashen believes that based on the Texas Code of Criminal Procedure, Kent would not have to register as a sex offender if he is convicted of abusive sexual contact, because there is no corresponding state offense that requires registration. But Udashen believes that Kent would have to register if he is convicted of attempted aggravated sexual abuse, which corresponds with the state offense of attempted sexual assault case.
Filings Down in Galveston
Houston lawyer Rosenberg says, “I just think that’s it’s important for everybody to remain as objective as we can” about the allegations against Kent. “It’s hard, because we have a judge that has a reputation that’s perhaps different than other federal judges. And the stories need to come out.”
Rosenberg says Kent is different from many federal judges, because he often socializes with lawyers who appear before him.
“Not every federal judge does that. He did thin the line and decrease the barrier. And in Galveston you could do that,” Rosenberg says. “The one thing I noticed about Judge Kent, I always perceived that he had an equal amount of friends on the plaintiff and the defense side.”
Some Galveston attorneys are worried about the effect that Kent’s 5th Circuit disciplinary case is having on the Galveston court. Last year, the order by Chief Judge Head transferred the Galveston docket to the Houston division, where it has been spread among the 12 U.S. district judges who sit there. Since Head issued the transfer order, filings in the normally busy civil docket in the Galveston division have plummeted.
In 2006, there were 806 federal civil cases filed in Galveston. In 2007, that number dropped to 586. And through Aug. 31, 2008, there were only 197 civil cases filed in the division, according to the Southern District of Texas clerk’s office.
The Galveston division has been a popular place to file maritime and products liability suits, because Kent has a reputation for moving cases to trial quickly. Much like courts in the Eastern District of Texas, the Galveston division has few criminal cases — 28 in 2006, 33 in 2007 and 21 so far in 2008, according to the Southern District of Texas clerk’s office.
“My biggest concern is about getting or restoring a judge to the Galveston federal court bench,” says Craig Eiland of Galveston’s Law Office of A. Craig Eiland who represents plaintiffs in federal court. “Right now, if you file a case in Galveston federal court, you’re going to be randomly assigned to any of the Houston federal judges. And so why file your case in the Galveston division?
“It almost becomes a self-fulfilling prophecy. Then the question becomes do you need a court if you have a reduction in filings? But it’s a fictitious reduction,” says Eiland, who also serves as a Democratic state representative. “The bar is very concerned about that.”
Chief Judge Head says lawyers shouldn’t hesitate to file suits in Galveston, because there are now 12 judges, not just Kent, available to hear their cases. “There’s no thought to closing that courthouse,” he says.