Mississippi Com'n on Judicial Performance v. Vess

• Citation: 692 So.2d 80
• Decision Date: 17 April 1997
• Docket Number: No. 96-CC-01098-SCT,96-CC-01098-SCT
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Charles L. VESS.
• Court: United States State Supreme Court of Mississippi

Page 80

692 So.2d 80

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Charles L. VESS.

No. 96-CC-01098-SCT.

Supreme Court of Mississippi.

April 17, 1997.

Luther T. Brantley, III, Jackson, for petitioner.

Joseph S. Zuccaro, Natchez, Philip E. Carby, Brown & Carby, Natchez, for respondent.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

On October 23, 1995, a complaint was filed with the Mississippi Commission on Judicial Performance (the Commission) concerning Charles L. Vess, Justice Court Judge, Southern District, Adams County, Mississippi. The Commission filed its formal complaint against Judge Vess on January 2, 1996. The complaint charged the judge with "judicial misconduct constituting willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute." These charges arose out of Judge Vess's conduct in the criminal proceedings against Vondelyn Allen. The Commission alleged that Judge Vess engaged in ex parte communications with Ms. Allen and her family, the arresting officer, and prosecutor in Ms. Allen's case. Judge Vess was also charged with interfering with Ms. Allen's right to post bond. The complaint maintained that Judge Vess's conduct violated Canons 1, 2A, 2B, 3A(1), 3A(4) and 3C(1) of the Code of Judicial Conduct.

John C. Love, Jr., Chairman of the Commission, appointed a committee to conduct a formal hearing regarding the complaint. Judge Vess filed his response to the complaint, along with affidavits in support thereof, on April 3, 1996. A two-member tribunal ¹ conducted a hearing on the complaint in the Adams County Courthouse in Natchez, Mississippi on June 20, 1996. On August 30, 1996, the tribunal filed its findings and recommendations, in which they determined that the complaint was well founded and recommended that Judge Vess be subjected to a public reprimand and taxed with all costs of the action. The Commission voted to adopt the tribunal's findings and recommendations on September 13, 1996. The Commission filed its findings of fact and recommendations with this Court on October 14, 1996, and the inquiry costs were calculated to be $1,173.45. The Commission and Judge Vess filed a joint motion for approval of the Commission's recommendations with this Court on November 15, 1996.

FACTS

Judge Charles L. Vess was first elected Justice Court Judge for the Southern District of Adams County, Mississippi in 1991. In the course of his duties as a judge, he first encountered Vondelyn Allen in January of 1995, when she appeared before him on a felony charge of uttering a forged instrument. Ms. Allen agreed to a plea bargain, the charge was reduced to misdemeanor false pretenses, and Ms. Allen was sentenced to two years probation. Sometime after the On June 12, 1995, Deputy Sheriff Dale Cowan of the narcotics division arrested Ms. Allen on charges of possession of ecstasy and possession of crystal meth. Judge Vess signed the warrant on those charges that night at the sheriff's department after discussing the case with Mr. Cowan. He then went to the jail to verify that Ms. Allen was the same person he'd put on probation in January, and briefly spoke to her. Ms. Allen testified that the judge asked her if she had a drug problem, and that she told him she did. Judge Vess set temporary bond at $2,500.00 per count, and Judge Barber arraigned her the next day, setting bail at $5,000.00. Ms. Allen made bail on the drug charges in the county, but she was held over in the city jail for probation revocation.

conclusion of these proceedings, Ms. Allen's mother, Carolyn Kirksey, spoke with Judge Vess, who reassured her that Ms. Allen had fully cooperated and paid her fine, and that everything was taken care of.

On either June 12 or June 13, Ms. Kirksey called Judge Vess, because she had heard that Ms. Allen was going to post bail. Ms. Kirksey feared that Ms. Allen's boyfriend was going to pick her up from jail, and she wanted Judge Vess to stop him, because Ms. Kirksey felt that the boyfriend had a bad influence on Ms. Allen. Judge Vess went to the city jail and passed the bail bondsman and Ms. Allen's boyfriend, who told the judge that he was Ms. Allen's brother. The judge spoke with Ms. Allen and confirmed that it was her boyfriend trying to bail her out. Judge Vess then informed the shift commander that the boyfriend was posing as Ms. Allen's brother. The officer checked the boyfriend's identification and his record and discovered that he had "a pretty serious criminal history." Judge Vess and the officer approached the boyfriend, and Judge Vess told the boyfriend in front of the bail bondsman that he shouldn't be trying to bail Ms. Allen out of jail by posing as someone else. Ms. Allen was, as a result, unable to post bail. At the hearing, Judge Vess admitted that he had no authority to interfere.

On June 16, Judge Vess filed a mittimus for probation revocation against Ms. Allen and conducted a hearing on the matter. Ms. Allen had no attorney present, and the arresting officer did not testify. Judge Vess testified that he based his ruling on the warrant, the information he received from the arresting officer when he signed the warrant, and his conferences with the county attorney and Ms. Allen's parents. The judge sentenced Ms. Allen to ninety days in jail subject to weekly review.

During Ms. Allen's incarceration, her mother again called Judge Vess, because she was concerned about Ms. Allen having a kidney problem and not receiving any medical treatment in jail. Judge Vess went to the jail to check on Ms. Allen and took her a book and a candy bar. Judge Vess had started a public library for the prisoners, and Johnette Cupit, a detention officer at the Natchez Police Department, testified that it was not unusual for Judge Vess to bring a book to a prisoner. She also testified that to her knowledge this was the first time that Judge Vess had brought a specific book to a prisoner, but that he had previously brought prisoners cigars or cigarettes. It was not unusual for the judge to check on a detainee's medical status after receiving a phone call from a family member. Ms. Cupit did not think that Judge Vess gave Ms. Allen any special treatment.

During Ms. Allen's time in jail, her mother met with Mr. Cowan, the deputy sheriff who arrested her. Ms. Kirksey testified that Judge Vess did not arrange the meeting, but Mr. Cowan maintained that Judge Vess called him to set up a meeting between Mr. Cowan and Ms. Kirksey and her husband. Mr. Cowan also testified that Judge Vess spoke with him about the possibility of Ms. Allen working for the sheriff's department to get the drug charges reduced.

On July 11, Judge Vess ordered Ms. Allen's release from jail after a weekly review of the probation revocation. Ms. Allen's preliminary hearing on the drug charges was postponed while she was in drug rehabilitation. The preliminary hearing was held on September 7. Barret Martin, the county prosecutor, testified that he and Ms. Allen's attorney, David Hall, discussed the case and agreed that it would be best to retire the case to the file. Deputy Sheriff Cowan testified At the Commission hearing, Judge Vess admitted that in hindsight he should have recused himself from Ms. Allen's case after he signed the warrant. Initially Judge Vess thought that his conduct did not constitute ex parte communications, because he believed that it was not improper to talk with parties in a case so long as they did not discuss the facts or the "meat of the case." However, during the hearing, the judge testified that he now realized that his contacts with Ms. Allen were improper but that he had no malicious intent or intent to discredit his office. The judge also admitted that such communications at least gave an appearance of impropriety, and he stated at the end of his testimony that he now understood that ex parte communications are not limited to discussing the facts of a case. Mitigating evidence was presented on behalf of Judge Vess showing that he was enthusiastic and innovative in his work and had initiated new programs and improvements with the justice court.

                that Mr. Martin approached him about retiring the case to the file.  He stated that Mr. Martin told him that Judge Vess wanted the case to be retired and that they should "help Judge Vess out on this."   Judge Vess testified that he assumed Mr. Martin and Mr. Hall had made a prior agreement, because Mr. Martin approached the judge about retiring the case.  Mr. Martin maintained that the only contact that he and Judge Vess had regarding Ms. Allen's case was in the presence of defense counsel.  Mr. Martin made the motion at the preliminary hearing that Ms. Allen's case be retired to the file, and Judge Vess granted it with the understanding that Ms. Allen would continue rehabilitation and update Judge Vess on her progress.  Judge Vess received one letter from Ms. Allen in which she thanked him and let him know that she was doing fine, but the judge did not contact her again
                

STATEMENT OF THE LAW

Standard of Review

This Court conducts de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Judicial Performance Commission....Although this Court considers the recommendations of the Commission, we are in no way bound by them and may also impose additional sanctions.

Mississippi Comm'n on Judicial...