Sex, Lies, Hostility in the Court

Rare ethics prosecution reveals hidden conflicts among state appeals judges.

January 8, 2009, 12:13 AM

Feb. 12, 2008 — -- A written opinion by a state appellate court judge in Florida that criticized one of his fellow judges has spiraled into a rare public airing of personal grievances between some of the state's top judges, accusations of sexual affairs, as well as misconduct and perjury allegations by the state judicial ethics panel.

The misconduct case, as told through the depositions of several judges on Florida's First District Court of Appeal, provides an uncommon look at the inner workings of an appellate court, whose deliberations are normally shielded from public view.

Judges in the First District have accused each other of lying, of having an affair with a court clerk and of threatening each other. Judge Michael Allen, the author of the opinion that set the case into motion, has been charged with conduct unbecoming a judge and may face charges for making false statements under oath.

Judge Charles Kahn, who was criticized in Allen's opinion, was described by his colleagues as acting, at times, "volatile," "irrational" and "schizoid." At one point, after Kahn signed up for a concealed weapons training class, the marshal in charge of court security testified that he put a lock on the door to the judges' robing room to stop Kahn from getting into a retirement party.

"He didn't seem to be as stable as I — it was scary," Donald Brannon, the marshal, said in his deposition.

Kahn did not return a phone message left at his office seeking comment. In his deposition he said he would not describe himself as volatile or tempestuous; he apparently never got a gun permit.

Allen was charged last year by the state Judicial Qualifications Commission with conduct unbecoming a judge for criticizing Kahn in a published concurring opinion. According to documents filed by the special counsel prosecuting the case, Allen's opinion was motivated by ill will and based on "innuendo and supposition." The opinion accused Kahn of corruption and amounted to nothing more than "character assassination," according to the allegations made in the documents.

Allen's case is only the second time that a judge has been charged with misconduct for a written opinion, said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society.

The misconduct allegations stem from the case of W.D. Childers, the former president of the Florida Senate. Childers was convicted of bribing a county commissioner and sentenced to 3½ years in prison.

In his opinion, Allen cited newspaper articles that reported Childers, former Gov. Lawton Chiles and lawyer Fred Levin worked together to pass a state law that made it easier to sue tobacco companies and appointed a team of private lawyers to sue them. Levin, who later represented Childers in a separate criminal case, reportedly made millions off the tobacco deal, according to the articles cited by Allen.

Before becoming a judge, Kahn worked for Levin. Kahn was appointed to the court by Chiles.

After Childers appealed his bribery conviction, Kahn wrote an opinion in June 2005 that would have reversed the conviction because Childers did not have an opportunity to adequately cross-examine a witness.

The case was heard before the full panel of the First District, which voted, 10-4, to uphold Childers' conviction.

Allen wrote that Kahn should have recused himself from Childers' case because of his connections to Levin. "More suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers," he wrote.

After Allen's opinion was published, Levin's son filed a complaint with the state judicial qualifications commission. The commission charged Allen with misconduct; he also faces a perjury inquiry for telling the commission that his opinion was not motivated by animosity toward Kahn.

The commission has the power to recommend sanctions against judges, including disbarment. The ultimate punishment, if any, is decided by the state's Supreme Court.

"His opinion was motivated by concern for the integrity of the court," Bruce Rogow, Allen's lawyer, said. The special prosecutor in the case did not return a phone call from ABC News.

In depositions taken at the end of January, several judges on the First District said that Allen and Kahn disliked, even hated, each other, though the origin of their hostility was not clear.

They described an atmosphere of escalating distrust among some of the judges. Several judges said Allen tried to get other judges to run against Kahn for chief judge. Edwin Browning, now chief judge, said Allen told him Kahn was "duplicitous," "untrustworthy" and unfit to be chief judge. During the debate over the Childers case, Allen told Browning that he would like to kick Kahn off the court, Browning said.

Allen reportedly asked court marshal Brannon to help him get Kahn's travel records, which might have revealed his alleged affair. Allen told Brannon that if he told Kahn about his request, Allen "would come after my job," Brannon said in his deposition.

According to the depositions of several judges, Kahn was having an affair with a woman in the court clerk's office. When asked about the matter by Browning, Kahn initially denied it, Browning said in his deposition. Kahn wouldn't discuss the alleged affair when asked in his deposition.

Thirteen of the 15 judges on the First District ultimately voted to report Kahn to the Judicial Qualifications Commission for the alleged affair and Kahn stepped down as chief judge. The commission dismissed that complaint.

Judge Peter Webster said it was "outrageous" for the commission to move forward against Allen but not against Kahn. Several local newspapers have also criticized the decision.

Brannon described Kahn at the time as acting "agitated" and "irrational."

"More than one person had come to me … and said they had concerns about him," he said.

Browning said that when Kahn confronted him about the release of certain documents to the judicial qualifications committee, Kahn "went schizoid."

He was "just bouncing off the walls. He was totally irrational," Browning said.

In 2005, Judge Bradford Thomas, who had only been on the court for a few days, approached Kahn to tell him his opinion to reverse Childers' conviction was wrong. When Thomas said he would vote to have the full court rehear the case, Kahn told him to "get the f— out of my office," Kahn admitted. He later apologized.

As judges circulated their draft opinions, several told Allen not to publish his concurring opinion, and at least one called it "reprehensible."

Browning, now the chief judge, said he thought Allen and Kahn were "playing chicken" with each other. "I never dreamed the public would see it," he said.

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