Should Judge Fuller resign?

In addition to Judge Kopf's posts on the subject, there is growing noise that Fuller needs to step down -- this time from members of the Congress.  From the Montgomery Advertiser:

Alabama's two U.S. senators on Wednesday called for U.S. District Judge Mark Fuller to step down from the bench, joining a growing chorus of federal lawmakers seeking the judge's resignation after his arrest on domestic violence charges last month.
Fuller, 55, was arrested early on the morning of Aug. 10 and charged with misdemeanor battery. According to a police report, Fuller's wife, who had lacerations to her mouth and forehead, said the judge threw her to the ground, pulled her hair and kicked her after she confronted him over alleged affair with a law clerk.
The judge, who was appointed to the U.S. Middle District for Alabama in 2002, agreed to enter a pre-trial diversion program earlier this month. The 11th Circuit Court of Appeals has reassigned his caseload and has launched an investigation of Fuller's actions.
"The American people's trust in our judicial system depends on the character and integrity of those who have the distinction and honor of sitting on the bench and I believe Judge Mark Fuller has lost the confidence of his colleagues and the people of the state of Alabama and I urge him to resign immediately," Sen. Richard Shelby, a Republican, said in a phone interview.
U.S. Rep. Terri Sewell, D-Birmingham, called for Fuller's resignation last week, saying he had "violated the public trust." Earlier on Wednesday, Sen. Claire McCaskill, D-Mo., said on her Twitter account that Fuller should resign. U.S. Rep. Martha Roby, R-Montgomery, issued a statement Tuesday saying that "domestic abuse cannot be tolerated, explained away or swept under the rug," and raised the possibility of Fuller's impeachment.
Shelby said he called Fuller to alert him that he was going to publicly call for his resignation. A message left with Barry Ragsdale, an attorney for Fuller, was not immediately returned Wednesday afternoon.

You be the judge.

1.  How much time should a mailman get for throwing away 700 letters because he couldn't get them all delivered?  Paula McMahon of the Sun-Sentinel covers the story of  South Florida mailman Jimmy Lee Peters Jr.  Judge Cohn rightfully sentenced him to probation:

At his sentencing Friday in federal court in Fort Lauderdale, Peters' lawyer said his client stole nothing and simply became "overwhelmed" by the volume of mail that he was expected to deliver during his seven months as a mail carrier."He basically says that it was a very large district that he had to serve and he was just overwhelmed," defense attorney Ruben Garcia told U.S. District Judge James Cohn. "Instead of just taking it back and admitting that he just wasn't up to it, he took it home."Peters didn't open even one envelope and none of the intended recipients reported any losses, officials said.U.S. Postal Service employees reported that they found "several garbage bags full of U.S. mail" at Peters' Miami residence. Other workers later delivered the delayed mail, which was addressed to ZIP codes 33060, 33064, 33013 and 33014, court records show.Garcia told the judge that Peters – whose prior criminal record consisted of two misdemeanor convictions for possession of marijuana and two arrests for driving with a suspended license – had already been punished significantly by being fired from a good job."I've realized how wrong I was for delaying the mail," Peters told the judge. "I am extremely ashamed and remorseful." 

Peters was sentenced to two years of probation and ordered to undergo substance abuse treatment. The judge said he felt that, considering everything, it was a reasonable punishment.

2.   Next up is a wine counterfeiter.  How much time should Rudy Kurniawan receive for selling *a lot* of counterfeit wine to rich wine collectors?  According to Judge Richard Berman in the SDNY, TEN YEARS! Here's the CBS NY story about the (way too long?) sentence:

He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace.“Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor.“Fraud is fraud,” he said.Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine.He also borrowed money against his collection of fake wines and owes a New York bank several million dollars.Wine consultant Maureen Downey spent hours documenting the deception to help her sniff out future fakes, CBS 2’s Tony Aiello reported in December 2013.“Some of the stuff up there, even the producers say they would not be able to spot it,” Downey said.For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.”

I'm not sure the jury who asked for a "big bottle of wine" discussed in the post below would have cared.

3.  How much should a federal judge get if he is convicted of battery on his wife?  According to the AP, federal judge Mark Fuller from the Middle District of Alabama was arrested Saturday night in Atlanta at the Ritz-Carlton:

U.S. District Court Judge Mark Fuller was charged with misdemeanor battery and taken to the Fulton County jail around 2:30 Sunday morning.Fuller, 55, is a judge in the Middle District of Alabama and presided over the 2006 bribery trial of former Alabama Gov. Don Siegelman and HealthSouth CEO Richard Scrushy. According to a jail official, the judge has a 9 a.m. Monday court appearance and was expected to remain in jail overnight.Police responded to the Ritz-Carlton Hotel at 181 Peachtree Street at 10:47 p.m. According to Atlanta police spokeswoman Kim Jones, officers spoke to Fuller’s wife, “who stated she was assaulted by her husband.” Fuller’s wife, who was not named by police, was treated by paramedics but refused treatment at a hospital.Fuller was nominated to the bench in 2002 by President George W. Bush and has been a controversial figure in Alabama politics, largely for his role in the Siegelman trial. Siegelman’s family members and supporters claim the former governor’s prosecution was politically motivated and that Fuller should have recused himself for conflicts of interest.

You know you've made it when Jon Stewart makes fun of you

Forward to the 4:45 mark to see Mark Eiglarsh.

In other news, we may be getting close to impeachment proceedings for Judge Fuller:

The House committee responsible for judicial impeachments has asked for a budget increase in case it needs to initiate proceedings against U.S. District Judge Mark Fuller of Alabama, who has been charged with battery.

Rep. Bob Goodlatte, R-Virginia, chairman of the House Judiciary Committee, said this week that the committee may need the extra money to establish an impeachment task force, hire lawyers and conduct an investigation.

Although impeaching Fuller is only a possibility — his colleagues on the federal bench could decide not to recommend that option, or Fuller could resign — the budget request signals Congress is taking steps to prepare for what historically has been a rare but lengthy process.

“We are closely monitoring the recent arrest and ongoing prosecution” of Fuller, Goodlatte told the House Administration Committee on Wednesday.

Joining Goodlatte in presenting the budget request was the panel’s top Democrat, Rep. John Conyers of Michigan.

Fuller, a federal judge in Montgomery since 2002, was charged with misdemeanor battery after an August incident involving his then-wife in an Atlanta hotel room. If he successfully completes a pretrial diversion program of domestic violence counseling and drug and alcohol screenings, his criminal record will be wiped clean.

A five-member panel of federal judges is investigating to decide whether further disciplinary action is needed. If Fuller’s colleagues recommend he be impeached, the process would start at the House Judiciary Committee.

11th Circuit report says Judge Fuller's actions...

..."might constitute one of more grounds for impeachment."  Aly Palmer at the Daily Report has more:

When U.S. District Judge Mark Fuller of Alabama tendered his resignation on Friday, his fellow judges apparently were preparing to send his case to a national judicial body for consideration of possible impeachment by Congress.
On Monday the Judicial Council of the U.S. Court of Appeals for the Eleventh Circuit issued an order saying the conduct of Fuller, who was arrested on domestic abuse allegations in Atlanta last summer, "might constitute one or more grounds for impeachment." The order referred the matter to the Judicial Conference of the United States, which has the ability to send a judicial discipline matter to the House of Representatives for impeachment.
Friday's letter from Fuller to President Barack Obama, saying the judge would resign effective Aug. 1, would appear to moot the question of impeachment as a practical matter. But Monday's order signifies that judicial leaders within the Eleventh Circuit were willing to hand down the most significant disciplinary consequence within their arsenal.
The Judicial Council consists of all of the Eleventh Circuit's active members, minus its most junior member and Chief Judge Ed Carnes, who hasn't been participating in the Fuller matter, as well as the nine chief judges of the district courts within the Eleventh Circuit. The opinion noted that the chief judge of the Middle District of Alabama, where Fuller sits, did not participate either. Judge Gerald Tjoflat of the Eleventh Circuit acted as chief judge on the matter in Carnes' stead, and Tjoflat's signature appears on Monday's order.
An August police report said Fuller's then-wife accused him of assaulting her at the Ritz-Carlton hotel in downtown Atlanta. He later agreed to a domestic violence intervention program and alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. Fuller's Atlanta criminal defense lawyer has said that Fuller made no admission of guilt and that, upon completion of the program, the case against him would be dismissed and his arrest record expunged.

Why would the 11th tip Fuller off so he could resign on Friday?

Here's the one page order:

"I reached this difficult decision after consulting with my family, and deciding that it was in everyone's best interests to put this incident behind us."

That was District Judge Mark Fuller after taking pretrial diversion on his domestic battery case.  The question now is what will happen to the 11th Circuit's order reassigning all of his cases. 

More from the Atlanta Journal & Constitution on the plea:

“I reached this difficult decision after consulting with my family, and deciding that it was in everyone’s best interests to put this incident behind us,” Fuller said in a statement released by one of his attorneys. “While I regret that my decision means that the full and complete facts regarding this incident will likely not come out, I have no doubt that it is what is best for all involved.”
Fulton County Chief Magistrate Stephanie Davis set an Oct. 14 court date for Fuller to provide proof he had received alcohol and drug treatment and enrolled in a 24-week program for those accused of domestic violence. It is then that the charge from an Aug. 9 incident at The Ritz-Carlton will be dropped. He also cannot have any “violent contact” with his wife, Davis said during the Friday court hearing.
“This incident has been very embarrassing to me, my family, friends and the court,” said Fuller, 55, who has presided in the federal court in the Northern District of Alabama since President George W. Bush appointed him in 2002. “I deeply regret this incident and look forward to working to resolve these difficulties with my family, where they should be resolved.”
Last month, Fuller’s wife called 911 to report he was beating her, police said. Moments later, an Atlanta police officer knocked on the Fullers’ hotel room door.
According to a police report, the judge’s wife had lacerations to her mouth and forehead and she said her husband had thrown her to the ground, pulled her hair and kicked her after she confronted him over an alleged affair her husband was having with a law clerk. Fuller’s wife told police that he dragged her around the room “and hit her several times in the mouth with his hands.”
Fuller told police his wife threw a glass at him and that he was defending himself. “When asked about the lacerations to her mouth, Mr. Fuller stated that he just threw her to the ground and that was it,” the report stated.
Fuller had no visible injuries, according to the report.
According to a transcript of the 911 phone call, Fuller’s wife pleaded for help.
“He’s beating on me,” she told a dispatcher before requesting an ambulance. “Please help me.”

What will happen to Judge Fuller?

We may find out this week.  From the LA Times:

Federal District Judge Mark E. Fuller was controversial even before he was arrested on allegations of beating his wife last year.
The Alabama judge was criticized for sitting on cases brought by the government even as his aviation company was getting hundreds of thousands of dollars in taxpayer-funded business. Appointed by a Republican, he was denounced for putting a former Democratic governor in manacles after a corruption conviction.
He was the talk of the courthouse for having an extramarital affair with his courtroom assistant, and for his messy public divorce.
Fuller, 56, is now battling bipartisan calls to resign over a fight he had seven months ago with the same former courtroom assistant, whom he'd married. The argument started after she accused Fuller of cheating on her with his law clerk.
Adding to Fuller's problems was that a few weeks after he was arrested, video was released of NFL star running back Ray Rice knocking his fiancee unconscious, putting a national spotlight on spousal abuse. The Baltimore Ravens dropped Rice.
"If an NFL player can lose his job because of domestic violence, then a federal judge should definitely not be allowed to keep his lifetime appointment to the federal bench," said Rep. Terri A. Sewell (D-Ala.).
Sewell and both of Alabama's Republican senators, along with other members of the state's congressional delegation, have called on Fuller to step down.
Fuller's judicial career now rests largely with a five-judge review panel that has investigated his behavior and is expected to release its findings this month. A House of Representatives committee is gearing up for possible impeachment hearings against Fuller, who was appointed to the federal bench by President Bush in 2002.
Retired Alabama federal Judge U.W. Clemon, who as chief judge of the U.S. District Court in Birmingham dealt with similar ethical issues, said that Fuller's constitutional appointment may not be enough to save his job.
When a judge's behavior results in him "being thrown in jail like a common criminal, that's not within the conduct that is condoned by the Constitution," Clemon said.
Kelli Fuller, the former court assistant who was divorced from Fuller after the incident, has not spoken in public about what happened at the Ritz-Carlton hotel in Atlanta last August. But her version is amply represented in police files.
"He's beating on me! Please help me," Kelli Fuller pleaded to a police dispatcher, who called for an ambulance and could be heard telling a co-worker, "I can hear him hitting her now."

If an NFL player can lose his job because of domestic violence, then a federal judge should definitely not be allowed to keep his lifetime appointment to the federal bench. - Rep. Terri A. Sewell (D-Ala.)

The policeman who entered the hotel room found her with "visible lacerations to her mouth and forehead" and said the room smelled of alcohol.
"Mrs. Fuller stated when she confronted him about their issues, he pulled her hair and threw her to the ground and kicked her," the police report said. "Mrs. Fuller also stated she was dragged around the room and Mr. Fuller hit her in the mouth several times with his hands."
Judge Fuller was taken to jail, where he spent the night on a charge of misdemeanor battery. But he avoided a criminal record by agreeing to a pretrial diversion program, including a drug and alcohol evaluation and 24 sessions of domestic violence counseling.
Nebraska federal court Judge Richard Kopf, who writes a blog about judicial issues, called it "a sweet deal."

Hope everyone enjoyed Pi day this weekend.  Get ready for March Madness this week.  (And yes, the Canes were robbed.)

What's going on with the 11th Circuit's Fuller investigation?

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) sent a letter to Chief Judge Ed Carnes and Judge Tjoflat regarding Judge Mark Fuller in Atlanta, Georgia.  Here's the text of the letter:

Dear Chief Judge Carnes and Judge Tjoflat:
We write regarding the arrest and ongoing prosecution of Middle District of Alabama Judge Mark E. Fuller in Atlanta, Georgia, which is pending before the State Court of Fulton County, Georgia. The allegations against Judge Fuller raise serious, substantial and troubling questions that have been the focus of constant attention and close monitoring by the Committee on the Judiciary since August 2014 when reports first appeared of his arrest for a violation of state criminal law.
In writing, we note the following undisputed facts:
·         Judge Fuller has reportedly entered into a pretrial diversion program that requires him to, inter alia, successfully complete domestic violence counseling;
·         James P. Gerstenlauer, the Circuit Executive of the Eleventh Judicial Circuit, published an announcement on August 12, 2014 that stated “all legal matters” then assigned to Judge Fuller, would be reassigned to other judges;
·         The Acting Chief Judge of the Eleventh Circuit subsequently appointed a Special Committee to investigate Judge Fuller’s actions in connection with the filing of state misdemeanor battery charges in August 2014;
·         The Special Committee’s statutory authority and obligations derive from section 353 of title 28, United States Code, which includes a requirement that the Special Committee, “expeditiously file a comprehensive written report … with the judicial council of the circuit” after completion of “an investigation as extensive as it considers necessary;” and
·         Judge Gerald Tjoflat has reportedly been appointed Acting Chief Judge for purposes of coordinating the Special Committee’s investigation and providing recommendations to the judicial council of the circuit in this matter.
Article I, Section 2 of the Constitution provides the House of Representatives with the “sole Power of Impeachment.” That power is initiated by and overseen by the Committee on the Judiciary. The public has a strong and abiding interest in the proper resolution of credible allegations of misconduct involving a federal judge as expeditiously as possible and in accordance with principles of due process. In furtherance of these interests, the Congress has prescribed statutory procedures that anticipate the initial investigation by the judiciary of credible allegations of serious judicial misconduct. These statutes supplement but do not supplant congressional autonomy and authority.
In recognition of the explicit statutory requirement that a Special Committee, once appointed, “expeditiously file a comprehensive written report” after the completion of its “investigation,” we write to request that you provide us with an update on the status of the ongoing investigation and the anticipated timeline for completion of the required comprehensive written report to the circuit’s judicial council.

Judge Mark Fuller Strikes Back...

...and claims that his drunk wife was faking it on the 911 call.  The "Brad Blog" has all of the details:

The Birmingham attorney for U.S. District Court Judge Mark Fuller says that, despite 911 audio which seems to suggest otherwise, his client "never hit, punched, slapped or kicked" his wife Kelli in an Atlanta hotel room last year. The federal judge was simply defending himself from the "hysterical" rage of his wife who, the attorney now tells The BRAD BLOG, blatantly lied to police about the entire incident before his client was subsequently arrested on charges of domestic battery.
Moreover, Barry Ragsdale tells us, Kelli Fuller was "drunk" when she called 911. He says "slap" sounds heard clearly on the audio tape as she told the 911 dispatcher she was being beaten and needed an ambulance were either an attempt by Judge Fuller's wife to "imitate the sounds of slapping" or just "random background noises produced by someone who was intoxicated and hysterical."

11th Circuit says Judge Fuller beat his wife and lied about it

Here's the letter to Congress. The AP covered the story:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge— had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.

In a letter to the House Judiciary Committee, the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary.

"This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner.

Who is Andrew Brasher?

So who is Andrew Brasher, the new 11th Circuit nominee. The Vetting Room has the details here.  Below is the introduction and conclusion, but there is quite a bit of interesting information in the entire post, which you should check out.

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.^[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.^[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.^[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

***

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.

End of Year Post

I hope everyone had a wonderful 2015.  Looking back at the over 200 posts, here are some noteworthy ones:

John Pacenti left the DBR

Jose Gonzalez, 50 years on the bench

Mary Barzee-Flores nominated

Mark Fuller

Cell-Site data

Docs v. Glocks again again and again

Khan!

Go Dore Go!

10th b-day for blog

Ed Carnes concurred with himself

Judge & Mrs. Davis remembered

RIP Judge Peter Palermo, Judge Shelby Highsmith

And the most popular post of the year was this because of the search terms in the title.

See you next year.  All the best!
--David Oscar Markus