Jonathan P. Baird

This piece appeared in the Concord Monitor on November 8, 2014 under the title “Why are athletes held to a higher standard than judges?”

Ever since the Ray Rice domestic violence case exploded across the media, public attention to domestic violence has probably reached an all-time high. The video of Rice’s brutal assault on his then-fiancee opened a window into a world that is almost always locked behind closed doors. Just about everyone had an opinion about how the NFL should punish Rice. The NFL ended up suspending Rice indefinitely after first blundering with a two game suspension.

Since August, there has been another high profile domestic violence case which has almost inexplicably received much less public attention. That is the case of Alabama Federal Court Judge Mark Fuller. Fuller has been on the bench since 2002 when he was appointed by President George W. Bush. Previously, Fuller was best known for presiding over the highly controversial bribery trial of former Alabama Governor Don Siegelman.

While there is no video of the alleged domestic violence, there is a recorded 911 call from Judge Fuller’s wife, Kelli Fuller. The call came from a Ritz Carlton hotel room in Atlanta on the evening of August 9. Mrs. Fuller reported that the judge had assaulted her during an argument about her suspicions that the judge had been having an extramarital affair with a law clerk.

In a police report, Mrs. Fuller stated that after she confronted him, the judge pulled her hair, threw her to the ground and kicked her. She also stated that she was dragged across the hotel room. She reported that the judge hit her in the mouth several times with his hands. Mrs. Fuller further reported the judge had been drinking that night.

The officers on the scene reported Mrs. Fuller had “visible cuts on her mouth and forehead when she answered the door in tears”. The officers observed bruises on Mrs. Fuller’s legs. Judge Fuller had no visible injuries.

In his interview with the police, Judge Fuller said he acted defensively after his wife hurled a drink glass toward him while he watched CNN.

Judge Fuller’s 17 year old stepson who was also at the hotel told the police that this episode was similar to past confrontations between Mrs. Fuller and the judge.

After his arrest for misdemeanor battery, the police released Judge Fuller from jail and he posted $5000 bail. He then subsequently accepted a plea deal in which he agreed to go to 24 weeks of counselling. After the completion of once-weekly abuse counselling and a drug/alcohol evaluation, his arrest record will be expunged. There will be no trial to establish facts. As Margaret Talbot pointed out in an excellent article in the New Yorker, nationally fewer than 10% of domestic abuse charges lead to pretrial diversion programs like Fuller’s. The judge is effectively getting a slap on the wrist.

Meanwhile, the 11th Circuit Court of Appeals, a federal appellate court overseeing the federal court in Alabama, suspended Judge Fuller from hearing cases, pending an investigation. For now, all Fuller’s cases have been reassigned to other judges and he will not be assigned new cases. He does continue to receive his salary.

So far Judge Fuller has refused calls that he resign. He has made it clear he intends to resume his judicial duties soon. He has requested privacy so his family can heal.

Congresswoman Terri Sewell of Alabama’s 7th Congressional District has publicly called for Judge Fuller’s resignation as has the entire Alabama Congressional Delegation including both Republican Senators, Richard Shelby and Jeff Sessions. If Judge Fuller does not resign, Congresswoman Sewell has announced an intention to initiate impeachment proceedings.

In a recent interview, Judge Fuller and his attorney, Barry Ragsdale, both dismissed calls to resign as response to “public pressure and public passions that a federal judge doesn’t have to respond to.” Judge Fuller’s attorney took it a step farther:

“It got caught up in the Ray Rice and NFL scandals and it’s gotten lumped into a category of domestic violence that I don’t think it belongs in”.

I do not think it is going out on much of a limb to say that if a federal judge commits domestic violence, Congress should impeach him if he does not resign. While impeachment for off-the-bench misconduct by a federal judge may be rare, I do not see the circumstances as a close to the line situation. Judge Fuller is way over the line. Wife-beating is one of those off-the-bench acts of misconduct that makes the impeachment-worthy list.

At present we have Ray Rice going down and losing his job but Judge Fuller gets a sweet deal and skates. At least that is where things stand now. I have been surprised how muted reaction has been to Judge Fuller’s case. To date, the federal judiciary’s response to Judge Fuller has been weaker than the NFL’s response to Rice. I would think the court would be worried about double standards and such a tiny punishment for a serious crime.

The Code of Conduct for United States Judges could not be clearer: “A judge should avoid impropriety and the appearance of impropriety in all activities”. The prohibition applies to both professional and personal conduct.

Commentary on the judicial canon goes on to state: “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges…A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”

As should be obvious, it tarnishes the federal judiciary to keep a wife-beater on the bench. I also think it is an insult to victims of domestic violence as Judge Fuller’s continued presence on the bench trivializes the crime. The judge should not be able to hide behind a veil of privacy.

The feminist movement over the last 50 years has shown how the concept of family privacy shielded wife abuse. It is now recognized that wife-beating does not fall into a zone of privacy. It is a crime against the community – not just the victim. As law professor Reva Siegel has pointed out, there is a long history of men who assault their wives being granted immunity from prosecution supposedly in order to protect the privacy of the family and domestic harmony.

So what happens when a federal judge beats his wife? Apparently not a lot. It needs to be studied. Judge Fuller must be hoping he can simply ride out what storm there is. Are we really going to let a professional football player be held to a higher standard than a federal judge? It remains to be seen what price Judge Fuller will pay.