Ousted Judge Reflects On His Bench Time

Months after he joined a select group of Virginia judges, James Michael Shull doesn’t see himself as one of the gang.
There is the judge who horse-whipped a preacher who insulted him. That was in 1903.
There is the judge who skipped court because he refused to leave a brothel. That was in 1908.
Shull’s most recent contemporary was found in 1977 to be misappropriating firearms and drinking confiscated beer in his chambers.
And now there’s Shull.
These men have the dubious distinction of being the only judges removed from the bench in Virginia history – a kind of judicial hall of shame.
Shull, 60, was appointed juvenile and domestic relations court judge for Scott County in 2003, filling the seat vacated by D. Gregory Baker, who resigned after allegations surfaced that he had failed to divulge a conviction for soliciting a prostitute.
The Virginia Supreme Court ejected Shull from the bench in December. The rap against him, splashed onto the front pages of newspapers and blasted around the Internet, vaulted Shull into national notoriety:
The coin-flipping arbiter of justice. The “drop-your-pants-ma’am-so-I-can-inspect-your-wound” judge.
Shull is that judge – the Southwest Virginia maverick who decided a child visitation case in crudely Solomonic fashion, flipping a coin to drive home the pettiness of the parents’ dispute.
He’s the judge who twice directed a woman with a history of mental illness to lower her pants in court to display a wound on her thigh – and determined that the wound was self-inflicted.
Shull is the judge who, in the Supreme Court’s words, “denigrated the litigants whose case he decided, and subjected our justice system to ridicule.”
But Shull doesn’t recognize this judge – not in the court’s opinion, the media coverage and not in the mirror. Because he’s been caricatured. Made an example of. Denied a fair shake. Processed. Screwed, when he puts it bluntly.
He is also wounded. Incredulous. Indignant. Contrite. And a litany of other emotions that cycle through him, as if on a loop, whenever he revisits the circumstances of his removal, which is often.
Shull repudiates the Supreme Court’s repudiation of him – at least its written justification – and suspects his prosecution was motivated by a cocktail of biases: partisan, gender and geographical.
Shull was a Republican judge, from a region with “little political pull,” who ruled in favor of a male litigant in a protective order case.
There are mitigating and enhancing factors in Shull’s case, but his story seems largely one of a judge whose dogged focus on fact-finding veered into tunnel vision, notwithstanding the set of rules that inform and bind judges to a standard of conduct.
The case against him, boiled down, is about his courtroom demeanor in general, and the way he viewed evidence in one case in particular.
As with any case where a judge is removed, it raises questions about the parameters of judicial independence, including a judge’s due process rights. Some of those questions so far have gone unanswered.

A different kind of judge

From the beginning, “the accusations were easily sensationalized,” Shull said in one of several interviews over the last two months. “The defense was in the details.”
Shull was speaking from his new law office in Gate City, Va., which he opened in February to return to private practice. It sits across the street from the Scott County Courthouse, where he has practiced for decades, and where he sat as a judge for four years.
The accusations “in no way remotely resembled what happened in the courtroom,” he said, working through his myriad post-trial objections.
“Or were a fair description of my demeanor.”
The office is a dark-paneled affair with neon green shag carpet and a fake plant in the corner. As he delved into the details of his case, the office trappings chimed in, offering tidbits of personal history and glimpses into Shull’s mindset.
There is the collection of miniature elephants – a wax candle elephant; a spearmint-green elephant, stuffed and stitched; a white glass elephant with golden tusks – and a half dozen other elephantine symbols of his staunch partisan affiliation.
“I was one of the most recognizable Republican judges,” he said.
There is the photo on the wall showing a young Shull on the trivia team at The Citadel, the South Carolina military school.
“This has been the saddest time in my life ... the hardest thing for me, even worse than my freshman year at The Citadel ...”
There is a carved wooden gavel on the desk.
And affixed to the door frame of his workspace is a voodoo doll, with black skull, grinning white teeth and a jet of twiggy hair. Below the doll, a paper caption reads: “Use only in case of emergency.”
Shull has used it, too, in a court case some 20 years ago, when he was an attorney arguing a vehicle accident case. By his own recollection, he pulled out the doll in court and began poking it with a pin in an effort to rattle the opposing attorney whom he knew to be superstitious.
That attorney, Jerry Dishner, is now in his late 80s and could not confirm the incident when contacted. William Fugate, the now-retired circuit court judge Shull said presided over the case, remembered Shull but not the doll, and noted that he has suffered three strokes.
As a trial tactic, “it worked,” Shull said. “It threw [Dishner] off.”
As a story, it offers a revealing insight into Shull, suggestive of both an unorthodox legal mind and a tendency to speak first and offer a delayed disclaimer:  “That’s there as a joke,” he said of the doll in a message he left on a reporter’s answering machine, hours after an interview. “It in no way expresses any hexes or beliefs. I’m a good Episcopalian.”
“Mickey,” as he is universally called, is at least a good enough parishioner for his priest, while battling cancer, to make the trip to Richmond to speak as a character witness during Shull’s formal disciplinary hearing.
Some 30 attorneys, court personnel and a state delegate wrote letters in support of Shull, testifying to his good reputation in the community and on the bench. Some, in letters and interviews, point out his unorthodox streak and active participation in hearings, but maintain that he basically made good decisions.
“He doesn’t fit the mold of a lot of judges,” said Ronnie Montgomery, a longtime attorney in Lee County who has known Shull since he started practicing as an attorney.
“He’s just a little different. He’s colorful.”
A Scott County attorney who practiced before Shull said he never fully grew into the role of judge.
“Mickey, when he was on the bench, acted like he wanted to be everybody. He wanted to be the prosecutor and the defense attorney, and that’s not the role of the judge,” said the attorney, who didn’t want to be named criticizing another local lawyer.
Shull’s downfall as a judge appears to have come from a toxic combination of two of his hallmark qualities as a jurist: his outside-the-box approach and laser beam focus on getting down to the facts. As he later put it in a self-assessment, “I was just focusing on everything to the point where probably I lost sensitivity to the overall situation.”
Flipping the coin, Shull said, “was probably the worst thing I did.”

Basis for suspension

The child visitation case came before him in November 2006, with the parents unable to agree how to divvy up custody of their children over Christmas break.
“Both parties were fine people,” Shull told the Judicial Inquiry and Review Commission, the arm of the Supreme Court that investigates judicial misconduct, when he was brought before it in April 2007 for a disciplinary hearing. Neither parent, nor their attorneys, objected to Shull tossing the coin to decide the visitation rights.
“It was, I guess, my way of showing to them that I intended to make a random decision that was totally impartial,” Shull said. “But I couldn’t have picked a worse way to do that.”
The Supreme Court agreed. Tossing a coin to decide a case “suggests that courts do not decide cases on their merits but instead subject litigants to games of chance in serious matters without regard to the evidence or applicable law,” wrote Justice Barbara Milano Keenan, who penned the opinion.
But the basis for his suspension from the bench came from a different case a month later, on Dec. 15, 2006, when Tammy Giza appeared before him seeking to extend a protective order against her husband. She had accused Keith Giza of stabbing her in the thigh and was seeking custody of the estranged couple’s 3- and 5-year-old children, who were staying with her husband’s mother.
When the case came before him, Shull himself was in a period of emotional turbulence, having been diagnosed with prostate cancer the previous week and still suffering the effects of a biopsy.
Keith Giza, through his attorney Daniel Fast, denied the alleged assault and questioned his wife’s credibility by pointing out her previous felony conviction for stealing. He also introduced evidence of a similar case in the past – in which she had accused him of assault, then admitted that her wound was self-inflicted.
Tammy Giza did not have an attorney and had requested a continuance, but Shull denied it. He saw the matter as urgent, and as he told the JIRC, felt he was “faced with a prospect of sending the children either to a cutter or a stabber.”
Even though Giza had documented problems with mental illness, Shull found her competent. “She and Mr. Fast kind of hold their own with each other,” he told the JIRC.
The case, Shull believed, hinged on the nature of Giza’s wound.
Giza was willing to show the wound, she and others testified, though she told the JIRC she believed she had no choice.
After initially halting her, Shull directed the bailiff to draw the privacy curtains shut, and for Giza to display the wound.
Shull and Fast inspected the wound twice, describing it as four parallel cuts. Shull concluded these were self-inflicted – something “an intelligent layman” was capable of, he said in an interview.
While he stands by his decision to view the wound in court, he acknowledged that he should have done it differently.
“I should have found some cover for that lady,” he said. “I did wrong, because I did not provide her modesty, and, obviously, I’ve thought about this a lot, and I don’t know why I missed it, but I did.”
Giza was wearing a thong, and lowering her pants left her buttocks exposed to those who were behind her, several witnesses testified.
Shull maintains he never saw Giza exposed, much less what kind of underwear she had on.
But Shull’s account was disputed at his judicial trial by Ed Gardner, the bailiff, who said he had asked the judge after the hearing if he’d seen what Giza was wearing, and that Shull had responded, “Yeah, a black lacy thong ... it looked good, didn’t it?”

Questions of demeanor and due process

Though the Supreme Court did not rule specifically on the disputed salacious remark, it is significant as the sole evidence suggesting a prurient motive on Shull’s part, and in the context of Shull’s several wince-inducing admissions that the court did cite.
Shull had been summoned by the JIRC before, just a year into his judicial term, to respond to concerns about his demeanor. In that 2004 informal hearing, which the Supreme Court revisited in its opinion, Shull acknowledged that he advised a woman – whose boyfriend had allegedly beaten her – that “if you married this guy, it would remove an impediment” to her receiving custody of their children.
In a different case involving truancy, Shull admitted he told a boy who’d been having problems at school that “if I were 16, I would be tempted to pick on [the boy],” he said, noting the boy dressed in a Goth style and wore earrings. “The evidence does show that you are a bit of a mama’s boy,” Shull said, according to a transcript of the 2004 hearing.
The JIRC did not discipline Shull at the time, but the Supreme Court referred to it in concluding that Shull “has continued to demean litigants appearing before him.”
Shull and his attorneys vigorously disputed such a characterization out of thousands of cases he presided over during his judicial tenure.
They also noted that Gardner, the bailiff, did not come forward with his statement until after the hearing that upheld Shull’s suspension. It was evidence that should have been discoverable, his attorneys argued, and whose absence subtracted from Shull’s ability to put on a defense, violating his due process rights.
With the facts mostly agreed upon, Shull’s argument to keep his seat on the bench was a procedural one; he contended that the JIRC had denied him his constitutional rights, beginning with his suspension.
The Code of Virginia gives the JIRC authority to suspend a sitting judge when it finds probable cause that a judge constitutes a “substantial and immediate threat to the public interest.” Following such a suspension, the JIRC is required to hold a hearing to determine “whether justice would be served for the suspension to continue” until the commission completes its investigation.
Steven Otero and Russell Palmore, Shull’s attorneys, argued that this language placed the burden of proof on the JIRC to continue a suspension. But the commission stood fast on its determination of probable cause, requiring Shull to present evidence “that causes us to change our mind,” according to a hearing transcript.
The JIRC also denied Shull’s request to cross-examine its witnesses at the suspension hearing, a fact that his attorneys argued hindered his ability to put on a defense. Otero argued in a brief that the JIRC’s rules require it to present its full case against a judge, and that by refusing to call its witnesses during the suspension hearing, the JIRC had broken its rules, which would nullify its finding.
The Supreme Court, however, disregarded the due process argument, declining to review the JIRC’s interpretation of its authority and claiming it had no legal authority to do so.
Otero and Palmore have defended two other judges against the JIRC and argued that the Supreme Court has the authority to review the JIRC’s rules.
“If this Court does not exercise that authority,” Otero wrote in a petition for a new hearing, “there will be no constitutional check on the JIRC, and nothing to prevent [the JIRC] ... from establishing rules that eliminate any and all of the hallmarks of due process in our legal system.”
The Supreme Court denied the petition.

No appeal forthcoming

No judicial independence watchdog group has rushed to Shull’s defense, and it is hard to find a scholar familiar with the case who believes the judge’s constitutional rights were violated. Shull says he will not appeal, saying the cost is too high and the likelihood of a reversal too dim.
“It doesn’t strike me as offensive to due process,” said John Paul Jones, a professor at the University of Richmond Law School.
The key question, Jones said, is “how early in the process must an accused have the opportunity to cross-examine witnesses?”
Even if a judge does not have that opportunity at the suspension hearing, he noted, “no serious sanction can occur” until after the trial.
It is not unusual, he added, for an agency like the JIRC to have some leeway in interpreting “the rules that it has been created to enforce.”
Delegate Terry G. Kilgore, a Gate City Republican and practicing attorney, wrote a letter of support on Shull’s behalf and said in an interview that the abruptness of Shull’s suspension “gave him pause.”
“It is a concern and something we can look at,” said Kilgore, who serves on the Courts of Justice Committee that handles legislation regarding the JIRC. He said he did not have or know of any specific plans to study the JIRC’s procedural authority.
Shull, who says his law practice is gathering momentum, is less angry than he was two months ago. Returning to practice law has been therapeutic, he said.
Last Wednesday, following a custody case he argued in the courtroom where he once presided, he brought up a silver lining to his removal proceedings. The experience has given him a new understanding of his clients.
“I really now have an empathy and a sympathy with clients about what courts can do to people. That perspective has aided me,” he said.
Not that he doesn’t sometimes experience a twinge when he looks up at the bench in the juvenile and domestic relations courtroom. Not that a day goes by, he said, “that I don’t think about the [Wise County] courtroom on Dec. 15, and wonder, ‘why did this happen?’
“I don’t know. I frankly don’t fully know what happened to me.”

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