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Kid gloves 

Justice proceeds delicately when the accused is a judge.

JUDGE WILLARD PROCTOR: Imposes fines, puts them in his own corporation.
  • JUDGE WILLARD PROCTOR: Imposes fines, puts them in his own corporation.

Because I write about crime, I am often asked if I've ever been threatened. For years, I've answered no.

But last year, after I'd written an article about Pulaski County Circuit Judge Willard Proctor Jr., I received an anonymous call. The voice on the phone claimed personal knowledge of Proctor's court and warned me that the judge had recently assembled his probation officers. “He had them get in a circle and pray that you'd be struck dead,” the voice said matter-of-factly. “I thought you should know.”

Ordinarily, I'd shrug off such a preposterous claim from someone unwilling to give me a name. But I took this call seriously for a few reasons. First, members of Proctor's staff who were reluctant to be interviewed told me it was because they'd been threatened by the judge. Second, I knew he was under pressure; he was being investigated by the FBI. And third, his probation officers carry guns.

I reported the call to the police and to the Arkansas Judicial Discipline and Disability Commission (JDDC), the agency that oversees judges. Ironically, that was the first time I'd ever felt such a need — and it was because of a judge.

A little more than a year later, the JDDC sent a letter to Proctor, notifying him that it appeared that his conduct had gotten way out of line. He was accused of  several violations of the judicial canons, the rules that govern judges' behavior. The statement of charges ran several pages, but a couple of the lesser ones struck a personal chord.

According to the statement of charges sent to Proctor, one of his former employees, Alice Abson, told the JDDC that she had enjoyed working for the judge at first, but that “things started to go bad” when she'd warned him that he might be violating the Judicial Code of Conduct.

 Specifically, Abson said she worried about the way Proctor's role as judge had become enmeshed with his role as de facto president of  Cycle Breakers Inc., a non-profit corporation he founded to help rehabilitate persons he placed on probation. Abson saw a problem in Proctor's mixing of his roles as sentencing judge and controller of Cycle Breakers' money.

 After she raised the issue with him, the JDDC reported: “The judge stated that he ‘hated' Ms. Abson in staff meetings and referred to some of his staff as ‘devils.' ”

Another employee, Sally Porter, Proctor's case coordinator, reportedly voiced similar concerns. The report said the judge then “called Ms. Porter evil and a devil, saying to her, ‘Lord, bind you up, because you are nothing but the devil! I curse you in the name of Jesus!' ”

That is unusual language to appear in any official document. But then, little about Proctor's court fits the norm.

His is one of only two courts in the state that are allowed to supervise the defendants they sentence to probation. (Probationers from the state's other 118 circuit courts are supervised by the Arkansas Department of Community Correction.)

And Proctor is the only judge who orders his probationers to attend meetings conducted by Cycle Breakers Inc., a corporation that the JDDC charged “has turned into a full-time alter ego of Judge Proctor and [his] Fifth Division Circuit Court.”

The most serious charges that Proctor now faces concern exactly what his staff members reportedly warned him about. Specifically, the JDDC informed Proctor that it is wrong for him to be:

• ordering probationers from his court to attend meetings run by a corporation he controls;

• allowing that corporation to extract extraordinary fees from those probationers;

• and sending those probationers to jail if they fail to pay the corporation.

As the JDDC put it, “Judge Proctor is lending the power and prestige of his office to a private corporation that exploits his position. Cycle Breakers could not exist without the court-ordered participation of defendants from his Fifth Division Circuit Court.”

 Although the judge's “apparent conflict of interest” was first reported in a legislative audit released in July 2007, it was not until October 2008 — 15 months later — that the JDDC concluded it had sufficient evidence to require Proctor to face a formal disciplinary hearing.

At that point, the Arkansas Supreme Court could have suspended Proctor's judgeship, pending the outcome of his hearing, which, at the time, was scheduled for January. But, sources have told the Times,  the high court voted in a closed  proceeding not to do that. Instead, it left Proctor on the bench and took the further unusual step of sealing records in his case until the hearing, which has since been postponed until the week of April 27.

So, now, more than a year and a half after Proctor's incestuous relationship with Cycle Breakers was first reported, he is still officiating in Room 410 of the Pulaski County Courthouse, still sentencing some 500-600 people per year to probation (a rate roughly double that of most state courts); still keeping them on probation longer than most state courts; and still ordering his probationers to attend — and pay for — meetings run by a corporation he controls.

As the JDDC report noted: “His refusal to deal at arms [sic] length with this corporation has led to numerous violations ... and cast a shadow on his impartiality as a judge.”

 

Needing money

 

The issue of impartiality looms particularly large, because Cycle Breakers needs money. In February 2007, Karen Alford, the corporation's executive director, signed a half-million-dollar mortgage held by Twin City Bank to buy an unused school building in east Little Rock. Cycle Breakers had intended for the building to house its programs, but after community objections arose, the Little Rock City Board voted not to allow Cycle Breakers Inc., which had already signed on the note, to use the building for that purpose. It has stood idle ever since.

Still, the mortgage must be paid. According to a financial report that Cycle Breakers provided in response to a Freedom of Information request, it made 11 mortgage payments in 2008 totaling $46,236 on the vacant building.

The mortgage will mature and its remainder will be fully due in August 2010. Should Twin City Bank seek to collect, the address on the mortgage is “401 W. Markham, Ste. 410” — Judge Willard Proctor's courtroom.

Several judges work in the Pulaski County Courthouse. All of them, including Proctor, require probationers to pay a monthly fee — generally $20 — to the county, as part of the terms of their probation. So Proctor's probationers pay that. For a time, Proctor tried to keep that money for his Cycle Breakers operation, but he was informed in 2007 that that money belonged to the county.

That would seem to have left Proctor with few avenues for raising money to buy the building. But back in 2006, when Proctor was applying for the loan, he drafted a court order, which he included in the loan application, explaining how Cycle Breakers. would generate the income to pay the mortgage.

He cited Cycle Breakers' relationship with his court and then quoted part of Arkansas law pertaining to probationers, part of which, he wrote, allowed a court to require a defendant to participate in community-based rehabilitative programs “for which the court may impose reasonable fees or assessments.”

Problem is, that is not an accurate quoting of the law. The part of the code that Proctor cited actually reads that the court may impose “a reasonable fee or assessment.” By his order, Proctor seemed to be telling the bank that he had the authority to allow Cycle Breakers, to impose multiple fees and assessments. That is not exactly what the law says.

So what fees does Cycle Breakers collect from the probationers Proctor orders into its programs?

According to its 2008 financial report, the corporation collected $90,508 in “monthly meeting fees.” Alford, Cycle Breakers' executive director, said in a recent interview that about 70 probationers attend monthly meetings in addition to the half-day “mandatory meetings” four times a year.

At the mandatory meetings, probationers are also assigned books to read, for which they're required to write book reports. If they fail to bring their book report to the next mandatory meeting, they will not be admitted.

Probationers who miss a mandatory meeting, either because they did not show up at all, or because they were refused admittance for being late or for failing to bring their book report, are fined $100. They must pay this fine at the next mandatory meeting, or they will not be admitted to that one, compounding their debt. Last year, Cycle Breakers reported collecting $52,853 from probationers who missed mandatory meetings.

Altogether, the corporation reported collecting $149,423 from Proctor's probationers in 2008. That's only slightly less than the $162,581 they paid in monthly fees to the county. Proctor's probationers pay approximately twice what probationers from the state's other courts do, and half of that extra charge goes to a private corporation.

Now there are many points of view about this.

• The JDDC has concluded that Proctor “controls all bank accounts and distributions of moneys collected by Cycle Breakers Inc.,” and that he has “an obvious conflict of interest when he is the sentencing power for fees owed to a corporation that he essentially runs.”

• Defendants who faced the possibility of being sent to prison are usually happy to be sentenced to probation instead, even if it means paying extra fees and fines to Cycle Breakers.

• City Director Joan Adcock praises the help that Cycle Breakers programs offer probationers. She herself works at the corporation's mandatory meetings, “teaching new probationers” and “discussing their book reports.” In 2008, Hope Center, the non-profit corporation Adcock founded, was paid close to $9,000 for those services.

• Public defenders and other defense lawyers are glad to see their clients stay out of prison, even if the judge orders some of them to something he calls “civil probation,” a sentence that does not exist in Arkansas law. “Everything the judge does is to the benefit of the defendant,” Bill Simpson, the chief public defender for the Sixth Judicial District, observed. “I don't have any problem with whether or not it's authorized by law. We have to assume the judge will follow the law. That's his duty.”

• Prosecuting attorneys, who must consistently appear in a judge's court, tend to tread lightly when it comes to disagreeing with a judge's orders. As Pulaski County Prosecuting Attorney Larry Jegley, noted: “I'm not willing to concede, without a court order telling me to, that he can't do what he's doing.”

Proctor could easily end this troublesome affair by closing Cycle Breakers, and allowing the state to manage his probationers, as it does the other 5,000 or so probationers from Pulaski County courts. But then, who would pay Cycle Breakers' loan?

 

Debtors' prison

 

All of this raises thorny issues with regard to, not just Arkansas law and the state's judicial canons, but the U.S. Constitution.

The 14th Amendment  requires that citizens receive equal protection under the law. But how equal is the administration of justice in Pulaski County if a defendant who happens to be assigned to Judge Proctor's court is more likely to be sentenced to probation than to go to prison?

How fair is the justice in a courtroom where a corporation run by the judge makes money every time the judge sentences a defendant to probation?

How just is a court that assigns some defendants to “civil probation,” something for which there exists no statutory authority? Such a sentence is what the law calls ultra vires, “an act performed without any authority.”

That raises another question about the status of those men and women whom Proctor has sentenced to “civil probation.” A section of the federal judicial code provides that, “A judge exceeding his office (or jurisdiction) is not to be obeyed.”

And what about all those fines and fees that Proctor has allowed Cycle Breakers to collect, in part through the mechanism of altering the apparent meaning of a state law in an order he issued from the bench?

All of this, it seems to me, would raise the hair on the back of most Supreme Court justices' heads. But that is not the worst of it. An even bigger concern, is what happens to probationers who fail to meet their court-ordered obligations to Cycle Breakers Inc.

Proctor orders them to appear for a “show cause hearing,” a session of court where they are supposed to explain their delinquency. They rarely have an attorney with them for these hearings.

If the explanation does not meet with Proctor's acceptance, he finds them in contempt of his court and orders them sent to jail. Let's look at that more closely.

Proctor is ordering people to jail for failing to pay fines and fees to a corporation that he personally heads. And the numbers are not insignificant. One day last April, investigators for the JDDC reviewed records at the Pulaski County Regional Detention Facility, the county jail. They reported:

“The files of inmates being held for Fifth Division Circuit Court were analyzed. Fifteen of 88 inmates were being held in jail for financial failings related to Cycle Breakers Inc. ... Judge Proctor is using the Pulaski County Regional Detention Facility to enforce civil debts to a private corporation.”

Imprisonment for debt was largely eliminated in the United States in the mid-1800s. While persons today may still be incarcerated for debts arising from fraud, failure to pay alimony or child-support, or non-payment of governmental fines, the practice of imprisoning people for debts owed to corporations is all but unheard of in this country.

Of course, Proctor knows that. He maintains that he is jailing them, not for failing to pay Cycle Breakers, but for contempt of court.

I don't even play a lawyer on TV, but that seems a stretch. According to Black's Law Dictionary, contempt of court is committed “by one who, being under the court's authority ..., willfully disobeys its lawful orders. ...”

The question of whether it is lawful for Proctor to order probationers into a program run by a corporation, allow it to assess them fines, and then jail them for contempt if they fail to pay the corporation's fines is sure to be hotly debated at Proctor's upcoming hearing. He is expected to defend his court's operations vigorously, and has hired Little Rock attorney Blake Hendrix to help him. (Proctor has, since the troubles began, refused to speak with reporters about it.)

In this citizen's view, Proctor's practice of jailing people for not paying his corporation raises a variety of state and federal constitutional issues — from illegal seizure in the federal Constitution to the illegal exaction barred by the state Constitution, not to mention core civil rights issues in the U.S. Constitution.

I also think that the way the Supreme Court justices have handled the case does not promote confidence in the judiciary — something that the judicial canons, incidentally, require of them.

But that's just me.

 

The hearing

 

Obviously, state officials in a position to challenge Proctor have been timid to the point of inaction — or glacial action, at best. Why? Are these really minor issues?

The justices of the Supreme Court aren't talking. They've sealed records that are normally open at this point.

I asked public defender Simpson why he didn't object when clients were sentenced to “civil probation,” when there's no such thing in state law. After noting that most clients are relieved not to be sentenced to prison, he added, sounding a bit frustrated, “How can we be appointed to represent someone on something that doesn't exist?”

Besides, he said, if there is a problem with Proctor's conduct in court, it should be the prosecutors who raise the issue. “They're really the watchdog of the court.”

Prosecuting Attorney Jegley begged to disagree. “Why haven't we heard any complaints from the defense bar?” he asked. “I don't know of any private or public defender who's filed an appeal or filed a writ.”

Jegley did say that his office has stopped moving to revoke the probations of anyone, at Proctor's request, for failing to comply with demands from Cycle Breakers. He explained, “I wanted to disassociate our office from Cycle Breakers.”

When asked about Proctor's sentence of “civil probation,” Jegley responded: “The way I see his civil probation — the way I understand it — I wish somebody would take a look at it. I don't know enough about it to say what its real nature is.”

Jegley said he was glad that such questions seemed to be headed for a review by the Supreme Court. In the meantime, he said he believed that “a judge's contempt power is pretty broad” and that he was not inclined “to investigate a judge for exercising his contempt power.”

“Courts,” he said, “have inherent authority to enforce their orders, and they do that through the contempt power.”

Another problem Jegley saw was that, “Judges, statutorily, can impose any reasonable conditions on probationers.” And, on top of that, Jegley added, “He's got judicial immunity for a large number of things that go on.”

Nevertheless, Jegley said, “The problem with Cycle Breakers is that it's hard to tell where Cycle Breakers ends and Willard Proctor begins, so that's why the situation is difficult.” Actually, he said, “It's a big ol' hairball.” Sounding a little wistful, he added, “I hope the JDDC can get us some resolution.”

Ultimately, it might be the IRS that finally cuts through the Cycle Breakers “hairball.”

Cycle Breakers did not respond in the time required by law to a Freedom of Information request I submitted for its 2007 tax return. However, sources have told me that IRS agents are investigating Cycle Breakers Inc., particularly its claim of tax-exempt status in light of the coercion involved in the way it raises funds.

Proctor's conduct of his court also was scheduled as this article went to press to be discussed at a meeting Tuesday of Pulaski circuit judges. Circuit Judge Tim Fox has asked that the judges discuss reassigning future criminal cases that normally would go to Proctor to other judges until the Judicial Discipline Commission completes its review. Fox emphasized that he wasn't suggesting impropriety, only that a temporary change in case assignments would “relieve” the potential appearance of conflict.

Proctor was expected to argue that, since the Arkansas Supreme Court found no reason to intervene, there should be no reason for local judges to do so.

 

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