Recently, I ran into Ann Shafer, ex-wife of legendary Georgia attorney Herb Shafer. Although divorced, Ann always remained close to Herb. Herb passed away in 2014 at age 93 but practiced law until age 92. He defended the Constitution of the United States unlike any other lawyer. He once said, "I adore the Constitution … and anyone who defies it is ipso facto my enemy." Unsurprisingly, Herb had many enemies in our judiciary and district attorney's offices.
Herb Shafer had escaped Poland before the Nazis rolled in. He came back to fight in WWII for his adopted country, the United States. His bold personality and love of freedom were formed as a young man.
He once said to a prosecutor, "I've shot better men than you,” and made it clear that his job was to challenge and defy prosecutors and judges who violated the rights of the accused.
None of the Georgia defense bar will ever forget his contempt hearing where he called a Douglas County Superior Court judge and the prosecutor assigned to his courtroom a word I cannot say on this blog. Interestingly enough, he said the word 29 times during the contempt hearing.
Although funny because of the profanity, what was lost in the exchange is the alleged incestuous relationship between the DA's office and the Judge's office. Herb's point was that there was no reason the District Attorney's office had unlimited ex-parte (one-sided) access to the judge's office, while defense attorneys did not. Although nothing was proven, Herb's point was that there was an obvious appearance of impropriety that would never be allowed if the same access was given to defense attorneys and public defenders. He specifically (and fearlessly) said in his contempt hearing: “I believe that something improper is going on, yeah … based on knowing what people like you (referring to the Assistant DA in the courtroom) do and based on the perception that any defense lawyer would get. We're not allowed to talk in there and whisper in the judge's ear during recess. Why are you? What are you doing in there?"
Herb never found out what was going on between the ADA and Judge Emerson; however, some very recent news shows that Herb was onto something.
As reported in the Fulton County Daily Report, Cobb County Judge Reuben Green has been caught speaking to prosecutors before a felony trial. This kind of strategy discussion and “mentoring” is the kind of thing that caused Herb's concern. The judge is even heard saying he hoped the jury "made the right decision," referring to a conviction. The ADA's in the courtroom were heard discussing another case where they informed the judge of the defense counsel's strategy to file a competency motion because the man is "too stupid to know, to help his lawyer…" Other discussions about cases involved a plea offer and whether the State can find "similar witnesses," and mental health evaluations (which are critical points in a felony defendant's case) of individuals.
Let me be clear: this behavior is corrupt, and the judge should resign. If not, the Judicial Qualifications Commission should remove him from office; although I have little faith that will happen. These discussions are akin to a strategy discussion in the DA's office, not the interaction between an independent judge and litigants in his courtroom. The District Attorney already has unlimited resources, home field advantage, direct knowledge of how every judge will rule, and now mentoring sessions from Judge Green. Judge Green has violated the canons of judicial ethics to remain impartial and the rule to avoid ex parte communications to prevent the appearance of impropriety. This judge is contemptible, and as Herb would say, he has been "nailed." Let's hope Herb is looking down from Heaven cracking a smile.