Appeals Court: Fayette judge wrong to preside over 4 trials involving his lawyer lover

Then-Chief Judge Paschal English in Fayette Superior Court. Photo/John Munford.

DA Ballard will appeal to Ga. Supreme Court, perhaps U.S. Supreme Court

Five defendants convicted of serious crimes in Fayette County deserve new trials because the presiding judge should have recused himself due to an extramarital affair he had with their defense attorney, the Georgia Court of Appeals has determined.

Fayette County’s district attorney strongly disagreed with the appeal court’s finding and vowed to appeal the ruling.

The affair, and its potential to adversely affect the outcome of the cases, meant that former Fayette County Superior Court Judge Paschal A. English Jr. violated the Georgia Code of Judicial Conduct by presiding over the four trials, the appeals court ruled in an 18-page opinion published Nov. 8.

The court determined that English’s failure to recuse himself in essence denied the defendants’ Constitutional right to a fair trial.

In an 18-page opinion, the court upheld a ruling that Judge English had a responsibility to recuse himself from the cases based on his relationship with then-public defender attorney Kimberly Cornwell.

The relationship became a matter of public record in mid-2010 when it was revealed that English and Cornwell were discovered participating in a sexual encounter by a Fayette County sheriff’s deputy on Oct. 13, 2008. English resigned in April 2010 and the affair came to light shortly thereafter in part thanks to a probe ordered by his replacement: current Chief Superior Court Judge Christopher Edwards.

The Court of Appeals pointed not just to the sexual encounter witnessed by the sheriff’s deputy, but also stipulated facts that Judge English transferred some of Cornwell’s cases to his courtroom in September 2009 and the judge attended a drug court conference in Reno, Nev., with Cornwell in August 2009.

The Court of Appeals opinion rebuked English for failing to disqualify himself from presiding over the cases, citing that a recusal must occur “in any proceeding in which their impartiality might reasonably be questioned including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party or a party’s lawyer.”

The court noted that the general standard set by the Judicial Code is “that the appearance of partiality requires recusal.”

“The record before us supports the trial court’s factual conclusion that Judge English was involved in a close personal relationship with Cornwell during each of the trials at issue, and it is undisputed that Judge English failed to disclose this relationship to the parties before us during the criminal trials at issue,” The Court of Appeals wrote in the opinion.

“... Although we are mindful of the suffering which new trials may cause the victims in some or all of these cases, we are nonetheless compelled to draw the legal conclusion that Judge English’s violations of Canon 3 require new trials for each of these five defendants.”

Fayette County District Attorney Scott Ballard said his office would appeal the case to the Georgia Supreme Court and if such an appeal is not granted or is unsuccessful, he would consider filing an appeal with the U.S. Supreme Court.

If the new trials are upheld by the Supreme Court, it would mean a second shot at a verdict for these five defendants:

• Christopher Deangelo Wakefield and Travion Marquez Willis, co-defendants found guilty of five felony counts including armed robbery and kidnapping stemming from a carjacking incident in Fayetteville. English had sentenced them both to life in prison plus an additional 20 years;

• Calvin Obie Boynton, found guilty of armed robbery, aggravated assault and other charges from a May 2009 bank robbery in Peachtree City. English had sentenced him to life plus 30 years in prison;

• William Jacob Nutt, found guilty of aggravated child molestation and aggravated sexual battery for raping a relative days after he got out of prison. English had sentenced him to life in prison; and

• Rashad Terrez Arnold, found guilty of burglary. English had sentenced him to 10 years in prison.

Prosecutor Ballard said his problem with the new trial ruling is that it favors the defendants without them specifically pointing to how they were treated unfairly during the trial.

“We are thinking about our victims,” Ballard said. “We really don’t believe any of these defendants were harmed by anything that happened to them, and it’s wrong to reward them with a new trial because of what their lawyer did.”

The court’s ruling contradicts Ballard’s previous assertion that a thorough review conducted by his office found no misconduct on the part of Cornwell or then-Judge English.

Ballard’s review, however, did not focus on the standards applied by the Code of Judicial Conduct; rather it analyzed the sentences handed down in all cases in which Cornwell represented a client before Judge English and compared them to other sentences handed down by the judge in previous years.

Ballard noted that all of the defendants were convicted during jury trials, not by mere order of Judge English as would happen in a bench trial.

“We looked really hard to see if there was any indication that her cases got treated differently than anybody else, and we couldn’t find anything, and neither could the person hired by the Public Defender council,” Ballard said. “He didn’t find anything.”

The Court of Appeals ruling upheld a decision by Senior Superior Court Judge Harold G. Benefield, who noted that while English was to blame, so was Cornwell, who likewise failed to notify her clients of the relationship.

“The client is entitled to know, without doubt, that it is his interests which the lawyer is seeking to protect and not those of herself and her lover-judge,” Benefield wrote.

Fayette County Superior Court Judge Fletcher Sams, who later recused himself from hearing the new trial appeals, noted during a court hearing that one of the defendants in question may have received a lighter sentence than would have been expected, pointing to a 10-year prison term given to Rashad Terrez Arnold in a burglary case — despite a a previous conviction for a violent felony: aggravated assault.

“With an aggravated assault and other felonies, I am just kind of surprised that he didn’t get 20 years to serve,” Sams said during the hearing.

Benefield’s order granting the new trials indicated that he was tortured in doing so because the trial transcripts made it clear that “the evidence which was given to the juries was more, far more than sufficient to support verdicts of guilty.”

Benefield also was sensitive to the effect that new trials would have on victims in each of the four cases. “The evidence which was given to the juries was more, farm more than sufficient to support verdicts of guilty,” he said.

justwondering
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Evidence

A jury,not a judge,found the defendents in these cases to be guilty. Their decisions would have been based on the evidence presented.Evidence is objective data and there are rules regarding evidence and the introduction of such in a court case.
So, are we to believe Cornwall had some influence on English's sentencing? How?
“The client is entitled to know, without doubt, that it is his interests which the lawyer is seeking to protect and not those of herself and her lover-judge,” Benefield wrote.This seems pretty judgemental and there is no evidence to support Benefield's implication the interests of Cornwall and English took precedence over the client's interests.
Yes,the behavior of English and Cornwall is unethical,but I am not convinced how it affected the trials mentioned above. Should a surgeon who is having an affair with the anesthesiologist tell the patient before he removes her gall bladder?

tortugaocho
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The whole judge question:

The whole judge question: did the judge's lawyer lover roll over for him ? If I were the Defendant I would be very worried that that's what happened. She phoned it in and didn't do her job.

Robert W. Morgan
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3 life terms and they think Cornwell influenced that?

Please, let's noodle this out. Defense attorney shaggin' the judge, her clients all get life sentences and now they need a retrial? For what? 2 more life sentences? They gonna get a defense attorney this time that isn't sleeping with the judge. How is that going to make it better?

I mean if Cornwall was a good um, influencer in the judicial process, you would think that the desired outcome would be something less than life in jail. Maybe she did't "ring his bell" so to speak.

Why do we need to spend more money on another trial for these convicted felons? Oh wait, I got it. New attorneys need some new money. Think that's it?

PTC Observer
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RWM - How

How about the concept of a fair and impartial trial?

The outcome may or may not be the same, the sentence? Who knows?

Robert W. Morgan
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Taxpayers are paying for the "concept" of a fair trial

Speaking for myself as a taxpayer who is about to get nailed with the cost of these new trials, no thanks. I didn't do anything wrong - how about uber judge and his squeeze pay for the new trials. Were they even fined or did they just get to resign/retire? I'll bet you the Survivor Judge is pulling down some decent retirement income. How about he pitches in on the cost of his failure? Who is in charge of stuff like this?

cogitoergofay
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The enormity of this debacle

The enormity of this debacle stretches the imagination.

Morgan, you simply do not understand the constitutional significance of this case. How about we simply discount our justice system and be satisfied with a 50-50 chance at a fair trial ? No, we believe that it is better that a thousand guilty people go free rather than one innocent person be deprived of their liberty.

Mrs. Cornwell may well have simply gone through the motions, going along with a judge who was a former prosecutor who pre-judged the guy's guilt. Yes, there is an ocean of wrongdoing in this case. And neither judge nor lawyer ever had to answer for this.

And the taxpayers ? Yes, Morgan, we are paying well over $100,000 in pension plus medical benefits for a judge who had such incredible disdain for the public that he had the sheriff drive him to the airport and took 8 weeks off to be on a game show. And who covered his cases? A visting judge paid by the taxpayers.

Finally, who is "in charge" of judicial discipline? No one, Morgan, no one.

AtHomeGym
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Morgan & 'concept'

What is clear here is that Benefield isn't even comfortable with HIS OWN decision! Bad call and WE pay!

NUK_1
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Benefield did the right thing

I can understand he hates having to do it, but I echo PTCObserver's sentiments on this issue. They are likely scum and re-trying them costs everyone, but they deserve a fair hearing, not one with a corrupt public defender who is supposed to be standing up for THEIR interests and not her own and her Judge-lover. That's just wrong.

Why doesn't any of The Citizen stories mention how beloved "Pappy" was on Survivor? That his big claim to fame besides shenanigans in a cul-de-sac with a public defender he steered cases too?

I don't want to hear about Scott Ballard whining about anything after he testified in behalf of a molester and 100% lied about being subpenaed and having no choice but to do so. How FC re-elected this person of low character is beyond me, but it happened. We're stuck with him and his "character."

AtHomeGym
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Nuk & 'Right Thing'

You may be right but nowhere have I read about any Judicial or Lawyerly improprieties during any of the trials. I do believe it is possible to separate personal indiscretions and professional performance. Not to say I agree with their conduct--I do not, for they both showed utter disrespect to their spouses.

Citizen_Steve
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A Cheater is a Cheater

When it comes to character, personal and professional - it's all the same. A person who lies/cheats is a liar and cheater. Do not be fooled into believing in compartmental professionalism - it is the risk/reward factor that discourages the cheater, not a sense of professional duty. The best protection we have is to keep the risk of negative ramifications high.

Steve

PTC Observer
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Citizen_Steve - Personal/Professional

I suppose it depends on the person doesn't it?

A person who lies and cheats because he believes he is accomplishing a lofty goal......let's say like wiping out the Jews because in his opinion they are inferior and need exterminating.....you know like telling the BIG lie over and over again to get the citizens behind it......in this case the end clearly justifies the means. Well that person certainly doesn't care if it's professional or personal because they're one and the same. In fact, he doesn't care how he goes down in history or what the risks may be, he is working toward a much higher cause. And nothing, and I mean nothing will stand in his way. That's because he has a vision of the way things should be (his way) not the way they are. Now that person is someone we should all fear the most.

In the case of Mr. English, well he's just a fool with really bad judgment. This means a Judge with bad judgement, no guilty or innocent man should have to put up with bad judgement from a Judge when it comes to their freedom. Not even Mr. English's bad judgment.

NUK_1
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AHG: You could be right

Professional and personal matters sometimes are indeed mutually exclusive, but the complete judicial misconduct kind of gets in the way of a fair process for those affected and leads to a strong appearance of impropriety.

If found guilty again, they could even get harsher sentences than before at the same time :)

Just an all-around ugly situation that FC taxpayers are going to have to foot the bill for....again.

PTC Observer
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RWM - True

enough about the unacceptable behavior of the Judge and one can absolutely question whether or not he should be sued for costing the taxpayers money.

However, our protections as citizens under the law should never be compromised by the misbehavior of officials charged with protecting our Rights. If we are to preserve the fundamental integrity of our courts, those effected deserve new trials. You would want the same treatment, wouldn't you?

If you're angry, I can understand this, but it should be directed at Mr. English and his mistress, both court officials entrusted with administering justice without conflicts of interest.

Robert W. Morgan
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Ok, mighty fine. Where do we start? And who sues who?

With a civil lawsuit, one needs to prove damages (can do), their cost (can do - after the retrials), the person causing the loss (we have 2) and the defense almost has to prove someone else did it (hardly applicable in this case). I guess they can quibble over the actual costs and any punitive damages sought, but the defense doesn't have much to work with. Boy, would I love to be on that jury.

Big question is who brings the suit? Who has suffered the loss? The county? County taxpayers? State taxpayers? I think this issue will be swept aside - or under the rug and it will just be business as usual for those misusing taxpayers money or abusing their power and costing the taxpayers money. Got 3 in PTC in just one year.

PTC Observer
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RWM - Class Action

A class action suit would be the best approach to remedy this loss. You can, on the behalf of the citizens of Fayette County, bring a lawsuit against both individuals. You merely need to find an attorney that will agree to take the case. If you find one, then they would solicit other citizens within the county to join the suit.

Personally, I don't think the judicial system would sweep this under the rug as these individuals have proven negligent in protecting the rights of clients, negligent in carrying out their sworn duties, and posed a threat to the integrity of the court. All of these factors have caused financial loss to the taxpayers of the county, ie The Class.

Otherwise, nothing will happen to them.

If you are angry, then this is your best course of action. Good luck.

suggarfoot
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I agree

the taxpayers are footing the bill form something Judge Rambo and his girlfriend should be held libel. The perks should be behind bars, and that is where they are now. New trial they won't get off and it is a waste of time and money. (ours) There is no justice in this. Justice would be that Rambo and girlfriend pay for trial. They won't even be asked to ....is that justice?

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