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Panel hears troubled judge's case
Indiana Lawyer (Indianapolis, IN)
May 5, 2004
http://infoweb.newsbank.com.proxy.portagelibrary.info/resources/doc/nb/news/10E9B386964BEE78?p=AWNB
While some might argue that messy desks are signs of productivity, attorneys for the Judicial Qualifications Commission say that in the case of Lake Superior Judge Joan Kouros, quite the opposite was true.
In a hearing April 22 before a panel of three masters appointed by the Indiana Supreme Court, commission attorneys Meg Babcock and Tom Carusillo presented the results of months of investigation into the operations of Judge Kouros' court.
The masters' panel consisted of Marion County Judge Tanya Walton Pratt, Allen County Judge John Surbeck Jr., and Vanderburgh County Judge Carl Heldt.
The commission filed a 78-count complaint against Judge Kouros in September accusing her of failure to file important paperwork in a timely manner and of telling the Supreme Court in February 2001 that a transcription system had been installed in her court to prevent further delays, when in fact the system was not installed until February 2003.
A similar action was initiated through the Division of State Court Administration and resolved by the high court with a Jan. 17 order requiring Judge Kouros to process cases within a set time frame and to have no more than 80 case files in her courtroom at any one time.
Babcock said Judge Kouros and the commission entered a settlement on the commission's charges, which was rejected by the Supreme Court on March 25.
"The court did reject a settlement agreement and instructed us to go to hearing and explore what was not contained in the settlement, that is the judge's compliance since she was reinstated in January," Babcock said.
Judge Kouros had been suspended from her seat with pay in June and applied for reinstatement after 90 days. Reinstatement was granted, and at the beginning of January, she reclaimed her position on the bench. A pattern of disorganization
In her opening arguments before the masters' panel, Babcock said even after her reinstatement, Judge Kouros still struggled to comply with the court's order. She had more than 80 files checked out to her court on several occasions; she exceeded the court's time deadlines in processing orders on several occasions; and her office was disorganized - another part of the court's order.
Judge Kouros' attorney, Kevin McGoff, said her court is a busy criminal court with thousands of cases going through on a quarterly basis. Since the beginning of the year, Kouros has overseen five jury trials and processed thousands of files, McGoff said. Stanley Jablonski also represented Kouros in the proceedings.
"Among those thousands of files, there were errors, and we would agree that there are errors," McGoff said, noting that such an agreement was stipulated.
The dictation equipment, McGoff said, was not in place as Judge Kouros had certified, but he said this was because of things outside the judge's control.
While there is no question that the judge at times had issues with a backlog of files, McGoff said many of the factors that contributed to that have been addressed and asked the masters to recommend Kouros retain her seat.
Former Judge Richard Maroc was one of the witnesses called to testify for the commission. Maroc said he had received a letter from the president of the Lake County Corrections Merit Board, which detailed a list of inmates in the Lake County Jail that the board felt were improperly at the jail.
Many of these inmates were people who had been sentenced by Kouros but whose sentencing orders had not been properly reduced to writing and processed through the system.
Prior to receiving this letter, Maroc said nothing regarding Kouros' behavior had been set to writing, but there was a "general dissatisfaction" with the way files and orders were being processed through her court.
Maroc said the other criminal court judges met to try to address Kouros' issues, but he said Kouros was unwilling to accept help from them. He said there were discussions about taking Kouros out of the regular rotation for a time so she could catch up.
"That was not done in deference to her refusal," he said.
When asked about the management of his own court, Maroc said, "I don't think I ever had a case that stayed in my office overnight."
He considered dealing with paper quickly an "indispensable part of moving this along."
Maroc said he never heard complaints about Kouros being behind in the day-today operation of the court, only with the moving of paperwork through the system.
Another judicial officer, Magistrate Kathleen Sullivan, said she at several points offered to help Kouros but was always politely refused. Cases languish in Kouros' court
Judge Kouros was also called as a commission witness.
Carusillo questioned her on the moving of files through her courts since her January reinstatement, calling attention to several in which she had not met the 48-hour timeframe within which to reduce oral orders to writing.
Kouros offered explanations for several of these - in some cases, she said she had not gotten information she needed from other players in the case, and in others individual files were part of a larger multidefendant case, so she felt she needed to keep these files in her court because of ongoing hearings involving other defendants in the same event. However, Carusillo kept pulling Kouros back to the fact that cases had not met the 48-hour rule set by the Supreme Court. He mentioned a particular case in which a sentence was given Feb. 27, but the file was not returned until April 8. "That's five to six weeks?" Carusillo asked. "That's correct," Kouros replied. "Not 48 hours?" "That's correct." On one particular case, Kouros was searching for the defendant's name, and Carusillo supplied it. "Unfortunately," he said,"I think I know a lot of the names of defendants in your court." There was some dispute over the number of files Kouros kept in her courtroom, in part due to an area of disagreement. Kouros considers multi-defendant cases to be one file, even when each defendant has a case filed under a separate cause number. This made the judge's count on the number of files in her court lower than the clerk's.
For statistical reporting and for determining weighted caseloads, each person in a multi-defendant case is considered a separate file; however, the court's order mandating no more than 80 files in Kouros' courtroom did not specify a specific method of calculating that number of cases.
Judge Raymond Kickbush, who took over Kouros' court during her suspension, testified before the masters about some case files that had to be reconstructed because entries had not been made for some time.
Babcock said Kickbush also testified that he found a letter from a death penalty defendant to Judge Kouros in which the defendant said that he was not insane, contrary to what his attorneys were saying. The letter, along with an HIV report on a defendant, was found in a storage box that otherwise contained old newspapers and other insignificant documents, Babcock said. Changes have eased problems
In her defense, Kouros' new secretary, Linda Dicicco, testified that some of the backups in the court since January have been because Dicicco was new to the position and was learning the ropes.
"The paperwork is never ending," Dicicco said. "You can get rid of the call and send it down and still have a lot of paperwork."
The call consists of all the cases that are new to the court on a particular day.
Kouros' court runs like the other criminal courts, said Dicicco, who added that it is moving well and that the transition has been smooth. She said most files turn around on the first or second day.
Sandi Radoja, with the Lake Circuit Court Clerk's office, testified that Kouros has established a strong working relationship with her, and that Radoja delivers a weekly report detailing how many cases Kouros has checked out of the clerk's office.
Radoja said the system has been working well, and she testified that the working relationship between herself and the judge is cordial.
Kouros again testified, this time on her own behalf, and detailed some of the medical conditions she said affected her performance as a judge.
Kouros said she was diagnosed In 1984 with multiple sclerosis (MS). At the time, she was a deputy prosecutor. She said the MS definitely affects her and that she has been hospitalized with it on two occasions, the last time was during her first year on the bench.
"I tend to be a perfectionist,"Judge Kouros said.
Because of this tendency, coupled with the knowledge that she has MS, Kouros said she became increasingly concerned with ensuring the accuracy of the orders she issued and so checked and re-checked everything.
During the time of her suspension, Judge Kouros said she sought medical treatment from a psychiatrist and a psychologist, and is currently on medication to treat obsessivecompulsive disorder. She has also been treated by a neurologist, she said.
Judge Kouros said the court's 48-hour turnaround deadline has been difficult to comply with because of the number of cases in her court.
"It's just that there's just so many files that go in and out of my office," she said. "It's hard to review, sign, and do everything in a 48-hour period."
She said she has made every effort to comply with the court's order, but at times is unable to do so, particularly when she has trials in her courtroom.
However, she said she learned a great deal by meeting with other judges around the state and has implemented some of this new knowledge in the operations of her court.
Kouros also took issue with Maroc's statement that the other criminal court judges offered to help her, saying that one of the three judges had suggested that they help, but the other two refused to do so.
As far as the transcription equipment, Kouros said she had every intention of setting up the equipment but found after signing the affirmation to the court that it was not possible given the system in place at the time. As soon as it was operational - nearly two years later - Kouros said she began using it and still uses it. Kouros also stated that her relationship with the current clerk, who took office at the beginning of the year, has been good. "I had problems with the former clerk," Kouros said. "They used to make mistakes on every file." Kouros acknowledged that her office is still in a state of disarray but said there are no files lost in the shuffle. "I think things have really progressed," she said. "It's not like I'm sitting on cases." She said the system is working well at this point, files are moving well, and she said the files the commission picked up on were anomalies - a small percentage of the total files that moved through the court. "It's 10 or 15 files out of over 2,000 files," she said. "I don't think I should be removed for that." Judge Kouros also acknowledged that the situation has drawn a great deal of attention. "I understand that there's constant publicity, and it's a bad reflection on the bench," she said.
However, she said she has shaped up and feels she is doing her job well at this point.
"A judge should be careful, we shouldn't be an assembly line," Kouros said. "We should take time to think things through because someone's life and liberty is at stake."
Babcock asked Kouros whether she certified that she would comply with the court's order in every aspect, and Kouros said she had made such a certification.
"I believe I have substantially complied," Kouros said.
Babcock again mentioned the number of files Kouros had maintained in her courtroom, and Kouros reiterated her assertion that multi-defendant cases could be considered a single file.
"I guess we'll just always have a different opinion about that,"Babcock said and let the matter pass.
Kouros also said her obsession has gotten easier to deal with, and that while the MS is always on her mind, it doesn't have the same hold on her thoughts that it once did. Findings of fact, conclusions
From this point, each side will present proposed findings of fact and conclusions of law to the masters, who will then submit their own findings and conclusions to the Supreme Court.
"They are not obligated to suggest what sanction if any is warranted, but they may," Babcock said.
After that recommendation is filed, Judge Kouros may file a response to that, and after that process is completed the Supreme Court will consider the case and eventually issue an opinion.
Depending on how long the briefing process takes, Babcock estimates a final decision to be handed down in mid- to late summer.
Such a proceeding is relatively rare, Babcock said, noting that in her 16 years serving as counsel to the commission, only five cases have gone to hearing before the masters' panel.
In addition to the cases that go to trial, Babcock said several times the commission will file charges, and the case will be settled with a process that ends in some form of discipline.
The penalties that could be imposed in this case range from private or public reprimand to suspension without pay, fines, or removal from the bench and disbarment.
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