Judge King Dan C III

COURT OF THE JUDICIARY CASE NO. 38
IN THE MATTER OF:
DAN C. KING, III, CIRCUIT JUDGE
TENTH JUDICIAL CIRCUIT OF ALABAMA
FINAL JUDGMENT AND CENSURE
On June 17, 2010, the Judicial Inquiry Commission (“JIC”)
filed a two-count complaint with the Alabama Court of the
Judiciary charging Dan C. King, III, Circuit Judge of the
Tenth Judicial Circuit, with violating the Canons of Judicial
Ethics ( “the Canons”). Count One charged Judge King with
violating the Canons in entering an order setting aside the
second-degree-rape conviction of Ronnie Ashford without legal
justification and without a petition having been filed in the
circuit court requesting that Ashford’s conviction be set
aside. Count Two charged Judge King with violating the Canons
in entering an order of recusal in another case in which he
made gratuitous comments regarding a fellow judge’s actions in
a case pending before that judge.
The Court of the Judiciary is a nine-member,
constitutionally created judicial body that is only “convened
to hear complaints filed by the Judicial Inquiry Commission,”
Art. VI, § 157(a), Ala. Const. 1901, pertaining to alleged
violations by judges of the Canons as adopted by the Supreme
Court of Alabama.
Based on the testimony presented at the trial of this
matter, as to Count One of the complaint, this Court hereby
finds as follows:
1. Judge King took office as a circuit judge in the
Bessemer division of the Tenth Judicial Circuit on July 14,
1997.
2. Before he became a circuit judge, Dan King was
retained to represent Ashford in a prosecution for firstdegree
robbery in the Bessemer division of the Tenth Judicial
Circuit. At the time King represented Ashford, Ashford was
also awaiting prosecution on charges of first- and seconddegree
rape in the Bessemer division of the Tenth Judicial
Circuit.
3. On October 30, 1995, Ashford agreed to plead guilty
to the robbery charge and to the second-degree-rape charge.
Pursuant to the plea agreement, Ashford would serve concurrent
15-year sentences in prison. King represented Ashford at the
plea hearing.
4. Because he had pleaded guilty to second-degree rape,
Ashford was required to comply with the Community Notification
Act, §§ 15-20-20 et seq., Ala. Code 1975 (“the Act”), upon his
release from prison. The Act was enacted in 1996, a year
after the second-degree-rape conviction here.
5. The Act required Ashford, as a convicted sex
offender, to register with local law-enforcement officials.
Among other restrictions, the Act prohibits a registered sex
offender from residing wi thin 2,000 feet of any school or
child-care facility. § 15-20-26(a), Ala. Code 1975.
6. In an attempt to comply with the Act, Ashford
submitted four addresses as places he could reside upon his
release from prison, including those of his mother and his
maternal grandmother. All four addresses were rejected
because they did not comply with the residence requirements of
the Act.
7. Judge King had met Ashford’s mother, Linda Ashford,
in 1998, when Judge King’s son had been hospitalized for a
week at Children’s Hospital in Birmingham. Ms. Ashford was
one of the nursing assistants who helped care for Judge King’s
son.
8. In August 2009, as the end of Ashford’s term of
imprisonment neared, Ms. Ashford spoke to Judge King about
whether there was any way Ashford could care for her at her
residence. Ms. Ashford told Judge King that she had health
problems, including lymphoma, and that she needed Ashford’s
assistance; however, her house was near a school, and,
therefore, under the Act Ashford was prohibited from residing
at Ms. Ashford’s house.
9. Judge King contacted an official at the Alabama
Department of Corrections and asked that Ashford’s conviction
for second-degree rape be set aside so that Ashford could live
at his mother’s house. The official told Judge King that she
did not have the authority to set aside the conviction.
10. In a letter to Chief Assistant District Attorney
Bill Veitch dated September 1, 2009, Judge King explained the
Ashfords’ situation, saying “it [was] necessary to remove the
statutory rape charge” for which Ashford had been convicted
so that Ashford could live with and assist Ms. Ashford, adding
that “[this] is the humanitarian thing to do.”
11. Judge King personally delivered an unsigned copy of
the letter to Mr. Veitch sometime before November 20, 2009.
Judge King asked Mr. Veitch whether he would have a problem
with setting aside the conviction. Mr. Veitch told Judge King
that the district attorney’s office would not oppose setting
aside the conviction.
12. On November 20, 2009, Judge King entered an order
setting aside Ashford’s 1995 conviction for second-degree
rape. No written motion or petition had been filed seeking to
have the conviction set aside, and no hearing was held before
Judge King entered the order setting aside Ashford’s
conviction.
13. The November 20, 2009, order was delivered to the
circuit clerk’s office. Certified copies of the order were
given to Ashford and his mother. Ms. Ashford gave a certified
copy of the order to a detective in the Jefferson County
Sheriff’s Office.
14. On December 4, 2009, another judge in the Bessemer
division of the Tenth Judicial Circuit met with Judge King and
questioned the propriety of the November 20, 2009, order.
Judge King was shown his signature as counsel on the pleaagreement
form submitted in the rape case at issue, and Judge
King stated that he would set aside the November 20, 2009,
order.
15. On December 4, 2009, Judge King entered an order
setting aside the order he had entered on November 20, 2009.
Based upon these findings, as to Count One of the
complaint, this Court finds that Judge King violated Canons
2 . A., 2. C ., 3. A. (1), and 3. C. (1) . Canon 2 provides that a
judge should avoid impropriety or the appearance of
impropriety in all activities. Canon 3 provides that a judge
should perform the duties of his office impartially and
diligently.
As to Count Two of the complaint against Judge King, this
court finds as follows:
16. On April 13, 2010, Judge King was assigned the case
Anchor Club Inc. v. Bob Riley, as Governor of the State of
Alabama, et al., CV-2010-264, in the Bessemer division of the
Tenth Judicial Circuit. The case was what has become known as
a “Bingo” case.
17. On April 15, 2010, Judge King issued an order
recusing himself from the case in which he made the following
comments:
“It has become apparent that the ‘Bingo’ issue
has become so politically charged that such
pressures may cause public officials to adopt a
‘politically correct’ response and put to the
backburner [sic] fundamental legal principles. I
recused myself from all pending ‘Bingo’ cases, so as
to avoid the slightest suggestion of impropriety as
it is currently faced by the Alabama Legislature.
“I am now asked to reconsider this belief that
‘Bingo’ issues can, in the current political
climate, be addressed without being influenced by
the politics of the issues, thus abandoning the
principles that matter most. The recent ruling this
week by my colleague has vividly brought home the
temptations that Judges, being human, are confronted
wi th and why, as Judges, we must listen to God’s
guidance and avoid the very appearance of allowing
‘political’ considerations, thus abandoning a clear
requirement to enter just decisions that apply our
understanding of the law and a God-given sense of
fairness. My long time friend and colleague has
apparently succumbed to the political pressure
‘Bingo’ brings and this week entered an Order that
contradicts previous Orders he has entered.
Although I concur with the belief that justice and
fairness often require a Judge to standup [sic]
against High Court decisions that violate
fundamental fairness, political or public pressure
should never become the foundation of a Just
decision.
“This is not a condemnation of my colleague, but
a reaffirmation that my decision to place temptation
behind me was correct. I now refuse to ignore that
voice that speaks the truth and justice and hereby
affirm by [sic] decision to recuse myself from this
‘Bingo’ case.”
As to Count Two of the complaint, this Court finds that
Judge King violated Canon 2.A.
For these violations, this Court hereby publicly
reprimands and censures Judge King. He is also suspended,
without pay, from serving as a circuit judge for 60 days.
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
Done this day of September, 2010.
JUDGE
DAVID A. RAINS
. BROCK
WILLIAM D. MELTON S EL L. JONES
SANDRA R. KILLION