Committee says: Means’ activities were “indiscrete”


The Sentinel-Record   8-31-1977

Little Rock (AP) – A legislative committee concluded late Tuesday that Judge Henry B. Means of Malvern committed “gross indiscretions” by practicing law and plea bargaining while a judge.

These past actions did not constitute good cause for recommending removal from office, but they would if the judge continued them much longer, the committee reported.

Rep William Clark of Sheridan, whose resolution was adopted by the committee earlier this year to start the probe tried to get the committee to vote to start procedures for removal of Means.

His motion got only six favorable votes with 17 against it.

Clark alone voted against the milder report which, in effect, reprimanded Means on the plea bargaining and law practice issues.

The substance of these points was:

Rule 25 of the Rules of Criminal Procedure says judges shall not engage in plea discussions.  The committee said that is what Means did when he told lawyers what sentence he would impose on clients if they pleaded guilty; Means said the rule was aimed at a negotiation process, not against giving factual information to attorneys.

The Canons of Judicial Ethics and the state Constitution prohibit judges from engaging in law practice.  The committee said that is what Means did when he wrote opinions on whether titles to property were legal and sound. Means said the prohibition on law practice was aimed at courtroom activity, not minor legal services.

The action Legislative Affairs capped a month old probe of the 7th Judicial District jurist after controversy erupted Nov 18 over his handling of five drug charges.

Means, a former prosecutor and a judge for 19 years, declined to comment on the committee action or on whether he would cease the practices condemned by the committee.

During his testimony, Means was not specifically asked if he would abandon either practice if the committee censured them, but at one point he was asked how he would react today if a lawyer called and asked what sentence he would impose on a guilty plea.

Means said he thought he would tell such a lawyer goodbye.

The judge and his lawyer, Ted Boswell of Bryant, told newsmen after the committee vote that they would issue a statement in a few days.

Means also declined to comment further on his earlier statements that at one time he had considered making his current term on the bench his last.

The committee voted it findings after a daylong hearing most of which was devoted to questioning Means, who had been subpoenaed to testify.

Means gave probation and fines to four defendants who pleaded guilty in the Nov 18 cases. He dismissed a charge against one who pleaded innocent. More than 200 pounds of marijuana was confiscated.

His handling of these cases and the protest by Pros Atty John Cole of Sheridan over the handling, ignited public pressure for a probe.

Boswell has argued that the committee lacks authority to conduct this kind of investigation. He said Means testimony under subpoena did not mean the judge was surrendering any of those contentions.

One of the major points in the probe was whether Means engaged in plea bargaining in connection with the drug cases. The plea bargaining rule now in use took effect Jan. 1, 1976.

In his testimony Means said he did not engage in any plea bargaining. He said he talked by telephone the day before the trial to two lawyers who represented some of the five defendants.

The lawyer called him, Means said. The first of the conversation took about 7 AM when he was called at his home by state Sen. Harold King of Sheridan,  Means said.  King represented two of the defendants.

King asked what penalty the judge would impose if King’s clients pleaded guilty Means said. I answered him, “What’s the prosecuting attorney, John Cole of Sheridan, recommending,” Means testified.  “and he said the prosecutor would recommend five years with four suspended.”

I thought about it a minute.  Grant county is sort of a poor county and we haven’t had the best success in the world by keepng people in the pententiary so I said, “What about five suspended and a $1000 fine but it would have to approve all of them.”

He said, “Well, I have to confer with the rest of the attorneys and you’ll hear from me later in the day.”

Means said that was about all he could recall of that conversation.

In the evening, Means said he called Cole to bring him up to date. Cole said he woudl object, Means testified.

Minutes later Means said a Texas attorney, Charles Newlin, called to tell him the other defendants would accept the same penatly.

But, Means said, he told Newlin to make a conference call so that Cole, Newlin and the judge could communicate together.

“I wanted John to know what was going on,” Means said. “I felt that I owed him that courtesy.”

He said he was a former prosecutor and it was the duty of the prosecutor to keep the judge advised of developments in criminal cases, but he said he was not blaming Cole for anything.

“I take full responsiblity”, Means said.

The telephone conversations with the lawyer did not break the plea bargaining rule, Means said, because, “If I can’t have a conversation with my lawyer and he can’t ask me what I think, you might as well get rid of the judge and turn the whole thing over to the prosecutor.”

However, Means also said that if a lawyer called him now under circumstances which existed when King called, I probably would tell him good-bye. I’ve had enough trouble over this already.

From time to time Boswell interjected clarifying remarks some of them based on his view that the committee does not have legal authority to conduct this type of investigation.

Sen. Jim Caldwell of Rogers, the co-chairman of the committee, reminded Boswell that the committee rules provide for the lawyer to advise the witness, not to interject testimony.

Means also was questioned by Atty. Gen. Bill Clinton about the manner in which Means had regained jurisdiction over the case involving these defendants.

Because of crowded docket, Means said, he had asked for some help. The Supreme Court assigned Judge Randall Williams of Pine Bluff to handle the drug case Means said.

But later some cases Means was scheduled to hear fell apart or got settled as often happens and the Judge found himself with a couple of days on my hand wehre I could go play golf and let Judge Williams hold court for me so I could hold court for myself.

He said he decided to do it himself and called Williams on the telephone to ask if Williams would like for me to go ahead and preside over the drug case which was pending in Means’ district.  Williams said he would be happy for me to do that, Means said.

Clinton said that C. R. Huie, head of the judicial department of the state government, had testified in an earlier hearing that a judge assigned to a case such as Williams was can not lose juridiction of it unless the court relieved the Judge of the jurisdiction.

That, Huie said, was the only procedure known to him.

He aslo testified, however, that there were no written rules for Judges to follow to get other judges assigned to cases or to regain jurisdiction over them.

Means said he never lost jurisdiction, even when he asked for help, and when the Supreme Court assigned Williams to handle the case.  Boswell answered for Means pointing out that as the elected judge of the 7th Judicial Circuit, Means was vested by law and the constitution with the duty to exercise jurisdiction over cases where were filed in the circuit. This answer by Boswell was a point where Caldwell obliquely admonished him for going beyond the limits set in the committee’s rule about the role a witness lawyer could play during the witness testimony.

Clinton also introduced documents related to a Saline county case where a man was charged with driving while intoxicated in municiple court at Bryant and appealed to circuit court. Clinton said the case occurred 2 1/2 weeks ago.  He seems to be driving at the idea that Means had used poor judgment and perhaps had imposed a sentence lighter than allowed by law.

However, Clinton did not have enough of the document related to the case to spell out how clearly what it had been about or how it had been handled. Means said he could not remember the case at all.  Clinton said he would try to get more information and get further into this matter later on.

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