High Court: Judge Was Biased in Church Case

By Steve Visser
Atlanta Journal-Constitutuion
June 2, 2008

A Fulton County judge was harshly criticized by the state Supreme Court on Monday for becoming an advocate for one side in a civil case and jailing a man for 20 days without letting him defend himself.

In the highly unusual ruling, the high court said Superior Court Judge Craig Schwall violated rules of judicial conduct, violated the rules of evidence and violated the rights of Scottie Cousins, a defendant in an internal squabble over the assets of a small, southwest Atlanta church.

"The trial judge's conduct of the injunction hearing was clearly improper," said the unanimous opinion written by Presiding Justice Carol Hunstein. "In addition, by attempting to himself procure evidence and elicit testimony in the case, the trial judge stepped beyond the role of arbiter and into that of advocate."

The ruling arose from a 2007 dispute involving the finances and control of the 200-member Macedonia Baptist Church of Atlanta.

Some members had sought an injunction against Cousins, a mortgage broker and the church's music director, and Alan Moon, chairman of the board of deacons, when they learned the two had refinanced the church's mortgage and obtained $47,000 under Cousins' control.

The members learned of the refinancing and the $47,000 in March 2007 when Moon tried to replace the church pastor with Cousins and changed the locks on the building.

Moon and Cousins claimed the pastor had approved the new mortgage and that the refinancing was necessary to save the church from foreclosure after the original mortgage had gone into arrears, said Nathaniel Wheelwright, who represented Cousins.

Moon and Cousins claimed the church pastor was mismanaging the church finances, Wheelwright said.

The pastor, the Rev. Daniel Dickson, said in an interview Monday that Moon and Cousins never had permission to refinance the church and had fraudulently obtained the mortgage.

At an emergency hearing before Schwall in April 2007, the judge refused to allow both sides to call witnesses and submit evidence and instead polled the church members watching the proceeding on whether they wanted Cousins to run the church.

"It was surreal," said Wheelwright. "I had witnesses. I had 45 exhibits to present to the court. Until the judge called my client to the stand, no witnesses had been sworn. The judge asked for a vote from the gallery."

After the vote, the judge called a recess and telephoned the Peoples Community National Bank in Bremen, where Cousins said he had deposited the $47,000, the opinion said. The judge then called Cousins to the witness stand and questioned him personally.

Schwall concluded from the telephone conversation that Cousins was perjuring himself when he said he had deposited the money in the bank on behalf of the church and sentenced him to 20 days in the Fulton County jail for criminal contempt. The judge also blocked the Cousins faction from managing the church finances.

"I was dumbfounded," Wheelwright said. "I'm a lawyer and you're taught to be respectful to the court. I assumed the judge wanted to be respectful to everybody involved."

Emory University law professor Robert Schapiro said while it wasn't that unusual for a judge to question a witness, often to clarify answers, it was highly unusual for a judge to take on the role of an investigator.

"The judge apparently became frustrated at what he viewed as false testimony," said Schapiro after reading the opinion. "It was an unusual trial court proceeding that resulted in an unusual opinion by the Georgia Supreme Court."

Two requests by The Atlanta Journal-Constitution to interview Schwall went unanswered.

Cousins, a Carrollton, had to spend at least four days in jail before the Georgia Court of Appeals ordered his release, Wheelwright said.

The case will now go back to Schwall, whom Cousins will ask to recuse himself, Wheelwright said.

"The Supreme Court ruling did not say they were not guilty," pastor Dickson said of Cousins and Moon. "It only said the case was not handled right, so we'll be going back to court."

A judge has broad powers to use criminal contempt to control the courtroom but he still must follow safeguards to ensure a person is properly jailed, Schapiro said.

The Supreme Court took Schwall to task not only for becoming an advocate but for being a sloppy one. Its 7-0 opinion noted Schwall had relied on unsworn statements he had gathered during his telephone inquiry and his other "evidence" were uncertified documents.

Schwall's "improprieties" undercut constitutional protections to keep a person from being unfairly jailed, the court said.

"The totality of the 'evidence' at the hearing was elicited by the trial judge himself," Hunstein wrote. "Without offering any of the parties the opportunity to make argument, call their witnesses or present evidence, the judge declared that Mr. Cousins had stolen $47,000 from the church."


Any original material on these pages is copyright © 2004. Reproduce freely with attribution.