Background: Conscientious Virginia judge James Michael Shull, who smoked out a woman who sought to extend a restraining order based on false charges of domestic violence, was just removed from the bench by this Virginia Supreme Court ruling. I have examined the evidence in this case and it is clear to me that Shull is being railroaded. The case provides a sad but excellent example of what can happen to judges who take their responsibilities seriously when adjudicating domestic violence claims.Shull’s problems stem from a case which came before him on December 15, 2006. In that case, Tammy G. had obtained a domestic violence protection order against her husband Keith G., claiming that he had stabbed her. At the time of the G. hearing, the couple’s two young children, then ages three and five, were staying with their paternal grandmother. Keith testified that he hadn’t harmed Tammy, and that if she did have a wound, she had cut herself. Keith also testified that Tammy had committed a similar act on March 22, 2006, harming herself and then calling the police to report that Keith had attacked her.

Shull reasoned that he had to find the truth in order to protect the children from either a father who had stabbed their mother, or a mother who is a psychologically disturbed cutter. Shull examined the wounds and found that they were four nearly identical razor blade-like slices in two sets of parallel lines spaced evenly apart—hardly the type of wounds one would receive in domestic combat, and entirely consistent with Keith’s allegations that Tammy had cut herself. Shull also examined the Wise County Sheriff’s Incident Report about Tammy G.’s March allegations. According to the report, Tammy “gave a statement that she had done this to herself to get attention,” and “admitted that she had self-inflicted her wounds.” The report discusses charging Tammy with filing a false police report over the incident. Shull got in trouble because, according to the Virginia Lawyers’ Weekly, Tammy and Teresa Castle, the deputy clerk, claim that, in order to inspect the wound, he directed Tammy to expose herself twice during the hearing. The Virginia Judicial Inquiry and Review Commission “summarily suspended” Shull for “a substantial and serious breach of the dignity and decorum required in a Virginia courtroom.” Shull and Daniel Fast, Keith G.’s attorney, assert that Tammy had offered to lower her pants both times in order to show Shull the wounds. According to the VLW, neither side disputes that “the privacy curtains in the courtroom were pulled before G. exposed herself.” Tammy’s wound was on her right thigh, she was wearing pants, and the only way Shull could examine the wounds was to have her lower them. Perhaps Shull should have acted more cautiously. However, his need to protect the G. children by ruling correctly in this difficult, contentious case vastly outweighs Tammy’s privacy concerns. Most importantly, no party in the dispute is even claiming that Shull made the wrong decision in finding that the wounds in question were self-inflicted. Shull’s conscientious pursuit of the truth in the G. case, for which he has been removed, was admirable.

To read my co-authored newspaper column defending Shull, click here.

The Shull case and the recent Virginia Supreme Court decision are an infuriating example of how lightly our legal system takes false accusations against men. In this case, everyone agrees that Judge Shull was placed in a very difficult situation, and that he had to make a tough call where children could have been in imminent danger. Nobody even disputes that he got it right–and yet it doesn’t even matter.

Both the Virginia Supreme Court’s 29-page opinion and the widely-disseminated Associated Press article by Larry O’Dell ignore the most important facts in this case and are biased against Shull to a bizarre extent. O’Dell writes:

“The court said [the most ‘egregious’ incident] occurred when a woman was seeking a protective order against a partner who she said had stabbed her in the leg. Shull knew the woman had a history of mental problems and insisted on seeing the wound, the court said.”

It is unclear that Shull was in a position to decide with finality that the woman, Tammy G., had “mental problems.” More importantly, even if he was, what did the Court expect Shull to do? Shull had three options:

1) Decide that since the woman is mentally ill, he’s not going to subject her to a full effort to find out whether or not her husband really did stab her, but instead just give the husband the children. In other words, don’t ascertain the truth, but instead turn the kids over to a man who she claims tried to kill her.

2) Decide that since the woman is mentally ill, he won’t put her through a full effort to ascertain the truth, but instead give her possession of the kids. In other words, give the kids to a mentally ill woman.

3) Ignore her apparent “mental problems,” and make a real effort to ascertain the truth in the case in order to protect the children. Shull did that, and it cost him his job, his reputation, and his retirement pension.

In the AP article, Larry O’Dell writes that several years ago Shull had “advised a woman to marry her abusive boyfriend” and that he got in trouble with the JIRC because of it. I have not investigated this charge separately, but Shull very much disputes this account:

1) Shull disputes his alleged knowledge that the relationship was “abusive.”

2) Shull claims that his advice to get married occurred in a case where a woman’s ex-husband had custody of their children and the woman wanted to know what she could do to improve her chances to get the kids back. Shull told her that social services would look more favorably on her situation if she were living in a more stable relationship, like being married as opposed to just living with someone. He didn’t tell her she had to get married to get her kids back, he just told her it would strengthen her case.

3) Shull says that when JIRC investigated this accusation and others in 2004, his opponents’ versions unraveled. He says, “These cases were dismissed not because of mercy toward a rookie judge, but because they imploded.”

Both the Virginia Supreme Court’s opinion and O’Dell’sAP article ignore the most important facts in this case and criticize Shull for the “coin toss” incident. According to the AP:

“According to the court, Shull admitted tossing a coin to determine which parent would have visitation with a child on Christmas. Shull said he was trying to encourage the parents to decide the issue themselves but later acknowledged that he was wrong.”

What happened was this–a mother and father had shared physical custody of their children, and could not agree as to who would have them on Christmas Day. Shull urged them to come to an agreement themselves, but they were unable to. Normally at this point (or actually, long before it) the judge would’ve just decided to give the kids to mom for Christmas, but Shull told both parents that he considered both of them to be good, loving parents and that he did not want to have to choose between them.

When they were unable to decide, he decided to toss a coin to make the decision, sending a clear message that the court was not going to favor one parent over the other. I applaud Shull for this, yet, amazingly, this non-event is one of the major charges against him.

Also, according to Shull, the coin toss was not objected to by either of the two parties, both of whom were represented by attorneys. Shull determined who got the 1st week of Xmas vacation the first year, with vacation to be alternated thereafter.

The AP article by O’Dell also says the Virginia Supreme Court’s decision was “unanimous,” which sounds impressive but is factually questionable. According to Shull:

“It is hard to say the opinion was ‘unanimous.’ The opinion was authored by Justice Keenan, but no one else signed on to it. It does not have any dissents, but in cases of this type, they sometimes do opinions in this manner to mask their differences because it’s more politic.”

The Virginia Supreme Court’s opinion criticizes Shull for “making an improper ex parte telephone call during a recess in the custody hearing to obtain information on a disputed factual matter” and that this “ex parte communication serves to illustrate again Judge Shull’s lack of concern for litigants appearing before him.”

Nothing could be further from the truth–Shull made the phone call out of concern for the litigants before him, principally the two young children whose placement he had to decide. Shull had to give the children either to the husband, who the wife claimed stabbed her, or the wife, who the husband claimed was a mentally-disturbed cutter.

In the case, Tammy G. claimed that her husband had stabbed her and that she went to a local emergency room for treatment. Shull’s violation consisted of–brace yourself–calling the local hospital to confirm that Tammy G. had been admitted. Once again, Shull is in trouble for examining the facts in the case before him–he made the call as part of his duty to protect the G. children.

Shull also says that he informed everyone in the courtroom that he planned to call before he made the call.

It is true that the Virginia Canons of Judicial Conduct states:

“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.”

Shull says, “It is not uncommon for judges in the juvenile and domestic relations court to place telephone calls to ascertain the truth when resolving a factual dispute.”

The Virginia Lawyers Weekly article JIRC: Censure or remove J&DR judge (5/28/07) contains an interesting tidbit about this issue. The lead judge in the court where Shull heard this case, Elizabeth S. Wills, “testified that she very seldom makes such calls.”

“Seldom?” So Wills, who is Shull’s boss and who is largely responsible for him being railroaded, admits to the Judicial Commission that she too has made the same kind of phone calls–the type of calls which Shull is in trouble for doing once and only once.

In a blurb about Shull, Tim Perone of the New York Post writes the following:

“A family court judge in Richmond, Va., was removed from the bench after several kangaroo-court moments, including flipping a coin to decide a custody case. James Michael Shull was unanimously stripped of his robe by the state’s Judicial Inquiry and Review Commission, which also found the jurist guilty of calling a teen a ‘mama’s boy’ and a ‘wuss’ as well as telling a woman to marry her abusive boyfriend.”

I’ve dealt with and have been quoted (and misquoted) by plenty of lazy reporters, but this one takes the cake. The Judicial Inquiry and Review Commission did not “find” Shull “guilty” of anything alleged above. The AP article by O’Dell that Perone cribbed from states that Shull “had appeared before the Judicial Inquiry and Review Commission in 2004 for allegedly calling a teenager a ‘mama’s boy’ and a ‘wuss’ and advising a woman to marry her abusive boyfriend. That complaint was dismissed…” (emphasis added). There was no finding of anything against Shull at all.

Just as the “marry her abusive boyfriend” allegation is a questionable stretch, for reasons I have already explained above, the “mama’s boy” allegation is also dubious. Shull asserts that the witness that alleged that Shull called a 14-year-old boy a “wuss” was Guardian ad Litem Kristen Dean.

I checked up on Dean and found that, according to the Virginia State Bar’s website, the Bar “suspended Kristen Dawn Dean’s law license for five years, effective on or before December 16, 2005, for misappropriating portions of a client’s personal injury settlement for her own use and then taking steps to deceive and to conceal the misconduct. The board found that Ms. Dean failed to properly communicate with her client; failed to obtain a written contingency fee agreement, failed to provide an appropriate account of the client’s funds; made false statements; engaged in deliberately wrongful conduct; and engaged in fraud, deceit or misrepresentation.” What a great witness.

Shull also asserts that the parties in the case contradicted Dean’s accusations. I don’t know if this is true, but the JIRC did dismiss the allegation.

The New York Post also asserts that Shull “flipped a coin to decide a custody case.” Not true–custody had already been decided, and as I already explained, the coin toss was only to settle who would get the kids on Christmas. Given the specific context of the case, Shull was right to determine this in the manner he did., Glenn Sacks

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