Ken Hare In Depth: Fuller did not deserve to have domestic violence charge expunged

Ken Hare In Depth: Fuller did not deserve to have domestic violence charge expunged

MONTGOMERY, AL (WSFA) - When a Georgia court wiped the official slate of federal District Judge Mark Fuller's domestic abuse charge, it did not in any way wipe clean the judge's sordid public record. Instead, it just highlighted one more reason why this judge does not belong on the federal bench.

There are widespread calls for Fuller to resign or to be impeached after being accused of domestic violence, but a investigatory panel named by the 11th Circuit Court of Appeals has yet to issue a report that could affect whether the judge will remain in office.

Last year when police responded to a domestic abuse call at an Atlanta hotel, they found that Fuller's wife had "visible lacerations to her mouth and forehead." A police report stated that she told police that during an argument in which she had accused Fuller of infidelity with a court employee, he "threw her to the ground and kicked her."

"Mrs. Fuller also stated she was dragged around the room and Mr. Fuller hit her in the mouth several times with his hands," the police report said.

Fuller has blamed the attack on his wife and maintained that he was defending himself.

If justice is to be served, the recent expunging of Fuller's record after he completed a pretrial diversion program in Atlanta does not in any way mean that Fuller should not be impeached by Congress or pushed to resign by the federal court system.

In fact, it simply is one more argument for his impeachment.

Leave aside the domestic violence issue for a moment. The simple fact that a sitting federal judge chose to enter a pretrial diversion program to avoid a criminal charge -- any serious criminal charge -- should be an embarrassment to the federal court system.

Pretrial diversion programs such as the one in Georgia that Fuller took advantage of are legitimate programs if they are used correctly. They make a lot of sense for first-time offenders who are unlikely to recommit a crime -- especially young people who haven't yet learned to control their emotions or actions. For society to create a way for such people to avoid having to bear the burden of a criminal record for a lifetime is humane.

But Fuller is a federal judge who was accused of beating his wife. He isn't some callow youth who deserves a second chance. He, of all people, should have known better.

If the abuse incident had occurred in Montgomery instead of Atlanta, he would not have had a chance at pretrial diversion.

Daryl Bailey, Montgomery County district attorney, told me Friday that Montgomery has had a pretrial diversion program for years, but it is not available for domestic abuse cases. Bailey has a long history that goes back to his time as an assistant district attorney as an advocate against domestic violence.

Alabama's pretrial diversion law does not allow certain people access to the program, including police officers. When I asked Bailey if it is proper for court officers, who like police officers should know the law, to take advantage of pretrial diversion programs, he said he does not believe so.

Even if Fuller did not beat his wife -- and there is considerable evidence that he did -- he deserves at least to be censured by the 11th Circuit simply for embarrassing the federal judiciary by resorting to a pretrial diversion program.

U.S. Rep. Terri Sewell, D-Birmingham, clearly understands that. She blasted the erasing of his actions from the official record, and once again called for his impeachment by Congress.

"I am deeply disturbed that the charges against Judge Mark Fuller have been dismissed," she said. "There should never have been an agreement to expunge his record, nor should he be allowed to remain on the federal bench.

"Our society is sending the wrong message about domestic violence to perpetrators by allowing a federal judge – who has sworn to uphold the values we hold dear – to continue to serve in any capacity. His punishment must reflect the seriousness of the crime, and any recommendations to the 11th Circuit Judicial Council that fall short of impeachment are inexcusable."

Sewell said that Fuller "has irrevocably violated the sacred trust placed in him, and Congress must send a strong message that his actions are beneath the seat he holds."

Sewell, as well as Congresswoman Martha Roby of Montgomery and both of Alabama's U.S. senators -- who, by the way, placed Fuller's name in nomination for the office he has dishonored -- have called for him to resign.

A panel of federal judges looking into allegations against Fuller have held evidentiary hearings on the issue. The panel can do nothing, censure Fuller, recommend that he resign, or recommend his impeachment. The panel cannot remove Fuller; that can only be done through the congressional impeachment process.

Of course, Fuller could resign before that happens. But it appears that Fuller will cling to his lifetime appointment -- and $200,000-a-year salary that he is still drawing despite being stripped of cases -- for as long as possible.

I prefer that Fuller resign and save the taxpayers a lot of money and the court system a lot of further embarrassment. As I have written before, it's not at all certain that he would be impeached by the U.S. House and convicted by the Senate.

In the nation's history only 15 federal judges have been impeached by the House of Representatives and only eight of them have been convicted by the Senate and removed from office. Three others resigned before being tried by the Senate.

But if Fuller doesn't resign, Sewell is right -- he should be impeached.


Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's website. Email him at

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