Bad Judgement

State District Judge John Marshall is snared in allegations of misconduct

But lawyers Weil and Barr objected to Tyson, based largely on her close ties to Marshall. The two judges have offices next door to each other, and are known to be clubby around the courthouse.

The motion came back to McDowell, who quickly assigned Visiting Judge Ted Akin to hear it. And so the hearing began at 3:30 p.m. on August 4. It took nearly five hours for a series of witnesses to testify to the improprieties alleged by the attorneys for TRT.

By 8:15 that night, Eric Calhoun, a lawyer with Bickel & Brewer, was urging Akin to "count the law" in the case. The defendants, he said, "are trying to distract from the merits in this case to get the court to vacate a judgment that was entered upon a voluminous record after numerous arguments that were briefed in these motions...I think the court that takes a look at these papers will find that there's nothing in there that would suggest that Judge Marshall's ruling was improper on the merits of this case."

Barr and Weil were allowed to wrap up.
"Judge, this does not pass the smell test," Barr said. "The problem here is that this thing stinks, and that's all there is to it, and it's the only way to characterize it. It stinks. You don't have to make a finding as to why you set this thing aside. Set it aside. Clean it up. You owe it to the citizens of this county, and you owe it to this man, and (pointing next door to Marshall's chambers) you owe it to the man next door."

By 8:28 p.m., Akin had ruled.
"I think justice requires for me to set aside this judgment, and that's what I'm going to do. We'll start all the way over."

The aftermath
Two weeks after Visiting Judge Ted Akin signed the order for a new trial in Berins, the justice machine remained in high gear. John Bickel says his firm will soon file a writ of mandamus with Judge Pat McDowell, asking that the new trial on Berins be assigned to Judge Candace Tyson's court.

Marshall, fully recused from the case, has moved on to other assignments. He declined to be interviewed at length about the ex parte allegations. "The Code of Judicial Conduct prohibits me from commenting on a pending case in another court, even one from which I have recused myself," he said last week by telephone. But when asked if he told Evers she could get the watch back after the Berins trial was over, Marshall said, "Ma'am, that is a goddamn lie.

"I have 800 other cases to take care of," he says. "It's not like I don't have something else to do besides messing with this case. It's not relevant to me anymore. I don't care about it anymore."

But in the next breath, Marshall says, "I recused myself on August 1, without any knowledge of a motion for recusal being filed. After I've recused myself from this case, why do they go and beat me up?"

Indeed, for a man who says it is inappropriate to comment, Marshall is bubbling over with talk. "This is a situation where some people who were interested in winning the case didn't like the outcome and decided to go after me. They don't care what happens to the judge in the process. That should raise a red flag for you. Does it?"

Weil declined to be interviewed for the record about the case.
John Bickel and his paralegal, Suzanna Proctor, see the case in about the same light as the judge--essentially, that their opponents in court are little more than sore losers who failed to make their case and now want another chance. The watch that Proctor gave to Evers "had nothing to do with the case," Bickel says. "Carine [Evers] and I are friends. What you typically send for a graduation is a gift."

Besides, Bickel insists, if his firm really wanted to influence the outcome of a case, they wouldn't do it with a free ticket to a ball game, or a trinket for a court clerk. They would have written Marshall a fat campaign check. "Which we didn't," he says. That much is certainly true, according to Dallas County election records. In campaign spending reports filed since 1981, Marshall does not reflect any contributions from Bickel & Brewer or any individuals employed by the firm.

And what if you press Proctor and Bickel to see even the possible appearance of wrongdoing in giving a court employee an expensive gift, or in meeting a presiding judge in a case behind closed doors with no other attorneys present?

"I just have to disagree with that," says Proctor. "The courthouse is, well, you practically live there. You'll see attorneys and clerks hanging around and talking to a judge. Every lawyer does it."

And Bickel--who says that the tickets to ball games, dinners, or little gifts to a clerk are simply ways to show a judge extra appreciation--bristles at this whole issue of peddling influence. "If there's a possibility of swaying the judge, of course it would be wrong. But these things are done regularly by law firms, and I don't think it has any influence over how a judge rules."

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