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John Council and Brenda Sapino Jeffreys

Texas Lawyer

12-14-2007

U.S. District Judge Samuel Kent -- who has hired Houston criminal defense lawyer Dick DeGuerin -- met with Federal Bureau of Investigation agents on Nov. 30 to discuss allegations that he sexually harassed a court employee.

On Sept. 28, the 5th U.S. Circuit Court of Appeals Judicial Council issued an order reprimanding and admonishing Kent in connection with a May complaint filed by Cathy McBroom, a former case manager for the judge.

DeGuerin, a partner in Houston's DeGuerin Dickson & Hennessy who was retained by Kent on Nov. 26, says he has read the undisclosed findings of the Judicial Council and of a 5th Circuit Special Investigatory Committee that looked into McBroom's complaint against Kent.

"What the panel and the judicial council found was there was not enough evidence to rise to probable cause that a crime had been committed," says DeGuerin who adds that he is not quoting or paraphrasing the findings. "Had there been probable cause, they would have been obligated to turn that over and authorize a prosecution. But what they considered was evidence and sworn testimony from all sides -- the major issues being the credibility and motives of the complainant."

DeGuerin declines to comment specifically on McBroom's allegations.

"Sexual harassment in the workplace can take many forms. Many don't rise to the level of a crime," DeGuerin says. "As an example, inappropriate comments, jokes with sexual overtones and even a pat on the shoulder could be considered sexual harassment."

DeGuerin says Kent, on his own, "solicited the interview" with the FBI, answered all of the agents' questions and agreed to further interviews if requested. DeGuerin says he did not sit in on Kent's interview with the FBI.

DeGuerin says Kent told him about his interview with the FBI "right after it was done. ... He called an FBI agent that he knew. He [the FBI agent] contacted another FBI agent that he knew and they interviewed him." DeGuerin adds, "I think he [Kent] did the right thing. I think it strengthens his position that he's had all along. Maybe he's done some things that are a little embarrassing, but he's done nothing wrong."

"Of course the FBI agents don't let on what they're thinking when they interview witnesses," DeGuerin says. "But he felt like they asked all of the right questions.

"I think if they interview the same people that the 5th Circuit interviewed, they'll come to the same conclusion they did -- that there wasn't any crime."

A U.S. Department of Justice spokesman and Galveston County Criminal District Attorney Kurt Sistrunk did not immediately return telephone calls seeking comment.

Rusty Hardin, a partner in Houston's Rusty Hardin & Associates who represents McBroom, disagrees with DeGuerin's contentions.

"You can say I laughed when I heard that," Hardin says. "There was much more than probable cause, and in my view, there's much more than necessary for an indictment."

"The short answer is stay tuned," Hardin says.

In August, Chief U.S. District Judge Hayden W. Head Jr. of the Southern District of Texas signed an order noting that Kent would be absent from the bench from Sept. 1, 2007, to Jan. 1, 2008, and that U.S. District Judge John Rainey of Houston would take over Kent's portion of the Galveston docket.

Edith Jones, chief judge of the 5th Circuit -- which covers Texas, Louisiana and Mississippi -- wrote in the Sept. 28 order reprimanding Kent that a Special Investigatory Committee appointed to investigate McBroom's complaint had expanded the original complaint under Rule 9(A) of the 5th Circuit Rules Governing Complaints of Judicial Misconduct or Disability. The committee investigated other "instances of alleged inappropriate behavior toward other employees of the federal judicial system." The committee recommended that Kent be reprimanded "along with the accomplishment of other remedial courses of action," and by a majority vote the Judicial Council accepted the recommendations.

The council concluded the proceedings "because appropriate remedial action had been and will be taken, including but not limited to the judge's four-month leave of absence from the bench, reallocation of the Galveston/Houston docket and other measures," wrote Jones, who signed the order.

In October, an executive session of the judges of the U.S. District Court for the Southern District decided to transfer Kent's Galveston Division to the Houston Division. Kent, a judge in the Southern District of Texas since 1990, will receive civil cases in the Houston division when he returns to the bench.

McBroom filed a motion last month with the Judicial Council asking it to reconsider its decision not to refer her complaint to the Judicial Conference of the United States. The Judicial Conference, which is comprised of federal judges from all of the circuits, could refer the Kent matter to the House Judiciary Committee to initiate impeachment proceedings, among other options, which is what McBroom wants.

A person close to Kent's disciplinary matter who requested anonymity told Texas Lawyer last month that the Judicial Council was considering whether to honor a subpoena from the Justice Department asking for transcripts and documents related to Kent's disciplinary action.

The Judicial Council's vote to issue the September order admonishing Kent was not unanimous; some of the judges believed the punishment was not harsh enough and that the order did not adequately describe Kent's alleged conduct, according to the person close to the Kent matter.

While McBroom's initial complaint filed with the Judicial Council contained "vague" allegations of sexual harassment, some judges on the council became alarmed after reading about more serious allegations relayed by McBroom's family and friends in a Houston Chronicle article after the Judicial Council released its September disciplinary order, according to the person close to Kent's disciplinary matter. "The more serious allegations that have come out in the press, [Judicial Council] members have said, 'I don't remember that,'" said the person close to Kent's disciplinary matter.

According to the Chronicle article, Kent asked McBroom to come into his chambers for a hug, and when she was there, he allegedly pulled up her shirt and bra, touched her breast with his mouth and pushed her head toward his crotch. The alleged incident was interrupted when another staff member approached the room, the article noted.

Hardin says he doesn't know what information the Judicial Council had, but McBroom was "fully interviewed."

Last month, Hardin said the characterization of Kent's actions as "sexual harassment" is a "totally inappropriate term. It's worse than that."

DeGuerin says Kent retained him after Hardin told several newspapers, including Texas Lawyer, that McBroom wants the DOJ to consider criminal charges against Kent.

Hardin said last month, "Our position is we want a criminal investigation by the Department of Justice -- I think there will be."

Hardin also said he expects the Justice Department to consider several criminal statutes in its investigation, specifically 18 U.S.C. §2241(a)(1), which is a charge of attempted aggravated sexual abuse, and §§2244(a)(1) and 2244(b), which are under the heading of abusive sexual contact.

Notes DeGuerin, "When Rusty Hardin became involved and started saying a crime had been committed ... it became obvious that he [Kent] needed some advice about that."