Following the 'Letter of the Law'

LINDEN, Ala. - Two weeks ago one of the biggest local trials in the history of Mobile came to a close. Former Mobile Judge Herman Thomas faced 21 charges including sodomy and sexual abuse. He was also accused of spanking inmates for sexual gratification. Many people were shocked by the verdict.

Judge Claud Neilson was hand-picked by the Chief Justice of the Alabama Supreme Court, Sue Bell Cobb, to rule in the Herman Thomas case.

Judge Neilson sat down with FOX10 for an hour-and-a-half long interview in the courtroom of the Marengo County Courthouse, the same place where he served as Circuit Court Judge for 20 years.

Judge Neilson retired in 1995, but when Chief Justice Cobb called him up, he agreed to the task.

"She said, 'I want you to do me a favor.' And I said, 'What is that favor?' And she said, 'Claud, I told you I want you to do me a favor.' And I said, 'Well, what is it?' And finally she said, 'Is that a yes?' And I said, 'Yes, whatever, I'll do it.' And I said, 'What case is it?' And she told me."

Originally, Thomas was charged with 57 criminal counts. But just days before the trial actually began, that number had grown to more than 100. The charges Thomas faced included kidnapping, extortion, sodomy, sexual abuse, assault and ethics violations. The last day of the trial, the jury only deliberated 21 charges. Judge Neilson said he wasn't surprised the charges had dwindled.

"Do you think the state went a little overboard in the beginning?"

"Well, I think most people didn't think there was a kidnapping in the Mobile County Courthouse under the circumstances that were proven. The ethics charges that I dismissed early on, there were three in each indictment. The extortion charges I had told them in pre-trial, I told them, I had some real serious doubts whether extortion fit these circumstances. So they knew I was liable to dismiss a good many of the indictments."

Judge Neilson said some of the state's witnesses, who were convicted felons, were not believable.

"Some of them were credible and some were not, in my view. There were some that I felt like were telling the truth, and some were not. I think it was a mixed bag."

After the state called all of it's witnesses and the defense cross-examined them, Judge Neilson said he was ready to end the whole trial right then. He said he didn't believe prosecutors had met the burden of proof.

"So are you saying this almost didn't go to the jury?"

"Yes. I almost dismissed all of the charges at the end of the state's case. But because that's why I went ahead and dismissed them after the jury got back. The jury has been there for almost three weeks, so I decided to see what they would to see what their thoughts were."

The jury went into deliberations, and after three days they returned an incomplete verdict. The jury could only decide on seven of the 21 charges. It found Thomas not guilty on five counts of sexual abuse, one count of sodomy, and one assault charge.

Several jury members said they thought the judge would declare a hung jury, and Thomas would return to court at some point.

Judge Neilson had a different train of thought, though: he threw out the remaining 14 charges just minutes after the jury was dismissed from the courtroom.

"This verdict came as a surprise to a lot of people. They didn't see this one coming, a lot of people were angry."

"The long story short, if you are not in the courtroom and you don't hear and see people you can't really make a judgment about whether someone is innocent or guilty unless you are there and see what goes on," said Neilson.

Judge Neilson said it all boiled down to the wording of the Code of Alabama Law.

"Everybody would agree that if the evidence were believed a belt on someone's buttocks was used that is assault in the third degree and barred by the statue of limitations, because it is a misdemeanor. The same is true of sexual abuse in the first degree. If there is no forcible compulsion as defined by the Code of Alabama, then it's sexual misconduct, which is a misdemeanor, which is punishable up to one year in jail so that was barred."

But even after the jury delivered it's verdict, and the judge handed down his, the case wasn't over just yet. The morning after the trial wrapped up, three jurors went to District Attorney John Tyson, Jr. with concerns about the accuracy of the verdict.

One juror said last-minute chaos may have led to the wrong outcome. Another juror told FOX10 he didn't vote not guilty on all seven of the charges delivered by the foreman of the jury.

Judge Neilson said after sitting on the bench for some 20-plus years, he has heard it all and seen it all. He said there was no way to impeach a jury's verdict.

"It's not unusual for a jury to get home and explain to their family that so and so, and they say, 'What, you did what?' I don't know what their motives were, but once you leave the courtroom that's the way it is, that's the verdict."

The three jurors who went to Tyson's office didn't present a strong enough case for him to file a motion in the trial. The Herman Thomas case was finally closed. Even though many people were furious that Thomas was acquitted on all charges, Judge Neilson felt just fine about his decision.

"Do you think you made the right decision?"

"Yes."

"Tell me why."

"As I explained, a belt and a paddle were not used as a dangerous instrument. A dangerous instrument as defined in law, in the code. I didn't make the decisions about what the definition is, dangerous instrument is defined as an item in the manner it is used is readily capable of causing death or serious physical injury and serious physical injury is defined in the code as injury that causes disfigurement or prolonged impairment of health or prolonged impairment of a bodily function.

"And there was no evidence in testimony that there were any impairments of a bodily function or health or disfigurement, and there was certainly not readily capable of causing death. I felt like it was a total failure of proof on the state that a belt or paddle applied to someone's buttock is a dangerous instrument so that threw out all the assault charges. And I have explained the forcible compulsion, that's physical force that overcomes earnest resistance or a threat of death or serious injury."

"But it doesn't say a threat of jail time."

"That's correct. And I have to go by what the code says."

"So Herman Thomas could have been guilty of doing these things, but it's not written in Alabama State Law?"

"The crimes they had him charged with did not fit what the allegations were."

Judge Neilson said he was following the letter of the law exactly, and the things Thomas was accused of doing, no matter how terrible they were, were not punishable by law.