Thomas Trial: Neilson speaks out

LINDEN, Ala. - Retired judge Claud Neilson was appointed by Governor Wallace, then ran three times, then was re-elected. FOX10 News reporter Libby Amos talked to Neilson in an exclusive interview, soon after he handed down a not guilty verdict in the Herman Thomas case.

How did you get this case?

"Chief Justice sue Bell Cobb called me and asked me would I please handle this case, because she said they needed someone with experience. And I said, 'Thank you, I'm glad you think I've got experience.' So I agreed to do it."

So she gave you a choice.

"Yes. In fact, the way it actually happened, 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."

Neilson knew he would be the presiding judge sometime in March or April of 2009.

Did you listen to what the media was saying?

"I would go online and read stuff from the Press Register."

So you had an idea of what was going on?

"Yeah."

Statute of limitations

"In Alabama, for a felony, there is a three year of a statue of limitations. But if it is accompanied with violence to a person, it's unlimited statute of limitations, and they had a number of indictments for ethics. And the ethics has a specific four year limitation and so most of those ethics charges. Once they told me when they occurred, I granted the motion to dismiss those charges, since they were barred by the statute of limitations."

Early on Bob Clark brought out the race card. Do you think that this case had anything to do with Herman Thomas being black?

"I really don't know."

Leading up to the trial, powerful people who worked with Thomas made some strong comments; Graddick, state bar, Judge Johnston.

"I was not acquainted, and didn't know the dynamics that were going on. They were some strong statements."

Moving into the trial; the majority of the witnesses were convicted felons, men who had been charges with murder. Do you think that had an effect on the verdict? Do you think jurors looked at them in a different light?

"I would think it would probably... it would have certain impact on them. The fact that they were hearing something from a convicted felon who was in the penitentiary, I would think it would effect how they viewed the evidence and testimony."

What about you, what did you think about it?

"I've been around criminals a long time. It's not for me to make a decision on what the truth of the matter is. All I do is rule on the law and explain the law."

The jury was seated, we heard from the first few witness. After you had heard some similar stories did you have an opinion at that point?

"I was trying to figure out if the state was reaching the burden of proof as to each of the elements of the offense. I had told them early on that I was concerned about the assault second degree charges. In Alabama there are three assaults. It can be assault first degree, which is punishable from ten to life, assault second degree is one to ten, and assault, third third degree is a misdemeanor and would be barred by the statute of limitations.

"Well, the state had to prove, and they alleged in the indictment, that the defendant used a deadly weapon or a dangerous instrument to paddle of strike the defendants and belt or a paddle on their buttocks. I was, in my mind, trying to decide whether or not that was a dangerous instrument. That code of Alabama defines a dangerous instrument, that is, an item in the way it used is capable of causing death or serious physical injury. I was trying to decide whether or not I should take the case from the jury, or let it go to the jury and see how they ruled on it. Since they had been there three weeks, I decided to let them rule on it."

The state had the burden of proof. Explain that.

"It means that the defendant doesn't have to prove anything. They don't have to take the stand, they don't have to present any evidence. The state has to prove the evidence in each one of the elements beyond a reasonable doubt. And as I explained to the jury, beyond a reasonable doubt is not a guess, but it what a fair-minded juror examining all of the evidence would reach a decision that is based on what they've heard. If you are convinced in your own mind that it's beyond a reasonable doubt, it is more a less to a moral certainty that the defendant did the act complained of, then that's what the state has to prove. It's not just a guess or a whim. That's what I explained to the jurors. When you deal in human affairs, it's not like math, two and two and three and three. Everything in human affairs is subject to some realm of possibility, but the state has to prove to each person the guilt beyond a reasonable doubt."

The witness's stories were all very similar: In trouble with the law, met Thomas,

went to his office, paddled with belt or frat paddle. After hearing those stories, did you think he was up to something shady?

"Well, it wasn't for me to say, it was for the jury to determine, and the jury would have to make that decision. Did I feel there was something going on? I don't know. I've dealt with criminals and all of the stories were pretty much the same, and who knows if they had talked among themselves. Of course, that was what the defense was trying to say, that they had concocted these stories. That was the way they were viewing the storyline. They said the prisoners got together and came up with the same story. So I was curious to see how the jury was going.

"This was very unusual, because both sides agreed to consolidate 15 cases for trial. It was very unusual to do that. Normally you don't have, I forgot the rule of evidence number, but you don't normally have one person come in and say, 'The same thing happened to me three years ago,' to prove that it happened on a particular date to someone else. But since all of them were consolidated for trial, you had the same story over and over again. So I'm sure the jury began to think, 'Hey, something was going on that was not normal.'"

103 charges to 21. Do you think the state went a little overboard?

"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."

After the ruling, there was celebration in the courtroom. Positive comments from our viewers. Do you think the accusers were credible?

"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."

The ones who you felt weren't telling the truth, what gave you that feeling?

"I've been a judge for 35 years, and I have watched people testify in court, and I just had the feeling one... some of them, that they were not, you know... It's just something that if you have done it as long I have you, kind of size up people and have a good feeling that maybe they may not be telling the truth. It was a mixed bad I felt some were and some weren't."

There were several comments from angry viewers. Eighty-two percent said they thought the jury would find him guilty.

"Nobody really knows how a case is, unless you sit in a courtroom and see and hear the evidence. What you hear on radio and TV is just snippets, and what's in the paper is just snippets. So, to really make an informed decision, you have to be in the courtroom. And the jury reached on seven counts, six of them sexual assault in the first degree not guilty, and one assault in the second degree was not guilty and they were not able to reach a verdict on the others. So I feel like the jury did, and I read all the stuff about them coming and saying it wasn't a unanimous verdict. But no one said anything in court. 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."

After things were wrapping up did you ever think he was guilty?

"I never thought, and I almost directed a verdict at the close of the states case, I decided not to. I never thought the state proved the elements in the assault of the second degree, that a belt or paddle on someone's buttock is use of a dangerous weapon as defined by the code of Alabama. The code of Alabama, like I said, has got to be used in such manner where there is risk of death or serious physical injury. And there was no testimony other than it stung or it hurt that would show to there was any serious injury. And therefore I decided to let them see if they could reach a verdict on the assault charges. And on the sexual abuse charges I decided to let that go to the jury to see if they were. But in my mind there was some real serious doubt as to whether or not there was forcible compulsion, which is a word that I didn't come up with, but it's in the code of Alabama: to be guilty of assault to be guilty of sexual abuse there has got to be forcible compulsion."

Are you saying this case 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 get back. They jury has been there for almost three weeks, so I decided to see what they would... to see what their thoughts were. I tried to explain in court why I did what I did. Most people don't understand why I did what I did, but these were items that I had discussed with the attorney’s in pre-trial and

I told them I had some real serious concerns about whether or not it fit. The reason they brought all of the felony charges was because statue of limitation had already run as to misdemeanors. I don't think there is any doubt that everybody would agree that if the evidence were... believe 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. So all of those cases, and I discussed with the attorneys whether or not they wanted me to charge on the lesser or included crime, and they said no, because it's barred so both sides don't charge on them, so I didn't because it is barred. 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 punishable up to one year in jail, so that was barred."

Barred?

"There is a statue of limitations. In other words, if you don't indict someone or bring charges against someone within one year, the act is committed if it is a misdemeanor, you can't bring it, it's barred by the statue of limitations."

Lesser charges?

"All of the lesser charges would have been barred by the statute of limitations sexual misconduct. If you believe the evidence that he touched or paddled for his own sexual gratification, and did so without forcible compulsion, that's a misdemeanor sexual misconduct."

And ahead of time the state said they were not going to worry about those?

"That's correct, because they knew that they were barred... that misdemeanors even if accompanied by violence are barred by the operation of law."

Do you think the jury didn't read or watch stuff on the case?

"Well, every day when they went home, I'd tell them the same thing. I asked them to give me their solemn oath that they would not talk to do anyone, or do this, and if you can't let me know and we'll sequester ya'll, and they all said we give you our oath we will not do that. So I have no reason to think they didn't."

Should the jury have been sequestered?

"No."

Why not?

"I think a jury can follow instructions. It is more of a danger to be talking to individuals and families than to be reading things in the newspaper or on TV to tell you the truth, because people in the family are not there and they are not there in the courtroom and they may influence somebody moreso than what they may see on the newspaper. But I didn't think it was necessary to sequester them, it wasn't that high profile of a case to be sequestered. I've tried, I don't know how many death cases I've tried, but that's where you sequester a jury. I think the acquittals were right on line as I tried to explain to them what elements of law the state had to prove beyond a reasonable doubt."

Would Judge Thomas getting his license back be unusual?

"So, it's not unusual, and he wasn't convicted of anything, so I don't think it would be unusual for the bar to give him his license back."

What instructions did you give the jury?

"I explained to them that I was going to give them instructions on the law and they had to decide what the facts where, but they had to decide the facts in accordance with the law. And so I gave them instructions on each one of the elements of the crime, and I explained burden of proof and I explained, hopefully, I explained everything that was applicable during that time in the proceeding.

"I explained to them what sexual abuse was. I explained each one of the three elements that the state would have to prove. I explained the sodomy charge and what the state would have to prove with what each one of the elements. I explained assault charges and what they had to prove, and gave them the possible verdicts that they could return."

Did the jury know you had the power to rule on the remaining 14?

"Probably the only one who did was a lawyer on the jury. They probably assumed there would be a hung jury and there would be a new trial.

"Well, I've had cases before where people come back in and say I didn’t vote for that, that's the next day. The law of the state is once you leave the courtroom, you need to poll the jury. If you don't poll the jury, you can't impeach their verdict."

Polling the jury

"There was no reason to think at that the verdicts weren't unanimous and nobody said anything there in the courtroom."

They had a chance to speak up

"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.

"I have directed verdicts many times in trials. Normally in a case like this, I wanted to see what the jury would do, see if they would follow the evidence. I had some very serious doubts in mind at the close of the plaintiff's case as to whether I should throw the entire case out. And I felt like it would be better closure