Judge's departure came after peers confronted him

Judge's departure came after peers confronted him

Robert Johnston

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by Gary L. Wright / Charlotte Observer

WCNC.com

Posted on January 31, 2010 at 9:03 AM

CHARLOTTE, N.C. -- After 28 years on the bench, Charlotte's Superior Court Judge Robert Johnston quit without a word.

He won't say why he walked away from a job to which voters elected him five times, one that pays $158,667 a year.

But Johnston's good friend and colleague, Judge Nathaniel Poovey, says Johnston's alcoholism and need for treatment prompted his abrupt decision to retire on Jan. 12.

Johnston's departure ends an otherwise distinguished career that spiraled last year as his drinking began to interfere with his performance. Three weeks ago, his behavior at work prompted an intervention by other judges and the district attorney that persuaded Johnston to leave the bench and get help.

"Bob is an alcoholic," said Poovey, who says Johnston authorized him to discuss the resignation. "Bob realizes and understands he's got a problem. He's got an addiction. He's doing what he can to take care of it."

Court administrators won't say whether they're investigating, whether complaints have been filed, or whether Johnston had ever been privately disciplined. But Johnston has not been publicly reprimanded or faced disciplinary proceedings during his years on the bench.

"Bob has devoted most of his professional career to the judicial system and has served our state as a devout jurist with the highest integrity ...," Poovey said. "He deserves to retire with dignity and honor."

Johnston, 62, has insisted to Poovey that he never drank during the day while presiding in court, Poovey says.

More than a dozen sources in Charlotte's legal community - including prosecutors, defense lawyers and judges - said they never saw Johnston intoxicated on the bench or thought that his rulings were influenced by alcohol.

But last fall, Johnston left the bench for several months to get treatment, which meant assigning other judges to carry his workload. At least one appeal questions Johnston's behavior during a criminal trial. And on Jan. 12, Johnston apparently acted oddly enough that Judge Poovey and other court officials confronted him about his drinking - and urged him to get help.

Johnston had already resigned when later that afternoon he was given an alcohol test to convince him he needed treatment, according to sources. Johnston registered .01 percent on the hand-held breath alcohol device. That's below the .08 level that N.C. law considers legally drunk.

"It was apparent to everyone, including Bob, that it was time for him to retire," Poovey told the Observer. "It was time for him to step aside."

Johnston was appointed a District Court judge in 1982, and moved to Superior Court judge in 1991.

He presided over one of the biggest criminal cases in the city's history - the capital murder trial of serial killer Henry Louis Wallace. Johnston sentenced him to death in 1997 for the murders of nine women.

Jim Cooney, who helped defend Wallace, said Johnston was the kind of judge lawyers seek out.

"It will be a tragedy if Judge Johnston's career is remembered only by what may have happened over the last several months," Cooney said. "As a judge, no one was more fair. As an attorney, no one was more committed to developing the bar. As a person, no one was more unfailingly kind and gracious both to me and to other attorneys."

Among Johnston's other high-profile cases: He sent the killer of two managers at Moe's Southwest Grill to prison for life. And in the capital case of accused cop killer Demeatrius Montgomery, he refused a request to impose a gag order and restrict public access to court files.

But last September, Judge Poovey began to notice that Johnston seemed forgetful. He questioned his friend, and eventually Johnston acknowledged that he'd been drinking too much. Then, Johnston stopped holding court.

He left the bench to enter a residential treatment facility. Since September, other judges filled in during his leave, according to the N.C. Administrative Office of the Courts.

Johnston was back in the courtroom early this month.

On Jan. 12, he presided over a civil trial, as Poovey oversaw a criminal courtroom.

During the morning recess, the two judges met in a hallway.

"When I first talked to him, I became suspicious that he had consumed some alcohol that morning," Poovey recalled. Poovey wouldn't say what prompted his suspicion, but he asked questions.

Johnston told him that he woke up that morning at 4 and drank some alcohol to help him get back to sleep, Poovey said.

"I told Bob that wasn't acceptable. I didn't let Bob go back on the bench."

Poovey said he sought help from Superior Court Judge Albert Diaz, a friend of Johnston's who has been nominated by President Barack Obama for a lifetime appointment to a federal appeals court.

Poovey and Diaz spent nearly three hours talking to Johnston, urging him to get help. The trio talked over lunch, then returned to the judges' offices on the ninth floor of the Mecklenburg County Courthouse. That's where Mecklenburg District Attorney Peter Gilchrist joined the discussion, along with Trial Court Administrator Todd Nuccio.

Johnston resigned. A deputy was called in later that afternoon to administer the alcohol test.

"He realized he had a disease and he wasn't able to perform the duties of a Superior Court judge because of that disease," Poovey said.

Johnston offered no reason in his letter of resignation but wrote simply: "It has been a pleasure serving as a District Court Judge, Superior Court Judge and Senior Resident Superior Court Judge. I owe the citizens a debt of gratitude for allowing me the privilege to serve the great State of North Carolina."

If he hadn't resigned, there might have been consequences.

If a judge shows signs of alcohol abuse, the first step generally taken by the N.C. Judicial Standards Commission is to help the judge get treatment.

"Hopefully, treatment and counseling will resolve the issue," said Paul Ross, the commission's executive director. "If it's not resolved and the judge can't function properly and it impairs the judge's performance, we may have to take disciplinary action."

It's unclear how many judges seek alcohol treatment each year. Only one judge - Wake County's Jerry Leonard - has been publicly disciplined for alcohol abuse, after he was convicted of indecent exposure while publicly intoxicated.

At least one lawyer has questioned Johnston's behavior in the courtroom during a criminal trial. In a 2008 appeal, Charlotte lawyer Jacquelyn Smith argued that Johnston didn't give her client a fair trial on cocaine charges.

Johnston twice left the courtroom, ordering that testimony continue, the appeal says. He missed one objection, which had to be reconstructed when the judge returned, and didn't hear some of the defendant's testimony. The defendant was convicted and sent to prison.

The appeal for a new trial doesn't mention alcohol.

"I wasn't concerned that the judge might be drinking," Smith said. "I was concerned about his behavior - leaving the courtroom while evidence was being presented. I thought he might be going back to his office to do paperwork."

Judge Poovey said he believes Johnston will beat his drinking problem and may inspire others to confront their addictions.

"Here is a man at the top of his profession struggling with this disease," Poovey said. "Alcoholism doesn't discriminate. It affects people no matter how much education, wealth and power they have. Bob is ... doing the right thing. He's getting help."

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