Warrick judge was under investigation before he resigned, but few people knew. Why?

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BOONVILLE, Ind. — The news went to Warrick County Bar Association members late Friday afternoon of Memorial Day weekend: Superior Court Judge Zach Winsett would resign effective June 30, stated a letter bearing Winsett's name and emailed by the Bar.

"After much soul searching, I believe that now is the right time for me to step down," Winsett wrote. "I have family and other obligations that require my added attention and I also look forward to new opportunities that simply cannot be fully realized while I hold my current position."

And with that, Winsett walked away at age 46 from a state job that pays nearly $180,000 annually, including $20,000 contributed by Warrick County. He had been appointed to the bench in 2015 by then-Indiana Gov. Mike Pence and had won election to the seat as a Republican without opposition three years after that.

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An official acknowledgement of Winsett's resignation would wait until Aug. 22, when the Indiana Commission on Judicial Qualifications — a seven-member body that investigates accusations of judicial ethical misconduct — sent a letter to a woman who formally accused the judge last year of unwanted and forced sexual touching.

"As you know from prior notification by phone with Commission staff, this matter has been resolved with the resignation of Judge Winsett," said the letter, which the woman provided to the Courier & Press.

The woman says she told Judicial Qualifications Committee investigators that a few months before she began practicing law in Warrick County in 2018, Winsett beckoned her into a jury room just inside his office in the Warrick County Judicial Center in Boonville. She alleged the judge, who she had known for several years, began touching her sexually and forced her to touch him.

In a special prosecutor's report that Warrick County Prosecutor Mike Perry acknowledged he had requested in the incident, Winsett denied using force. No criminal charges resulted.

The Warrick County Judicial Center
The Warrick County Judicial Center

The woman, who still works as an attorney in Warrick County, spoke to the Courier & Press about the formal complaint she filed against Winsett on condition of anonymity.

Winsett declined to comment for this story.

A mystery

The Aug. 22 letter from the Judicial Qualifications Commission — "JQC" in courthouse parlance — solved a mystery, the female attorney said. And that's a problem, she said.

The woman said the JQC hadn't told her anything about the outcome of the formal complaint she filed against Winsett in July 2021 until the Commission's letter arrived. That left her to wonder for more than a year whether her complaint would be, or had been, resolved.

She denied the JQC's assertion in its letter that staff had already told her Winsett's resignation resolved her complaint.

In the weeks before the JQC's letter arrived, the woman and her lawyers told the Courier & Press that Commission staff had promised to notify her when her case was resolved but had told her nothing.

The JQC's letter was written on a Monday after the Courier & Press asked an Indiana courts spokeswoman on the previous Friday afternoon whether the Commission would allow complainants against judges to remain uninformed about the resolutions of investigations.

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The Courier & Press had told spokeswoman Kathryn Dolan about its interest in Winsett's resignation weeks earlier.

"In terms of whether a complainant is notified of an outcome, the answer is yes," Dolan said by email. "The person who complains about a judge is notified (according to rule and our own agency practice)."

Rule 25: When the public finds out a judge has been disciplined

Secrecy in the discipline of judges in Indiana is enabled by state law and the Indiana Constitution.

Indiana's Access to Public Records Act provides a list of public records which "may not be disclosed by a public agency, unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery."

Among them: "Those declared confidential by or under rules adopted by the supreme court of Indiana."

But it’s the Constitution, not state law, that gives the Indiana Supreme Court the authority to regulate the judicial branch of state government, said Indianapolis attorney Don Lundberg, former executive director of the Supreme Court Lawyer Disciplinary Commission.

The JQC was created in 1970, by state constitutional amendment, "for the Supreme Court and Court of Appeals (of Indiana)." It is chaired by Supreme Court Chief Justice Loretta Rush.

And the Supreme Court's Admission and Discipline Rule 25 allows the JQC to keep investigations of judges confidential. Legislators deferred to the high court’s power to do so when they wrote the public records act, Lundberg said, but they likely felt they had no choice.

“There have been conflicts between the Supreme Court and legislation by the General Assembly in the past where the Supreme Court has stricken the legislation as unconstitutional because it invaded the court’s jurisdiction over the judicial branch of government,” the attorney said.

Even if the public records act did not give the Supreme Court the power to make rules declaring public records confidential, Lundberg said, the high court arguably would have it anyway because of the state Constitution.

That means anyone who wanted to make public the state’s investigations of alleged judicial misconduct would have to persuade the Supreme Court to change its rules, Lundberg said. Legislators know that changing state law could force a showdown with the Supreme Court that they would lose.

The female attorney who accused Winsett provided a copy of a letter she received from JQC Counsel Adrienne Meiring days after she filed her complaint in July 2021. The letter explained how Rule 25 works.

If and when JQC votes to file formal disciplinary charges — that's when the public finds out a judge has been disciplined, it said.

"All papers filed with the Commission and the substance of any Commission action taken, unless formal charges are filed by the Commission, are kept confidential by the Commission, and, unless formal charges are filed, I will not be at liberty to discuss with you the Commission's inquiry into your complaint," Meiring wrote.

'Confidential justice for judges'

Formal charges are just one of the options laid out by Rule 25 if JQC investigators determine there is probable cause to believe a judge is guilty of misconduct. There are also private cautions, public admonitions and deferred resolutions. Among the 518 complaints alleging judicial misconduct that JQC reports it received in 2020-21, the vast majority — 398, or 77% — were dismissed summarily. Seventy-five were yet to be reviewed.

But still, just one complaint among the 518 was made public with the filing of formal disciplinary charges.

It could hardly have been kept confidential. The Supreme Court permanently banned from judicial service former Hamilton County Magistrate Judge William P. Greenaway, who had pleaded guilty in 2020 to possession of methamphetamine and resisting law enforcement. Greenaway's conviction and his 2019 arrest during an undercover operation were highly publicized.

Dolan pointed to two other judicial disciplinary matters she said have been made public since the beginning of the new fiscal year on July 1. One was the resignation of Crawford Circuit Court Judge Sabrina Bell, who the Supreme Court had suspended when she was hit with a felony charge related to a domestic dispute. It was another highly publicized case.

Voters choose judges, Dolan said. She noted that JQC's membership includes not only the Supreme Court's chief justice, but three attorneys voted on by other attorneys across the state and three laymen appointed by the governor. None of the current members are residents of Vanderburgh, Warrick, Posey or Gibson counties. The JQC oversees about 700 state and local judges.

"The (JQC), the Supreme Court, judges across the state, lawyers across the state – it is a system where it is essentially policing their own," Dolan said.

That's the problem, according to some critics.

"One of the problems is that disciplinary activity is perceived by the public as a rarity," said Charles Gardner Geyh, an Indiana University law professor who studies judicial conduct and discipline. "And while judges may like to present that as evidence that they are as pure as the driven snow and that they just don’t have problems, I think the average member of the public, in an age that is skeptical of government generally, is going to be really kind of concerned that maybe these guys are hiding stuff."

The Indiana Supreme Court's insistence on confidentiality in most judicial discipline cases is not unusual. A 2020 investigation by Reuters news agency reported that at least 38 states issue private sanctions when judges violate judicial conduct rules.

"The name of the judge remains secret, and most of these states keep from the public details of the transgression and the discipline," Reuters reported.

Reuters called it "confidential justice for judges."

Steve Key, emeritus counsel for the Hoosier State Press Association, understands the impulse to maintain confidentiality for as long as possible to protect judges in case they ultimately are cleared of the accusations against them. People remember sensational accusations. If the accused is cleared in the end, that news doesn't have the same staying power.

"There’s a valid rationale behind why they have this level of confidentiality, but the system does become kind of dependent on those who are making those decisions," Key said.

What really happened?

Lawyers practicing in Warrick and Vanderburgh counties acknowledge courthouse rumors that Winsett's resignation was forced, but no one claims to have any facts.

Before Winsett left office on June 30, the Courier & Press left its first message with him about his resignation at his office in the Warrick County Judicial Center. He didn't return it. An employee in his office said she was "not comfortable" providing his official email address to the Courier & Press.

Newburgh attorney Jonathan Young, president of the Warrick County Bar Association and sender of Winsett's resignation letter, would not discuss the judge's departure.

Winsett's name remained on a nameplate outside his former office in the judicial center as late as Sept. 2, more than two months after his resignation took effect. His name still appears on Warrick County's website for Superior Court No. 1. The vacant judgeship still hasn't been filled.

What really happened?

Courts spokeswoman Dolan said she has "no public documentation as a matter of public record" on Winsett's resignation, but she acknowledged that a judge under investigation for alleged misconduct in Indiana can simply disappear from the scene with no public explanation.

"If there is an investigation underway by the Judicial Qualifications Commission, of a judge, it is possible that a judge could be notified that he or she is under investigation, and that judge could just resign," she said. "There would be no disciplinary filing that occurs. The judge can just resign."

Not even individuals who file formal complaints against judges are entitled to know much more than that. The JQC's Aug. 22 letter to the attorney who filed a complaint against Winsett told her Rule 25's confidentiality provisions "prohibit any further elaboration on the nature of the (JQC's) inquiry or the specific terms of its resolution."

The 2020 Reuters investigation found that at least 341 judges across the U.S. had escaped punishment or further investigation over the past dozen years by resigning or retiring in the face of misconduct allegations.

Geyh and Lundberg agreed that if a judge is willing to quit rather than face the music, the judicial misconduct committed is probably serious and the evidence strong.

"It would be where the judge is at some discernible risk of involuntarily losing their office," Lundberg said. "And it’s basically, from the judge’s point of view, a matter of cutting your losses and saying, ‘Well, if I’m at high risk of losing my judicial office publicly and involuntarily, I’ll give it up.'"

It's a win for the state, too, if a judge that investigators believe is guilty of serious misconduct is willing to leave office quietly to avoid embarrassment and discipline, said Lundberg, who has represented several judges before the JQC.

If a judge wanted to fight serious judicial discipline, Lundberg said, refusing to resign and daring the Commission to charge him — the resulting legal wrangling, including investigations, briefing, trial and appeal, could take two years and piles of money from beginning to end.

Geyh pointed to the 77% of complaints alleging judicial misconduct that were summarily dismissed in 2020-21, the most recent year for which the data are available.

"Ninety percent of those complaints are nonsense," Geyh said, his estimate missing by a few percentage points. "Ninety percent of the time, the complainants simply lost their case and are mad about it and are trying to relitigate their lost case by alleging misconduct.

"Those 10 percent where it’s serious, where the (JQC) does some investigating and thinks there’s enough there to formally go to proceedings involving the judge — that magic moment is the point where the public should know what the accusations are against the judge."

This article originally appeared on Evansville Courier & Press: Warrick County judge was under investigation before he resigned