Anchorage Daily News

A Bethel judge testified from the witness stand Monday, defending himself against a misconduct complaint being heard in Anchorage by the Alaska Commission on Judicial Conduct.

The case against District Court Judge Dennis Cummings, 62, concerns his communications with a witness in a Bethel domestic violence trial earlier this year. In addition, the complaint against him describes a chaotic court hearing after the prosecution and the defense learned he had handed the witness a note about the evidence.

Cummings, who briefly worked as an assistant district attorney in Anchorage before taking a prosecutor's job in Bethel., was appointed to the bench in December 2005 by then-Gov. Frank Murkowski.

Voters this month agreed to retain Cummings in office, though the Alaska Judicial Council had recommended he be thrown out because of the Bethel controversy, low ratings from lawyers on his legal abilities and other issues.

Now his future is before the commission, which oversees disciplinary actions against judges. The commission could dismiss the case or recommend a sanction ranging from public censure to removal to the Alaska Supreme Court, which would then decide the matter, according to executive director Marla Greenstein. It includes three attorneys, three judges and two public members. One public seat is vacant.

Such serious cases against Alaska judges are rare, just one every two or three years, Greenstein said.

The complaint was filed in June. Cummings himself alerted the commission to problems in how he handled the Bethel trial.

"I knew I messed up. I wanted to report it," Cummings testified Monday.

The judge only wanted to bring a contradiction in testimony to the attention of the prosecution and the defense, and admits he bungled it, according to his lawyer, Jonathon Katcher.

In the Bethel case, the defendant was accused of twice violating a protective order obtained for his wife. At the trial on March 10, a state trooper testified that he didn't know of any reason the man couldn't still have contact with his children. But the underlying protective order, which Cummings approved back in June 2007, prohibited the defendant from visiting the children.

During a break in the trial the afternoon of March 10, Cummings handed another trooper, Joey Beaudoin, a note urging him to look at that part of the protective order. Before he became a judge, Cummings had been part of a regular card-playing group that included Beaudoin, and the two were friends, the trooper said in previous testimony in the disciplinary case, a transcript of which was handed to the commission.

When the judge gave the trooper the note, he made a comment to the effect of "just in case you want to go fishing," Beaudoin testified.

It's improper for a judge to have contact with only one side of a court case, an act known as an ex parte communication.

And it's not the only time he did that, according to testimony by Amber Terrell, a former Bethel police officer who is now a probation officer in Fairbanks.

In an earlier Bethel criminal case, he handed the officer a note "pretty much suggesting how to testify," Terrell said in a sworn videotaped statement played for the commission.

Cummings testified he didn't remember that incident.

But he admitted writing two separate notes on yellow sticky paper about the domestic violence case, flagging the conflict between the testimony and the protective order.

He handed one note to Beaudoin, and testified that he thought the trooper would give it to the prosecutor. He said he meant to give another note to the defense attorney, Jeff Robinson, but never did.

"This was obviously an attempt to influence testimony," Robinson said in a videotaped sworn statement played for the commission.

"The whole thing smelled bad," the prosecutor, Tom Jamgochian, said in his videotaped sworn statement.

The other note was addressed to "Jeff + Tom" -- referring to the defense lawyer and the prosecutor.

Jamgochian said that Cummings' explanations don't make sense considering that the first note was not addressed to anyone, but went to the trooper whom the judge was friends with, and that Cummings said the second note was supposed to be for Robinson, but had both their names on it.

And Cummings gave a different story to the Judicial Council this summer, saying that he never intended to give the "Jeff + Tom" note out, the council's executive director, Larry Cohn, testified.

After Robinson was alerted about the note to the trooper, he asked for all charges in the domestic violence case to be dismissed.

The judge "purposely injected himself into the trial, made himself a witness, made the state a witness, tainted evidence, and prejudiced significantly every due process, confrontation and constitutional right of the defendant," Robinson said in court on March 11, according to a recording played in Monday's hearing.

At one point that morning, Cummings ruled for a mistrial -- which is different than dismissing the charges -- even though the lawyers hadn't asked for one. He also recused himself -- meaning he couldn't hear the rest of the case -- and left the courtroom to find another judge. But after a fellow judge advised him to get back in court, Cummings returned. At that point, Robinson sought a mistrial and the prosecution didn't object. Cummings granted it. The defendant later reached a plea deal to settle the charges.

The disciplinary hearing continues today in an Anchorage courtroom.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.

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