from ABA Journal (Vol. 75, Pg. 78, May 1989)
Copyright (c) American Bar Association, 1989The Judge's Dark Secret; Judicial Conduct
By David GeringAfter the Hon. Gary M. Little died in Seattle, flags were lowered and an overflow crowd of more than 600 people gathered for his funeral.
Under normal circumstances, such last respects would have been expected for a person of Little's stature. He had been a highly regarded judge, a patron of the arts, a willing volunteer for civic causes, and a valued friend to some of the city's leading citizens.
But in these respects, the circumstances were extraordinary. Little, 49, had died in a stunning scandal that drew national attention. He shot himself last Aug. 18 only hours before the Seattle Post-Intelligencer printed front-page allegations he had abused his authority as a teacher in the '60s and '70s to sexually exploit teen-age boys. The expose also suggested he had abused his power as a judge to seek sex from juvenile defendants who appeared before him.
The scandal also would reveal sins that weren't Little's alone.
The state Judicial Conduct Commission had known of accusations against Little since 1981, but had taken no public action against him, and while the Post-Intelligencer was both praised and blamed for exposing the judge, the expose wasn't really news. Leading news organizations in Seattle had known of the allegations against Little for years, and had withheld them.
Yet, while the stench of the scandal was still fresh, the flags were lowered, and the funeral overflowed. The shows of respect might have angered Jeff Slaker, but he'd become numb to the many contradictions of Gary Little long ago.
Now 39 and married with two children, Slaker was one of five men who told the P-I that Little had sexually and emotionally abused him when he was a teen-ager. "People just didn't see the same Gary Little I did," he said.
Funny, articulate, in some ways brilliant, Gary Little roamed Seattle's upper crust for years as if he had been bred to it. He wore the finest clothes, joined the finest clubs, dined at the finest restaurants. But he had not been born to do any of those things. His was a rise from humble, even tragic circumstances.
Little's father, Sterling Little, hanged himself at the King County Jail in Seattle in August 1947, after he had been arrested in a burglary investigation. Gary Little was 8 at the time. Growing up with his mother, who worked as a stenographer, Little would pursue a life vastly different from his father's.
A driven and able student, he won a scholarship for undergraduate studies at Harvard. In the 1970s, he became chief counsel for the Seattle public schools, where he played a major role in developing a sweeping desegregation program.
In 1980, he was elected a judge in King County Superior Court, where he acquired a reputation as a hard worker with a gift for running a courtroom.
Gene Martin, a Boeing engineer, was foreman for a jury that heard a lengthy civil suit before Little in 1985. Like many, Martin came away with an impression of the dapper, white-haired judge that positively glowed.
"The way he handled the trial was like he wasn't handling it," Martin said. Parts of the law were confusing, but Little "made it very clear to all of us." The trial dragged on, but Little had a "good sense of humor. He made it kind of fun for it being such a serious business."
Little displayed these skills almost within shouting distance of his father's disgrace. His courtroom was on the eighth floor of the King County Courthouse just three floors down from the jail cell where Sterling Little had killed himself.
The circumstances of his father's death were not known even among Little's closest friends, and would not be revealed until after other secrets from the past had come to light.
It was widely believed Little was homosexual, but this was not the impediment to his career that it would have been in other cities. In 1973, Seattle became one of the first cities in the nation to extend discrimination protections to gays, and many take great pride in the city's tolerance. "I think most of us in this city tend to look upon the issue of someone's sexual preference as a non-issue," says The Seattle Times managing editor Alex MacLeod.
Yet, no city is of a single mind, and Little was a target for rumors even though he never publicly identified himself as gay.
While chief counsel for the school district, he often surrounded himself with handsome young men, and he would sometimes take young men with him on out-of-town business trips. Little was then in his mid-30s. The young men were described as 18 or 19. No one protested the traveling companions. A school board member from that time later explained it was felt it would be "gay bashing" to mention them.
But Little barely had taken the bench in 1981 before questions about his sexuality took a darker turn.
Superior court judges in King County rotate in juvenile court, and a few months after Little took office, Seattle Post Intelligencer reporter Dan Coughlin received a tip about improper contacts between Little and juvenile defendants.
Coughlin couldn't pin down that lead, but he found records of a 1964 criminal case in which Little had been charged with third-degree assault. The case was filed while Little was 23 and a volunteer counselor in juvenile court. The charge concerned a 16-year-old defendant he had taken under his wing. Little had been accused of assaulting the boy in Little's apartment. The charge eventually was dismissed, but sources from the case led Coughlin to Seattle's exclusive Lakeside School.
In the late 1960s and early 1970s, Little had been a part-time instructor at the prestigious private academy, teaching an extremely popular introductory law class. Coughlin learned Little also had become sexually involved with some of his pupils. Now adults, the former students felt Little had used his status as a teacher and mentor to sexually exploit them. They believed he would do the same as a judge with juvenile defendants.
The former students were willing to be quoted in the newspaper only if their names were withheld. Coughlin's editors would allow the use of anonymous sources only if the former students would sign affidavits agreeing to testify in court in case of a legal challenge. The men then refused, fearing exposure of prior homosexual acts. "Their reaction was, 'I'm married now, I've got kids -- no way,'" Coughlin said.
Although Coughlin's story stalled, his questions to prosecutors and court workers helped hasten a growing battle involving Little and his fellow officers of King County Superior Court.
Deputies for King County Prosecuting Attorney Norm Maleng conducted an extensive investigation in 1981 of Little's ex-parte contacts with three male, juvenile defendants. Little had visited the boys in detention when no attorneys were present. He had bought them books and clothes. One boy awaiting sentencing had spent the night at the judge's home. Another had spent time with the judge at Little's cabin on an island in Puget Sound.
Asked about the contacts, Little admitted them freely, saying he was just trying to help. He believed in taking an active role as a juvenile judge.
Yet, those contacts only had taken place with boys who were blond, slender and handsome. "It didn't happen with black kids. It didn't happen with girls. It didn't happen with kids who weren't having problems with their sexual identities," said Mark Sidran, then supervising deputy prosecutor for juvenile court.
In a private meeting with the judge, Sidran mentioned the ex-parte contacts might be unwise if only because of the rumors Little was gay. Little replied that his sexual orientation was known only to himself.
The prosecutor's staff found no evidence that Little was sexually involved with the defendants. But because the ex-parte contacts were clear violations of rules of judicial conduct, staff members filed a 107-page complaint with the state Judicial Conduct Commission.
In early 1982, prosecutor Maleng summoned the deputies to tell them the outcome of the complaint. First, he asked them to raise their hands and swear not to reveal what he was about to tell them.
The commission, Maleng now says, had informed him that anyone who publicly discussed a complaint could be held in contempt for violating its rules on confidentiality. After the deputies took the oath, Maleng revealed that Little had received a private admonishment, the most lenient action possible.
The deputies were outraged and urged additional action, such as filing affidavits of prejudice to block Little from hearing any more juvenile cases. Maleng disagreed, feeling the affidavits would be inappropriate uses of prosecutorial power.
Maleng also felt the commission had responded inadequately to the complaint, but he counseled his deputies that, as prosecutors, they were obliged to abide by the system. They had investigated and found no proof of criminal behavior. They had filed a complaint with the appropriate agency and would have to abide by the ruling.
Maleng, a well-respected, three-term prosecutor, later would be criticized for not going public with the complaint, or "leaking" information to the news media. He insists that would have been inappropriate. "That's saying the prosecutor should not just be the prosecutor, but the judge and the jury."
Yet Maleng's allegiance to the legal system would confound the political system.
In 1984, Little was re-elected without opposition. He also continued taking rotations in juvenile court, where he allegedly had ex-parte contacts with two more boys, according to two more complaints filed with the commission, one by the prosecutor in 1984, the other by a judge in 1985. On these complaints, the Judicial Conduct Commission took no action.
By 1985, Little had become a controversial figure among his fellow judges. Some suspected he was corrupting the court system for his own sexual desires. Others strongly supported Little, feeling he was a victim of "gay-bashing" for his sincere interest in youth.
Judge Norman Quinn, the court's presiding judge in 1985, decided to end the controversy by removing Little from hearing juvenile cases. The maneuver was trickier than it might sound.
Superior court judges in Washington serve as independently elected equals, and, unlike some states, the presiding judge of a court holds no more power than his or her fellows. However, the presiding judge does have power to assign cases, and on this ground, Quinn made the move with the backing of the judges' executive committee.
In a response that surprised his fellow judges, Little accepted his removal without a fight. Yet, several judges expected more controversy. They were expecting Little to become the subject of a major media expose about his contacts with defendants.
In May 1985, The Seattle Times published a front-page story about Little's ex-parte contacts and his removal from juvenile cases. Reporter Peyton Whitely had developed the story while conducting an exhaustive investigation of the juvenile justice system. Whitely's story was the first public mention of the questions swirling around Little, and it resulted in tips about Little's past at Lakeside -- tips that cast the ex-parte contacts in a more disturbing light.
Yet, Whitely's editors pulled him off the story, saying they had lost confidence in his grasp of the subject. In a major error, the editors made no attempt to follow his leads.
Times managing editor Alex MacLeod now attributes the failure to the frustrations and confusion that arose over the investigation of the juvenile justice system. "If we had thought there were a ball, we would have run with it," he said.
Seattle's KING-TV did pursue the story about the ex-parte contacts, and soon uncovered the old Lakeside allegations. Reporters even taped interviews with several of the men who said Little had abused them. However the KING story never made it on the air.
Explaining why, a lawyer for the station later said that the Lakeside abuse took place long before Little became a public official. Linking the old allegations with the ex-parte contacts would imply Little must be exploiting defendants as he'd exploited students.
But there was no proof Little had exploited defendants, and the defendants denied sex had taken place. To link the two elements would be unfair, and possibly libelous, the lawyer said.
The ethical question could lead to reasonable disagreement among journalists, but the failures of the Times and KING would be viewed with suspicion by the people familiar with the Little case.
Little frequently had talked of his connections with Seattle's movers and shakers, including members of the media, and every year he had served as the host and organizer of the city's annual bench-press banquet. Some had scoffed at Little's pretenses, but with the media failures, it began to appear that Gary Little was indeed as powerful and influential as he said he was.
In the eyes of people like juvenile court prosecutor Sidran, no one seemed willing to do anything about Little's conduct. Sidran thought of going to Maleng and repudiating his oath of confidentiality so he could go directly to news reporters with what he knew of the case. He concluded it wouldn't do any good. "The more the media knew of the case, the less they seemed to do with it," he said.
The citizens of King County finally would learn the full extent of the accusations against Little chiefly through the efforts of the Post-Intelligencer. The story was revived early in 1988 by the paper's special projects editor, Dick Clever, after he received yet another tip about ex-parte contacts. He discussed the tip with P-I investigative reporter Duff Wilson, who talked with reporter Dan Coughlin about the 1981 investigation.
Wilson and Clever decided to approach the story by looking at "the system," and the ways it had failed to resolve or even publicize questions about Little. In particular, Wilson examined the Judicial Conduct Commission created by voters in 1980 to handle judicial complaints.
Wilson found little that was public about the commission's work, and what he could find suggested it had handled the Little case badly. For instance, he learned the commission had been told of the old Lakeside allegations as early as 1981. While those allegations seemed pertinent to the ex-parte contacts, the commission, by policy, refused to consider them.
Most judicial conduct commissions in the United States consider old information if it seems relevant to a judge's suitability for office, but Washington's policy was not to consider anything taking place prior to 1980, when the commission was created.
Wilson still was investigating in June of 1988 when the Little story took an unexpected turn. Seattle attorney Tom Olmstead announced he would run against Little in the fall. A deeply religious man who views homosexuality as a sin, Olmstead charged that Little was morally unfit.
Olmstead would not win election, but his candidacy allowed Wilson to start writing stories about Little and the conduct commission. It also led KING and the Times to resume their efforts, and it forced the Seattle legal establishment to take a long, discomforting look at Little.
Attorney Fred Butterworth was just beginning a three-year term as president of the Seattle-King County Bar Association in early July when he received a telephone call from a Seattle lawyer familiar with the Lakeside allegations. Those allegations still had not been made public, and Butterworth had never heard of them.
Butterworth's tipster never had been a member of the prosecutor's staff, but he had obtained a copy of the 1981 prosecutor's report, which he passed along to Butterworth. Butterworth called attorney Wayne Blair, whose term as bar president had just expired, and the two discussed the allegations.
It was a difficult task for Blair. He was a longtime friend of Little's. Blair had long believed Little was gay, but he had never suspected Little would abuse anyone.
Unlike the Judicial Conduct Commission, the two bar leaders felt the old allegations were relevant to Little's fitness as a judge. They also feared that if all the allegations were made public, it would damage public confidence in the courts. They decided Little shouldn't run for re-election, and they convened a private meeting with Little on July 19 to tell him what they'd learned.
"There wasn't much denial (by Little)," Butterworth now says. "He kept referring to the fact that whatever he'd done, it hadn't happened while he was a judge."
Little agreed to step down, in part to open the way for another candidate to run against Olmstead. Then Little grew philosophical and offered a cryptic analysis of the scandal beginning to boil around him.
"He compared his life to a Greek tragedy," Blair said. "Gary said he was the hero, that he felt like he had helped a lot of people. He also said he was his own worst villain."
Little did not expand on the remark and the lawyers did not ask him to do so. Little told them he planned to move to Southern California.
Little announced he was stepping down a few days later, and many thought that would conclude the controversy. It didn't. The P-I had no qualms about continuing to press the story. The issues raised by Gary Little wouldn't be leaving town with him, according to P-I executive editor J. D. Alexander. "The story told volumes about the way the system works, and the ways it was wrong," Alexander said. "You had to tell the Gary Little story to get at that."
On Aug. 18, Wilson telephoned Little to give him a last chance to respond to the Lakeside allegations, which would be published the next morning. Wilson says he had asked Little about the Lakeside allegations several times before, and that, as in the past, Little refused to discuss them. "I'm giving up my home," Little told Wilson. "I'm giving up the city in which I have lived all my life. And that's all I'm going to give up. I'm not going to talk anymore."
At about 10 that evening, just a few hours before the Post-Intelligencer went to press, a janitor found Little outside his courtroom just three floors down from the jail cell where Sterling Little had hung himself 41 years before. The judge was lying in a pool of blood. A .38-caliber revolver was on the floor. The suicide was discovered in time to make the next morning's P-I along with the expose.
Public reaction was fast and mostly furious. Initially, great anger was directed at the P-I, but attention soon shifted from the messenger to the message, and angry letters to editors raised all the natural questions: What was the Judicial Conduct Commission trying to hide? Why hadn't the news media exposed Little earlier? Why hadn't the legal community taken action sooner?
The scandal also triggered a major debate about proposals to change the ways that judges in Washington are elected and policed, and the state Legislature and the Judicial Conduct Commission wound up in a constitutional brawl over the commission's refusal to reveal its Little file.
Yet, the biggest failures were not really ones of "the system." Sidran, now 37 and in private practice, has agonized over the case since 1981, and he has concluded "the system" had little to do with it. The system could have dealt with Gary Little.
To all the obvious questions that swirled about the case, Sidran adds more pointed ones:
How did the commission overlook the persistent refusal of a judge to follow court rules? How did news editors not see the importance of following up on serious accusations against a judge? Why didn't Norm Maleng privately suggest to news executives how badly they were blowing the Gary Little story?
"Ultimately, it came down to questions of human judgment," said Sidran. "There were repeated failures of judgment by all the major decision makers. There was poor judgment on the part of the commission, prosecutor and news media."
And in the wake of the scandal, there was virtually no public discussion of whether public officials responded to homosexuality allegations with an unusual double standard, an issue that went beyond the legal community and the news media to the city's sense of itself.
Would school board members have tolerated their chief counsel taking 18-year-old girls with him on overnight business trips? Would the Judicial Conduct Commission give a private admonishment and ignore repeat violations if a single, male judge were taking home teen-age girls from the youth detention center?
John Enders questions whether such conduct would have been tolerated. Enders is the director of the gay-rights Dorian Group, a successful lobbying organization in the Pacific Northwest. He suspects that when it came to Little, some in Seattle allowed an aspiration to enlightenment to become a blindness.
People who are gay serve as judges and teachers in virtually every city every day with no difficulty obeying and upholding appropriate rules of legal and moral conduct. Little did not follow the rules, and he may well have been guilty of much worse than that. The failures to hold him accountable wound up fueling some of the worst stereotypes -- that gays can't be trusted, that they shouldn't be teachers, that they can't be judges.
Enders is 64 and openly gay. His is a cause of equal rights, not special ones, and he seems more comfortable than most in condemning what Little did. "To come on to someone as a friend or a mentor, and to use that person for sexual pleasure, that can't be tolerated," said Enders.
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