Special judge in 4 Arkansas hot-check cases tosses 1

But first he rejects recusing over remark on related case

The special judge presiding over four hot-check cases in Sherwood dismissed one defendant Monday after declining an attorney's request that the judge recuse for publicly saying he hoped the defendants' related federal lawsuit would fail.

District Judge Jim Hamilton of North Little Rock was assigned the cases after Sherwood District Judge Milas Hale III was named in a federal lawsuit filed by the defendants, who say prosecution and District Court oversight of their years-old cases have fostered a "debtors prison" that infringes on their civil rights.

The plaintiffs say Sherwood District Court has levied thousands of dollars in court costs and fines against them and required that they serve jail time because they can't afford to pay. Three defendants said Monday their cases have cost them their driver's licenses and made it difficult to find work.

The suit also says the court did not properly examine whether the defendants could afford to pay the costs, and denied them legal counsel by requiring them to waive their right to an attorney in order to get into the courtroom.

In filings, the federal lawsuit's defendants -- the city of Sherwood, Pulaski County, Hale and a prosecutor -- disputed the vast majority of the plaintiffs' claims and have asked to pause the proceedings until it can be determined whether Hale is immune from the suit because he is a judge.

Sherwood handles most misdemeanor hot-check cases in Pulaski County through an "informal agreement" dating back to the 1970s, the lawsuit says. Hot-check court convenes early on Thursday mornings, and the suit says the proceedings are made secretive because court officials rarely allow anyone not charged to enter the courtroom.

On Monday, attorney Reggie Koch said in court that Hamilton previously told him he believed that the federal lawsuit lacks merit and hoped it failed. Koch said the defendants are "understandably concerned" and asked for a "neutral magistrate that doesn't have an opinion about their federal lawsuit" to preside over the criminal cases against them.

Koch said the conversation in question happened in open court about two weeks ago when Koch was before the judge for an unrelated matter.

"I sure hope you lose" the federal lawsuit, Koch said Hamilton told him.

Koch represents the plaintiffs on behalf of the Arkansas Civil Liberties Union Foundation but is not their criminal defense attorney. Koch said he didn't realize Hamilton was the appointed special criminal judge until last week. He raised the issue before the four cases were heard.

"I think I can be fair," Hamilton responded. "I'm going to hear the cases."

In an interview after the hearing, the judge said he did not remember making the statement but did not dispute Koch's account.

"In all honesty, I don't remember saying that, but if Reggie [Koch] said it, I probably did," Hamilton said.

Hamilton, whom the state Supreme Court appointed to oversee the plaintiffs' criminal cases, said he believes he was picked for the cases because he has proved to be an impartial jurist over his 22-year career. Hamilton has served in lieu of conflicted judges on multiple occasions, he said.

"I think, probably, the Supreme Court appointed me because they think I will be fair, too," said Hamilton, who typically oversees criminal, civil and small claims cases in North Little Rock. "Sherwood is our next-door neighbor. They [the Supreme Court] knew I would be aware of all the circumstances, and they still appointed me."

Hamilton got his assignment Sept. 19. Monday was the first time he heard the cases.

Hamilton reinstated two defendants' driver's licenses that had been suspended because of their hot-checks cases. He set a Nov. 14 hearing date in three of the cases and appointed a public defender to represent those defendants, all of whom still owe restitution from the hot checks, Hamilton said.

Hamilton dismissed the case against 40-year-old Nikki Petree, who paid restitution, he said.

Petree wrote a single check for $28.93 that was returned for insufficient funds in September 2011, according to the federal lawsuit. Petree later faced more than $2,600 in court costs and fines, was arrested seven times and spent more than 25 days in jail, all stemming from that one check, the suit says.

The defendants in their response said Petree's check was returned not for insufficient funds but for being written from a closed account.

Hamilton said he expects the remaining three cases to be resolved before he retires at the end of the year. If not, he could continue presiding over them in his capacity as a special judge, he said.

"I was going to dismiss everything today, but when I realized [there was unpaid] restitution, I couldn't do that. I didn't have the right to talk for a merchant," Hamilton said. "I decided I would take some time and look at it and see what could be done about it."

Metro on 10/11/2016

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