Judge under fire, leaves case

But McFadden has enraged prosecutors by overturning the convictions and granting Dumas a new trial. In a 15-page order issued last month, McFadden found that while there was enough evidence to sustain the convictions, he had doubts. These included his impressions that the woman with Down syndrome had not behaved like a victim and Dumas had not behaved like someone who had committed a series of sexual assaults.

Fayette District Attorney Scott Ballard expressed “disgust” with the ruling and had asked McFadden to step down from the case.

The next trial will involve the same evidence, such as Dumas’ semen found on the sheets of a bed where the woman said one of the rapes occurred, Ballard said. There also will also be testimony from a doctor who examined the woman and found injuries consistent with her having been forcibly raped. The woman will still be unable to show that her actions after being sexually assaulted were in line with how McFadden “thinks a rape victim should act,” Ballard said.

In an order entered Feb. 5, McFadden denied Ballard’s request. On Friday, however, McFadden signed an order stepping aside.

“It was a difficult decision,” said Macon lawyer Charles Cork III, who said he was authorized to speak on McFadden’s behalf. “He was just trying to do the job a neutral judge has to do.”

“It’s long overdue,” Ballard said.

Vanessa Champlin, executive director of Down Syndrome Association of Atlanta, said Friday her group was “appalled” by the ruling granting the new trial. The association is asking its members to write letters to the state Judicial Qualifications Commission asking for a review of McFadden’s conduct.

Though McFadden declined to comment Friday, he has said the judicial code of conduct prohibits him from discussing a case pending before him.

Dumas’ public defender praised McFadden for overturning the convictions, saying the judge did the right thing.

“What the judge stated in his opinion granting a new trial was my defense,” Chris Ramig said. “He bought it and I’m very pleased that he did. I was just unable to convince the jurors. I argued to the jury everything that the judge found for a new trial. That was my case.”

It was McFadden’s wish to follow in the footsteps of his late father, who served 20 years as a trial judge, say lawyers who know him well.

While a private attorney, McFadden helped the Georgia Innocence Project with an exoneration case and represented clients he believed to be innocent at motions for new trials, Atlanta lawyer Gary Freed, a longtime friend of the judge’s, said.

“I’m certain in (the Dumas) case, it weighed heavily on him to try and reach the correct result,” said Freed, who chaired McFadden’s campaign in 2010. “He understood the political risks and he knew this doesn’t happen very often. … I know he deliberated carefully and painstakingly over the evidence before achieving this decision.”

At the 2012 trial, Ballard gently questioned the woman, making her vulnerability clear to jurors when establishing she knew the difference between the truth and a lie.

“If I were to tell you that my shoe right here was blue, would that be right or wrong?” Ballard began.

“Wrong,” she replied.

The woman later alleged Dumas entered the basement room where she slept the night of Oct. 18, 2010, and then pulled her pants off.

“Then what did he do?” the prosecutor asked.

“Had S-E-X,” said the woman, spelling out the word.

“How did that make you feel?” he asked

“Bad. Ugly,” she said.

During his cross-examination, Ramig got the woman to admit that she never screamed out.

“Why not?” he asked.

“Because he had his hand over my mouth,” she said.

Dumas did not testify in his defense. In his ruling, McFadden cited inconsistencies in witness testimony and noted that the alleged sexual assaults happened over a 12-hour period in a house where the woman was being watched over by two “responsible adults.”

Why McFadden was assigned such a serious case for his first trial is not altogether clear.

Last week, Ballard said he was told McFadden wanted to see what it was like to be a trial judge. For this reason, Ballard said, he was surprised that the order appointing the appellate judge stated “the business of the court requires the assistance of an additional judge.”

Ballard said he found that justification confusing because Christopher Edwards, the chief judge of the circuit, sat in the courtroom gallery during much of the trial.

Last week, Edwards declined to explain why he asked for McFadden to be appointed and declined to say whether he watched the trial as a spectator. “I really shouldn’t comment on any process of the trial in a pending case,” he said.

Mike Mears, a John Marshall Law School professor, expressed confidence McFadden had the best of intentions and wanted to do the right thing.

“But I’m not so sure it was a good idea,” said Mears, who has known McFadden for decades. “I don’t think he needed to sit as a trial judge in a serious felony case involving a rape accusation. That’s not a good place to learn how to do it. If he wanted to see what it was like, he could have gone down and watched.”

McFadden, 56, lost his first campaign for an appeals court seat in 2008. When campaigning for the seat he won two years later, he noted he co-authored a book on appellate practice that is used by lawyers statewide.

McFadden’s biography on the Court of Appeals website notes he is an honorary member of the Georgia Association of Criminal Defense Lawyers.

A Judicial Qualifications Commission opinion suggests this may not be permitted. Membership in such a group “would reflect adversely on the impartiality of a judge and would not promote public confidence in (a judge’s) integrity or impartiality,” the opinion said.