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US judge under fire defends his style, record. SPEAKING OUT

By Nicholas C. McBrideStaff writer of The Christian Science Monitor / December 3, 1987



Washington

Judge Alcee Lamar Hastings is the first black federal judge in Florida history. He is also the first federal judge there to be acquitted by a jury of bribery conspiracy and still have to undergo a congressional probe for possible impeachment proceedings. For seven years and three months of his eight-year tenure he has been under investigation.

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``Iran-contra, Abscam, and Watergate combined haven't taken that much time,'' Judge Hastings says. ``My life has been held in the balance. There's been this so-called cloud over me. But the cloud is over the judiciary, this serious breach of constitutional due process.''

In December 1981, Hastings was indicted on charges of conspiring to accept a bribe. Washington, D.C., lawyer William Borders, a longtime Hastings friend, said he might be able to fix a trial that Hastings was presiding over. The case involved Thomas and Frank Romano who were charged with violating the federal Racketeering and Corrupt Organizations Act. The Justice Department had forced the Romanos to forfeit ill-gotten assets, specifically a restaurant and $846,000. Mr. Borders said he could get the judge to give the Romanos probation and return the assets, for $150,000.

But Borders had never seen the Romanos and made his deal with an FBI agent posing as one of the defendants. He was convicted and is serving five years in jail.

No bribe money was connected to Hastings, who had been bound by an appeals court to set aside the forfeiture ruling and give the Romanos back their assets, a fact Borders was well aware of. When the Romano brothers were convicted, Hastings gave both three-year terms.

The judge maintains he was victimized by Border's foolish designs. The jury believed him and acquitted him in February 1983.

``Twelve jurors heard the Justice Department's best case. They found him not guilty. That's 12 citizens, American citizens!'' says defense counsel William McLain, leaping to his feet and pacing as if he were presenting the case all over again. ``Our bedrock position is, that should have concluded the matter.''

But two of Hastings's colleagues, Anthony A. Alaimo, a chief US district court judge in Georgia, and William Terrell Hodges, a chief US district court judge in Florida, disagreed. They claimed Hastings had lied at trial and began the wheels turning for another investigation under a federal statute.

Four thousand nine hundred pages of transcript later, an investigating committee of five federal judges issued a 381-page report saying the jury verdict was a miscarriage of justice. The report was forwarded to the Judicial Council for the 11th Circuit and then to the Judicial Conference of the United States. Both concurred that ``impeachment may be warranted.'' Now the House is investigating.

Mr. McLain says members of Congress have not been ``forthcoming with their intentions or scheduling.'' A congressional spokesman says the probe is ``secret and under way.''

``Is it fair now for the House to undertake additional investigations to determine whether Judge Hastings should be reindicted by the House and retried by the Senate on charges on which a jury found him not guilty four years ago?'' asks Terrance J. Anderson, Hastings's lead counsel and a professor of constitutional law at the University of Miami.

McLain says there may be a violation of ``the spirit if not the letter'' of the constitutional provision against ``double jeopardy.'' The Constitution says: ``No person shall be subject for the same offense to be twice put in jeopardy of life or limb.''

The original investigating committee explained it this way: ``No one would seriously argue that double jeopardy would apply if Judge Hastings had been convicted of the crimes for which he was indicted. It follows, therefore, that double jeopardy does not apply after Judge Hastings's acquittal.''

``The Framers clearly meant impeachment to be a criminal proceeding. A party convicted in impeachment could be tried, but not in reverse,'' says Professor Anderson. ``Those up in Washington who preach original intent have some explaining to do.''

Another thing Hastings wants explained is the newest allegation, that he disclosed confidential information concerning a corruption investigation to Dade County Mayor Steve Clark. Justice Department spokesman John Russell says Hastings allegedly ``tipped off someone who is the subject of a wiretap.'' He added that the matter is ``currently under seal.''

``Why all the secrecy?'' Hastings asks. ``If I lied to a jury, why am I not charged with perjury? If I told Mayor Clark something I wasn't supposed to, why am I not charged with obstruction of justice?''

When asked why he is the subject of this prolonged inquiry, Judge Hastings minimizes racism. ``I don't know what's going on in the minds of my detractors.'' But he acknowledges an ``institutional racism'' that he has ``felt all my life.''

He says his posture as an outspoken judge with strong opinions about social policy outside the court was not well received by colleagues who believe judges should be ``scholarly types who fade into the woodwork'' and tolerate black judges only if they stay in the background.

``I'm still a civil rights activist, and for this I have been called `wild eyed' and `radical.' But I took an oath to uphold the law, not love the law. If I see an unjust law, I am going to speak out,'' he says.

Anderson says that during Hastings's first two years on the bench, south Florida became the focal point for Cubans from the Mariel boatlift and an even larger influx of blacks from Haiti.

He says Hastings was assigned an early case that challenged aspects of the immigration policy for Haitians who entered the country illegally. He says Hastings ``demonstrated his independence and willingness to exercise judicial power in a manner that frustrated national policies thought important by high officials in the Justice Department.'' The defense team argues that this figures into the equation.