Judge under attack for rape case retrial

Judge Durke G. Thompson knew when he ordered a new trial for a man convicted of rape he would likely draw fire again from his critics who see him as biased against women in rape and domestic violence cases.

He was right. The reaction to his ruling this month in Montgomery County Circuit Court was swift - and fierce.


Women's advocacy groups filed complaints renewing calls for his resignation or removal, while State's Attorney Douglas F. Gansler publicly denounced him, claiming female victims and prosecutors are not treated fairly in his courtroom.

In a press release after the March 1 ruling, Gansler slammed Thompson as the "Takes Two to Tango Judge," a reference that has haunted Thompson for two years. The judge made the widely criticized "it takes two to tango" remark in the sentencing phase of a case that involved the rape of an 11-year-old girl.


Thompson said he regrets the comment, which he said was taken out of context. But the remark has put him in the cross hairs of women's advocacy groups and other critics since.

Some of the latest criticisms coming after his March 1 ruling, some say, have crossed the line and become unfair and impermissible personal attacks that challenge all judges.

"When you put a judge in that position, when you make a charge as serious as gender bias, what does that do to other judges?" said Abraham A. Dash, a law professor at the University of Maryland School of Law who teaches legal ethics. "They don't live in a vacuum. When they see what can happen, it makes them very, very cautious."

Dash says there is nothing wrong with challenging a judge's legal position, but he added that prosecutors and defense lawyers need to be careful about questioning a judge's motives or claiming bias or prejudice as the reason behind a decision.

Thompson says he stands by his decision to grant Robert Thornett Jr. a new trial.

A jury convicted Thornett of second-degree assault and second-degree rape in an alleged assault of an Indonesian immigrant.

No one disputes that Thornett, 35, struck the woman during a heated argument on Christmas Day 2000, during which he says he told her he would never marry her. But Thornett insisted that the sexual encounter they had afterward was consensual, not forced.

In seeking a retrial on the rape charge, Thornett's attorney referred to new evidence that the woman had lied to Thornett - and under oath on the witness stand - that she was 13 years younger than she actually was.


The lie, defense lawyers argued, was an attempt to make herself more desirable as a bride, and that she filed a false rape charge as revenge for Thornett's refusing to marry her, and to help her attain legal status in this country as a victim of domestic abuse. Thompson granted the new trial.

"I knew if I did grant the motion that I would be pilloried," Thompson said. "The easy thing for me would have been to deny the motion for a new trial. Nobody would have said 'boo.' Then, everybody's happy, but I couldn't sleep at night."

Gansler, however, said it is rare for a judge to set aside a jury's verdict. "When a woman is raped and the jury, following a four-day trial, convicts in 45 minutes, that verdict should stand," he said.

Thompson says Gansler, whom he calls a publicity-seeking, politically ambitious prosecutor, and the advocacy groups are using him as a vehicle for their political ends. Thompson, 59, has been a Circuit Court judge since 1994.

Duchy Trachtenberg, who heads the Montgomery County chapter of the National Organization for Women, says Thompson's record shows a pattern of bias against women and that he should not be on the bench.

"In my opinion, based on what I've observed for years, this judge has bias and prejudice against women and it is of long standing," she said. "We are totally satisfied that we are doing the right thing."


Trachtenberg, a candidate for a Montgomery County Council seat, said the county's NOW chapter has had women periodically sit and observe in Thompson's courtroom since the "two to tango" episode.

Gansler says there was a "widespread perception" by prosecutors in his office that female prosecutors and female victims are not treated fairly in Thompson's courtroom. Much of that perception by Gansler, NOW and other women's advocacy groups harks back to the "two to tango" remark.

The case involved the statutory rape of an 11-year-old girl who had been exchanging sexually explicit notes on the Internet with adult men who thought she was older. She invited a 23-year-old man to her bedroom, where he was discovered by the girl's mother one morning hiding in a closet.

Thompson said that his remark, made during the man's sentencing, was directed to the girl's father, who he felt needed to supervise his daughter more closely.

At the time, the Montgomery County chapter of NOW and the women's caucus of the Maryland General Assembly filed a bias complaint against Thompson with the Maryland Judicial Disabilities Commission. The commission, which investigates complaints against judges, dismissed the complaint, but issued Thompson a warning about his "highly inappropriate" comments.

As part of its investigation into the broader complaint of gender bias, the commission reviewed rulings in ex parte hearings by women seeking protective orders from an abusive spouse or boyfriend. The study showed Thompson's numbers were average among Circuit Court judges in Montgomery County for granting such orders, according to Thompson's lawyer and other sources.


Many from the Montgomery County legal community have rallied to Thompson's defense in this latest round of criticism.

"He's never been anything but fair to everyone," said Cheryl McCally, a former assistant state's attorney in Montgomery County.

There also has been a flurry of opinion pieces and letters in the Montgomery Journal by lawyers and others arguing that Gansler - not Thompson - is the one who has behaved improperly.

Journal columnist Blair Lee defended Thompson, whom he said he has never met, while admonishing Gansler - whom Lee described as an occasional golf partner. "Our criminal justice system depends entirely on the public's belief in its fairness," Lee wrote in a column that was an open letter to Gansler. "To the extent that you place politics and self-promotion above your job, you undermine the system."

In an interview with The Sun last week, Gansler was unapologetic about the press release his office issued and his comments criticizing Thompson's decision.

"It's our job to stand up for the rights of victims who are courageous enough to undergo a public rape trial," Gansler said. "It's indefensible what [Thompson] did. ... They have chosen, as their defense to what the judge did, to attack me. It's sad and pathetic."


As for accusations that his criticism is politically motivated, Gansler said: "This has nothing to do with politics. It's an issue of the public's right to know what's going on in the courthouse."

The Thornett case prompted the NOW chapter to file another complaint with the Judicial Disabilities Commission, alleging that Thompson has shown a pattern of bias against women and calling for an investigation.

Thompson's wife, Lea Thompson, a correspondent for the program Dateline NBC, has watched her husband become swept up in a media storm.

"I'm amazed at how inaccurate some of the stuff about this is," Lea Thompson said. She said the way that her husband of 31 years has been described by Gansler, NOW and other critics bears no resemblance to the man she knows.

"With a wife, three daughters and a girl dog, the man has no chance to be biased against anything female," she said.