Philadelphia Common Pleas Court Judge Willis W. Berry Jr. - suspended until Jan. 4 and owing $180,000 in a civil fraud verdict - will not face criminal charges for operating a real estate business out of his chambers.
Accusing the Pennsylvania Court of Judicial Discipline of "passing the buck to prosecutors," District Attorney Lynne M. Abraham yesterday announced that she could not justify criminal charges when the court refused to remove Berry despite having "the evidence and the authority to do so."
Berry, 67, was suspended in July after the Court of Judicial Discipline found that he had violated judicial ethical rules by running a real estate business out of his chambers for more than a decade. The court could have removed Berry from the judgeship he has held since 1995.
The Philadelphia Bar Association called on Berry to resign, saying his presence on the bench undermined public confidence in the criminal-justice system.
Berry did not resign, and his lawyer, Samuel C. Stretton, has said the disciplinary ruling will be appealed.
"Judge Berry and I are delighted," Stretton said last night. "There really was no basis for criminal charges."
Stretton said Berry would like to return as a judge in criminal court, "but wherever he is assigned he is willing to serve."
Berry's legal problems are all rooted in the real estate business - buying up, renovating, and leasing properties in North Philadelphia - that he had before he became a judge to supplement his law practice.
The Court of Judicial Discipline began its investigation after The Inquirer reported in April 2007 that Berry was using his chambers to manage the properties, many of which were in deplorable condition and ridden with roaches and rodents.
The Inquirer's articles resulted in the property-fraud lawsuit against the judge by former client and sometime associate Denise Jackson that ended Nov. 13 when a Common Pleas Court civil jury awarded her $180,000 in punitive damages.
Stretton, whose practice includes representing judges with legal problems, also defended Berry in that trial and has said that verdict also would be appealed.
At issue in Jackson's case was a vacant property at 1533 W. Girard Ave., next to Berry's law office.
He had tried for several years to buy from the owner. However, the jury found that Berry acquired the property from the owner's estate - through a convoluted legal process - and then retitled it in Jackson's name.
Berry then paid Jackson $1,500 for the property as settlement of a slip-and-fall lawsuit he filed for her after she fell in front of the lot in 1993.
Jackson sued Berry in September 2007, maintaining that he had duped her - and that she had known nothing about owning the lot or selling it to Berry until an Inquirer reporter showed her copies of property documents bearing her signature.
Five years before, Berry paid Jackson $1,500 for the lot, her lawsuit read; the previous owner paid $25,000 for the land. Today, it's valued at $180,000.
The probe that resulted in Berry's four-month suspension without pay involved his admission that during most of his time on the bench he used his courthouse office to manage his rental properties, many of which were in deplorable condition and some cited by city code inspectors.
The Inquirer articles showed that the judge had his secretary collect rent, handle correspondence, and attend hearings in landlord-tenant court - all during work days at court.
Furthermore, Berry listed his official court address and office telephone in advertisements of apartment vacancies. He used court computers, telephones, and fax machines to run his business, and he had his tipstaff, Henry Reddy, moonlight as handyman at the properties.
The eight-member Court of Judicial Discipline was sharply critical of Berry's conduct, saying it amounted to the crime of theft of services: "The misappropriation is broad, bold, and impossible to overlook."
In investigating Berry for possible criminal charges, Abraham's statement said, her investigators were impressed not so much by the tribunal's findings but by the fact that its sanctions "amounted to a slap on the wrist."
"Despite the court's tough talk about his 'flagrant, open, disregard for the dignity of the judicial office,' his 'total disregard for the citizens of the commonwealth,' and his 'broad, bold and impossible to overlook' misappropriation of public funds . . . the court did not remove Judge Berry," Abraham said in her statement.
She noted that the judicial tribunal uses a lesser legal standard - "clear and convincing evidence" - in making its rulings.
If the tribunal cannot justify removing Berry under that standard, Abraham added, it is unlikely that prosecutors could obtain a conviction under the tougher criminal court standard of "proof beyond a reasonable doubt."