By Olivia Anderson | oanderson@alextimes.com
Magistrate Elizabeth Fuller, the woman who filed the complaint that ultimately led to the bondsman in the Karla Dominguez homicide case losing his license, has been fired for comments she made to the Alexandria Times earlier this month.
The Department of Magistrate Services claimed that Fuller violated the Canons of Conduct for Virginia Magistrates by providing public comment about her decision to file a complaint against bail bondsman Man Nguyen, whose gun and car Ibrahim Bouaichi used last summer to allegedly kill Dominguez, his rape accuser.
Fuller was first placed on administrative leave on Oct. 12, which the Times learned through an undisclosed source that was not Fuller herself, and fired Tuesday for commenting on “two matters currently before the court.”
The first case in question, Dominguez’ murder, has concluded as both Dominguez and Bouaichi are dead; and the second case, Nguyen’s criminal contempt of court charge that was filed by Commonwealth’s Attorney Bryan Porter, Fuller did not comment on because she said she was unaware of it.
The termination letter stated that her firing was effective immediately and health insurance for herself and her son will end in less than two weeks, on Oct. 31. Fuller had been informed on Saturday there would be a meeting on Tuesday, but was provided with no additional information.
In the termination letter, Magistrate Regional Supervisor Elizabeth Edwards said she does not “have confidence” in Fuller’s judgment as a magistrate.
“You have demonstrated a flagrant disregard of your responsibility … which has resulted in a public and wide-spread decimation [sic] of your inappropriate conclusory commentary,” Edwards wrote.
Edwards did not respond to the Times’ request for comment.
Fuller, meanwhile, defends her decision to file the complaint against Nguyen and said she doesn’t regret any comments she made.
“I am not sorry that I did the right thing, and that I know I did the right thing,” Fuller said. “Sometimes, in life, the right thing will cost you. I was the only person in a position to speak up for this woman.”
Legal permissibility
Fuller was terminated for violating Canon 3, Article B6, which states that “a magistrate shall abstain from public comment about a pending, impending or concluded proceeding in any court or magistrate’s office. Furthermore, a magistrate shall not disclose or use, for any purpose unrelated to official duties, nonpublic information acquired in a magistrate capacity.”
But some experts are questioning the canon of conduct’s legal permissibility.
Kathryn Foxhall, a long-time freedom of information reporter and recipient of multiple Society of Professional Journalists awards, highlighted the canon’s curiously – and arguably aggressively – broad scope.
“I can imagine that in some limited cases that might be necessary. But to make it that broad, which is probably not necessary, is simply to give people in power the ability to do whatever they want, and it’s alarming,” Foxhall said.
In the courtroom, there exists an ongoing debate of whether to interpret a law broadly or narrowly. Frank LoMonte, director of the Brechner Center for Freedom of Information and a former attorney, said this particular canon might work if interpreted narrowly.
“If it’s interpreted to mean, ‘Don’t give away confidential information that you learn because you are judging a case,’ then it’s probably a perfectly legitimate use of the canon,” LoMonte said. “But to say that judges are forbidden from speaking to the media about anything they can learn in the course of their employment would be an overly broad interpretation. … If it is understood to include even proceedings that are concluded, then that seems indefensibly broad.”
Perhaps the larger question this situation raises, then, is whether or not the canon is actually constitutional.
Enshrined at the beginning of the constitution, the First Amendment Freedom of Press clause reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
As part of the Supreme Court law of the United States, the First Amendment overrides much else in a courtroom even for public employees. In Fuller’s case, this may indicate that the department’s repression of magistrates from making any kind of public comment whatsoever regarding their work could potentially be deemed unconstitutional.
LoMonte pointed out that the First Amendment clearly protects the rights of public employees to discuss their work, stressing that one does not inherently sign away all rights to talk about their work upon assuming a government position. He said that a literal interpretation of the canon “raises real constitutional red flags.”
“I think there’s a pretty strong argument that that canon would be unconstitutionally broad if it is understood to include comments made about cases you’re not assigned to,” he said. “I think they can probably enforce it as to a pending case a judge is presiding over … but I don’t think it can be broadly applied to anything and everything you learn in the course of your job without crossing the line of the First Amendment.”
Fuller’s case resembles several recent free speech lawsuits, including a 460-member immigration judges’ union that sued three Department of Justice officials in Alexandria last year.
The union sought to block a policy by the DOJ’s Executive Office for Immigration Review that prohibits immigration judges from speaking personally about immigration issues and operations of the courts they preside over, according to Reuters.
DOJ’s policy supports that all speech by immigration judges about immigration law or court operations is “official speech that arises from judges’ duties as DOJ employees,” but the complaint argued, citing U.S. v. National Treasury Employees Union, that DOJ’s constraints on immigration-related comments by immigration judges is “outweighed by the public’s profound interest in immigration issues.”
The lawsuit, while still in litigation, argues that the DOJ policy violates judges’ First and Fifth Amendment rights because it is “unconstitutionally vague.”
That there is an abundance of free speech cases across the country is nothing new, but what makes Fuller’s situation unique are the tragic circumstances surrounding it that some say yielded a disproportionate, particularly cruel punishment.
Foxhall speculated that the decision could be an abuse of power and attempt at censorship.
“We shouldn’t be silencing people across the board in cases where the information should be coming out. That’s a recipe for rot; it’s a recipe for corrosion within the public sector,” Foxhall said. “The public has the right to this information as much as they have a right to well-spent tax dollars.”
Shedding light
According to Fuller, Chief Magistrate Adam Willard discouraged her from filing the complaint against Nguyen in August 2020 after she learned that not only did the weapon and vehicle used in the Dominguez murder belong to Nguyen, but that he came to work “nearly joking” to officers about it.
“[Willard] used the same canons I got fired over to say, ‘We’re supposed to remain impartial; I don’t think you should do anything about it,’” Fuller said. “I just didn’t tell him that I did it and just did it anyway. … This magistrate system didn’t even want me to file the motion [to terminate Nguyen’s bondsman’s license].”
Due to Fuller’s complaint, the Department of Criminal Justice Services held an informal fact finding conference that led to the revocation of Nguyen’s bondsman license.
Both Willard and the Office of the Executive Secretary’s Legislative and Public Relations Director Alisa Padden declined the Times’ request for comment.
At the time she filed the complaint, Fuller emphasized that her main priority was pursuing accountability and hoping the news of Dominguez’ murder got picked up because in her eyes, it appeared that mostly everyone else desired to bury the case.
“Her death was forgotten,” Fuller said. “I was like, ‘I could still sit here at this office and keep my mouth shut and have this job for a little while longer, but it would not be the truth. It would be like sitting on the truth.’”
Fast forward one year to the resulting pandemonium and eventual termination, and Fuller said the word “hypocrisy” comes to mind.
According to Fuller, one chief magistrate in the system ran for public office during his tenure, and two others that she is aware of committed acts which breach the canons of conduct without facing repercussions.
“We’re supposed to uphold all of this integrity, and nobody has integrity. I know of a lot of people that violated canons, and they did not end up fired,” Fuller said. “It’s hypocritical and it shows that this is an embarrassment. All I did was confirm the embarrassment of the courts and that’s why I’m being punished.”
The juxtaposition of the other alleged offenses with Fuller’s fate raises questions as to why exactly her actions in particular were met with such severity. The Times has filed a FOIA request seeking answers to this question.
As far as next steps, LoMonte postulated that Fuller has a strong case in a court of law, should she decide to sue the state.
LoMonte called attention to the fact that Fuller’s perspective as someone with “unique, firsthand eyewitness information” is particularly valuable due to the compelling public interest in the case.
“The idea of a canon is not to prejudice the outcome of a case, not to indicate that you’re biased or to indicate that you think another judge is biased,” LoMonte said. “I understand why [that part of it] exists, but if it’s literally understood to mean that you can never, ever talk about anything that has happened inside of your courthouse, that feels like it would be quite hard to defend if it were challenged under the First Amendment.”
While Fuller does plan to seek legal counsel going forward, she said the overarching goals are much bigger than just her.
“At the end of the day, I had to speak up for someone who did not receive justice, who we did not protect,” Fuller said. “The courts did not protect this woman. Nobody who could have protected her [did so], and if I don’t have a job because I’m the one saying that, and I’m the only one saying that, so be it.”
