December 2005
Featured Disciplinary Case

Topic
A bar applicant convicted of a serious crime has a great burden of establishing rehabilitation when the unlawful misconduct is substantial and, in the case of extremely damning misconduct, a showing of rehabilitation might be virtually impossible to make.

Summary

In the Matter of James Joseph Hamm, SB-04-0079-M (Arizona December 7, 2005). Although this is an admissions case, the conclusions of law articulated by the Arizona Supreme Court could apply to post-discipline reinstatement proceedings in most jurisdictions. Twenty-one years ago, Hamm was a failed divinity student and itinerant preacher who, at age twenty-six, was reduced to living on the streets of Tucson. Although he had no criminal record, he supported himself by selling drugs. One day, he met two young college students who had traveled from Missouri to Arizona to buy marijuana. He agreed to sell them the contraband, but was unable to acquire the twenty pounds that they sought. Rather than cancel the transaction, Hamm and two accomplices conspired to rob the students of the drug money. He directed the students to drive their automobile to the outskirts of Tucson, purportedly to complete the drug transaction. The students sat in the front seat of the car, Hamm and an accomplice sat in the back. At some point, Hamm detected that the driver was becoming suspicious. When the driver stopped the vehicle, and without making any demand of the victims for money, Hamm shot the driver in the back of the head, killing him. The accomplice shot the other student, who then managed to escape from the car. Hamm shot him in the back as he tried to run away. The accomplice then fired a fatal bullet. The conspirators took $1400, left the bodies lying in the desert, and fled the scene. Hamm was later apprehended and lied to police by telling them that the students were killed in a gun battle during the drug deal. He eventually pled guilty to one count of first-degree murder and was sentenced to life in prison with no possibility for parole for twenty-five years. He was released on parole after seventeen years, however, after proving himself a model prisoner. In jail, he completed certificates in yoga and meditation, studied Jungian psychology, helped fellow inmates to read and write, obtained a bachelor’s degree in applied psychology summa cum laude, and met and married a woman named Donna. She and Hamm founded a prison reform group. After his release from prison, he performed thousands of hours of community service, advocated for prisoners’ rights, and appeared in a public service video encouraging children not to do drugs or join gangs. While on parole, he attended and graduated from Arizona State University College of Law. In 1999, he passed the bar and, in 2004, filed his character and fitness questionnaire seeking admission. The Character and Fitness Committee concluded that Hamm failed to establish good moral character and denied his application. He sought review in the Arizona Supreme Court. The Court declined to certify him and issued an en banc opinion with no justice dissenting. In the opinion, the Court declined to hold that certain conduct (here two violent execution-style murders) automatically barred the applicant from being admitted to practice. The Court held, however, that an applicant has a greater burden to establish rehabilitation when past unlawful misconduct is very serious and it acknowledged that, in the case of extremely damning misconduct, a showing of rehabilitation might be virtually impossible to make. Nevertheless, the Court believed that each individual case had to be considered on its own merits in order to ascertain whether there was any indicia of rehabilitation and to determine whether an applicant possessed the requisite moral character to receive a law license. Here, the Court did not have to decide whether Hamm had demonstrated rehabilitation because he had failed to establish good moral character. The burden of showing good moral character was not established for three reasons. First, Hamm had failed over the course of many decades to pay child support for a son born in the 1970’s to a prior wife. Second, he and his current wife, Donna, were involved in a “physical alteration” outside a convenience store in 1996 where police had been called, but Hamm had not disclosed the incident during the application process. Lastly, in Hamm’s petition before the Arizona Court, he included a passage from the United Supreme Court opinion in Koningsberg v. State Bar, 353 U.S. 252 (1957) without attribution. The Court viewed this as an act of plagiarism, compounded by a failure to acknowledge his error, as demonstrating a deficiency in good character.

As an aside, the Arizona Supreme Court noted in its opinion that, “[W]e are aware of no instance in which a person convicted of first-degree murder has been admitted to the practice of law.” It should be noted that, in the case of In re Application of Derek Farmer, Case No. 164 (Ohio Comm. Character and Fitness, June 30, 1998), the Ohio Supreme Court licensed an applicant who had been convicted of aggravated murder, murder, and aggravated robbery. See NOBC Current Developments (Dallas 2000).