Ex-judge, Ex-fugitive, Fogel Is Sent To Prison

Posted: July 04, 1991

Former federal judge Herbert A. Fogel wound up in a Philadelphia prison Tuesday after three years of trying to avoid that fate.

Common Pleas Court Judge Russell M. Nigro brushed aside a plea from Fogel to let him return to Nashville, Tenn., where he had been living after walking away from the Talbott/Marsh Recovery Clinic in Atlanta seven months short of the one year that Nigro had ordered him to spend there for four drunken- driving convictions.

Instead, Nigro insisted that the long-fugitive Fogel begin serving two 6- to-23-month jail terms imposed in late 1989, when Fogel pleaded guilty to the drunken-driving charges. For the time being, Nigro said, he was not inclined to consider any request for parole.

That means that Fogel, who was given credit for the time he spent at the Talbott/Marsh Clinic, could spend as much as 40 months in prison. After that, he will be on probation for two years.

Nigro ordered Fogel to serve his time at the Philadelphia Industrial Corrections Center, which has a drug and alcohol treatment program for inmates.

The judge refused a request by A. Richard Gerber, one of Fogel's attorneys, that prison officials be given the discretion to transfer Fogel to a secure hospital if the former judge's safety is threatened at the prison. Gerber told the judge he had met with J. Patrick Gallagher, commissioner of Philadelphia prisons, about potential security problems.

Nigro said he would consider a request for a transfer if security became a problem.

Gerber, of Norristown, refused to comment on Tuesday's proceedings, saying he only makes statements in open court.

Fogel was a federal judge from 1973 to 1978. Until being sent to Talbott/ Marsh, he had lived in Roxborough and owned a bar there.

Fogel had been jailed in Nashville since early December, when he was arrested on a fugitive's warrant for skipping out on his full sentence at the Talbott Clinic. Until Monday, he had fought extradition to Pennsylvania. On Tuesday, Philadelphia sheriff's detectives took him into custody and returned him to Philadelphia.

Gerber asked Nigro to credit Fogel with the time spent in the Nashville jail, but Nigro agreed with Assistant District Attorney Gavin Lentz's argument that Fogel was only in the Tennessee jail because he was fighting extradition.

Lentz - who pursued Fogel through dozens of delayed and interrupted court proceedings - pointed out that Fogel made changes in his life only after his arrest. Fogel, he said, not only left the Talbott Clinic early, he also obtained a Georgia driver's license by lying on the application form. Fogel's Pennsylvania driver's license has been suspended for at least the next two decades.

AN EX-JUDGE'S SLOW PATH TO JUSTICE

* June 1987: Fogel is arrested on Ridge Avenue after police say they found him slumped behind the wheel of his car, incoherent and reeking of alcohol. Two Breathalyzer tests show his blood alcohol percentage was about 0.12, 0.02 above the legal limit.

* December 1987: Fogel again arrested on Ridge Avenue after police say he almost runs head-on into their cruiser. They say he has to be helped out of his car, and this time refuses to take the Breathalyzer test.

* May 1988: Fogel arrested in Upper Roxborough by police who say he was weaving through four lanes of traffic.

* September 1988: Fogel is arrested a fourth time for drunken driving after police say he ran a stop sign on Manayunk Avenue.

* November 1988: Municipal Judge Eric Lillian convicts Fogel in the May incident. Sentencing is deferred.

* June 1989: Charging prosecutorial misconduct by the District Attorney's Office, Fogel seeks to have a special prosecutor appointed to hear his cases. The D.A.'s office says that proceedings in his cases have already been delayed 33 times at the request of Fogel and his then attorney, Nino V. Tinari.

* July 1989: Municipal Judge Charles J. Margiotti sentences Fogel to 48 hours to one year in prison in the June 1987 arrest. Fogel appeals to Common Pleas Court.

* November 1989: Fogel pleads guilty in Common Pleas Court in all four cases. Judge Russell M. Nigro sentences him to two consecutive terms of 6 to 23 months, but says he can serve the sentence by spending one year at the Talbott/Marsh Recovery Clinic in Atlanta, with Fogel paying the $42,000 cost of the program.

* August 1990: Fogel leaves Talbott/Marsh about seven months early. He is arrested in a Nashville suburb in December, and the Philadelphia District Attorney's Office seeks his extradition. Fogel fights the motion.

* July 2, 1991: His extradition approved by Tennessee courts, Fogel is returned to Philadelphia, brought before Nigro and ordered to serve up to 40 months in jail.

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