Judcial Complaint Misses the Mark

Judge Edith Jones of the Federal Fifth Circuit Court of Appeals certainly does not need me, or anyone else, to defend her. Federal judges are appointed to serve during good behavior. Like the President, they can be removed from office only by Congressional impeachment proceedings. Few have been. The standard for an impeachable offense is not entirely clear, but it almost certainly must be a serious crime or abuse of office. This jurist thus can take good care of herself.

Because of the current attempt to use the judicial complaint process to stifle off-the-bench free expression of ideas by a prominent judge, I am nevertheless impelled to comment, with some analysis, on the Complaint filed this month alleging judicial misconduct filed against Judge Jones. See Dallas Morning News, June 14, 2013, p. 2A; Texas Lawyer, June 10, 2013, p.1; Internet links: Huffington Post ; National Review ; New Orleans Time-Picayune ; Daily Kos ; there are many others.

The Complaint has stimulated a leftist circle-jerk. (Sorry for the off-color metaphor, but it’s impossible to otherwise adequately describe this ado.) The accusers are the usual suspects, whose front man is Austin’s pecksniff-in-chief James Harrington. Enough said concerning the Complaint’s provenance

The Complaint has been described in the media, mainstream and otherwise, as alleging Judge Jones is racist, and her racism informs her judgment in death penalty cases that come before her, mainly in post-conviction habeas proceedings. Her alleged transgressions occurred during her lecture entitled “Federal Death Penalty Review” at the University Pennsylvania School of Law in February.

Not being entirely trusting of the media accounts, I read the Complaint, as well as a supporting affidavit that supposedly provides support for nearly all of the allegations. The affidavit was signed by one Marc Bookman, an attendee at the lecture, whose resume might indicate he has an ax to grind. No audio or video recording of the lecture has surfaced.

First of all, Bookman’s “affidavit”would not past muster in a court as it does not specifically recite that the facts stated are within the affiant’s personal knowledge and are all true and correct. It is also vague, conclusory, and opinionated. For an affidavit to be valid, it must support a charge of perjury if any fact stated as such is untrue.

Secondly, to the extent this statement recites objective facts, it puts the writer’s spin on them, and, conveniently leaves out the context. It’s not worth much as evidence of anything, let alone wrong doing by Judge Jones.

As for the Complaint itself, its main thrust is that Judge Jones made statements that were “offensive” (I suppose mainly to leftists), and demonstrated bias and – horrors – opinion that is unpopular among those on the left.

There appears to have been no recording, and thus no transcript of Judge Jones’ remarks. Accordingly, there is no objective, verifiable evidence of her precise words, tone, and context. Tone and context themselves would be important in determining what points she was making. If, for example, she were to have said “All Blacks are inherently amoral” preceded by a phrase “the old, but discredited belief.” That would make a big difference in what she was trying to get across, than the first quoted independent clause said by itself.

But I don’t want to waste time and bytes on speculating what Judge Jones actually said and parsing the sentences. What is alleged on its face is in no way misconduct or, for that matter, wrong or even offensive to anyone whose skin is more than an Angstrom unit thick, regardless of its hue.

The Complaint alleges that Judge Jones made the following points during her speech:

• The U.S. system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution.

To the extent this is an accurate rendition of Judge Jones’ point, this is one of the philosophical bases for capital punishment, and has been for centuries. It may not comport with contemporary leftist dogma, and it might be a religious belief that some do not accept, but Judge Jones is entitled to her personal opinion. She can believe what she wants philosophically and religiously so long she does not judge inconsistent with the law and the Constitution. Congress, the legislatures of (currently) 30 states, and the Supreme Court have accepted the death penalty as Constitutional and legal. Some of us would like to abolish it, but it was accepted by those who drafted the U.S. Constitution, and concerted attempts to get rid of during the past half-century have failed. The principal reason for that failure was that there is a consensus in most states, and at the national level, that capital punishment is appropriate in certain circumstances.

• Certain “racial groups like African Americans and Hispanics are predisposed to crime,” and are “prone to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.

This allegation is not even supported by Marc Bookman’s affidavit, upon which the complaint is primarily based. Bookman states, “[Judge Jones] responded that she did not mean that certain races were ‘prone’ to such violent behavior – just that, ‘sadly,’ they happened to engage in it more often. She noted there was no arguing that ‘Blacks’ and ’Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime.” (Bookman affidavit, ¶ 28) This is a far cry from the allegation that Judge Jones stated those racial groups are “predisposed” to crime. Regarding the more “heinous” allegation, Bookman related that “In [Judge Jones’] words ‘Sadly, some groups seem to commit more heinous crimes than others.’” (Bookman affidavit, ¶ 27 (emphasis added)). If, indeed, Bookman accurately quotes or paraphrases Judge Jones, she can only be fairly accused here of stating demonstrable facts, with which the EEOC appears to agree, given its recent guidelines discouraging prospective employers’ from making criminal background checks (The Wall Street Journal, 6/12/2013, p. A1). The reasons for these disparities are anything but clear and are certainly arguable. Our persistence in classifying persons by race or ethnicity when it is supposed to be legally irrelevant goes a long way to providing an explanation. Furthermore, it is demonstrable that children of illegitimate parents, regardless of how they are ethnically or racially classified, grow up more apt to commit criminal acts. The left’s hegemony over the legal system for the past half century is responsible for both factors.

• Claims of racism, innocence, arbitrariness and international standards are simply “red herrings” used by opponents of capital punishment.

Arguing racism in a habeas petition is standard. And why not? It is the rhetorical nuclear option; a proven loser’s ploy to end a discussion. Federal (and state) appellate judges see it so often it’s lost any effectiveness it might have once had. As far as actual innocence is concerned, it is rare, but when serious evidence is brought forward, it gets due consideration. Anyway, the prisons and jails are full of innocent persons, just ask any inmate. As far as international standards are concerned, they are not due any serious consideration. Our systems of government and criminal justice are unmatched for fairness anywhere. Other nations have had their reasons for abolishing capital punishment. That’s their business. Nearly ever other nation curtails freedom of the content of expression to some degree; the United States emphatically does not, except in the narrowest of cases.

• Mexican nationals would prefer to be on death row in the United States rather than in prison in Mexico.

and

• The country of Mexico does not provide and would not provide the legal protections

that a Mexican National facing a death sentence in the United States would receive.

Given the horror stories about conditions in Mexican prisons and the official warnings our State Department gives to travelers to that country, this may well be true in many instances. In any event, it is at worst, rhetorical hyperbole. Offensive to Mexicans? Possibly; but so what? Diplomats might be fairly criticized for making invidious comparisons of another nation’s legal systems, but Judge Jones is not a diplomat. Mexico is our closest neighbor with a totally different system that does not give the deference to individual rights ours does. The comparison is apt.

• Capital defendants who raise claims of “mental retardation” abuse the system.

This is similar to the allegation of Judge Jones’ disparagement of “racism, innocence, arbitrariness, and international standards” above. The Judge’s principal offense in this regard seems to be her use of the politically incorrect term mentally retarded (the Complaint puts it in quotes, probably out of fear a fellow traveler might be critical of its repetition).

• The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope.”

A jurist criticizing a Supreme Court opinion? The very idea! There were vigorous dissents in Atkins. Judges apply the law as handed down by the legislature and higher courts that they do not like all the time. Because a judge would like to see the law changed, doesn’t mean that can’t or won’t apply it as it currently is when a case comes before them. Anyway, many dissents have famously become the law at later times.

The Complaint further alleges that “Judge Jones demonstrated extreme disrespect to a fellow Fifth Circuit judge [James Dennis], lack of judicial temperament, and a failure to maintain and observe the ‘high standards of conduct’ required of federal judges” during a court proceeding.
It would seem that Judge Dennis, or perhaps the litigants at that proceeding, would be the appropriate persons to complain, if they indeed believed Judge Jones’ conduct was sufficient to violate the standards. It’s nothing remarkable when appellate judges get testy with one another, particularly when one attempts to monopolize a time-constrained argument, which, upon listening to the exchange, was exactly the situation. (recording available at http://www.ca5.uscourts.gov/OralArgRecordings/07/07-41041 9-20-2011.wma  ) Inclusion of this alleged offense is gratuitous, and unworthy, even of these complainants.

One of the conclusions set forth in the Complaint was that Judge Jones “severely undermine ‘public confidence’ in the federal judiciary.” On the contrary, a jurist who is unafraid to speak her mind in public and refuses to kowtow to the fashion of political correctness, does a lot to maintain and instill such confidence for most Americans who are not enamored by such fashion.

There are doubtless those who would disagree with the foregoing analysis. That’s fine. Before you make up your mind, read the Complaint and the supporting affidavits.