More than 90 years ago, future U.S. Supreme Court Justice Benjamin Cardozo wrote about judges:
“Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.”
On February 20 of this year, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit gave a talk sponsored by the Federalist Society, a conservative group, at the University of Pennsylvania Law School in Philadelphia, in which, according to a complaint filed yesterday, she made the following points:
•The United States 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;
•Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “'prone' to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;
•Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
•Capital defendants who raise claims of “mental retardation” abuse the system;
•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”;
•Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
•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.
To read about the ethics complaint, read below the jump. Further, in her talk, she openly discussed and opined on individual cases which may not be concluded and which may still come before her in her role as a lifetime judge on the federal bench.
Yesterday, responding to Judge Jones' baseless and thoroughly unprofessional remarks, a broad coalition filed a Complaint of Judicial Misconduct against Judge Jones. The coalition includes Gregory J. Kuykendall, Director, Mexican Capital Legal Assistance Program (MCLAP); Luis Roberto Vera, Jr. of the League of United Latin American Citizens (LULAC); Nelson E. Linder of the NAACP – Austin Chapter; James C. Harrington of the Texas Civil Rights Project (TCRP); the National Bar Association – Houston Affiliate; La Union del Pueblo Entero; and other lawyers, professors and concerned citizens, including Professor Robert P. Schuwerk, Co-Author, Handbook of Texas Lawyer and Judicial Ethics; and Mark I. Harrison, Osborn Maledon; Former Chair, ABA Commission to Revise the Model Code of Judicial Conduct.
Citing her “utter disregard for the fundamental judicial standard of impartiality and a lack of judicial temperament,” the complaint sets out in detail the statements from the Penn speech and highlighted their problematic nature, particularly given the contentious role race still plays in administering justice in this country, but particularly in Texas. The complaint cites the case of Duane Buck, an African-American defendant in a capital murder case in Texas who was sentenced to death because a psychologist testified at the sentencing phase of his trial that he posed a future danger because he was African American.
The case went to the U.S. Supreme Court, and both the Texas Attorney General and Texas Solicitor General conceded error; moreover, the Texas Attorney General permitted new sentencing trials in cases with similar testimony. Yet, by the statements in Penn speech, it would appear that a sitting judge on the federal appeals court for Texas would have no problem with such testimony and on such a basis, would allow a defendant to die.
The Complaint cites violations of four canons of the Code of Conduct for United States Judges:
Canon One: “[a]judge should uphold the integrity and independence of the judiciary.”
Canon Two: “a judge should avoid impropriety and the appearance of impropriety in all activities.”
Canon Three: “a judge should perform the duties of the office fairly, impartially, and diligently.”
Canon Four: “a judge should not participate in extrajudicial activities that detract from the dignity of the judge's office [or]reflect adversely on the judge's impartiality . . . .”
Attached to the complaint are numerous exhibits, including affidavits of witnesses who were present at the talk, such as Marc Bookman, who is the director of Atlantic Center for Capital Representation that provides services to capital defense teams in Pennsylvania and Delaware. Also attached is the affidavit of James McCormack. McCormack is the former General Counsel and Chief Disciplinary Counsel for the State Bar of Texas. In his sworn testimony, McCormack made the following assertion:
“Judge Jones violated the ethical standards applicable to federal judges under the Code of Conduct for United States Judges.”
This is not Judge Jones' first brush with controversy. Most recently, as documented by Jonathan Turley at George Washington University's law school, Jones told a fellow judge to shut up during oral argument. Using transcripts, Turley thoroughly documented the incident on his blog.
While perfection is elusive, and those in power and of influence have flaws, as illustrated in The Atlantic this week we must at least expect them to demonstrate some measure of competence in their chosen fields (or some agility in concealing their lack of it) or they must be held accountable, particularly, when they are entrusted with so much power, and when that trust is extended for a lifetime. A judge cannot hold that trust when he or she so openly and brazenly holds the prejudices laid bare here and when they promise to irretrievably taint her judgment. Whether Justice Cardozo could have anticipated Judge Jones specifically, or whether his experience provided ample exposure to her ilk, his prescient insight is remarkably applicable today:
“The most fundamental social interest is that law shall be uniform and impartial. … Uniformity ceases to be a good when it becomes uniformity of oppression.”
Such oppression of a class of people cannot stand. Yesterday's complaint is that accountability.