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June 5, 2013

Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty

As reported in this Texas Tribune article, headlined "Complaint: Judge's Death Penalty Remarks Show Racial Bias," Fifth Circuit Judge edith Jones is the subject of a judicial misconduct complaint based on her comments earlier this year in a speech about race and the death penalty. Here are the basics:

According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities....

At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.

“Judge Jones’ biased remarks demonstrated both an utter disregard for the fundamental judicial standard of impartiality and a lack of judicial temperament,” the complaint argues.

Among those who filed the complaint are the NAACP, the Texas Civil Rights Project and the Mexican Capital Legal Assistance Program, which is funded by and represents Mexico in cases where its foreign nationals face capital murder charges in the U.S. It was filed with the 5th Circuit Court’s chief judge, who would decide whether to refer the case to a judicial council made up of 5th Circuit and district court judges. Because Jones is a former chief judge of the 5th Circuit, the group asked that its complaint be transferred to another circuit court for review.

In affidavits filed with the court, people who attended the event where Jones spoke said she denied the existence of systemic racism in the application of the death penalty. They said she contended that more Hispanics and African-Americans are on death row because people “from these racial groups get involved in more violent crime.”

The complaint indicates that Jones also told the audience that exempting the mentally retarded from the death penalty was a disservice. In 2002, the U.S. Supreme Court — amid what Jones reportedly described as a “judicial law-making binge” — decided that the mentally retarded are not eligible for execution because their lack of intellectual ability renders them less culpable for the behavior.

“I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defenses raised,” Marc Bookman, a capital defense lawyer from Pennsylvania who attended the discussion, wrote in an affidavit.

June 5, 2013 at 09:35 AM | Permalink

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Free speech for me, but not for thee. How convenient for the complainers that, as the article maintains, "No audio recording of the speech is available." And how convenient that only complainers, and not neutral listeners or conservatives, get interviewed for the story. My goodness.

http://www.crimeandconsequences.com/crimblog/2013/06/the-pc-attempt-to-intimidate-j.html

Posted by: Bill Otis | Jun 5, 2013 10:21:37 AM

Bill, Are you claiming that the alleged statements were not in fact made?

Posted by: Curious | Jun 5, 2013 11:13:03 AM

What are the guidelines here is deciding if she breached ethical guidelines?

Posted by: Joe | Jun 5, 2013 11:42:00 AM

If the Judge said these things, depending on how she said them, she may have been absolutely right:

(1)“racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities...."

- "predisposed" is problematic but facts bear out involvement:
In 2005, while ▼ 13% of the population, blacks
committed ▼ over 52% of the nation's homicides (and 46% of homicide victims).

"Black illegitimacy stands at 72%…
"1940: black illegitimacy was 19%" [▼this▼ may account for the "predispos[al]"

(2) "she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country"

- true

(3)"she denied the existence of systemic racism in the application of the death penalty"

- true

(4) "“I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defenses raised,” Marc Bookman, a capital defense lawyer...wrote in an affidavit."

- good; from victims' rights supporters, critics of disingenuous & sleazy defence tactics, and law enforcement, to conservatives, many are similarly outraged

--newsone.com: 4/27/11; W. Williams, WaPo, 2/25/09

Posted by: Adamakis | Jun 5, 2013 11:46:19 AM

Adamakis, to say that "“racial groups like African-Americans and Hispanics are predisposed to crime.” is to betray manifest ignorance and deep-seated prejudice. Your characterization of the remark as "problematic" is itself "problematic."

Posted by: onlooker | Jun 5, 2013 12:01:25 PM

Sounds to me like she was just stateing facts...Just because one doesn't like the facts isn't much of a reason to Trigger an investigation.

These groups needto getwith the program....It gives groups like this a reason to exist...

Posted by: MidWest Guy | Jun 5, 2013 12:02:15 PM

"ignorance" of what crucial facts?
"deep-seated prejudice" against/toward whom?

Manifest?

Posted by: Adamakis | Jun 5, 2013 12:53:05 PM

Curious --

"Bill, Are you claiming that the alleged statements were not in fact made?"

I am "claiming" that zero documentation, other than characterizations offered by Judge Jones's enemies, is even offered to show that they WERE made.

I am also "claiming" that, if she said blacks and Hispanics are convicted of proportionately more violent crime than whites, she said no more than an almost universally recognized truth that many people on this forum, liberal and conservative, have repeated.

I am claiming in addition, if a point be made of it, that what I had previously taken to be liberal respect for freedom of speech and unwelcome viewpoints is in big, big trouble, see http://www.crimeandconsequences.com/crimblog/2013/06/its-official-first-amendment-g.html

Posted by: Bill Otis | Jun 5, 2013 2:07:15 PM

Bill said: "I am "claiming" that zero documentation, other than characterizations offered by Judge Jones's enemies, is even offered to show that they WERE made."

But these are not characterizations (that is, interpretations) of what the judge said. The complaint says that the judge statef that "racial groups like African-Americans and Hispanics are predisposed to crime." The complaint says that this is a direct quote. So the only question is - did she say it or not? If she didn't say it, she should be exonerated (on this charge, at least). If she did say it, she should be impeached.

Posted by: Anon | Jun 5, 2013 3:17:53 PM

Anon --

"The complaint says that the judge state[d] that 'racial groups like African-Americans and Hispanics are predisposed to crime.' The complaint says that this is a direct quote."

Yup, that's what the complaint "says."

Where's the documentation?

On this forum, Doug Berman, an honest man of good faith, said that I had maintained in one of my comments that prosecutors act "only" out of political considerations in formulating their decisions about what to charge. But I didn't say such a thing. What I said is that prosecutors take account of political considerations in deciding about what charges to bring (which they do and should, since officers of a political branch properly take account of political positions). But I never said that such considerations were the "only" ones involved.

I objected to Doug's misstatement. Doug acknowledged the error and gave a mea culpa.

There's a lesson in that. My comment was written down here for all to see, and Doug -- as I say, an honest man -- got it wrong anyway. You will therefore forgive me for giving no credence to the statement of an advocacy group with an axe to grind, purporting to recount words in a speech, the transcript of which we do not have and it does not furnish.

Even honest people with written-down sources right in front of them make big errors in recounting what they think (or more to the point here, want to think) was said. That being the case, I am not going to accept the Texas Civil Rights Project et al.'s version of what Judge Jones said in this speech.

If you have a transcript, good, please post it. Until then, we have an accusation, not proof.

P.S. Do you find it a little odd that this accusation about a speech given in February at an Ivy League law school never surfaces until June? If the words were as alleged, wouldn't the aggrieved students have broadcast it to high heaven the next day? Wouldn't they have complained forthwith to the Dean? To the group that sponsored her appearance? Surely there was some U. of Penn. law school faculty member in the room -- why is there no affidavit from him or her? Why only from only a tiny fraction of those in attendance, a fraction already antagonistic to Judge Jones? Does this three month-plus interval not make you a bit curious?

Posted by: Bill Otis | Jun 5, 2013 4:44:15 PM

Bill, you didn't respond to my point. You said the complaint contained only a "characterization" of the judge's actual comments. I said that wasn't true, and that the complaint contained an alleged direct quote, not simply a characterization of some comments. You did not respond, so I'll ask more specifically:

1. Do you agree that your use of the term "characterization" with respect to the alleged direct quote was inaccurate?

2. Understanding that you don't think the judge said what she is alleged to have said, IF she did say it, should she be impeached?

Posted by: Anon | Jun 5, 2013 8:24:25 PM

So, the complainants may have misheard or misconstrued Jones' comments.

What about this:

"Judge Jones also violated Canon 3A(6), which states: "A judge should not make public
comment on the merits of a matter pending or impending in any court.” (Emphasis added.) The
Commentary explains that the prohibition against public comment "about the merits of a
pending or impending matter continues until the appellate process is complete. If the public
comment involves a case from the judge's own court, the judge should take particular care so
that the comment does not denigrate public confidence in the judiciary's integrity or
impartiality, which would violate Canon 2A."
Yet Judge Jones discussed several individual cases during her February 20, 2013 lecture,
including the Ibarra case, which was pending in her court at the time of the lecture."

Posted by: me and edith jones | Jun 5, 2013 8:27:28 PM

Oh, if you libs were all interested in judicial ethics, you would have been screaming for the head of Judge Manuel (for out and out cheating a litigant) and Judge Reinhardt for fudging the record. Please spare us the faux outrage.

And then there's this:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The "wise [sic] Latina" specifically links race and quality of judicial decisionmaking. Yet nowhere did I hear libs saying word one about ethics. Instead we saw the utterly laughable: "I stand with Sotomayor."

Posted by: federalist | Jun 5, 2013 9:53:02 PM

I meant to say Judge Real.

Posted by: federalist | Jun 5, 2013 9:54:31 PM

The judge is entitled to her personal opinion on anything she pleases and so long as it was said in a private context then I do not see what the fuss is about. To me there is a big difference between what happened here and what happened in the case of the Iowa judge, who was quite clearly speaking in her official capacity. On the other hand, the issue raised by "me and Edith jones" seems serious if that allegation is true.

Posted by: Daniel | Jun 5, 2013 10:57:05 PM

Anon --

"Bill, you didn't respond to my point."

Didn't know I'm at your beck-and-call.

But I'll give some answers anyway, just to be accommodating. Perhaps at some point you'll be sufficiently accommodating to give me your name, for which I have unsuccessfully asked in the past.

1. It got my point across adequately, which is sufficient unto the day. If you want to parse language, fine. It's what lawyers do.

2. No. I think she should say she misspoke, express regret, and set the record straight. That proved sufficient for our recent Secretary of State when she point-blank lied about having had to duck sniper fire in Bosnia.

Now that I've answered your questions, I'll repeat mine. Unlike your attitude, I don't think I give orders to other commenters to answer. But if you'd care to, I'd be interested in what you have to say. If not, I will draw my own conclusions.

The questions are: Do you find it a little odd that this accusation about a speech given in February at an Ivy League law school never surfaces until June? If the words were as alleged, wouldn't the aggrieved students have broadcast it to high heaven the next day? Wouldn't they have complained forthwith to the Dean? To the group that sponsored her appearance? Surely there was some U. of Penn. law school faculty member in the room -- why is there no affidavit from him or her? Why only from only a tiny fraction of those in attendance, a fraction already antagonistic to Judge Jones? Does this three month-plus interval not make you a bit curious?

Posted by: Bill Otis | Jun 5, 2013 11:22:29 PM

federalist --

"Oh, if you libs were all interested in judicial ethics..."

You can stop right there. What they're interested in is attacking a conservative judge for her supposed words, without (1) a transcript, (2) a recording, (3) an affidavit or any other evidence from a single neutral student (as opposed to advocacy group members), or (4) any evidence whatever from a professor or any other attendee.

What this most reminds me of is the attack on Clarence Thomas for his supposed sexual harassment. The attack, led by Teddy Kennedy (who hadn't harassed any women but had drowned one) took root in a premise the liberals would never admit, but was about an eighth of an inch below the surface of their venom: The idea that black men have uncontrollable sexual appetites. At least the sniping at Judge Jones isn't that racist and disgusting -- not yet, anyway.

Posted by: Bill Otis | Jun 5, 2013 11:45:59 PM

Bill Otis, are you actually defending Clarence Thomas against the accusations by Anita Hill? I expected more from you. On second thought, maybe I did not.

Posted by: anon12 | Jun 5, 2013 11:56:08 PM

Daniel, that was part of the complaint, I copied it directly from the version of the complaint that is online. Seems pretty simple to verify, doesn't it? Either she discussed Ibarra or she didn't, and either the case is actually pending in her court or it isn't.

I'm also wondering:

Since her lecture was sponsored by the Federalist Society, wouldn't there be some attendees who'll come forward who aren't "out to get her" and tell the truth, if the truth is different than what is contained in the complaint?

Posted by: me and edith jones | Jun 6, 2013 12:20:14 AM

anon12 --

"Bill Otis, are you actually defending Clarence Thomas against the accusations by Anita Hill? I expected more from you. On second thought, maybe I did not."

If there is some reason I should care about the expectations of an anonymous poster on the Internet, you forgot to include it.

Posted by: Bill Otis | Jun 6, 2013 12:38:54 AM

"Since her lecture was sponsored by the Federalist Society, wouldn't there be some attendees who'll come forward who aren't 'out to get her' and tell the truth, if the truth is different than what is contained in the complaint?"

Guilty until proven innocent!

My, my, how quickly the liberal mask drops.

Posted by: Bill Otis | Jun 6, 2013 12:41:38 AM

"Guilty until proven innocent!"

First, I didn't know the above was a 'liberal' convention, I thought the presumption of innocence flowed from the U.S. Constituion.

Second, the accusers have presented their proof. I'm interested in seeing what the defense will be, if any. Certainly, people like yourself are "defending" Jones all over the internet, I am interested in seeing if there are more actual attendees of the lecture who will "go public". In other words, will any of those who actually heard what she said report anything different than what has already been reported?

Presumption of innocence is for the court, not for internet commenters, Bill Otis.

Posted by: me and edith jones | Jun 6, 2013 9:45:20 AM

"'Guilty until proven innocent!'...First, I didn't know [that] was a 'liberal' convention."

It wasn't. At least it wasn't until liberals like you found it convenient to employ in order to attack a conservative judge. Then your previous sanctimony about waiting for the whole story goes out the window.

What we have here is an accusation against Judge Jones by a bunch of racial grievance mongers who detested her before she set foot in the lecture room. If you're impressed by this, go ahead and be impressed. I'm not.

Still, since you seem interested in whipping up the hate, let me ask you some questions I don't seem to be able to get answered by others: Do you find it a little odd that this accusation about a speech given in February at an Ivy League law school never surfaces until June? If the words were as alleged, wouldn't the aggrieved students have broadcast it to high heaven the next day? Wouldn't they have complained forthwith to the Dean? To the group that sponsored her appearance? Surely there was some U. of Penn. law school faculty member in the room -- why is there no affidavit from him or her? Why only from only a tiny fraction of those in attendance, a fraction already antagonistic to Judge Jones? Does this three month-plus interval not make you a bit curious?

Posted by: Bill Otis | Jun 6, 2013 11:17:11 AM

Regarding Judge Jones speech, and rather than relying upon the complaint, I respectfully suggest that it would be worthwhile to read the affidavits (at least those that have published) and then carefully compare them to the complaint. In my view, the complaint alleges a lot of things that are not supported or at least not clearly supported by the affidavits.

Just as an example, from the Bockman (main attendee) affidavit, at paragraph 28, in a question and answer session, the judge "responded that she did not mean that certain races were 'prone' to such violent behavior," but "'sadly' they happened to engage in it more often[,]" and she noted the "'Blacks' and 'Hispanics' far outnumber 'Anglos' on death row ...."

Although the web site continues to change its method of presentation, one can find at least some of the affidavits at http://www.texastribune.org/2013/06/04/complaint-judges-comments-show-bias-death-penalty/.

You have to do a lot of scrolling behind the complaint.

All the best.

Richard G. Kopf
Senior United States District Judge

Posted by: Richard G. Kopf | Jun 6, 2013 1:57:35 PM

Some of the things she said are right, some of them wrong. I disagree with many/most of them, but she is an American citizen entitled to her First Amendment rights to free speech. If she commented on actual pending cases, then she should apologize and perhaps recuse, depending on the comments, because I think that is an ability that judges fairly bargain away when they take the job. I also think it's troubling to file ethics complaints against judges we may/may not disagree with. I'm reminded of the uproar over a homosexual judge presiding over a gay marriage case. Judges have the right to be who they are, just like anyone else.

I know I've mentioned this before, but I am a former prosecutor/public defender. Now, I'm a stay at home Dad, so I have too much time to read internet comments.

Posted by: Robert Barnhart | Jun 6, 2013 2:35:12 PM

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