Marc Bookman and “The pot calling the kettle black”

Marc Bookman was the moving force behind the ethics complaint against Judge Jones. A friend of this blog and a civil litigator, who has no interest in the Jones dispute, brought to my attention that the United States Supreme Court has recently referred to disciplinary authorities alleged misconduct of Mr. Bookman in a death penalty case.

The venerable Lyle Denniston wrote about Mr. Bookman’s problem in August of this year. See Lyle Denniston, Court hands off feud about murder appeal (August 11th, 2014) (discussing allegation that defendant facing the death penalty did not authorize Bookman to file petition with the Supreme Court and the order the Court entered dismissing the petition but referring the claim against Mr. Bookman to state disciplinary authorities).

I stress that I have no idea whether Mr. Bookman did anything wrong. But, adages abound, among them: “What goes around comes around.”

RGK

On being “uncomfortable” and “offended”–the ethics complaint against Judge Jones and the student affiants

That students have devolved from budd[ing] scholars and statesmen to butthurt babies is, sadly, a trend that’s been happening for quite a while now, as higher ed has facilitated, if not encouraged, them to elevate their feelings above all else. But why is there no grown up in the room?

Scott H. Greenfield, Sensitive Sally Smacks Special Snowflake Student Silly, Simple Justice (May 24, 2014).

I return to the ethics complaint against Judge Jones that I discussed yesterday. Specifically, I write about two affidavits submitted by two students, one of whom was pursuing an advanced degree in criminology (and perhaps a law degree) and the other a law degree. I concentrate on the issue of race, and whether Judge Jones’ statements reflected racial bias such that students were justified in being “uncomfortable” or “offended.”

Background

Here is how the “Appeal” describes two student affidavits:

The affidavits from attendees are categorical that Judge Jones’ comments diminished confidence in and respect for the judiciary’s integrity and impartiality:

As an African American male, and as someone who is interested in the areas where race and law intersect, I was made uncomfortable by her comments on race and found them offensive.
Exhibit B, #35.

From speaking with others after the lecture and observing the reactions of others during her remarks, she upset and offended many of the attendees in the room tremendously.
Exhibit C, #14.

. . . .

Id. at p.18. (For all of of the sworn statements, click here: affidavits.)

It is important to stress that the student affidavits are odd in one critical aspect. Instead of reciting what they heard, they frequently adopt by reference what another person heard, that is, the recollections of Marc Bookman, the Director of the Atlantic Center for Capital Representation. As regards Judge Jones’ comments on race, Bookman’s affidavit makes clear that Judge Jones did not mean to imply that Blacks or Hispanics were inherently more murderous. Specifically, Bookman stated that Judge Jones said “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 Aff. ¶ 28.

Here is what the Special Committee concluded regarding race and Judge Jones statements:

 It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are “disproportionately” involved in certain crimes and
“disproportionately” present in federal prisons. Needless to say, this topic can be extremely sensitive, and we do not doubt the affiants’ and witnesses’ repeated statements that they found the remarks offensive. Judge Jones herself recounted that she “was uncomfortable about alluding to such facts.” Jones Recollections 20-21. We recognize that, without an explanation or qualification, saying that certain groups are “more involved in” or “commit more of” certain crimes can sound like saying those groups are “prone to commit” such crimes. But we must consider Judge Jones’ comments in the context of her express clarification during the question-and-answer period that she did not mean that certain groups are “prone” to criminal behavior. In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial. Rather, they resemble other, albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system.

The evidence also shows that Judge Jones used the term “red herring” to signify her view that a challenge to the death penalty on the ground that it is administered in a racially discriminatory manner is nonviable. When we consider this in the context of a discussion of McCleskey v. Kemp, 481 U.S. at 292, we again cannot find that such a view indicates improper bias or misconduct.

Report of the Special Committee, at pages 27 and 28 (footnote omitted).

In a footnote to the foregoing conclusion, the Special Committee wrote:

See, e.g., Eric Holder, U.S. Attorney General, Remarks at the 11 Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) (“[I]t’s time to ask tough questions about how we can . . . address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.”); Marc Mauer & David Cole, Five Myths About Americans in Prison, WASH. POST (June 17, 2011) (“Yes, African Americans and Latinos disproportionately commit certain crimes. But in a 1996 study of crime rates in Columbus, Ohio, criminologists from Ohio State University concluded that socioeconomic disadvantages ‘explain the overwhelming portion of the difference in crime.’”); Charles Ogletree, The Burdens and Benefits of Race in America, 25 HASTINGS CONST. L.Q. 217, 228 (1998) (“African-Americans are grossly over-represented in the criminal justice system. In part, this is due to the fact that, per capita, black people do commit more crimes than whites. However this fact alone does not account for the disparities in the crime statistics. In fact, since the 1970s, rates of black crime have been stable, even though the rates of prosecution have increased exponentially.”); id. at 228 n.48 (“A number of studies have documented the unusually high arrest rates for blacks suspected of crime compared to other groups.”); id. at 236-37 (“The problem is that the decision-making process at every stage . . . is discriminatory and thus subject to bias (racial or otherwise) in its applications.”); see also U.S. SENTENCING COMM’N, 2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl.4, available at http://www.ussc.gov/sites/ default/files/pdf/research-and- publications/annual-reports-and-sourcebooks/2012/Table04.pdf (providing statistics on race of offenders in each primary offense category).

Id. at n. 11.

My concerns about the student affidavits

The practice of law is a tough business. It is particularly tough business when the death penalty is involved. As law students who are about to become lawyers, one would hope that they develop very tough skins. They will not be able to survive in the real world if they don’t. More importantly, they will do their clients a huge disservice if they hold themselves out as advocates while at the same time being oversensitive about their personal views. Frankly, that law students are made to feel “uncomfortable” or “offended” while they study to become legal professionals is a good thing. As I have said in another context (that subjected me to howls of criticism), they ought to “get over it.” Law students must learn that taking on the representation of a real live human being means that the task is never about them. We don’t need “butthurt babies.” We need tough-minded lawyers.

RGK

Judge Edith Jones and the dismissal of the ethics complaint

I have earlier written about the ethics complaint filed against Judge Edith Jones. Judge Jones, who I have only met once, is a tough and “conservative” judge who sits on the Fifth Circuit. She formerly served as the Chief Judge of that court. She is very bright, and very opinionated. Her writing and her speaking styles can be blunt. Frankly, she is far too right-wing for my tastes.

Background

The student-run chapter of the Federalist Society at the University of Pennsylvania Law School invited Judge Jones to speak about the death penalty. The Federalist Society chapter advertised the event within the law school and to the public as a discussion of “federal death penalty review through the perspective of a federal judge.” Judge Jones delivered the lecture, entitled “Federal Death Penalty Review with Judge Edith Jones (5th Cir.),” on February 20, 2013. She spoke for about 45 minutes and then answered questions. There was no recording of her talk or the question and answer session.

Various individuals and public interest groups filed a Complaint of Judicial Misconduct against the judge. The Complaint primarily centered on alleged misconduct arising from remarks Judge Jones made at the lecture on the death penalty at the University of Pennsylvania Law School on February 20, 2013.  The complaining parties did not like what Judge Jones said, so they filed the ethics complaint against her.

The Complaint grouped Judge Jones’ contested comments into the following categories: (1) “Comments on Race”; (2) “Comments on the Intellectually Disabled”; (3) “Comments on [Claims] of Innocence”; (4) “Comments on Foreign Nationals”; (5) “Discussion of Individual Cases”; and (6) “Discussion of Religion as a Justification for the Death Penalty.” It also alleges that the judge: (7) improperly criticized the U.S. Department of Justice; (8) “disparaged” the Supreme Court; and (9) delivered her remarks in an inappropriate tone. In these respects, the Complaint maintains, the judge’s lecture violated 28 U.S.C. § 351 and Code of Conduct Canons 1, 2, 3, and 4.

Before I first blogged about this matter more than a year ago, I spent a time examining the complaint and the four affidavits that a newspaper had obtained and reprinted. After that, I wrote:

While its only my opinion, even if one takes the facts stated in the affidavits as generally true, the content of Judge Jones’ remarks at the law school seem to me to be a very weak basis for claiming that she violated the Code of Conduct. Indeed, I find it more than a little frightening that a serious but plainspoken and outspoken judge like Jones can be forced to defend herself for the content of a law school speech on the death penalty that offended some of the audience members.

Richard G. Kopf, The complaint against Judge Edith Jones for her death penalty speech, Hercules and the umpire (June 5, 2013 (asterisks (footnotes) omitted).

I also noted that: “The rambling complaint does an extremely poor job of tracking the affidavits. That is, the complaint appears to grossly overstate the specific facts recounted in the affidavits.”

At the request of the Chief Judge of the Fifth Circuit, this matter was submitted to Chief Justice Roberts for transfer to another Circuit Judicial Council. The Chief Justice referred the complaint to the Judicial Council of the District of Columbia Circuit. In turn, a “Special Committee” was appointed consisting of D.C. Circuit Chief Judge Garland, Circuit Judge Griffith, and Chief Judge Roberts of the United States District Court for the District of Columbia. On August 6, 2013, the Committee appointed Jeffrey Bellin, Associate Professor of Law at William and Mary Law School, as Special Counsel to the Committee to investigate the Complaint’s factual allegations.

The Special Committee issued a 71-page single spaced opinion recommending that the entire complaint be dismissed.  The Judicial Council of the D.C. Circuit ( GARLAND, Chief Judge, U.S. Court of Appeals for the District of Columbia Circuit; KAVANAUGH, SRINIVASAN, MILLETT, and PILLARD, Circuit Judges; ROBERTS, Chief Judge, U.S. District Court for the District of Columbia; A. JACKSON, CONTRERAS, and K. JACKSON, District Judges) followed the recommendations, and the complaint was unanimously dismissed on August 12, 2014.

We now know the identity of the complaining parties as they have “appealed” (called a “Petition for Review” under the relevant rules) and they have made their appeal public. The complaining parties are: League of United Latin American Citizens (LULAC), by Luis Roberto Vera, Jr.; NAACP – Austin Chapter, by Nelson E. Linder; National Bar Association, Dallas Affiliate – J.L. Turner Legal Association, by Tatiana Alexander; Texas Civil Rights Project (TCRP), by James C. Harrington; La Union del Pueblo Entero (LUPE,) by Juanita Valdez-Cox; Charles W. Wolfram, Professor Emeritus, Cornell Law School; Author, Modern Legal Ethics; Renato Ramirez; Professor Robert P. Schuwerk, Co-Author, Handbook of Texas Lawyer and Judicial Ethics; Susan Martyn, Distinguished Professor of Law & Values, University of Toledo College of Law; Ronald Minkoff, Frankfurt Kurnit Klein & Selz; Past President, Association of Professional Responsibility Lawyers; Ellen Yaroshefsky, Clinical Professor and Director, Burns Center for Ethics in the Practice of Law, Cardozo School of Law.

Their “appeal” will go before the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. See here (near the bottom of the page, click on Rules for Judicial-Conduct and Judicial-Disability Proceedings and read Rules 21 and 22).

The Order of dismissal, the Report of the Special Committee, the “Appeal” and the supporting affidavits for the “appeal” are reproduced as follows: dismissalappeal; and affidavits. These are PDF documents, and one must click on the link to view (by download) the document or documents of interest.  Many thanks to Howard Bashman at How Appealing for collecting these materials. An alternative method of accessing these documents is to go to Howard’s post which may be found here (“”Federal panel dismisses complaint against Houston judge”).

Code.2My initial reactions

I may post more about the decision and the appeal. But for now, here are my five initial reactions:

  1. The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable.
  2. Having spent six years as a member of the Codes of Conduct Committee, it is my opinion that the Special Committee’s report reflects a sophisticated understanding of the Code of Conduct For United States Judges.
  3. In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.
  4. I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it. Id. Commentary to Canon 4.
  5. As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.

Conclusion

I especially urge all federal judges and federal practitioners to read the Report of the Special Committee. It would be good also to read the complainants’ “appeal” and the supporting affidavits, although frankly those documents leave me entirely unpersuaded. Finally, the Judicial Council of the D.C. Circuit, and particularly the members of the Special Committee, deserve high praise for teaching us a lot about federal judicial ethics in the real world.

RGK

 

 

 

 

 

Meet Indigo Agnes Kopf

Indigo Agnes weighed 7.25 pounds and “stood” almost 20 inches tall.  She was born at 3:15 PM on Friday, October 17, 2014, Australian time.

After Stacey went through 12 hours of very painful labor, and at the last moment, the Aussie doctor had to “turn” Indi from the posterior position to the “right way around.” She was delivered naturally, but with forceps.  Mother and baby are doing well.  Joan and I are over the moon.

Two granddaughters in the space of about one month (Zora–in China– and Indigo–in Australia) is just about the best thing since sliced bread. We can’t wait to see them both. We are trying to figure out how to accomplish that feat given the long distances, but we may have a solution.

Indigo Agnes with her big brother Fletcher

Indigo Agnes with her big brother Fletcher

RGK (Stinky feet Grampa)

 

 

 

Down under granddaughter

At around 1:30 AM this morning, 16 time zones away, Stacey, Keller’s wife, gave birth to a baby girl in Albury, Australia. Both baby and mother are OK. The little girl weighed about 7.25 pounds. No name yet.

Stacey is exhausted. While she is unbelievably fit, as evidenced by the fact that she is the only one in our family to have competed at the Division I level in college sports (she was a sprinter on the swim team at Nebraska and still holds school records there), labor was long and arduous. On top of that, while preparing for the birth of her second child,  Stacey was trying to complete her PhD dissertation, entitled: “Fish assemblage and in-stream habitat in the Beavers Creek / Old Man Creek anabranch of the Murrumbidgee River, NSW.” She is one tough woman.

So far, we have only one photo. It came via Viber.

It shows Keller all gowned up and ready for the delivery. I believe the photo was taken by Stacey. Anyway, here it is:

From China, Milan, Karel and Lisa's little boy, upon seeing th photo, asked: "Is this a different Uncle Keller?"

From China, Milan, Karel and Lisa’s little boy, upon seeing the photo, asked: “Is this a different Uncle Keller?”

More later . . .

RGK

Hadley Arkes, a poor polemicist

Professor Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. He is a political scientist.

Arkes is not a fan of mine because of the partial-birth abortion cases I decided and which ended up in the Supreme Court. See, e.g., Hadley P. Arkes, Gonzales v. Carhart: What Hath Kennedy Wrought?, The Federalist Society (June 3, 2007)  (“The old, implausible charge of ‘vagueness’ could be rolled out again, and one could count on Judge Richard Kopf in Nebraska to sustain that claim, or virtually any other colorable ground that people were audacious enough to offer as a ground for challenging the law.”) (requires download of PDF); Hadley Arkes, Good May Yet Come Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion, National Review Online (April 24, 2007) (“My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers.”); Hadley Arkes, Natural Rights and the Right to ChooseCambridge University Press pp. 122, 140, 239 (2004) (stating, among other things, that by “preserving [his] commitment to abortion unimpaired, unqualified, [Kopf is] compelled to say things that judges, or cultivated men, could not have said in public in another age. . . . In other words, Dismemberment ‘R’ Us.”).

Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow. Moreover, he is a “natural rights” devotee and I agree with Bentham that such stuff is “nonsense on stilts.” That said, Brother Arkes is entitled to pick his own poison. But I draw the line when he accuses me of being a Catholic-hating religious bigot.*

In Another Opening, Another Show: The Red Mass of 2014, The Catholic Thing (October 7, 2014), Arkes writes the following about me in the context of the Red Mass** attended by Chief Justice Roberts, and Associate Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Elena Kagan at St. Matthew’s Cathedral in Washington, DC:

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.” The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.” No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.” In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.” In other words, Dismemberment R Us. That is what abortion involves, all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Arkes is referring to and partially quoting from an earlier post of mine entitled Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the part of the post that Arkes summarizes inaccurately, I made a point about judicial decisions, appearances and the public’s acceptance of the law. This is what I wrote:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

(Emphasis added.)

It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point. But, in truth, such conduct, while in poor taste, is probably only a venial sin. So, Hadley, say you’re sorry–it is the natural thing to do–and all will be forgiven.

RGK

*Being Catholics, my wife and five of her siblings would find such a suggestion amusing. Candor requires that I admit that a sixth sibling became an Episcopalian–she was always a wild child.

**I am mystified by the Professor’s attack on me in an article about the Red Mass.

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