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.”


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.


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