Wednesday, June 5, 2013

If you can't say something nice ...

The comic strip Stone Soup ran a strip on Tuesday in which the mother in the strip told her daughters to ask three questions before they send a text, email, or post.  Those three questions are: (1) is it true; (2) is it kind; (3) is it necessary.  At the Gillette-Torvik Blog we strive for one out of three but recognize that these three questions are very good ones to ask before writing or saying anything.  I thought of that strip today when I heard about the new controversy surrounding Judge Edith Jones.

Back in September 2011, we posted about how Edith Jones, then the chief judge for the United States Court of Appeals for the Fifth Circuit, told one of her fellow judges to shut up at an oral argument.  If the allegations reported by the Associated Press are true, Judge Jones should followed her own advice or adopted the Stone Soup rule.

According to this complaint of judicial misconduct, on February 20, 2013, Judge Jones appeared at the University of Pennsylvania School of Law and gave a lecture entitled "Federal Death Penalty Review."  The complaint alleges that during her remarks Judge Jones said,
  • that "certain racial groups like African Americans and Hispanics are predisposed to crime"
  • that "certain systemic classes of crime" exist and that "certain racial groups commit more of these crimes than others."
  • "Some [racial] groups seem to commit more heinous crimes than others.
  • that it was a "statistical fact" that African Americans and Hispanics get more involved in violent crime than white people.
  • that race is not a legitimate concern in how the death penalty is administered.
  • that it is a disservice to the mentally retarded to exempt them from the death sentence. 
  • that it was disgusting that mental retardation claims are made in death penalty cases
  • that claims of innocence are a red hearing based on "technicalities" in death penalty cases.  Judge Jones analogized the number of innocence people killed by the death penalty to the number of innocent people killed by drone strikes.
  • that the death penalty is justified because "a killer is only likely to make peace with God and the victim's family in the moment when the killer faces imminent execution, recognizing that he or she is about to face God's judgment."  The complaint says that Judge Jones mentioned reading something on the Internet about the death penalty being carried out in jurisdictions under the Vatican.  This may have been this article
  • that Mexican nationals would prefer to be on death row in the United States than be incarcerated (and eventually freed) in Mexico.
The complaint does not ask for a specific remedy to right the alleged wrong by Judge Jones.  It does ask that the complaint be transferred to another circuit.  Presumably this is to prevent Judge Jones from being judged by her co-workers (including the judge she told to shut up).  It will be interesting to see if that request is granted.  It will be even more interesting to see how whatever judicial council that takes the case on will rule on the complaint. 


  1. I'm withholding judgment on this for now. Some of the allegations are strange, and it's hard to tell what's a quote, and what's a paraphrase. For instance, one of the allegations is --

    *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;

    Look at that word "prone." Do you see that it is in internal quotation marks? So is the person quoting Judge Jones implying that she was quoting someone else for the "prone" part of her comment? Or is the whole quotation actually a quotation from someone who attended the speech, and Judge Jones just said the word "prone" and the rest is paraphrase?

    Same thing with the word "heinous." Nothing is more suspicious than the one-word quote in the middle of a sentence. All we know for sure is that she said "prone" and "heinous." Actually, we don't even know that for sure, since this is all hearsay.

    Then there is this:

    In Judge Jones’s view, even innocence is another “red herring.” “She was very dismissive of claims of innocence. She did not take seriously the possibility that innocent people had been sentenced to death.” Ex. B, at ¶ 29. “She said that reversals of those who were allegedly innocent were really based on ‘technicalities’, not innocence. She was unapologetic when
    making these comments.” Ex. E, at ¶ 15. According to Judge Jones, “just as many innocent people [were] killed in drone strikes as innocent people executed for crimes . . . .” Ex. C, at ¶ 15. As an audience member commented, “I thought [that] was at best a curious analogy.” Ex. C, at
    ¶ 15; see also Ex. A , at ¶ 29; Ex. E, at ¶15.

    Now, there may be much to disagree with in this. But I really fail to see how it is at all actionable as a violation of judicial or legal ethics. It's just someone giving her opinion on jurisprudential issues. When your ultimate accusation is that she uttered "at best a curious analogy" one can't help but wonder: what was it at worst? A terrible analogy?

    Then this:

    She claimed it was an “insult” when United States courts looked to the laws of another country such as Mexico, as this suggested that such legal systems were “more advanced” than that of the United States. Ex. A, at ¶ 32; Ex. F, at ¶ 14.

    USA! USA! USA! But seriously, are we really supposed to be outraged by claims the the American legal system is superior by a practitioner--nay, an overlord!--of the American legal system? Gimme a break.™

    There are more "at best curious" allegations in here. Some of it is worse seeming, but most of the worst stuff isn't in quotations, or is very suspicious looking (such as the "prone" issue discussed above). If they wanted me to be outraged they should have stuck with the more serious stuff and not peppered the allegations with trivialities. The way it is written makes me think it is "at best" the wounded ravings of oversensitive bleeding hearts and "at worst" a tendentious screed.

    But, as I said, I'm withholding judgment.

  2. I agree that the way the quotations in the complaint are used is very strange and it is not entirely clear whether the person being quoted is Judge Jones or a witness. I also agree that bad analogies are not a violation of judicial or legal ethics. The alleged comments about the propensity for certain racial groups to commit violent crimes are another matter. It will be interesting to see how this turns out. I suspect that given the lack of transcript, the complaintants will not be able to sustain their burden of showing the comments were made.

  3. The affidavits are public now. The two objectionable quotes are quotes *of the affiants* summarizing of their own takeaway; not only do the actual statements they allege not support that reading, several of the affiants swear that she made clear that she was not saying people were more prone to violence because of their race or biology or genetics, but was observing the fact of the higher rate of incidence.

    Seems sanctionably dishonest for the complaint to make it sound as if it's quoting the speaker when it's actually quoting the affidavits, and the quote isn't even a fair paraphrase of any of the actual statements the affidavits allege.

  4. Thanks for the comment Anon. I'm not sure if it is sactionable but I agree that drafting the complaint to read like it is quoting the judge when it is quoting someone else is certainly dishonest. Usually that sort of thing has a boomarang effect and hurts the complaint's credibility more than correctly identifying the speaker would have.


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