Several organizations filed a Complaint of Judicial Misconduct against Fifth Circuit Judge Edith Jones earlier this week. The complaint charges Judge Jones with a variety of offenses, but the headline–getter is the claim that she made racist remarks during her speech on February 20, 2013, hosted by the University of Pennsylvania’s chapter of the Federalist Society.
With no transcript or recording of the event, the 12-page complaint relies on the affidavits of a few individuals who attended the speech, including Marc Bookman, the Director of the Atlantic Center for Capital Representation. Bookman’s affidavit serves as the primary account, with the other affiants agreeing and adding relatively few details. About a week before the Penn Fed Soc speech, Bookman published an essay in Mother Jones titled “How Crazy Is Too Crazy to Be Executed?”, about Texas murderer Andre Thomas. Whether Bookman intended ahead of time to use his account of the Fed Soc event as the basis of a misconduct complaint or not, he was likely expecting to be offended when he attended a Federalist Society speech called “Federal Death Penalty Review” by a pro-death-penalty, Texas-based judge. Just a guess….
Full disclosure before I go further: I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia, and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.
But I don’t need to do that.
I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges.
While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.
According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”
Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.
If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.
What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.
Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.
The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation.
The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”
I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.
It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.
The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.”
The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence.
Next, the complaint cites Judge Jones’s discussion of individual capital cases as evidence of her alleged misconduct. It states:
“It was clear that Judge Jones was disgusted by the gruesomeness of these killings [ . . . ] Judge Jones made clear her personal belief in the heinousness of the crimes committed and how, in her personal view, that justified imposition of a death sentence.”
The heinousness of crimes is, in part, how we as a society justify capital punishment. We don’t seek or impose the death penalty for most offenses, even most homicides. As I wrote about in my column last week, I am no fan of our capital punishment system. Even so, I understand that, if we are to execute people at all, we aim to execute the offenders who commit the worst crimes.
What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.
We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.
If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org