Marc Bookman

Judge Edith Jones

I did not say such things because I have never believed them and have never said them.

– Judge Edith Jones of the Fifth Circuit, denying she made offensive comments attributed to her by an ethics complaint. A panel of federal judges dismissed the complaint, but various civil-rights groups and legal ethicists are appealing the dismissal.

This week, a Texas campaign ad and a Pennsylvania death penalty appeal each illustrate what happens when lawyers lose sight of for what — and whom — they claim to be working.
Wendy Davis, in the final throes of her Texas gubernatorial race against Attorney General Greg Abbott, launched a controversial campaign ad a few days ago. The ad accuses Abbott of “siding with a corporation over a rape victim,” spotlighting a 1998 Supreme Court of Texas case brought by a woman seeking damages from a vacuum manufacturer after a door-to-door salesman of the vacuums allegedly raped her in her home. A background check should have revealed that the man had a criminal history. Abbott was then a justice on the Texas court. He dissented from the majority’s decision in favor of the woman. Davis’s ad ignited heated debate, with even her supporters questioning the propriety of the ad. Abbott’s campaign called the ad “despicable.”

Meanwhile, on the other side of the country, the United States Supreme Court on Monday issued a highly unusual order in a Pennsylvania death penalty case. The Court asked the Pennsylvania Supreme Court Disciplinary Board to investigate and take appropriate actions against Marc Bookman, an attorney who filed a petition for review of Michael Eric Ballard’s death sentence. Ballard slaughtered four people in 2010: his former girlfriend, her father, her grandfather, and a neighbor who tried to help the family when he heard screams coming from the home. Ballard was sentenced to death in 2011. In November 2013, the Pennsylvania Supreme Court upheld the sentence. On June 23 of this year, SCOTUS denied Bookman’s petition to review Ballard’s case, but the Court then ordered Bookman to file additional responses about his relationship to Ballard. Apparently not satisfied by Bookman’s replies, the Court referred the case to the state disciplinary authority.

So, what’s the problem in either of these situations? Why the controversy? And what do they have in common?

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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….

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