Judge Edith Jones Subject To Ethics Complaint Over Alleged Bizarre Comments At Federalist Society Meeting And Judicial Bias

Edith-Jones-Judge-Edith-H-Jones-Edith-Hollan-JonesThere have long been complaints about the temperament and civility of Judge Edith Jones of the New Orleans-based 5th U.S. Circuit Court of Appeals. Indeed, when I clerked on that court, Jones was rather infamous for her run-ins with colleagues and others.  Jones has been criticized for her extremely conservative views and, more importantly, her perceived intolerance (and hostility) for opposing views and colleagues.  This includes telling another judge to “shut up” in oral argument. Now, she is facing a formal complaint over a Federalist Society speech given at the University of Pennsylvania where she allegedly said that certain racial groups are predisposed to crime and that defenses like mental competence and actual innocence are “red herrings” among other bizarre claims.

Various law professors, ethics experts, and groups are behind the complaint. Since there was no recording allowed and no transcript, this extraordinary complaint was filed with declarations on what Jones states.

Jones’ comments occurred at a lecture entitled “Federal Death Penalty Review” at the University of Pennsylvania School of Law on February 20, 2013.

The complaints lists a controversial tenure of what are described as unprofessional and hostile conduct toward others. The most recent speech described as including the following statements:

*The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;

*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;

*Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;

*Capital defendants who raise claims of “mental retardation” abuse the system;

*The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope”;

*Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;

*The country of Mexico does not provide and would not provide the legal protections that a Mexican National facing a death sentence in the United States would receive.

The complaint is based on The Judicial Conduct and Disability Act allowing “[a]ny person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” to file a complaint against the judge. See 28 U.S.C. § 351(a). Among the cited canons is Canon 2 of the Code of Conduct for United States Judges providing that “a judge should avoid impropriety and the appearance of impropriety in all activities.”

As someone who has both defended and charged federal judges in cases of misconduct, this complaint is impressive — an extraordinary collection of allegations that will test the often criticized ability of the federal courts to police themselves. Some of these statements attributed to Jones are quite bizarre like the suggestion of the death penalty as necessary to bring defendants closer to God (though that statement could have been made in jest or sarcasm).

In the past, I have been in an uncomfortable position as a legal commentator when Jones was suggested as a top candidate for the Supreme Court during the prior Bush Administration. Her poor reputation among some judges and lawyers is difficult to explain and remains highly personal or impressionistic. However, this complaint shows that her critics have increased and some of her comments offer a potential objective basis for discipline. To what extent is a judge allowed to express such views as a matter for free speech? Canon 4 states that a judge may engage in “extrajudicial activities, including lecturing on both law-related and nonlegal subjects.” This is followed with the caveat that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office [or] reflect adversely on the judge’s impartiality . . . .”

Notably, the complaint includes a request for a transfer to another circuit for adjudication under Rule 26, which states that “[s]uch transfers may be appropriate . . . where the issues are highly visible and a local disposition may weaken public confidence . . . .”

Many conservatives are likely to find statements from some liberal jurists equally disturbing. Even if these statements cross the line, what is the appropriate sanction. It seems doubtful that anything other than a reprimand would result. That is assuming that there is no question of false statements made in the course of any investigation. If Jones denies these statements, it could create a more serious question for the court if it concludes that the statements were made. If the statements were found to have been made by Jones, the question then becomes a difficult line between free speech and judicial impropriety. Ironically, Jones has never been a strong supporter of such constitutional rights as a judge but may now need to argue for a more expansive meaning.

What do you think? Should judges be allowed to discuss such views in public as a matter of free speech?

Here is the complaint: JonesComplaint_060413

66 thoughts on “Judge Edith Jones Subject To Ethics Complaint Over Alleged Bizarre Comments At Federalist Society Meeting And Judicial Bias”

  1. Just remember in your quest for a witch hunt on speech that the tables can turn on you eventually as well as Mr Turley noted above.

    I am not sure what she said was really anything to be up in arms over.

  2. “In a detailed affidavit, James McCormack, a legal ethicist, former general counsel and chief disciplinary counsel for the State Bar of Texas, writes that the content of Jones’ speech violates a number of ethical provisions within the judicial code of conduct – including the duty to be impartial; to avoid comment on pending, or impending cases; to be respectful and “avoid comment or behavior that could be interpreted as harassment, prejudice or bias,”; and to avoid participating in “extrajudicial activities that detract from the dignity” of the judge’s office or would “reflect adversely on the judge’s impartiality.” In sum, McCormack concluded that Jones has engaged in “cognizable misconduct,” he wrote. “Her inflammatory remarks evince bias and prejudice and serve to lower public confidence in our judiciary,” reads the affidavit. “I view this episode as a very sad and unfortunate chapter in the history of our federal judiciary. Most federal judges strive mightily to act fairly and impartially and to strengthen, rather than erode, public confidence in our system of justice,” he continued. “Judge Jones’s conduct militates in the opposite direction. In my opinion, unless an appropriate disciplinary authority strongly disapproves of … Jones’s statements and properly addresses her flagrant misconduct, our judicial system – and our federal appellate courts in particular – will suffer the consequences of diminished public respect and confidence.” Austin Statesman

  3. Mr Benjamin, there is not a simple disparity, there is a mountain of difference.

    Most of the DOJ stats are very very rarely displayed by the US Media because they are terrified of discussing anything racial that does not involve the defense of minorities and that paints them in a bad light.

    The reality is the crime figures among them are absurdly out of whack. No amount of sugar coating can hide that fact.

    For example, HALF of the population inside California’s prisons are illegal hispanics. Half. Not only are they of one race, they are also not even citizens of this country.

    Instead of seeing no evil it is time we discuss it and drag it out into the light and figure out how we can rectify the issue. It is also time to lay to rest the political correct method of labeling this a societal and judicial bigotry towards minorities. That excuse is simply unacceptable and only serves to tarnish any meaningful work towards actual solutions.

  4. If elected politicians can make such talk as this judge has been said to do I don’t see why judges cannot.

    Additionally, she could have the most outlandish personal opinions imaginable but if she does not let her personal opinions affect her administration of justice there is no issue here.

  5. Wouldn’t the “conservative” path (with the greatest return on taxpayer investment) be to invest in education, jobs, police officers on the street and infrastructure in the inner-cities and poor rural areas instead of the “punitive” mindset like this judge? She is just a symptom of the larger disease.

  6. What I find interesting is that Professor Turley didn’t mention if her ‘speech or verbal thoughts’ were evident in any of her court cases or decisions? This would be nice to know, and can provide a connection or link between what she said in this speech and how she decided cases as a judge? Do we have any of her court cases, portraying this connection?

  7. G. Mason: Let’s agree that there is a disparity in crime rates between whites and minorities. It is still a fact that a person of color is more likely to be arrested, prosecuted for a felony rather than a misdemeanor, poorly represented, convicted against the evidence, and sent to prison rather than being fined or given community service than a white person would be for the same crime.

    You can only account for those facts by recognizing the bias in our criminal justice system represented by Edith Jones. And larger tendons simply are not relevant.

  8. Yep, blouise. Judge Jones refused to block the sonogram with the probe law.

  9. Edith Jones would have never been invited to speak at the American Constitution Society. The conservative students belong to the Federalist Society. Good on them for being shocked by the statements made by the old racist Texas republican and to think Bush considered her for the Supreme Court. She won’t leave because Obama would probably replace her with a liberal attorney and quite possibly one from the minority community.

  10. My understanding is that at least two people attending her speech independently confirmed what she said. Do you know how many of those who were there have confirmed her statements?

  11. This judge’s incredibly casual attitude about the issuance of death upon human beings indicates a complete lack of consciousness or humanity. Horrible and chilling. It reminds me of Scalia and Thomas. Part of our tripartite government in action.

  12. In the sports world is is commonly claimed that black athletes are superior due to genetics such as larger tendons etc etc. I wonder what everyone’s thoughts are on that as well. Do you believe that to be true?

    As a society we are rather incapable of having rational unbiased discussions on anything racial. People are either dismissive or inventive.

  13. “death penalty as necessary to bring defendants closer to God”

    A born again inquisitor

  14. It’s going to be obvious why IANAL when I say this I suppose, but for me, this statement –

    Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;

    constitutes prima facie evidence of unsuitability to serve as a judge. Sorta reminds me of Scalia – didn’t he say that “mere innocence” shouldn’t get in the way of a duly imposed Death sentence?

  15. Ditto Bob….. Geeze… Where does common sence come to play…. Or when is it ok to take a vacation….

  16. Wow…… crossing the line? Her beliefs are so prejudicial she has no business judging anyone. How can someone with these stated views not be removed? Post haste!

  17. “If the statements were found to have been made by Jones, the question then becomes a difficult line between free speech and judicial impropriety. Ironically, Jones has never been a strong supporter of such constitutional rights as a judge but may now need to argue for a more expansive meaning.”

    That’s simply delicious.

  18. Whether I agree or not I will point out that DOJ statistics verify her claims largely. Are we to assume that statistics are racist?

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