#MeToo Movement, Misconduct Claims Impact Federal and State Judges
by Ed Lyon
The #MeToo movement seeks to expose incidents of sexual harassment and sexual abuse by men against women. The movement has resulted in accusations against a number of high-profile figures, including actors, businessmen and politicians. Members of the judiciary have not been excluded from claims of sexual misconduct, in cases that long predate the #MeToo trend.
In 1998, Waco, Texas federal judge Walter Smith made sexual advances to a deputy clerk in his chambers. The woman escaped but he continued to pursue her, even sending her roses. Her complaints eventually reached Chief Judge Harry Lee Hudspeth on the Fifth Circuit Court of Appeals.
“What exactly do you want me to do about this?” Hudspeth reportedly asked the victim.
The woman quit her job to end the harassment. Sixteen years later, in 2014, attorney Ty Clevenger deposed the victim for an appeal he had filed of a sanction handed down by Smith in a 2009 case – entering the woman’s testimony into the public record.
Two Fifth Circuit Judicial Council investigations followed. As a result of the first, Judge Smith was reprimanded and suspended in December 2015. But the investigative report noted that he did “not understand the gravity of such inappropriate behavior.”
So Clevenger appealed the reprimand, which he called a “slap on the wrist.” A second investigation was opened but then suspended when Smith retired, at age 76, in 2016.
Hudspeth, who was the subject of a separate investigation – for not referring Smith to the Judicial Council when he received the initial report of sexual misconduct – also retired that year.
In 2007, another Fifth Circuit Judicial Council heard the complaint of a female court employee who said Judge Samuel Kent had repeatedly tried to force himself on her in his Galveston, Texas chambers. Without reporting the allegations, the Council reprimanded Kent and transferred him to Houston.
The victim then took her complaint to the U.S. Department of Justice, which charged Kent in 2008 with sexual abuse and obstruction of justice. In May 2009, Kent, then 61, was sentenced to 33 months in prison on a plea deal for obstruction of justice.
He submitted a notice that he intended to retire the following year in order to preserve his retirement benefits. But the U.S. House drafted and passed articles of impeachment against him – sending a federal judge to be tried by the U.S. Senate for the first time in two decades. Judge Kent then advanced his resignation to June 2009, avoiding a Senate trial.
In 2008, Colorado federal judge Edward Nottingham was being investigated by the Tenth Circuit’s Judicial Council for suborning perjury the year before from a prostitute he had hired, asking her to lie to the Council. The 60-year-old judge stopped the investigation by retiring and apologizing in October 2008. The Judicial Council noted that Nottingham’s resignation “was in the [best] interest of justice and the judiciary.”
Between 2008 and 2012, Montana’s chief federal judge, Richard F. Cebull, e-mailed numerous racist jokes, including one about President Obama. He also sent e-mails with offensive jokes about women, religion and sexual orientation to friends and colleagues, using his courthouse computer.
The Judicial Council recommended that Cebull, who had reported his own misconduct to the Council, be reprimanded and reassigned. Instead he apologized and resigned in May 2013 at age 69, suspending further investigation into his misconduct – an investigation overseen by Chief Judge Alex Kozinski on the Ninth Circuit Court of Appeals.
Kozinski tried to bury the Judicial Council’s investigative report into Cebull’s misconduct, which found he had sent hundreds of “racist, sexist and politically inflammatory” emails. Only after a complaint was filed by Judge Theodore McKee of the Third Circuit was the report made publicly available.
Several years later it was Kozinki’s turn to face an investigation. In December 2017, after 15 women came forward to lodge complaints of sexual misconduct and abuse against him, Kozinski resigned. He had served 32 years on the bench. Despite maintaining a publicly-accessible webpage that contained pornographic images, Kozinski, 67, tried to frame the allegations as a misunderstanding, insisting “it was never [his] intent” to make any employee “feel uncomfortable.”
The federal judiciary is a self-policing system – with judges judging other judges. CNN examined more than 5,000 federal judicial misconduct investigations covering a 10-year period beginning in 2005. On average, 10 federal judges a year were the subject of a Judicial Council investigation, which is the judiciary’s most serious inquest.
In 2015, just four of 1,214 judicial misconduct cases were referred to a Council. The following year, four of 1,303 cases made it that far.
In six of the eleven years ending in 2016, not a single federal judge was reprimanded. Often, the investigation was suspended by a judge’s voluntary retirement – with a full pension of approximately $200,000 per year.
As University of Denver law professor Nancy Leong noted, “The judiciary is most responsive, and perhaps only responsive, when there’s some kind of media attention.”
Prison Legal News has previously covered numerous cases of judicial misconduct. [See, e.g.: PLN, Feb. 2016, p.24; Jan. 2013, p.38; Oct. 2010, p.26; Aug. 2009, p.1].
Congress has repeatedly failed to appoint an inspector general to oversee judicial misconduct claims. In December 2017, U.S. Supreme Court Chief Justice John Roberts, Jr. announced the formation of a special panel to examine the problem, stating, “events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.”
Nor does such immunity extend to state court judges, who have been cited in cases involving a wide range of misconduct.
In March 2018, Oregon’s Supreme Court suspended Salem judge Vance Day for three years without pay, finding him guilty of six incidents of misconduct stemming from eight complaints. He provided a firearm to a felon, instructed his staff to lie about his schedule so as not to perform same-sex weddings and attempted to use his position as a judge to intimidate a referee at his son’s soccer game, later lying about it to the Judicial Misconduct Commission.
The Supreme Court “determined Day acted dishonestly and for his own self benefit,” and his conduct “reflected poorly on his fitness to serve as a judge.” A criminal trial on the charge of providing firearms to a known felon began in late October 2018.
That same month, Oklahoma state district judge Curtis DeLapp was scheduled for a hearing before the state Supreme Court on charges that he had abused his power by issuing frivolous contempt orders. In 2013, he dismissed a case involving one misdemeanor and five felony charges because the prosecutor was eight minutes late to court – then held the prosecutor in contempt for being tardy.
In 2015, he jailed a woman for speaking in court while waiting for her boyfriend to be arraigned; he jailed another woman for eating sunflower seeds in his courtroom. DeLapp jailed attorneys, potential jurors, defendants and courtroom spectators for contempt – more than 200 contempt citations in just two years.
“The pattern of conduct demonstrates respondent’s lack of temperament to serve as a judge, and undermines public confidence in the independence, integrity, impartiality and competence of the judiciary,” state Supreme Court Chief Justice Douglas L. Combs wrote.
In August 2018, DeLapp signed an agreement stipulating that he will never again seek office as a judge in Oklahoma, after the Supreme Court found him guilty of “gross neglect” and “oppression in office.” He then resigned.
On February 21, 2018, former Arkansas state district judge Joseph Boeckmann, Jr., 72, was sentenced to five years in prison by federal judge Kristine Baker. She departed upward from the 2½- to 3-year recommended term, explaining that “He acted corruptly while serving as a judge. When his back was against the wall, he obstructed justice. That sets his crime apart.”
Boeckmann had a record of misconduct spanning over 20 years, from his days as a prosecutor. While on the bench he dismissed misdemeanors and traffic citations in exchange for community service – which frequently consisted of young men submitting to sex and/or pornographic photos with him.
Massachusetts judge Thomas H. Estes, Jr., 49, submitted his resignation on May 21, 2018 after he was indefinitely suspended without pay by the state Supreme Judicial Court the previous year. Estes had pressured a social worker to have sexual encounters with him from November 2016 to March 2017. Other #MeToo complaints against Estes remain pending; his attorney said the judge will continue to defend himself in federal court.
In Louisiana, Orleans Parish Criminal District Court Judge Byron C. Williams, 63, was suspended in June 2018 after he was charged with grabbing the breast of a court clerk working for another judge. That same month, 49th District Court Judge Jeff Perilloux, 50, also was suspended after being indicted in state criminal court for groping three teenage girls – including fondling the breasts of a 15-year-old to whom he was giving a massage.
Upstate New York city court judge Leticia Astacio was removed from the bench by the state’s Court of Appeals on October 16, 2018. Astacio, who had been convicted of DUI, failed to follow the conditions of her community supervision, resulting in a brief jail stay; she also was cited for judicial misconduct. [See: PLN, July 2018, p.63; April 2018, p.63].
The previous month, Lockport, New York town court judge Leonard Tilney, Jr. resigned during a misconduct investigation by the State Commission on Judicial Conduct. According to WKBW.com, the investigation stemmed from a complaint that he had posted “racially offensive” materials in the courthouse, made a “culturally insensitive comment” to a defendant, and used profanity and yelled at a co-judge. He had served on the bench since 2004.
In Houston, Texas in February 2018, the local chapter of the ACLU called on District Judge Michael McSpadden to recuse himself from any habeas corpus proceeding involving a black suspect, based on his policy of demanding cash bonds rather than issuing personal recognizance orders, as well as some apparently racist comments.
“The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents,” McSpadden was quoted in the Houston Chronicle. “Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man.... They teach contempt for the police, for the whole justice system.”
“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” observed Terri Burke, executive director of the ACLU of Texas. In May 2018, McSpadden was removed from an appeal involving a black death row prisoner.
“The Harris County District Attorney’s Office does not agree with Judge McSpadden’s comments and we will not defend them,” said DA spokesman Dane Schiller. “Race has no place in the courtroom.”
In an usual move, Jefferson County, Kentucky circuit judge Charles Cunningham reported himself to the state’s Judicial Conduct Commission, saying he “may” have unfairly excluded prosecutors from three private meetings with defense attorneys in the murder case of Joseph Cambron, 21, who was accused of fatally stabbing a 12-year-old boy. Cunningham, 62, was publicly reprimanded on May 21, 2018.
Florida’s Miami-Dade County Circuit Judge Stephen Millan, 52, still uses slurs he learned as a child in New York. After he repeatedly called defendants in his courtroom “moolies” and anyone supporting them “thugs,” in early 2018 the state’s Judicial Qualifications Commission gave Millan a public reprimand, a 30-day suspension and ordered him to pay a $5,000 fine before he returns to his judgeship. He resigned in June 2018.
In New Jersey in May 2016, Ocean County Family Court Judge John F. Russo, Jr. insinuated a rape victim may have been able to avoid being raped if she had “closed her legs.” Russo was placed on administrative leave in 2017 for that comment and several prior complaints, and a misconduct hearing was held in October 2018. He explained his questioning of the rape victim was to try to get additional facts about the incident.
“She had to show that force or coercion or both were used,” he said.
In New Jersey, Superior Court Judge Deborah Gross-Quatrone is being investigated by the state’s Advisory Committee on Judicial Conduct (ACJC). Gross-Quatrone reportedly ordered her secretary to do her son’s homework and clandestinely recorded other judges discussing the misconduct claims against her. In October 2018, the New Jersey Supreme Court ordered her to respond to the misconduct allegations.
Another Superior Court Judge, Carlia M. Brady of Middlesex County, was charged with attempting to thwart police efforts to arrest her boyfriend, Jason Prontnicki, after he robbed a pharmacy in April 2013. Those criminal charges were later dropped and she was reinstated to the bench in March 2018. She currently faces ACJC ethics charges related to that incident. Prontnick was sentenced to 10 years in prison on the robbery charge.
New Jersey highway officers found part-time municipal court Judge Wilfredo Benitez passed out in a drunken stupor in his BMW by Interstate 80 in November 2016. He reportedly told troopers, “I’m a f---ing judge. You’re not going to give me any courtesy?” He was later found not guilty of a DWI charge, though he faced a misconduct complaint in connection with the incident. [See: PLN, Sept. 2018, p.62]. Benitez was publicly censured by the New Jersey Supreme Court on September 6, 2018 and cannot hear DWI cases for at least a year.
Following the above incidents, reporter Ted Sherman with NJ Advance Media quipped: “What do you call someone who tells a rape victim to keep her legs closed, has a secretary do her son’s homework, or in one case, allegedly hampered a police investigation of her boyfriend? In New Jersey, you call them judges.”
As of May 2018, California’s Judicial Council revised its disclosure rules to make public financial payouts in sexual harassment and gender discrimination claims. The Council has paid nearly $645,000 to settle such complaints against judges and court officials since 2012. Even though the revised rules do not require disclosure of any identities not revealed in a settlement, the California Judges Association opposed the revision. But California Supreme Court Justice Marsha Slough said that in the #MeToo era, “the courts also had to step up.”
Finally, in recent news, misconduct allegations were raised in the nomination of Brett Kavanaugh to the U.S. Supreme Court in September 2018; the D.C. Circuit Court of Appeals judge was accused by three women of engaging in inappropriate sexual conduct when he was in high school and college. He denied the accusations and was confirmed by the U.S. Senate on a vote of 50-48 on October 6, 2018. Chief Justice Roberts has referred misconduct complaints filed against Kavanaugh, related to allegations that he lied during his confirmation hearing, to the Tenth Circuit Court of Appeals. They remain pending.
Sources: www.apnews.com, www.npr.org, www.cnn.com, www.theadvocate.com, www.dailykos.com, www.law.com, www.mysanantonio.com, www.nj.com, www.njherald.com, www.readfrontier.com, www.reuters.com, www.sandiegouniontribune.com, www.statesmanjournal.com, www.tapinto.net, www.thedailybeast.com, www.wdrb.com, www.abajournal.com