2 Texas Judges Warned About Slavery Talk, Buttocks Slap

Legal Ethics

2 Texas Judges Warned About Slavery Talk, Buttocks Slap

Posted May 22, 2008, 01:47 pm CDT
By Molly McDonough

State disciplinary authorities in Texas issued warnings to two judges that chastise one for discussing slavery with an African-American attorney before his court and another who reportedly "slapped" a female lawyer's behind at a party.

In the public warnings released today, the State Commission on Judicial Conduct ordered Tarrant County Court-at-Law Judge Brent Keis of Fort Worth and 47th District Judge Hal Miner of Amarillo each to participate in eight-hour courses on racial and gender sensitivity, Texas Lawyer reports.

The Keis incident involved an April 2007 exchange in which Judge Keis attempted to engage Nuru Witherspoon, a Dallas parter of Kelley Witherspoon, in conversation about the "Middle Passage," the transport of African slaves to the Americas. When Witherspoon declined to discuss the topic, the judge asked about his client's injuries and at one point pushed for a settlement, noting that the judge was a "Republican and that Tarrant County juries are predominantly made up of Republicans," according to the commission's findings and conclusions (PDF via Texas Lawyer).

Witherspoon's clients opted to take the settlement sensing a "hostile court situation." Yet Witherspoon didn't object at the time to the judge's conduct.

However, the commission noted that in a videotaped statement recorded in March, Witherspoon said he "found it shocking when Judge Keis, whom he had never met before, attempted to discuss the Middle Passage and theories about the slave trade with him prior to the commencement of trial."

Further, Witherspoon explained that even though "his instinct was to 'get out of here,' the reason he took no action against Judge Keis at the time was because he was more focused on his clients interests than his own feelings about the judge’s comments."

That changed after Witherspoon described the incident to colleagues. And he decided to file a complaint against the judge.

In the incident involving Judge Miner, the commission found (PDF via Texas Lawyer) inappropriate conduct at a December 2006 holiday party at a law firm.

"According to at least two witnesses, soon after arriving at the party, Judge Miner approached a female attorney and 'slapped' her buttocks," the commission noted in its public warning. After a second slap, the judge reportedly joked about the lawyer's height and said he "intended to slap her on the back, but her 'ass' was at hand level."

The commission noted that Judge Miner acknowledged the conduct, didn't recall the remarks, but didn't think the lawyer would be offended.

The female lawyer, who is not named, testified before the commission in favor of Miner during the disciplinary investigation. She reportedly said the judge's actions were misinterpreted and she wasn't offended.

But the commission determined that some action was warranted, especially considering others had been offended by the judge's conduct.

"Although Judge Miner stated that he did not believe the attorney would be offended when he touched her buttocks in front of their colleagues and other guests attending the party, and despite the attorney’s later protestations that she was not offended by the judge’s conduct, those individuals who witnessed the intimate contact between a judicial officer and a female attorney who regularly practices before his court found the conduct to be embarrassing and improper, and discussed the unpleasant incident with other members of the legal community in the days and weeks following the party," the commission concluded.

More coverage:

Tarrant County judge disciplined for racial remarks (Associated Press via Star-Telegram)

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Posted by Mike - 3 months, 2 weeks, 2 days, 3 minutes ago

If the lady didn’t have a problem with the fanny whack, then everyone else should have taken a chill pill. More spineless PC BS. I would suggest tha the offended members of the bar and the commission seek to avoid attendance at football games, where sometimes even referees engage in a little butt-whacking.
Posted by ABC - 3 months, 2 weeks, 1 day, 23 hours, 58 minutes ago

My, my—the Texas state disciplinary authorities certainly are sensitive. One judge was discussing history and the other slapped a woman on the “buttocks” who had no objection to being slapped on the “buttocks.” I’m sure they would have been happier if the woman had complained, instead of stating publicly that she didn’t mind the judge slapping her behind. The Texas authorities might be more likely to bring civility to Texas law by sanctioning the sort of behavior described in the current edition of The Brief, an American Bar Association magazine. In an article entitled “Incivility” the behavior of a “star” of the Houston bar is highlighted as follows (and I quote from the article): Probably the most infamous example of vituperative speech and abuse during discovery is the statements, threats, and insults made by a well-known Houston plaintiffs lawyer in the high-profile case of Paramount Communications Inc. v. QVC Network Inc. Presumably The Texas disciplinary authorities found the transgressions of the judges mentioned in the above article more egregious than the behavior of the “well-known Houston plaintiffs lawyer.” I guess when you win a lot of cases and make a lot of money, truly outrageous behavior is OK with the Texas disciplinary authorities. Maybe they should watch the YouTube clip from this deposition to see behavior with which they should be concerned.
Posted by Sue - 3 months, 2 weeks, 1 day, 23 hours, 9 minutes ago

Wow, what enlightened comments! (*note sarcasm*)

So, because the female attorney claims she wasn’t offended, Judge Miner shouldn’t be disciplined? Geez, I can’t imagine why someone who will probably have to go before that judge in the future would say that what he did was okay with her!

While they are both essentially contact sports, I don’t think one can fairly compare law practice with football. It’s okay to pour Gatorade on your coach in football, but I somehow don’t think that would fly in a courtroom.

Finally, Judge Keis wasn’t merely “discussing history.” Would he have tried to have that discussion with a white lawyer? Yeah, right. He was trying to intimidate Witherspoon.
Posted by Jade - 3 months, 2 weeks, 1 day, 23 hours ago

Well, i would have to know more about the circumstances to form an opinion. I mean, I don’t think this would have been an issue if it wasn’t a significant gesture. I mean, did he say, “Man it would have been nice to be alive when we had slaves” or what?

As for the female, I have to say this is pretty bad. Just because one isn’t offended doesn’t mean it’s ok. That sends the wrong message. He might try it again on someone else.
Posted by Rob - 3 months, 2 weeks, 1 day, 22 hours, 24 minutes ago

I grant that it was an odd time to bring up the subject, but is it now considered “offiensive” to simple DISCUSS slavery with an African-American? The judge wasn’t endorsing the praciice. The comments were something Mr. Witherspoon should have taken back to his office and laughed about with coworkers - the judge is obviously an old coot. But it’s not a disclipline case.
Posted by Marta Manildi - 3 months, 2 weeks, 1 day, 22 hours, 7 minutes ago

I am stunned by some of these comments. For a judge to try to discuss part of slave trade history with a black attorney he did not know is to identify and relate to the attorney immediately and primarily on the basis of race in a context where that is not the appropriate focus. The lawyer was there as a lawyer, not as a representative of is race. Whatever the judge’s motive - at best he was ignorant - the conduct is unacceptable. The treatment of the woman attorney was obviously unacceptable as well. It is disappointing that anyone thinks the recipient’s apparent acceptance of the behavior is an excuse. The Texas commission was right to try to assist this judge, and they should monitor his conduct going forward.
Posted by Jen - 3 months, 2 weeks, 1 day, 21 hours, 53 minutes ago

Marta, brava! I couldn’t have said it better! What ever happened to our communities sense of professionalism?
Posted by really? - 3 months, 2 weeks, 1 day, 21 hours, 47 minutes ago

If the woman was not offended, it should not have been pursued by either her colleagues or the commission. It’s more offensive for the woman’s opinion on appropriate conduct to be completely disregarded by all of these people. You can’t be certain, but if she’s practiced in front of him repeatedly and regularly, I imagine they have some kind of rapport. A woman doesn’t need other people sticking up for her. She’s a lawyer for god’s sake.
However the deal with the black lawyer seems pretty out of line. Just because I meet a balding man, doesn’t mean I’m going to start a conversation about Rogaine and other hair-related treatments. Or if I meet a dwarf, a conversation about the TV show “Little People, Big World.” And an overweight woman is not going to spark a conversation about whether Jenny Craig or Weightwatchers is the better fad diet. Of course, if a man flashed me, I’d make a comment about the lack of growth hormones in his diet, on the assumption that he’d brought the conversation up himself.
Posted by Jeff Mitchell - 3 months, 2 weeks, 1 day, 19 hours, 54 minutes ago

It concerns me that no one has commented about, or even mentioned, any evidence of the Judge’s motivation when he brought up an infamous episode in American history. Note I said “American” , not “Afro-American”. It’s not like this is not a part of the history of all Americans. But why assume the judge was trying to intimidate anybody? Is it so terrible to imagine that an educated black professional might have a different perspective on these events or that a caucasian might be interested in that viewpoint. Unless there was some real evidence (and maybe there was) that the judge’s motives were suspect, I fear this may be another instance of the hyper sensitivity prevalent in the US. Sometimes one feels on should never forget for a minute that black man is black or that a woman is female, lest he inadvertently say or do something offensive. After all, you don’t go around walking on eggs when you are with your equals.

Mitch
Posted by Frederick - 3 months, 2 weeks, 1 day, 19 hours, 13 minutes ago

Here are some facts missing from this story:

“Judge Keis further stated that we [blacks] are bigger and stronger athletes because weak slaves were thrown overboard and never made it to the Americas,” Witherspoon wrote in his complaint.

Keis then gave his standard speech about the risks of going to trial instead of settling out of court. The judge reportedly told the attorney’s clients—who are white—that Tarrant County is made up of Republicans who think like him, and said they could risk litigation and “bet on black.”

Keis earlier said that he often uses a “roulette wheel” analogy when talking to people about the legal process and didn’t mean anything racist.

It is not Keis’ first encounter with the conduct commission.

Keis was privately disciplined by the state in 2003 for violating the ethics code by appearing in ads for the Southwestern Baptist Theological Seminary.

Keis appeared in his judicial robes in an ad promoting the Lay Studies Program. The ad appearing in several publications mentioned that he was working on a master’s degree in lay ministry.

Here is a link to a much more in-depth story:

http://www.star-telegram.com/448/story/659739.html
Posted by AC - 3 months, 2 weeks, 1 day, 19 hours, 11 minutes ago

Sigh - OK Mitch, I’ll bite. Gosh, what could possibly be the motivation of the sitting trial judge, in open court, prior to trial, to single out one attorney, an african-american, and attempt to discuss an extremely painful and emotional subject for many african-americans such as slavery? And why on earth would you think the motiviation of the judge mattered? Why do you think the other attorney wasn’t included in this fascinating discussion of an important piece of American history? Why did the african-american attorney’s clients feel the judicial environment was hostile and settle their case, possibly to their detriment?

Judge’s are judged not only on actual malfeseance but also the appearance of improprietary. It goes to maintaining the respect and gravitas of the bench as a whole. Attempting to get into inappropriate time and place discussions with people of color gives the appearance of improper behavior REGARDLESS of the judge’s motivation.
Slapping an attorney of the opposite sex on the butt in public gives the appearance of improper behavior REGARDLESS of whether the attorneywas okay with it. * Note the gender neutral language here because I expect it to work the same in reverse (female judge, male attorney).

There is no hyper-sensitivity prevelant in the US, just the mass collective whine of a whole lot of privileged folks discovering their outdate sexist and racist ways are on the wane as they get called out on it. It’ll sting a bit at first, but those of you who find PC to hard to deal with willl either adapt or perish just like the dinosaurs. Who knows? Maybe one day you’ll provide a vaulable source of energy too.
Posted by R - 3 months, 2 weeks, 1 day, 18 hours, 16 minutes ago

I’m sad, but I can’t say I’m shocked, about all the comments whining that this is all a bunch of PC nonsense. Sure, let’s have judges ass-slap women lawyers and talk about slavery in open court with black lawyers they don’t even know… Are you folks out of your minds?

What’s really funny is that these same commenters probably decry the lack of good-old-fashioned civility in the courts today…
Posted by Anon - 3 months, 2 weeks, 1 day, 12 minutes ago

Post #10 actually held all the relevant information. I think most of the insensitive yahoo’s who excused the Judge for talking about slavery might have made the connection a bit better had the important facts been included in the story.
Shame on Molly McDonough for such poor writing. She focused on the fact that he talked about slavery, but skipped the obvious racist implications of then suggesting to the lawyer’s white clients that their black lawyer would be a deficit because he is black - and in a racist courtroom.
Thanks for the real story Frederick.
Posted by thinking person - 3 months, 2 weeks, 21 hours, 9 minutes ago

Thanks Marta - well said!! I am saddened and shocked by the ignorant comments regarding the “judges’” treatment of others. The behavior described in these stories is rampant and is the basis for the need for diversity programs and other ways to welcome women and minorities into law practice. What a shame that anyone condones such behavior. Wait until some of you making the smug comments are the object of humiliating and degrading acts from someone in authority - oh wait . . . . you are probably all white men and it won’t happen. Darn.
Posted by associate - 3 months, 1 week, 4 days, 16 hours, 59 minutes ago

You guys are nuts.

You’re still talking about racist white people and affirmative action after it has been pointed out that the racist judge IS BLACK.

Are you now going to suggest that we need to increase the share of whites in higher education and the profession?

I think the bigger issue regarding race than “percentages” is that everyone treat each other with the respect they deserve. Period. Everyone should have the same opportunities.

Quit pushing the quotas and social engineering already. It hasn’t seemed to solve many problems yet, just change them and perpetuate them.
Posted by what? - 3 months, 1 week, 3 days, 18 hours, 58 minutes ago

Post #15 - Where has it been pointed out that the judge is black? Read the article linked to the story - it very clearly states that the judge is white. Please get your facts straight before going off on a tirade.

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