Posted Oct 09, 2012 07:37 pm CDT
Updated: In an action-packed Sept. 28 hearing, a Kentucky senior judge blasts an appellate lawyer seeking a new trial for his client in a high-profile murder case.
As the camera rolls, retired Jefferson Circuit Judge Martin McDonald repeatedly criticizes assistant public advocate David Barron and cuts him off as he tries to offer a few thoughts in response to claims that the attorney is “unethical” and a “backseat driver” who is “making a mountain out of a molehill” rather than a “real” trial lawyer.
At a couple of points, as portrayed in video clips linked to a Louisville Courier-Journal article, the judge also speaks directly to Barron’s client, Roger Dale Epperson.
Now Barron has filed a motion and affidavit with the state’s top judge, asking that McDonald be removed and another judge be assigned to hear his client’s case, saying that the judge clearly appears to be biased against both lawyer and client.
Epperson, along with another defendant, Benny Lee Hodge, was convicted and sentenced to death in two separate home-invasion slayings in the Letcher County area, within a few months of each other, over 25 years ago, that began with a plan to rob the victims. As detailed in Darcy O’Brien’s true-crime novel, A Dark and Bloody Ground, the crime spree also involved a plan to rob a wealthy doctor of nearly $2 million in cash he kept in a safe at his home. Eventually, some of that cash reportedly may later have been used by the two men to retain a colorful defense lawyer. Both eventually claimed ineffective assistance of counsel but remain on death row. A third defendant, who testified against them, got life.
Barron is now representing Epperson in an effort to get a new trial in the second of those death penalty convictions, concerning the murder of the doctor’s daughter, Tammy Acker, and the hard-fought appeal is clearly getting on McDonald’s nerves.
During the Sept. 28 hearing, the judge sharply rebukes Barron in front of his client for calling McDonald on his cellphone at some point previously. However, the judge cuts off the attorney as he tries to explain that he made the call, with the permission of opposing counsel, to a number supplied by the court system, to discuss a scheduling matter.
“If you ever call me again on my cellphone I’ll strangle you. You understand?” says the judge, as Barron quickly interjects “I apologize” before the judge rolls on: “I’m telling you, you were unethical, it was improper and then you go to the supreme court and complain, because I told you that we’re plowing ahead with this thing, and you complained about information that you improperly obtained through your unethical ex parte contact with the court. Now that is out of bounds. That is totally out of bounds. And if you ever do it again I will send you it the bar association and try to get your bar license yanked. Do you understand that? Yes or no?”
Barron: “I do understand and I have to clarify one thing on that—”
McDonald: “Negative. Be quiet. Now Mr. Epperson,” the judge continues, as, speaking directly to Barron’s client, he asks Epperson whether he wants to remain for the rest of the hearing. When Epperson says he doesn’t, McDonald has him removed from the courtroom and, presumably, returned to prison.
“Have a safe trip back,” he tells the defendant.
As Barron then apparently tries again to explain about what the court had told him to do to contact McDonald, the judge cuts him off anew:
“Your honor, may I request clarification on one thing?” asks Barron, as he explains that he’s trying to follow the court’s directions.
“Negative,” responds the judge, adding a moment later, after listing briefly to the question. “I want you to be quiet. Thank you.”
Shortly after that on the video, McDonald murmurs, “The DPA is making a mountain out of a molehill here,” apparently referring to the state’s department of public advocacy.
Things simmer down for a moment, now that Epperson has exited, as Barron explains his plan to present a witness. The judge tells the appellate lawyer “You are an optimist,” and Barron respectfully agrees that it’s a necessary job qualification.
But then the judge erupts again:
“I would appreciate DPA sending lawyers who actually are trial lawyers, and not some backseat drivers, that’s what I would appreciate. You’ve never been in the heat of the battle in one of these cases, and now you’re criticizing lawyers that actually are real lawyers that do the work, the dirty work, the down in the trenches work. That’s what I find distasteful and disgusting about this whole business.”
Meanwhile, the judge opted to call—and himself question—one of Epperson’s trial lawyers, then tries to limit the number of witnesses and arguments about the case, the Courier-Journal reports.
After hearing only the one Epperson trial lawyer as a witness, the newspaper recounts, McDonald called the hearing “a huge waste of time” and said Barron’s allegations “bordered on the ridiculous.”
The judge relented, however, as the assistant commonwealth’s attorney, fearing an issue on appeal, urges the judge to allow her opposing counsel more leeway, and allowed the hearing to continue.
Several law professors quoted in the newspaper article said the judge’s conduct suggested he was not impartial, and Barron told the Courier-Journal that McDonald’s conduct at the hearing “about as unprofessional as any I have ever seen in nine years of representing death penalty defendants in state and federal courts.”
The article doesn’t include any response from McDonald or the judge in charge of the Jefferson County court system, and the McDonald did not respond to a phone message on Tuesday afternoon from the ABA Journal. However, as a United Press International notes, the judge has said that his threat to strangle Barron was facetious, and his tone of voice on the video also indicates that it was simply a figure of speech.
Associated Press: “New DNA could alter death row inmate’s fate”
Chicago Tribune (book review): “Evil In The Form Of A Flashy, Greedy Lawyer”
The Mountain Eagle: “Judge rejects motion from 1 of 2 Acker killers who are on Death Row”
University of Tennessee Special Collections Online: “Finding Aid for the Donald Paine Collection of State of Kentucky v. Epperson and Hodge MS.2807”
Last updated on Oct. 16 to include information about removal motion and link to subsequent ABAJournal.com post.