5th Circuit judge explains remarks on race and crime; ethics complaint is tossed

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A panel of federal judges has tossed an ethics complaint accusing a federal appeals judge of making racially biased remarks, according to an appeal filed on Tuesday by a coalition of civil-rights groups and others.

The Judicial Council of the District of Columbia Circuit dismissed the complaint in August, according to the order and report made public on Wednesday. The Houston Chronicle has a story, the order and report are here, and the appeal is here. Chief Justice John G. Roberts Jr. had transferred the ethics case to the D.C. Judicial Council for review.

The complaint had focused on remarks about the death penalty made by Judge Edith Jones of the New Orleans-based 5th U.S. Circuit Court of Appeals during a February 2013 speech at the University of Pennsylvania law school. Complainants alleged Jones made several improper remarks, including a comment that African-Americans and Hispanics are predisposed to crime and prone to commit acts of violence.

The lecture was not recorded. As part of the investigation, a special counsel interviewed 45 people, including most of the lecture attendees. According to a report by a three-judge panel, there was agreement about the theme of Jones’ remarks but disagreement as to the particulars. “Many of the attendees had differing recollections—or no recollection at all—of comments referenced in the complaint,” the report said.

For her part, Jones strongly denied saying that certain groups are predisposed or prone to crime. She does acknowledge, however, saying that “sadly, African Americans seem to be disproportionately on death row.” And she acknowledges she may have said “sadly, some groups seem to commit more heinous crimes.”

But Jones says she was talking about statistical facts, rather than propensities.

Jones said her remarks about race were made in regard to McCleskey v. Kemp, the U.S. Supreme Court case that rejected the use of statistics on the racial impact of the death penalty as a defense to capital punishment. Witnesses agreed that during a question and answer session, Jones made clear she didn’t mean to say certain races are prone to criminal behavior, the report said.

Complainants also alleged that Jones said: Mexican nationals would prefer death row to Mexico’s prisons; claims of mental retardation by capital defendants are red herrings used by death-penalty opponents, as are defendants’ claims of racism, innocence, arbitrariness and violations of international law; and death sentences help capital defendants make peace with God. The complaint also claimed Jones told another judge to “shut up” during a hearing.

The report concluded that Jones’ “red herring” remarks about racism claims were about the viability of such claims after McCleskey. And if she referred to mental retardation as a “red herring,” she intended to convey that few such claims succeed, she told investigators. Other “red herring” remarks were difficult to prove or did not constitute misconduct, the report said. Jones also said her remarks about religion and the death penalty were made in context of justifications for the death penalty.

Jones also admitted the “shut up” remark, but noted she has already apologized for the incident.

The primary complainant was Marc Bookman, the director of the Atlantic Center for Capital Representation, that assists lawyers representing capital defendants. His affidavit is nearly identical to notes of the lecture by an assistant federal defender, the report said.

The appeal by a coalition of civil-rights groups and individuals says the D.C. Circuit judges allowed Jones to testify and relied largely on her version of the facts rather than assertions by complainants who attended the lecture. The complainants were not allowed to see other evidence, including a student text message quoting Jones and notes by those at the lecture. “The procedure followed in this matter has been egregiously one-sided and fundamentally unfair to complainants,” the appeal alleges.

The appeal asks the U.S. Judicial Conference to reverse the decision by the Judicial Council of the D.C. Circuit.

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