"Frankly, whenever I see a complaint alleging racism these days, I assume it’s a political hatchet job by political hacks."

"That assumption is generally borne out," says Instapundit, linking to this (of mine) and to Above The Law's "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones."

My post — "Character assassination attempted on 5th Circuit Judge Edith Jones" — encouraged people who actually attended Jones's talk at the University of Pennsylvania Law School to write to me. I'm still hoping someone made a recording, but I did get this response from someone who attended (and who gave me permission to reprint this):

On February 20, 2013, the Penn Federalist Society hosted Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit. Judge Jones was formerly chief judge for that court and is a prominent and well respected conservative judge. The topic was Federal Courts and the Death Penalty. The event was not recorded, but was, as with all of our events, open to the public. We normally do not record events.

The event was well attended, even drawing in members of the community, or so we assumed since we did not recognize these individuals. On April 12, a paralegal from Feldman, Orlansky & Sanders in Anchorage, AK, emailed the law school’s communications department to inquire whether the event had been recorded. Yesterday, an amalgam of special interest groups and individuals signed an ethics complaint against Judge Jones for her remarks. Most prominent is Marc Bookman, a Philadelphia-area attorney who has been happy to provide statements to the press and whose affidavit the student affidavits all refer to as the standard.

Religion

Judge Jones spoke about the death penalty. She was careful to distinguish between the constitutionality, morality, and effectiveness of capital punishment, presumably hoping that her audience was capable of understanding her distinctions. She dispensed with the constitutional question quickly, invoking the familiar argument that it is explicitly mentioned in the Constitution. She also unsurprisingly does not believe that the meaning of the text is susceptible to updating outside the Article V amendment process.

The moral argument was separated out to no avail, apparently. Judge Jones spoke about her faith tradition and the role of capital punishment in the Jewish holy texts (here I would assume most people know that these are part of the Christian Bible). She spoke of the possibility that execution was more humane and that, in many instances, it represented the only course of action that would lead the killer to repentance. She referenced a thought-provoking article that suggested the Roman Catholic Church once agreed with this position.

There is nothing unseemly or improper about a judge having personal moral convictions, whether they are extremely common beliefs (as here) or otherwise.

Judge Jones explicitly declined to cite the Bible as “legal support” for the death penalty, as the Complaint alleges on p 7, quoting Ex. Ep5. She clearly said that she was addressing separately the questions of the death penalty’s moral, legal, and constitutional justifications. It is surprising that someone should be so offended by Judge Jones’ use of moral language to discuss the morality of capital punishment.

Judge Jones deliberately and carefully separated the moral question from the legal and constitutional issues in the death penalty. The goal of this was to disentangle what is often confused.

Race

During her remarks, Judge Jones addressed several of the more common arguments against the death penalty. Among these is the contention that the penalty disproportionately falls on racial or ethnic minorities. It is worth noting that Judge Jones acknowledged this fact and acknowledged that it is not a good thing. She pointed out, however, that the real tragedy is that these communities normally do have a higher crime rate, and tend to have a dramatically higher violent crime rate. She also observed that much of the Mexican drug trade tends to be carried on by Hispanics, an inescapable reality in the Southwest border state where Judge Jones resides.

These demographics don’t make anyone happy, and Judge Jones was not making light of the problem they present. It was here, among other times, that several of the students (in their affidavits) claim they looked around and saw the shock and outrage on the faces of their peers. One of the students, a black man in the back of the room, asked Judge Jones to clarify whether she meant that these groups are actually predisposed towards violent crime. As Mr. Bookman’s own testimony (p28) reveals, she explicitly said that this was not her contention but rather that she was pointing out a statistical fact.

I point out the questioner’s race because lurking amidst the rest of these claims is the real issue of privilege, in this case (my own) white privilege. Most of the other claims of widespread dismay and displeasure reflect on the temperament of the offendee, but not this one. As a white man, I don’t know what it is like to have others cavalierly declare that people with my skin color commit a disproportionate amount of violent crime. If that were happening, I would insist on clarification and careful language each and every time, too. Judge Jones did clarify though, and she disclaimed any suggestion that she meant that a person’s race is determines his criminal propensity. Again, I will not dispute that people with different backgrounds may have been affected differently by her words.

The complaint reaches even greater levels of disrepute. It points to several capital cases in which expert psychological testimony was offered to the effect that the defendant’s race was a factor in the level of danger he posed in the future. The State of Texas publicly denounced this testimony. The complaint asserts that Judge Jones “maintains and publicly defends the very unconstitutional, biased beliefs that the State of Texas has rightly repudiated.”

Judge Jones did – and does – nothing of the sort. She was making no claims about individual defendants, psychology, or sentencing. She was answering the question, “Why are some groups incarcerated at rates higher than their proportion in the population at large?” and pointed out that the fact that those groups commit more crimes may have some connection to it. Her lecture was not about the causes of demographic trends and she refrained from speculating thereabout.

Mental Retardation

Judge Jones expressed skepticism at claims of mental retardation as a defense to capital murder, in part because a capital murder conviction has elements that cut against mental retardation. There is no impropriety in a judge observing that a convict slated for execution is willing to make claims that may not be true.

The complaint attempts to foment an atmosphere of outrage by insisting on putting “mental retardation” in quotes, insisting that “intellectually disabled” is the preferred term. Unlike the complaint, I do not use the term in quotes because the Supreme Court does not use the term in quotes, nor do the courts of Pennsylvania (Commonwealth v. Sanchez, 36 A.3d. 24 (Pa. 2011)), Alabama (Yeomans v. State, 2013 WL 1284361 (Ala. Crim. App. 2013)); or Minnesota (Chambers v. State, 2013 WL 2364079 (Minn. 2013)), just to take a few random examples from a cite check of Atkins. The complaint cites cases (footnote 11) that also use the term. Whatever the merits of what we should call those with diminished intellectual ability, Judge Jones is not calling them “imbeciles” or “morons.”

Not once did Judge Jones express a desire or intention to change the Atkins rule; even less did she give any suggestion that she would refuse to follow it in the courtroom. The complaint’s allegation that Judge Jones “expressed extreme bias… against the law of the United States” is patently frivolous.

Other Frivolous Claims

Innocence. Especially since DNA testing became reliable and widespread, the question of a death row inmate’s actual innocence has been prominent. Judge Jones remarked that these cases are extraordinarily rare and that in her experience defendant successes are due to technicalities, not innocence. The complaint makes no attempt to connect these comments to any impropriety, nor even that the claims are false.

Foreign Nationals: The complaint asserts that Judge Jones denigrated the system of justice in Mexico, then goes on to cite to testimony that does not support that claim. She is certainly right that Mexico does not provide defendants with lengthy appeals with an attorney, all at the state’s expense. I recently discovered that Mexico generally does not have an adversarial justice system. In light of that, Judge Jones’s comments about convicts preferring American correctional facilities were understated.

Individual Cases: Judge Jones was disgusted at heinous crimes committed by convicted criminals. The complaint suggests that because some of the individuals she discussed are still alive that they could come before her in future litigation. Anyone on the planet might come before the Fifth Circuit at some point. The Complaint only suggests that her disgust at brutal murders committed by yet-to-be-executed convicts is somehow inappropriate. Canon 3 (6) (A) of the Code of Conduct for United States Judges prohibits judges from “public comment on the merits” of a pending or impending case. This she did not do. She discussed only publicly available facts that were the basis of a capital conviction by a jury. The canon goes on to say “The prohibition on public comment on the merits does not extend… to scholarly presentations made for purposes of legal education.” The Federalist Society exists to complement formal legal education by providing promoting discourse on important social and legal issues. Although Judge Jones did not discuss the merits of the cases, she

Comments about the Supreme Court. Judge Jones criticized the development of some aspects of U.S. law, noting that some decisions have led to confusion. Her remarks respectful of the Court while criticizing past decisions, and she has demonstrated her willingness to follow the law even when she disagrees with it. She joined a panel in overturning a denial of habeas relief based on intervening Supreme Court precedent in Garcia v. Quarterman, 257 Fed. Appx. 717 (2007).

Emotional Reaction (and the Dramatic Ending)

The complaint also alleges that it was just such bad form for a judge to express emotion. Judge Jones expressed disapproval of those who attempt to evade their sentence by claiming mental incompetence. She was passionate about justice for evil men who slaughtered innocent people. She was passionate for the parents who watched as their child’s killer evaded his sentence on a technicality.

As the event was coming to a close (it was about 1:15 and we try, though usually fail, to end around 1:00), one of the nonstudent audience members asked a question. The question was why we should particularly care what the founding generation thought of the Constitution, since many of them owned slaves, and women did not vote, etc. It is unclear if the questioner meant we should discard the entire Constitution or only those parts that are not to our liking.

The question was so provocatively asked that I looked around and saw that some people were surprised. Students later told me they thought it was rudely presented. The questioner was, after all, challenging the legitimacy of the United States Constitution to an Article III judge. Rather than lead Mr. Bookman down the path of semantic meaning and constitutionalism, or decline his provocation outright, Judge Jones responded briefly and judiciously by defending the value of the Constitution and the nation that it constituted.

Since the time allocated for the event had passed, the president thanked the audience for their participation and we ended the event. The “abrupt” ending referenced in the complaint should not be attributed to Judge Jones or the content of her lecture—it is how the vast majority of our meetings must end because question and answer usually closes the meeting, and people often have a lot to say.