At his Conspiracy, Eugene Volokh links to a pair of decisions from the beautiful United States Virgin Islands that tests conscience, law and guts. Now retired Judge Leon Kendall, who by some accounts was never the sort to sit quietly as impropriety happened around him, decided he had enough. So did the V.I. Supreme Court, who decided that Kendall was going down for being so obstreperous that he wouldn’t do its bidding.
Rarely do we, the outside insiders of the legal system, get to see a judge willing to hold so firm that he becomes the defendant against charges of indirect criminal contempt.
The underlying case was your garden variety first degree murder of a cop, two defendants with a strong claim of self-defense. The prosecutor was a guy named Jesse Bethel, who claimed before Judge Kendall that he didn’t offer the defendants a plea to involuntary manslaughter. This prompted the attorney for one of the defendants, Steven Hogroian, to pull out a recorder with Bethel’s telephone voice message conclusively proving Bethel wrong. Judge Kendall held a deal made, and set the matter for the plea.
Bethel refused to show in court for the plea, and was held in contempt, found and seized. Bail was set for $10,000, but the jailer just let him go home. Professional courtesy. Bethel did some dancing, and eventually obtained a writ of mandamus from the Supreme Court, holding that he had withdrawn his plea offer and it was off the table, sending the case back to Kendall to do their bidding.
Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a lengthy decision that concluded with his refusal to be party to the shame. The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt. A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench. The result was a recommendation by the special master that he was not guilty of contempt.
“Oh no, you don’t,” the Supreme Court responded, being both accuser and jury. Writing with their sternest faces on, the Supreme Court rejected the special master’s recommendation and concluded that Judge Kendall was guilty, guilty, guilty. The court found:
Almost two months after the issuance of that opinion and almost one month after this Court issued its June 10, 2009 mandate, on July 7, 2009, Kendall issued a thirty-one page opinion, designated as “for publication,” in which he, among other things, made numerous inflammatory remarks about this Court, stated that this Court‟s issuance of a writ of mandamus “was clearly improper,” found that the writ had been “issued to facilitate the Prosecution‟s blatant misconduct and perpetrate a fraud on the [Superior] Court,” and recused himself from the case.
And this decision, his refusal to abide the ruling of the superior court and his recusal with good reason, brought disrepute on the court and obstructed the administration of justice.
What about the two guys charged with murdering a cop? One died of “lead poisoning, calibre unknown” (I stole this from a comment at VC) in Market Square. The other was tried and acquitted of all charges. Only Judge Kendall was still in the dock. No word about Jess Bethel, though I suspect a Medal of Freedom may be in his future.
While this case may be among the most bizarre scenarios to develop out of a criminal prosecution and a judge unwilling to be party to an unconscionable wrong, it lays out a difficult question: Judge Kendall, in an honorable act of conscience, refused to abide a superior court’s mandate to ignore a lie. Granted, he exacerbated the problem by calling the court out in a decision for publication, but then, transparency in government is usually considered a good thing, particularly compared with decisions too secret for anyone to see.
Some might say that Judge Kendall was intemperate, failing to show the respect to the superior court that is necessary to make the system work. That’s the whole point of a superior court, to tell the court below what to do. When the inferior court is allowed to tell the appeals court that it doesn’t agree, its decision is wrong and it’s not going to happen, the system falls apart.
In this instance, some might say that’s a good thing. But then, if Judge Kendall can do it here, what’s to stop another judge, ordered to dismiss an indictment against some notorious bad guy, from refusing to do so because the judge is certain that the defendant is guilty?
Notably, Judge Kendall’s reaction, aside from providing his thoughts about the Supreme Court’s mandate that directed him to ignore Bethel’s misrepresentations and its own facile manipulation of the plea offer to make a contract a non-contract because, well, it said so, was to simply refuse to be the judge who did the dirty deed. By recusing himself, it would be left to another judge to deal with the case, and the mandate of the Supreme Court would be done. Just not by him.
The irony here is that the only person in a position to spend a night in jail — even though it’s not likely to happen, but it’s possible — is Judge Leon Kendall. Bethel, who might have enjoyed a night as a guest of the territory, was allowed to serve his punishment in his own bed. The surviving defendant was acquitted, and the other, well, it sometimes happens that guys accused of killing cops end up dead in Market Square from a bullet with no shooter every found.
And Judge Leon Kendall no longer sits on the bench to call out liars, cowards and sycophants of the prosecution. The system is back to working the way is was meant to work.
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I think this is proof by demonstration that the judiciary is interdependent not independent.
The sheriff ignored the order to jail the prosecutor and will no doubt ignore the order to jail the judge.
I thought about judicial independence as well, but remembered that it’s only from external interference, not internal. As for Judge Kendall, I don’t imagine that he’ll do time, but I wouldn’t bet money on the judge getting a minute less than imposed. He’s no longer one of the good guys.
In other word we can cut their total budget but we are not supposed to tell them why.
Also of interest with regard to Judge Kendall is the recent VI Supreme Court opinion dismissing his libel lawsuit against the V.I. Daily News. A jury awarded him $240K but the trial judge entered a directed verdict and the Supreme Court affirmed:
[Ed. Note: Link deleted as against the rules.}
Rules? Do you also have a dress code?
In fact I do. What are you wearing, Bob? Right now, tell me what you’re wearing.
Statement of retired V.I. Superior Court Judge Leon A. Kendall on the occasion
of his sentencing by the V.I. Supreme Court, December 7,2011
May It Please the Court.
Chief Justice Hodge, Justice Cabret and Justice Swan,
Good Morning,
I stand here today with the full knowledge that the only “crime” I am guilty of is speaking the truth and being scrupulously faithful to my oath of office and the rule of law. Nothing else. Contrary to what is being reported, and what has been said by Attorney Hall, the record reflects that I never disobeyed any order of this Court. The record reflects that the only thing I was ordered to do by this Court in its Mandamus Opinion was not to enforce the oral plea agreement to Involuntary Manslaughter in the Paris Case. The record also reflects that immediately upon receipt of that order, I fully complied with it. The record further reflects that from the date of that order to this day, I have done absolutely nothing to enforce that agreement.
While this Court’s Mandamus Opinion could be construed as suggesting that the Paris case was triable, unlike the direct and specific order not to enforce the oral plea agreement, I was never similarly ordered to take the Paris case to trial. Nor was I ever ordered not to recuse myself from that case. Indeed, those orders could not have been issued because the issues of whether I should recuse myself and whether the case must proceed to trial were not before this Court because they were not raised in the Petition for Writ of Mandamus. As such, no orders could have been issued with respect to those two issues.
I recused myself from the Paris case because, as a result of the prosecutor’s gross misconduct and criminality, including his written admission on the record in this Court that he virtually had no case, I developed a bias against him and his case. As a matter of law and ethical obligation, I was required to recuse myself from the case because of that bias. To do otherwise would have been to participate in the perpetration of a fraud and a travesty of justice orchestrated by the prosecutor, former Assistant Attorney General Jesse Bethel, Sr. My decision to recuse myself was completely vindicated when Attorney Bethel, despite his written admission that he virtually had no case, later proceeded to trial and the jury unanimously found the defendant “Not Guilty” of all 22 charges, including the First Degree Murder of Police Officer Ariel Frett.
It is indeed ironic that the prosecutor who engaged in that gross misconduct, including making numerous, deliberately false statements to my Court and this Court and who aided and abetted the obstruction of justice by participating in his release from jail without posting the bail ordered by the Court and without the Court’s permission, has not been prosecuted or otherwise disciplined to date. Rather, the Judge who sought to protect the integrity of the legal system and the judiciary by refusing to be a party to
Statement of retired V.I. Superior Court Judge Leon A. Kendall on the occasion
of his sentencing by the V.I. Supreme Court, December 7, 2011
page 2 of 2
prosecutor’s chicanery and gross misconduct ended up being prosecuted and persecuted, with the same rogue prosecutor as the only material witness against him. Attorney Bethel should be standing here today, not me.
The Paris Opinion in which I announced my recusal and which ostensibly is the reason I stand here today, must be viewed in the context of this Court’s published Mandamus Opinion. According to that Opinion, Attorney Bethel’s Petition for Writ of Mandamus was granted in order to correct my failure to follow the law and for relying on evidence not in the record. Any objective review of the record clearly reveals that I both followed the law of this Circuit and relied on evidence in the record when I ordered enforcement of the oral plea agreement. I firmly believed then, as I do now, that anytime a Judge or Court is thus accused of violating his oath of office and ethical obligation as set forth in the Code of Judicial Conduct, that Judge’s integrity and that of his Court are undermined in the eyes of the public and the Judge is duty bound to defend his integrity and that of his Court in the face of such an accusation. That is precisely what I did in the Paris Opinion which had to be made public just like this Court’s mandamus Opinion was made public. I make no apologies for that because there is ample proof in the record to support everything I stated in my Opinion.
Today, December 7, we commemorate Pearl Harbor Day, which, according to President Franklin D. Roosevelt is “a date which will live in infamy.” Given the highly unusual, extraordinary and unprecedented events leading up to my presence here today, including the setting aside of the Special Master’s decision that I was “Not Guilty” of all charges of contempt of this Court, I firmly believe, like President Roosevelt that today will also go down as a day of infamy in the history of the Territory’s jurisprudence, if not American jurisprudence. However, I remain confident that justice will ultimately prevail in this matter, as it always does. This concludes my brief synopsis of the truth of this matter.
In closing, let me, on behalf of my dear wife Valerie and the entire Kendall family, extend to Attorneys Howard Cooper and Julie Green and the law firm of Todd and Weld, our profound and everlasting gratitude for their excellent representation of me in this and other matters resulting from my tenure on the bench. These attorneys represent the highest ideals of the legal profession, both nationally and internationally, and I am most honored and privileged and, indeed, very fortunate, to have them as my counsel.
Thank you for sharing this. Judge Kendall is a model of stoic fortitude, and his refusal to capitulate is an inspiration.