[Eugene Volokh, August 29, 2008 at 12:12am] Trackbacks
The Indictment of U.S. District Court Judge Samuel Kent

is here. You don't see these often for sitting federal judges. I assume that, if Judge Kent doesn't resign, a criminal conviction would be followed promptly by impeachment by the House and then conviction and removal by the Senate. An interesting question is what would happen if Judge Kent is acquitted, but there is sufficient evidence to believe he was likely guilty (the Justice Department obviously believes this to be the case), but not guilty beyond a reasonable doubt to the satisfaction of a criminal jury. But that's all a hypothetical at this point.

UPDATE: Sorry; I should have made this clearer — certainly the Congress has the power to remove someone who has been acquitted, and I don't see anything wrong with it, if the Representatives and the Senators think he's guilty. As commenter David Nieporent pointed out, that of course is what happened to former Judge (now Congressman) Alcee Hastings. What I was wondering was what the Congress would (not may) do if they thought the accusation wasn't proven beyond a reasonable doubt, but was still likely true — not an implausible scenario if the case ends up mostly being a swearing contest between Judge Kent and the woman he is accused of attacking.

There's also the question of what the Congress should do in such a situation; I think it should remove the judge from office — "better that ten guilty men go free than one innocent man go to prison" may be a sensible rule, but I don't think that "better that ten guilty judges remain in office than one innocent judge be erroneously removed" is equally sensible.

All Related Posts (on one page) | Some Related Posts:

  1. The Indictment of U.S. District Court Judge Samuel Kent
  2. Justice Department Broadens Investigation of Federal District Judge Samuel B. Kent:
  3. Details of the Sexual Harrassment Accusations Against Judge Samuel B. Kent:...
  4. More on the Judge Samuel B. Kent Case:
  5. The Ethical Cloud Over Judge Samuel B. Kent:
  6. U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:
David M. Nieporent (www):
An interesting question is what would happen if Judge Kent is acquitted, but there is sufficient evidence to believe he was likely guilty (the Justice Department obviously believes this to be the case), but not guilty beyond a reasonable doubt to the satisfaction of a criminal jury.
Isn't that the Alcee Hastings scenario? He was acquitted, but impeached anyway and removed from office.

And then, in a twist on the usual order of things, ran for Congress after being criminally prosecuted rather than before.
8.29.2008 1:23am
Dave N (mail):
Not your typical corruption charges. If the allegations are true, what a slimeball.

I think if the witness/victim is at all compelling at the criminal trial, it will not matter what the jury verdict is. The House will impeach; the Senate will convict; Kent will be off the bench.
8.29.2008 1:33am
Mike& (mail):
In light of the indictment, it's worth revising the Fifth Circuit's handling of the matter. There were some pretty hot discussions at the VC, such as this one.

The Fifth Circuit censored him, but kept the details os hif (allegedly criminal conduct) confidential. The Fifth Circuit also did not refer Judge Kent to Congress for an impeachment investigation, even though it had the power to do so.

The Department of Justice (which, for all of its flaws, would not lightly go after a sitting federal judge) considered Judge Kent's conduct criminal.

What does that say about the Fifth Circuit's handling of the matter? What does that say about judicial misconduct proceedings in general?
8.29.2008 1:33am
Duffy Pratt (mail):
Is the White House not part of the special maritime and territorial jurisdiction of the US? Just curious, because there was some similar behavior in another recent impeachment, but the 2244b charge was never raised, and I wondered why.
8.29.2008 4:27am
Luc:
Duffy: Presumably, the "Unwilling" part is important.
8.29.2008 9:40am
krs:

What does that say about the Fifth Circuit's handling of the matter? What does that say about judicial misconduct proceedings in general?

I think Kozinski's dissenting opinion in the Judge Real proceedings says most of what needs to be said on the matter:


Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done—or been tempted to do—in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we’ve condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.
Pleasant or not, it’s a responsibility we accept when we
become members of the Judicial Council, and we must discharge it fully and fairly, without favor or rancor. If we don’t live up to this responsibility, we may find that Congress—which does keep an eye on these matters, see, e.g., Operations of Fed. Judicial Misconduct Statutes: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Prop. of the House Comm. on the Judiciary, 107th Cong. (2001); Report of the Nat’l Comm’n on Judicial Discipline and Removal (1993)—will have given the job to somebody else, materially weakening the independence of the federal judiciary.

13803
8.29.2008 10:04am
Brad Ford (mail):
I think they are going to have a hard time convicting and/or impeaching a sitting Federal Judge based upon the allegations in the indictment. Unless there were witnesses (unlikely) or tape of the incidents, it is likely the trial will be a "he said/she said" against a Federal Judge. Provided he didn't admit the charges to someone, he is likely to walk.
8.29.2008 10:48am
Dave N (mail):
Brad Ford,

While many sexual assault prosecutions become nothing more than he said/she said, I would note two things: 1) You are discounting that there may be other evidence (remember the infamous dress in the Clinton scandal), which can take a variety of forms, that would substantiate portions of the accuser's story; 2) the victim may be so credible that the victim is believed, regardless of denials from the accused.

A conviction guarantees impeachment/removal. An acquittal MIGHT help Judge Kent--but it will depend on the strength of the evidence, including the victim's testimony and whether there is a sentiment that the verdict followed the evidence.
8.29.2008 11:31am
Brad Ford (mail):
Dave N,

I agree with most of your post. IMHO - the key is going to be "other evidence." Without it (or some sort of confession by Kent), I think a sitting Federal Judge is going to have a built-in credibility that is going to be difficult to overcome.

According to the Houston Chronicle, Kent's attorney is taking the position the relationship was consensual.
8.29.2008 2:27pm
Duffy Pratt (mail):
Luc:

I was thinking of Kathleen Willey, not Lewinsky.
8.29.2008 5:53pm
neurodoc:
Newspapers generally choose not to publish the names of those alleging they have been sexually assaulted. I am surprised, though, to see that an indictment would name the accused but not the alleged victim, referring to her simply as "Person A." Is that standard?

Also, it seems to me extraordinary enough that such an assault might ever have occurred, but really amazing if the same conduct was in fact repeated five months later.

And the judge is alleged to have done it with the "intent to abuse, humiliate, harass, degrade, and arouse and gratify the sexual desire of Person A." Will the prosecution have to prove that was the intent, it won't be enough just to prove that the conduct took place without Person A's consent? "To arouse and gratify (his...) sexual desire" would not strain credulity, but "to arouse and gratify the sexual desire of Person A" seems a stretch. If the prosecution had evidence to show that the judge was an avid consumer of pornography portraying women as sexually longing for abuse, humiliation, harassment, and degradation, would they be able to get it admitted?

Did that Fifth Circuit panel not have the evidence that the grand jury panel had, or did the former not find the evidence convincing, while the latter did? If that panel did have the evidence but not find it convincing, then what are the chances of a successful criminal prosecution. If that panel had the evidence and did find it convincing, but imposed only limited disciplinary measures and allowed the judge to remain on the bench, what are we to think? Will that likely come out in the course of this?
8.30.2008 1:40am
jgshapiro (mail):
I wonder whether Kent's past behavior issues when coupled with this accusation are enough to remove him? I don't see any reason to look at this incident in a vacuum. It's not as though he was an outstanding judge accused of this; he was someone who has repeatedly been investigated and complained about, has acted unprofessionally in some of his opinions, etc.

He holds his office during good behavior, not during the period (if any) prior to which he commits a felony. Can any reasonable U.S. Representative or Senator look at his history, both before and including this incident, and conclude that his behavior has been good?
8.31.2008 5:13pm