Federal judges take dispute into public

Saturday, June 7, 2003

WASHINGTON -- Federal judges usually keep their disputes private, but an extraordinary he-said, she-said brouhaha between two appellate judges has blown open the closed chamber doors.

The chief judge of the 6th U.S. Circuit Court of Appeals says he stands wrongly accused by a colleague of bending rules in two high-profile cases. And what's worse, Judge Boyce F. Martin Jr. said, his colleague made her findings public without giving him a chance to respond.

"I'm royally shafted, to put it mildly," Martin said Friday in a telephone interview.

Each year hundreds of federal judges are accused of misconduct. Judges police themselves and the complaints usually are settled quietly. Most are dismissed immediately as frivolous, but a handful get a closer look.

Death penalty, race

The allegations at the Cincinnati-based appeals court involve especially divisive cases involving affirmative action and the death penalty. The court has been split along political party lines.

Martin is a liberal-leaning judge who was appointed by President Jimmy Carter. Judge Alice Batchelder, who conducted the ethics review, is a conservative who was appointed by the first President Bush.

The review, prompted by a complaint from watchdog group Judicial Watch, found Martin named himself to a three-judge panel that was to hear the affirmative action case even though court rules specify that assignments be made at random.

Martin also delayed for five months a request to have the full appeals court rehear the case, ensuring the exclusion of two conservative judges who were planning to retire, according to the review.

Martin disputes both findings, which Judicial Watch made public this week.

After the two judges went on senior status, which meant they could not participate in the full court appeal, the 6th Circuit took over from the special panel and ultimately upheld affirmative action in college admissions policies. Martin wrote the 5-4 decision. Batchelder was on the losing side in the case, now pending at the Supreme Court.

Martin said he was included in the three-judge panel only because he needed a substitute judge for one who could not sit. Following his usual practice, he said, he and the court clerk drew names from a pot on his desk. His was the name drawn, he said.

Martin said it was the clerk, not the judge, who delayed consideration of the request for a full court review. The delay was the result of a separate dispute between the parties in the case, and the 6th Circuit judges were not involved, he said.

"I don't feel that either morally, ethically or legally I've ever done anything wrong as it relates to either of these cases, and I haven't treated either of these cases any differently than ordinary, run of the mill cases," Martin said.

He said Batchelder never mentioned the complaint to him or allowed him to respond. They're not on speaking terms, he said, and she will only communicate to him in writing.

An assistant to Batchelder said the judge was not taking calls Friday.

"A very messy situation looks like it's getting even messier," said Stephen Presser, a law professor at Northwestern University. "I've never heard of anything quite like it."

Stephen Gillers, a New York University professor specializing in legal ethics, said it was unusual that Martin was not given a chance to defend himself before the results of the review were made public.

"For a prominent judge to be publicly chastised by his colleagues is humiliating. The publication of the criticism is itself punishment," he said.

The Judicial Watch complaint stemmed from written bickering between conservative judges on the 6th Circuit and Democratic-appointed judges including Martin, whose seven-year term as chief judge is nearly up.

In the death penalty case, the conservatives were angry about a last-minute reprieve given to Ohio death row inmate John W. Byrd. In an opinion at the time, Batchelder said a "cabal" engineered the delay. Another Republican appointee, Judge Danny Boggs, said it was "virtually criminal." Byrd eventually was put to death.

Boggs, joined by Batchelder, also complained last year that the affirmative action case was not handled by the book.

Martin said that because of her on-the-record criticism of the court's handling of that case, Batchelder should not have handled the later ethics complaint. The chief judge said he is considering filing his own ethics complaint against her.


On the Net:

Judicial Watch: http://www.judicialwatch.org/

6th Circuit: http://www.ca6.uscourts.gov/

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