I’m unethical? You’re unethical!

Via the ABA Journal, this absolutely mind-boggling video (at the end of the post) of retired Judge Martin McDonald of Jefferson Circuit, Kentucky, as he flies off the handle and absolutely bullies a defense attorney in what seems to be a post-conviction hearing. The ABA story recounts the facts as follows:

During the Sept. 28 hearing, the judge sharply rebukes Barron in front of his client, for calling McDonald on his cellphone at some point previously. However, the judge cuts off the attorney as he tries to explain that he made the call, with the permission of opposing counsel, to a number supplied by the court system, to discuss a scheduling matter.  “If you ever call me again on my cellphone I’ll strangle you. You understand?” says the judge, as Barron quickly interjects “I apologize” before the judge rolls on: “I’m telling you, you were unethical, it was improper and then you go to the supreme court and complain, because I told you that we’re plowing ahead with this thing, and you complained about information that you improperly obtained through your unethical ex parte contact with the court. Now that is out of bounds. That is totally out of bounds. And if you ever do it again I will send you it the bar association and try to get your bar license yanked. Do you understand that? Yes or no?”

Barron: “I do understand and I have to clarify one thing on that—”

McDonald: “Negative. Be quiet. Now Mr. Epperson,” the judge continues, as, speaking directly to Barron’s client, he asks Epperson whether he wants to remain for the rest of the hearing. When Epperson says he doesn’t, McDonald has him removed from the courtroom and, presumably, returned to prison.  “Have a safe trip back,” he tells the defendant.

As Barron then apparently tries again to explain about what the court had told him to do to contact McDonald, the judge cuts him off anew: “Your honor, may I request clarification on one thing?” asks Barron, as he explains that he’s trying to follow the court’s directions.

“Negative,” responds the judge, adding a moment later, after listing briefly to the question. “I want you to be quiet. Thank you.”

The judge then goes on to further berate Barron, calling him a “backseat lawyer”, because, apparently, he’s an appellate lawyer and not a trial lawyer.

As if that wasn’t bad enough, the judge then goes on a tirade about the merits of the case before him, while on the bench, while in the process of hearing evidence. From the Courier-Journal:

Then, instead of letting Barron call his first witness, McDonald recognized one of Epperson’s trial lawyers, Frank Jewell, in the gallery, and allowed him to take the witness stand first, saying he was a “private lawyer and had business to take care of.” McDonald then questioned the witness first himself, before passing him to counsel for examination. After hearing only Jewell, McDonald announced: “This has been a huge waste of time” and said Barron’s allegations “have bordered on the ridiculous.”

It took the intervention of the prosecutor to get the judge to allow the defense attorney to present more witnesses:

After another one appeared, McDonald again threatened to abort the hearing because, he said, the Department of Public Advocacy was “making a mountain out of a molehill.”  McDonald also said the nature of ineffective counsel motions in general “is distasteful to the court. The lawyers who do the work at trial now get criticized by backseat drivers who weren’t there and who didn’t try the case.”

As the Courier-Journal points out, this isn’t the first time McDonald has come under criticism. Earlier this year, he was recused from a case for failing to point out that he’d practiced with the plaintiff’s lawyer 20 years ago. Further:

In 2004, The Courier-Journal’s editorial board criticized him for sanctioning a juror for failing to appear, even though the juror submitted two letters from two doctors saying he was sick, and for describing a murder victim as an “animal.” McDonald defended both comments at the time as justified and appropriate.

Clearly, this judge wouldn’t know judicial impartiality if it hit him in the face. To so blatantly prejudge a case that is being tried in front of him is shocking.

What isn’t, sadly, is that this is the view of post-conviction proceedings and post-conviction attorneys of many judges: they view them as a nuisance, as lawyers who can only second guess other more “experienced” attorneys and serve only to clog up the system. It’s attitudes like this that have led to the severe curtailing of the Great Writ across the country.

On the contrary, post-conviction work is hard and post-conviction capital work doubly so. It is perhaps forgivable for the layman to take such a simple and misguided attitude toward the legal system, but there really is no excuse – nor should there be – for a seasoned judge to be so blatantly biased. Is there a Canon of Judicial Ethics that hasn’t been violated here?

Here’s the video:

7 thoughts on “I’m unethical? You’re unethical!

  1. Miranda

    I read the articles linked, but can’t find any information about what, if anything, happened to this judge. One article says he is retired but serving additional time on the bench to enhance his pension With all this publicity, he’s still on the bench?

    Reply
  2. Todd

    This judge should be recused from the case obviously. Unfortunately his view regarding capital post-conviction lawyers is all too common. I have handled capital post-conviction cases for years and can sympathize with Mr. Barron and the difficult circumstances he faced. I happen to know Mr. Barron professionally and the interesting thing about this judge disparaging him is this is the young lawyer that litigated the lethal injection case of Baze v Rees up to the Supreme Court of the United States. The only reason he didn’t argue it personally there is because he had not been practicing long enough to become a member of the Supreme Court bar. I surely hope disciplinary action is taken against this judge.

    Reply
    1. Gideon Post author

      Any word on whether there is some sort of motion to recuse pending? Mr. Barron needs to be commended on his measured handling of the judge’s outburst.

      Reply
    2. David M. Barron

      This is “Mr. Barron.” Todd thanks for the kind words.

      I actually had been practicing law long enough to argue before the Supreme Court of the United States when certiorari granted on Sept. 25, 2007. I started practice law in 2003 and was admitted before the U.S. Supreme Court earlier in 2007. However, I felt it was best for the case and the clients to have one experienced arguing before the U.S. Supreme Court argue the case. So, I did that and continued to work on the case after I made that decision.

      Reply
  3. David M. Barron

    Gideon, it will be filed early next week. Email at davembarron at yahoo dot com and I will provide a copy when filed.

    [Ed.: Edited to remove e-mail address link. You don't want spam, do you?]

    Reply

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