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Federal judge's notes insulted defendants and lawyers
Monday, January 31, 2000
SEATTLE POST-INTELLIGENCER STAFF
A federal judge in Yakima is under fire for writing offensive notes about people appearing in his courtroom.
One note disparaged Mormons, Jews and Chinese; another likened labor union officials to mafia gangsters.
U.S. District Court Judge Alan McDonald began exchanging offensive notes with his courtroom staff as early as 10 years ago, but the practice was only recently brought to light by his critics, the Spokane Spokesman-Review newspaper reported yesterday.
It is not the first time the judge's ethics have been questioned.
In 1988, McDonald was criticized for refusing to disqualify himself from handling a criminal case involving a former Internal Revenue Service agent who had once audited McDonald's tax returns.
At the time, McDonald said in an affidavit that he remembered the agent and the audit, but his personal experience with the man had no bearing on the criminal trial. The man, Lawrence Richey, was convicted of aiding in the preparation of false tax returns. Richey's attorney alleged at the time that McDonald's handling of the case gave the federal courts a "black eye."
John Strait, who teaches legal ethics at Seattle University Law School, yesterday said the note-passing complaints and the tax case raise serious ethical concerns. He said the state's Code of Judicial Conduct prohibits judges from handling cases if, in the eyes of a reasonable observer, an appearance of bias would exist.
Strait believes something as hostile as a tax audit would create an appearance of bias in violation of the state code. However, as a federal judge, McDonald is not bound by the code, which applies only to judges in state and county courts.
Strait said the offensive content of the judge's own notes, as well as the judge's tolerance of a court employee's note referring to Hispanics as "greasers," also are troubling.
"It raises real questions about the fairness of justice in his court," he said. "If Judge McDonald were a state (court) judge, he would be facing serious allegations of judicial misconduct."
McDonald told the Spokesman-Review the notes were never intended for the public and are being misinterpreted.
When asked about his note referring disparagingly to Mormons, he said, "I'm sure that I made the remark out of respect for the Mormons I know."
McDonald wrote the note in response to a note from his courtroom deputy, Pam Posada, which said, "He's been a con man for a long time!" The judge replied: "Yes and in my experience, a Mormon money man makes the Jews and Chinese look like rank amateurs!"
In another case, while the Yakima courtroom was full of Hispanic defendants and lawyers, Posada passed this note to McDonald: "It smells like oil in here -- too many 'Greasers.'"
George Trejo, a Hispanic attorney who represented one of the defendants before the judge in that trial, said Posada's racist note should not have been tolerated.
"Assuming that it's true that that note was written, I think Judge McDonald should step down from the bench for not dismissing Pam immediately," Trejo said.
In 1991, while McDonald was a visiting judge in San Diego, he wrote a note saying "Ah is im po tent!" while a black man was testifying. McDonald told the Spokesman-Review he was actually referring to himself.
Another note by McDonald commented on a union representative testifying in a railroad case: "Guys in black suits look like union mafia. Don't they look like gangsters."
"I don't need to apologize for them (notes) because they were never intended to be in a situation where they could be misunderstood," he told the Spokesman-Review in an interview arranged by William Fremming Nielsen, chief judge for the court's Spokane-based Eastern Washington district.
Most of the notes were provided to the newspaper by Kathryn Blankenship, who sued over being fired in 1995 after spending nine years as McDonald's court reporter. A federal appeals court dismissed her 1997 civil-rights lawsuit alleging wrongful termination; her attorneys have appealed to the U.S. Supreme Court.
McDonald said Blankenship had performance problems in Yakima and has a vendetta against him.
Other notes written by McDonald and Posada were given to the newspaper by Spokane attorney William Powell, who had saved notes that he and another attorney fished out of a wastebasket in a 1990 trial.
McDonald's note-passing upset some Yakima attorneys who were reluctant to speak out because they appear before McDonald, said a lawyer who requested anonymity.
"These notes were passed constantly to the point where they were a distraction," he said.
Nielsen, who asked McDonald to explain the notes to the newspaper and sat in on the interview, said he would not have written such remarks.
But he said he was satisfied with McDonald's explanations.
McDonald, 72, was nominated for the lifetime judgeship by President Reagan and confirmed by the Senate in 1985. Based in Yakima, he has been on senior status since December 1996, drawing his full $141,300 salary while handling a reduced caseload.
Making disparaging comments about people in court violates conduct rules for federal judges, said Stephen Gillers, a legal ethics expert and vice dean of the New York University School of Law.
"Speaking generally, if the notes reflect religious or racial animosity or demeaning comments, that's a violation of the code of professional conduct for U.S. judges. There could be a sanction, including a public reprimand," Gillers said.
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