Sunday, June 8, 2003

Judges battle over misconduct claims

Review on ethics turns bitter dispute

By Gina Holland
The Associated Press

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

The chief judge of the 6th U.S. Circuit Court of Appeals in Cincinnati 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. "It's like poor Sammy Sosa. I never had a corked bat before and I don't think I had one here."

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.

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 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.

" 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.

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

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