I usually root for the defense, especially in an impeachment case, since I lost one of those 21 years ago. (I represented Judge Walter L. Nixon, Jr. of Mississippi.) But there’s no criticizing the Senate’s conviction yesterday of District Judge G. Thomas Porteous of New Orleans. The case, as detailed in a Senate committee report, presented a stomach-turning melange of petty thievery, official arrogance, self-indulgent vices, half-witted attempts to evade the law, and a complete ignorance of proper judicial conduct.
By thumping margins, the Senate yesterday convicted Porteous on four articles of impeachment, thereby removing him from office. The votes were (text of the articles is here):
Article 1 — 96-0 (Porteous corruptly accepted payments from two lawyers practicing before him as a state court judge and again after taking the federal bench, and declined to recuse himself from a high-stakes federal case in which one of the lawyers appeared)
Article 2 — 69-27 (the closest vote, accusing Porteous of accepting things of value from a bail bondsman while a state court judge)
Article 3 — 88-8 (Porteous filed a personal bankruptcy petition in 2001 under a false name and made false statements in the bankruptcy proceeding)
Article 4 — 90-6 (Porteous made false statements in disclosures made during the Senate’s confirmation proceedings for his appointment to the federal bench, concealing his prior misconduct)
The Senate also took a fifth vote on Judge Porteous, approving by 94-2 a separate resolution specifically barring him from ever holding federal office again. Such a bar was not imposed on the last three federal judges removed from office by the Senate, which allowed Alcee Hastings of Florida to wreak his revenge against his impeachers by winning a seat in the House of Representatives which he has held for almost 20 years.
I spent way too much time following this impeachment trial. There were some novel issues. This is the first time a judge was removed for conduct which occurred before he took the federal bench (Article 2); I wish that had not been successful. This is the first time such pre-federal conduct was bootstrapped into an impeachable offense by accusing the office-holder of failing to disclose it during Senate confirmation proceedings (Article 4); I’m OK with that one. It is both a clever theory and a fair one.
But the argument that stuck in my craw was the repeated plea by defense lawyers that Judge Porteous’ conduct should be overlooked because, well, everyone in his home town of Gretna, Louisiana acts like that. This “Gretna Defense,” as it came to be called, is appalling. If everyone rapes their children in a community, does child rape cease being a crime?
I am particularly offended by the Gretna Defense because I represented a judge from the deep South in an impeachment trial; it never occurred to us to argue that a different standard should apply to a judge’s conduct in one part of the country than in another. Porteous and his lawyers deserved to get stuffed on that one.
There is, however, a factual component to the Gretna Defense which should give pause to senators and federal judges from the South. In the last two decades, every federal judge who has had a major ethical/legal problem has been from the South. These include —
Judge Alcee Hastings (Florida) (impeached, 1989)
Judge Nixon (Mississippi) (impeached, 1989)
Judge Robert Collins (Louisiana) (criminal conviction, 1991)
Judge Sam Kent (Texas) (criminal conviction, 2009)
Judge G. Thomas Porteous (Louisiana) (impeached yesterday)
Judge Jack Camp (Georgia) (criminal conviction, 2010)
I am not philosopher or sociologist enough to concoct an explanation for why so many men from one part of the country would engage in such high-risk behavior after becoming federal judges. Something, to be sure, is going on here. But at the very least there is work to be done by the senators from these states who nominate federal judges, the Southern lawyers whose bar associations recommend them, and the other judges who serve with them.
Pull up your socks, guys. The Gretna Defense doesn’t work.