Whether or not former Superior Court Judge Leon Kendall obstructed justice and failed to comply with the high court’s order in a 2009 murder trial is a question to ultimately be decided by the justices of the V.I. Supreme Court, after the second and final day of testimony in Kendall’s show cause hearing wrapped up Tuesday.
The charges against Kendall stem from a scathing legal opinion Kendall wrote in July objecting to a Supreme Court ruling that overturned decisions he made in the murder case of Basheem Ford and Jermaine Paris for the fatal Feb. 8, 2007 shooting of off-duty VIPD Officer Ariel Frett, who was gunned down after he intervened in an altercation in the Hospital Ground area.
At the end of Tuesday’s proceedings, Superior Court Judge Edgar D. Ross, who presided over the hearings, gave attorneys for both sides until 5 p.m. Friday to submit their own written findings of fact and conclusions on the case.
Ross will then present his own findings and non-binding conclusions, as well as the written statements from both attorneys, to the Supreme Court justices who will have the final say in the case.
A Complex History
To understand the charges against Kendall, it’s necessary to go back to the trial of Ford and Paris.
On Jan. 30, 2009, after repeated courtroom disputes with prosecuting attorney Jesse Bethel during hearings leading to the trial, Kendall ordered the prosecution to uphold a plea of involuntary manslaughter that prosecutor Bethel had offered both defense attorneys by phone on Jan. 16.
Bethel said at the time that he may have misspoken and instead meant to make an offer for voluntary manslaughter, which carried a heavier prison sentence. At the Jan. 30 hearing, Kendall said he would enforce the oral agreement over the protests of Bethel, who also promised not to comply with Kendall’s order to appear in court the following Monday.
When Bethel failed to show up on time for the change of plea hearing in lieu of a trial on Feb. 2, 2009, Kendall issued a warrant that led to Bethel’s arrest and hours-long detention by the Bureau of Corrections.
Bethel then appealed to the V.I. Supreme Court for relief, and on May 13, the Supreme Court ruled in the government’s (i.e., Bethel’s) favor, reversing Kendall’s decision and ordering the case to trial.
Tuesday’s testimony revealed that following the high court’s order, Kendall then scheduled a pretrial conference for June 4, at which time both parties came armed with a new plea agreement to charges of voluntary manslaughter.
Following procedures to ensure that both defendants were entering a “knowing, intelligent and voluntary change of plea,” Kendall first had Bethel summarize the evidence the government would have provided had the case gone to trial, and then told the defendants to tell their versions of what happened on Feb. 8, 2007, when Frett was mortally wounded at Hospital Ground.
After hearing the brothers recount how Frett had attacked first Ford, then Paris, with a wooden axe handle at or outside the Universal Bar, how it was Frett who had the gun and how the shots happened in the midst of a desperate struggle on the ground, Kendall halted the plea on the grounds that the defendants’ actions did not appear to fit the criteria of voluntary manslaughter.
“It would be a violation of my oath if I were to accept this plea offer,” Kendall told the court at the June 4 hearing, according to the transcript read aloud Tuesday in Supreme Court.
In July 2009, almost two months after the Supreme Court’s decision, Kendall published a 31-page public opinion in which he recused himself, disagreeing with the high court’s opinion in language the court called ‘"inflammatory" and “disrespectful.” (For a complete breakdown of yesterday’s hearing, see "Kendall Contempt Hearing Opens With Combative Witness.")
Kendall’s Dilemma
Bound by the high court to take the case to trial, and bound by the defendants’ rights to make it speedy, Kendall’s attorney, Howard Cooper, argued Tuesday that Kendall was stuck in a hopeless dilemma.
In selections of his July legal opinion read aloud in court Monday, Kendall stated repeatedly that the Supreme Court’s findings made “no sense" and that going to trial under the circumstances would have amounted to a “fraud upon the court and a travesty and perversion of justice.”
Subjective Justice
The entire show cause hearing this week detailed differing takes on how well the attorney and the trial judge – who were constantly at each others’ throats – followed judicial procedure on the rocky road to trial. At times Monday and Tuesday it seemed like Bethel, not Kendall, stood accused.
In his continued cross-examination of Bethel Tuesday, Cooper focused on how Bethel had characterized Kendall’s actions to the high court when he asked for intervention, and what few options Kendall faced by the time of the June 4 change of plea hearing, in which both defendants refused to admit guilt.
In his appeal to the Supreme Court following his Feb. 2 arrest, Bethel wrote that he and any other assistant attorneys general faced the threat of incarceration if they disputed Kendall’s interpretation of plea negotiations, calling it a “pretext, under the circumstances, to sanction the assistant attorney general.”
Bethel also called Kendall’s order to enforce the oral plea agreement on Jan. 30 an “unauthorized judicial intervention,” and that, if allowed to stand by the high court, “would be an open invitation to legal chaos and confusion,” ultimately having a chilling effect on open and robust plea negotiations.
In his appeal, he also called Kendall’s warrant to arrest him an “abuse of discretion,” and at one point waxed poetic that Kendall’s behavior threatened to set back progress achieved “from Slavery to Emancipation to Segregation to Integration to Presidential Realization.”
Hearing Bethel’s words Tuesday, Judge Ross chuckled and rolled his eyes.
Cooper countered that Bethel was being disingenuous with the high court, misrepresenting his brief incarceration as a result of his objections to Kendall’s ruling rather a consequence of his refusal to appear in court in February 2009 as ordered.
“Are you aware that Judge Kendall recused himself in July because he felt you were a liar?” Cooper asked Bethel in an especially heated moment Tuesday.
“I stand by it today,” Bethel later said of the wording of his appeal to the Supreme Court, which led it to issue the May 13 order to Kendall to try the case of Paris and Ford.
Justices to Decide
Cooper said the June 4 hearing was proof that Kendall followed the high court’s order to the letter. But when the defendants would not admit guilt and told a very different version of events than would have been possible under a guilty plea to voluntary manslaughter, Kendall had no choice but to bow out.
In recusing himself, Cooper said, Kendall “did the responsible thing.”
Good humored throughout the testimony, Judge Ross remained so when Cooper, on Kendall’s behalf, objected to the non-binding nature of Ross’ conclusion. Cooper said his client objected to the other Supreme Court justices ruling on “a trial they did not attend.”
In a concession to both parties, Ross agreed to accept their written findings and conclusions by Friday, and adjourned the court early Tuesday “until a later date,” which he did not specify.
If held in contempt, or if he finds that the Supreme Court’s show cause hearing was unfair, Kendall could still appeal to the U.S. Circuit Court.
