In a decision this week, a three-judge panel of the U.S. Third Circuit Court of Appeals overturned the V.I. Supreme Court’s conviction of former Superior Court Judge Leon Kendall for indirect criminal contempt, citing free speech and judicial immunity grounds.
The case stems from a July 2009 legal opinion Kendall wrote, scathingly condemning an earlier V.I. Supreme Court ruling that overturned Kendall’s decision concerning a plea agreement in the murder trial of Basheem Ford and Jermaine Paris for the shooting death of Police Officer Ariel Frett, who was gunned down after he intervened in a fight in the area of Hospital Ground on St. Thomas.
Kendall had a dispute with prosecuting attorney Jesse Bethel before the jury trial was to begin. Bethel left defense attorneys a voicemail offering an involuntary manslaughter plea agreement. After they accepted the deal, Bethel then said he misspoke and meant to offer the defendants a deal in exchange for pleading guilty to voluntary manslaughter.
Despite the attorney saying he misspoke, Kendall ordered the prosecution to uphold the plea offer, canceled jury selection and set a change-of-plea hearing. When Bethel didn’t show up at the plea hearing, because he had appealed Kendall’s decision, Kendall issued a warrant for Bethel’s arrest and Bethel was held by the Bureau of Corrections for several hours.
V.I. Attorney General Vincent Frazer filed a motion asking the V.I. Supreme Court to vacate Kendall’s order on the plea agreement, and the court ruled in the government’s favor, reversing Kendall’s decision and ordering the case to go to trial.
Kendall recused himself from the case on July 7, 2009, and wrote an opinion filled with inflammatory language that was highly critical of the Supreme Court order reversing his decision.
Kendall wrote the decision was “clearly improper,” that its conclusions “make no sense” and are “erroneous,” and that the Court’s mandate should be given “no credence.”
Ford was found shot dead in the Market Square area on Aug. 9, 2009, and Paris was later acquitted of all charges in an April 2010 trial.
In November 2009, the V.I. Supreme Court held a hearing, ordering Kendall to show cause for why he shouldn’t be held in contempt for not complying with the appellate court’s mandate and making remarks about the high court in his public opinion.
The Supreme Court appointed retired V.I. Superior Court Judge Edgar Ross as special master to preside over the case. Ross held a hearing and ultimately recommended Kendall be found not guilty."
In October 2011, the Supreme Court found Kendall guilty of three counts of indirect criminal contempt, rejecting Ross’s conclusion. The justices ruled Kendall couldn’t invoke his First Amendment right of free speech as a defense because he used the language not as a private citizen, but in a judicial opinion.
The first contempt count was for allegedly obstructing justice by issuing his scathing opinion critical of the Supreme Court’s ruling. The second was for allegedly failing to comply with the supreme court’s order, by recusing himself. The third count was for purportedly "misbehaving in his official transactions as an officer of the court," for issuing the scathing opinion and failing to comply with the court by instead recusing himself.
Kendall was fined $1,000, with the fine stayed pending appeal.
The three judge panel, consisting of Circuit Judges D. Brooks Smith, Jane Roth and Thomas Hardiman, unanimously overturned all three counts, in an opinion filed April 3.
In the main opinion, written by Smith, the court finds in Kendall’s favor one free speech grounds.
"In summary, the First Amendment prevents the government from criminally punishing a sitting judge’s speech about one of his pending cases unless it poses a clear and present danger to the administration of justice," Smith wrote, concluding "(w)e must vacate Kendall’s conviction because his opinion did not pose a clear and present danger of prejudicing the ongoing Ford proceedings."
Elaborating on the legal history and case law applicable to the situation, Smith later wrote:
"On the whole, Kendall’s opinion contained “strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or belittle him.’”
The Circuit Court rejected the Supreme Court’s conviction of Kendall for failing to comply with the Supreme Court’s orders, "because it is not supported by sufficient evidence," Smith wrote. "Like any crime, a conviction for criminal contempt requires proof beyond a reasonable doubt," he continued.
Roth wrote a concurring opinion, saying Kendall’s convictions "should be reversed on the grounds of absolute judicial immunity."
"It is well-established that absolute judicial immunity protects judges from civil suit for judicial actions within their jurisdiction," Roth wrote, citing a series of cases, including the 1870 U.S. Supreme Court case of Bradley v. Fisher.
"I believe that, absent corruption or bribery, such protection should also reach criminal liability for judicial actions within the judge’s jurisdiction," she concluded.
