Witch hunt: Wash. Times smears two Obama judicial nominations as "abominations"

››› ››› ADAM SHAH

The Washington Times distorted the record of judicial nominee Robert Chatigny to smear him as someone who has a "weird record of empathy" for those accused of sexual abuse against children. The Times also distorted the record of judicial nominee John J. McConnell, Jr., to call his nomination an "abomination."

Wash. Times distorts Chatigny's record to smear him as pro-sex offenders

From a May 26 Washington Times editorial headlined "Sexual sadism, unleaded," and subheadlined, "Two more horrible judicial nominations from Obama":

Judge Chatigny has a weird record of empathy for those accused of sexual crimes involving children. It started when he served as co-counsel for director Woody Allen in 1993-94 when Mr. Allen filed a complaint against a prosecutor for discussing in public the potential charges against the moviemaker for reportedly abusing a minor stepchild. Mr. Allen and Mr. Chatigny lost both administrative proceedings in the case.

In another case, the U.S. Supreme Court eventually reversed Judge Chatigny, unanimously, when the judge tried to rule against one aspect of his state's version of a Megan's Law sex-offender registry. In 12 child-pornography cases, Judge Chatigny imposed a sentence either at or more lenient than the recommended minimum -- with most downward departures involving sentences less than half as long. And in an outrageous case of judicial abuse, Judge Chatigny threatened to take away an attorney's law license if the lawyer failed to appeal the death sentence of an eight-time murderer of girls and young women. The judge claimed the killer's "sexual sadism" was a mental disorder that made the murderer himself a victim.

Appeals court panel found Chatigny's actions "reasonable" and "not motivated by any bias" in serial killer case

In 2005 conference call, Chatigny strongly expressed concern that defendant's lawyer was not sufficiently investigating evidence regarding his client's mental competency. Regarding the serial killer case cited by the Times, in 1987, Michael Ross was found guilty of the murder of four of the eight women he confessed to killing. The New York Times reported that Ross "did not fight the state's execution plans. He has said repeatedly that he is prepared to die -- that he hoped his death would ease the pain of his victims' relatives -- and he repeatedly waived his rights to appeal." The Times reported that others had argued that "Mr. Ross is simply masking a desire to commit suicide." On January 29, 2005, the Hartford Courant reported that during a conference call hours before Ross' scheduled execution, Chatigny "in often brutally frank language, made it clear he thought [T.R.] Paulding [Ross' lawyer] should be doing more."

Appeals court panel, which included Mukasey, found Chatigny's concern "reasonable" and "not motivated by any bias." As the Hartford Courant reported on January 28, 2006, Chatigny was "cleared of misconduct by a review panel of the 2nd Circuit Court of Appeals." The panel consisted of three judges, including Michael Mukasey, who went on to become President Bush's attorney general. The Courant stated of the panel's findings (from Nexis):

"Without doubt, Judge Chatigny's actions were unusual,'' a special committee consisting of three judges concluded. "But in the judge's reasonable view, the circumstances thrust on him called for unusual action. ... ''

Those circumstances included challenges by family members and lawyers that serial killer Michael Ross was not mentally competent to waive further appeals and "volunteer'' for execution, and the staunch defense of Ross' competence and right to choose his fate by attorney T.R. Paulding.

[...]

The special committee -- composed of 2nd Circuit Chief Judge John W. Walker Jr., circuit Judge Pierre Leval and Chief Judge Michael Mukasey of the Southern District of New York -- said in its 45-page report, "It is fairly arguable ... that some of what [Chatigny] said was susceptible to misunderstanding and might better have been left unsaid.

"We are persuaded, however, that the judge's actions were not motivated by any bias in favor of Ross or against the death penalty but only by the judge's reasonable perception that the discharge of his own judicial duty ... required that he take forceful steps on Ross' behalf.''

[...]

Chatigny, in correspondence with the special committee to answer the judges' inquiries, stated that some of his remarks to Paulding were "too vehement,'' and also said that he apologized to Paulding the next day.

"He added that he regretted both his choice of words and any embarrassment he may have caused to the court system,'' the report states of Chatigny.

Mukasey reportedly supports Chatigny's nomination to be a 2nd Circuit judge. According to the Hartford Courant, "Michael B. Mukasey, a former U.S. attorney general in the George W. Bush administration and a former 2nd Circuit judge, called senior committee Republicans to offer his support of Chatigny, people familiar with the process said." The Daily Caller similarly reported that Mukasey "was making phone calls to Senate Republicans on Chatigny's behalf." The Daily Caller added:

[E]ven one of the more conservative Republicans on the Senate Judiciary Committee said his views are having an effect.

"There was an ethics issue that he wanted to share his views with me on, which I appreciate very much," Sen. John Cornyn (R-TX), said, "I have a lot of respect for the Attorney General . . . I would say it'd make me more inclined to be supportive, but I haven't made a final decision yet."

Legal expert defended Chatigny's actions at the time. According to a February 2, 2005, New York Times article, University of Pennsylvania Law School professor Geoffrey C. Hazard Jr. defended Chatigny's actions at the time, stating: ''These are extraordinary acts by the judge but the situation is extraordinary."

Wash. Times misleads to pronounce McConnell guilty of "legal sins" by filing lawsuit against lead paint manufacturers

Wash. Times claims McConnell nomination is an "abomination" because of a Rhode Island case McConnell filed against lead paint manufacturers. From the Times editorial:

Compared to the execrable record of Judge Chatigny, Mr. McConnell's legal sins are less flamboyant. Before the Rhode Island Supreme Court squashed his suit, Mr. McConnell pushed the theory that lead-paint manufacturers from decades ago should be held liable for lead poisoning in today's children even if it could not be shown the companies had made the paint that caused the illnesses. As the Providence Journal explained, this theory of Mr. McConnell's "violated basic precepts of law crucial to a just society."

These nominations are abominations. They should not move forward.

In fact, the Rhode Island Supreme Court praised actions of all the lawyers in the case. McConnell filed a lawsuit against lead-based paint manufacturers on behalf of the Rhode Island attorney general's office. Following a four-month trial, a jury found that the paint manufacturers had violated Rhode Island law, and the trial judge affirmed the jury verdict. Subsequently, as The Washington Times stated, the Rhode Island Supreme Court reversed the trial court decision and held that Rhode Island law did not support the jury's verdict. However, the Rhode Island Supreme Court specifically praised the work of the lawyers on the case, which the court described as "formidable and problematic." From the 2008 Rhode Island Supreme Court decision (retrieved via Lexis):

In denying defendants' motion to dismiss, the highly respected trial justice, however well intentioned, departed from the traditional requirements of common law public nuisance. The Restatement (Second) warns against any such departure from the common law, noting that "[i]f a defendant's conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard." 4 Restatement (Second) Torts, § 821B, cmt. e at 90. We pause, however, to acknowledge the complexity of the issues presented in this case and to note that, in reversing the judgment of the Superior Court, we mean no disrespect to the distinguished trial justice, the jury, the members of our judiciary, the trial lawyers, or the Office of the Attorney General -- all of whom labored for years over this formidable and problematic case.

Posted In
Government, Nominations & Appointments, The Judiciary
Network/Outlet
The Washington Times
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