Judges Warned Over Buttocks Slaps and Slavery Talk

Judges Warned Over Buttocks Slaps and Slavery Talk
New York Lawyer - Texas Lawyer by Mary Alice Robbins - May 23, 2008

The Texas State Commission on Judicial Conduct has issued public warnings to a Fort Worth judge who tried to discuss slavery with an African-American attorney representing clients in a case before him and an Amarillo judge who "slapped" a female lawyer's buttocks at a party. In public warnings released Thursday, the commission ordered Tarrant County Court-at-Law No. 1 Judge Brent Keis and 47th District Judge Hal Miner of Amarillo each to complete an eight-hour course -- Keis on racial sensitivity and Miner on gender sensitivity and sexual harassment -- within 120 days of the orders, which are dated May 14. The commission's order provides the following findings of fact: In April 2007, Keis attempted to engage Nuru Witherspoon, a partner in Dallas' Kelley Witherspoon, in a conversation about the transportation of enslaved Africans to the Americas in what is referred to as the "Middle Passage." Keis broached the conversation about slavery after learning that Witherspoon's first name is African in origin, but Witherspoon declined to discuss that topic with the judge.

Keis then asked about the injuries suffered by one of Witherspoon's client's, a plaintiff in a personal-injury action. The judge told Witherspoon that the amount of money offered by the defendant's insurer was very good in a case involving what is known in Tarrant County as a motor vehicle incident soft-tissue injury (MIST). When settlement negotiations in the case appeared to be at an impasse, Keis delivered what he called his "MIST" talk. As part of his talk to Witherspoon and his clients, Keis explained that he was a Republican and that Tarrant County juries are predominantly made up of Republicans. As noted in the findings, Witherspoon filed the complaint against Keis with the commission. Another attorney sent a copy of the complaint to the local news media, resulting in widespread publicity about the incident.

In its conclusion, the commission noted that because of the media attention on Keis' "inartful and insensitive attempt" to discuss slavery with Witherspoon, some members of the public reached the conclusion, perhaps mistakenly, that Keis harbored a bias or prejudice against Witherspoon based on the attorney's race. The commission found that Keis' conduct violated Texas Code of Judicial Conduct Canon 3B(5), which requires a judge to perform judicial duties without bias or prejudice; Canon 3B(6), which prohibits a judge from showing bias or prejudice in his words or conduct; and Canon 3B(8), which requires a judge to give every person with a legal interest in a proceeding, or that person's lawyer, the right to be heard. In the order, the commission noted that Keis violated Texas Constitution Article 5, §1-a(6)A, which provides that a judge may be disciplined or removed from office for willful or persistent conduct that is inconsistent with the proper performance of his duties or that casts public discredit upon the judiciary or administration of justice. Witherspoon and Keis did not immediately return telephone calls seeking comment.

The commission's findings set out the following findings of fact in Miner's case: While attending a December 2006 holiday party hosted by a local firm, Miner approached a female attorney and "slapped" her buttocks. Miner approached the same female attorney a second time and "his hand made contact with her buttocks again." A witness said Miner joked about the attorney's height, "commenting to the effect that he intended to slap her on the back, but her 'ass' was at hand level." Miner was unable to recall the specifics of the incident but acknowledged in written and oral testimony to the commission that the allegations "are basically true except that I did not think it would be offensive to her." The attorney, who did not file the complaint, informed the commission that she had met with Miner privately to express her feelings and now "considers the matter closed," according to the commission's findings. The commission concluded that Miner's conduct violated Texas Constitution Article 5, §1-a(6)A. Canyon, Texas, solo William Kelly, Miner's attorney, says the commission's public warning of his client is silly. Kelly contends that an attorney, whom he declines to identify, filed the complaint with the commission, even though that attorney was not at the party where the incident occurred. The female attorney involved was not offended and told the commission that, he says. "This whole deal does not pass the smell test," Kelly says.