[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1970-S1976]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JUDGE MASSIAH-JACKSON
Mr. HATCH. Madam President, Judge Massiah-Jackson has made the right
decision in withdrawing her nomination to the Federal bench, given the
strong bipartisan opposition from law enforcement groups, her
demonstrated leniency in sentencing convicted criminals, and the
Judiciary Committee's concerns about her lack of candor throughout the
nomination process. I believe withdrawing the nomination was the right
thing for her to do. Despite the fact that the committee afforded two
hearings for this nominee, and gave her ample opportunity to answer
criticisms of her record, her responses were found to be unconvincing.
After having heard the nominee's testimony and having considered the
information provided to the committee by law enforcement officials
about her treatment of police officers in court and her flawed judicial
rulings, I would not have voted to confirm this nominee to a lifetime
appointment to the Federal bench.
The events surrounding Judge Massiah-Jackson's nomination demonstrate
the need for the Senate to scrutinize the President's nominees
carefully. That is what we have been doing. This is not a numbers game.
We have to look at these people very carefully. They are nominated and,
if confirmed, are confirmed for lifetime positions. Some people say the
closest thing to God put in this life is being put on the Federal
bench, because nobody can criticize you under those circumstances once
you make it there. So this particular nomination does demonstrate the
need for scrutiny of any President's nominees.
Unfortunately, I think many in the legal community do not understand
the Senate's role in the confirmation process. The Constitution
obligates the Senate to advise the President with respect to his choice
in nominees and ultimately consent to their appointment. No one has the
right to a Senate confirmation anymore than he or she has the right to
be nominated by the President. Federal judges serve for what amounts to
life terms. They wield enormous power in our society, power that must
be exercised fairly and impartially. When the President sends us
nominees who lack the necessary qualifications to be elevated to the
Federal bench, the Senate's duty is to bring these deficiencies to
light.
In this case, given the bipartisan opposition of law enforcement and
the nominee's problematic record, I believe withdrawal of the nominee
was appropriate. But let me add, had this nominee come to a vote today,
she would have been overwhelmingly defeated by both sides of the aisle.
There were many Democrats who were going to vote against Massiah-
Jackson, and I think most all Republicans were going to vote against
her as well. And there were reasons to do so with regard to this
nomination.
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Having said that, let me just say that I was impressed with Massiah-
Jackson's family. It is clear that she is a nice woman. It is clear
that her husband is a very nice man. Her two children whom she
introduced to the committee looked as though they were just outstanding
in every way. So I commend her for that, and I hope she has learned
from this process that people in Philadelphia expect her to be tough on
crime, to be tough on criminals, and to support the law enforcement
people when they are right. When they are wrong, she should correct
them and she should do so vociferously.
But some of the things that were done really cast such a cloud over
this nomination that we just could not vote for her in the end, so I
was pleased that she did the right thing by withdrawing her nomination.
I feel badly about it, because I believe her to be a nice person. I
believe that she intends to be a very fine judge, and I commend her to
work very hard to be that. Being a tough trial judge in Pennsylvania is
a very great honor. The fact that she has not received consent to this
nomination and this opportunity should not deter her from proving that
she could be one of the best trial judges in the State of Pennsylvania
if she wants to be. I certainly believe she is intelligent enough to
be. My own personal belief is that she is good enough to be. But
because of these problems in the past, she is going to have to redeem
herself in the eyes of the law enforcement community.
If Judge Massiah-Jackson takes out vengeance against the law
enforcement community and those who have raised these issues, then she
will have proven us even more right and she will have proven that the
action of withdrawal here today was even more right than I believed it
to have been. I hope she will treat all law enforcement officials with
the respect that they are due when they appear before her court. I
practiced law in Pennsylvania for a number of years and I tried a
number of cases in front of the Common Pleas bench in Pittsburgh, and I
have to say these are very important judgeships. She still has that
judgeship. I wish her the best. I am counting on her doing the very
best she can from here on in, and I have counted on her proving that
those who have criticized her, though perhaps just at this time, it
appears, can have faith in the future because of what she has tried to
do.
FAIRNESS TO THE NOMINEE
Madam President, it has been claimed that the process by which the
Judiciary Committee has considered this nomination has been in some way
unfair. I think that assertion is incorrect. In fact, the Committee has
bent over backwards to ensure that this nominee has been treated
appropriately.
The Committee received this nomination on July 31st of last year.
Senator Specter encouraged the Committee to hold a hearing on the
nominee even before her paperwork or the background checks were
completed. That background work was not finished until September 25.
Shortly thereafter, at Senator Specter's request, a hearing on the
nominee was scheduled for October 29th. Moreover, I did not object, nor
did I attempt to intervene, in Senator Specter's decision to hold a
field hearing in Philadelphia.
In any event, the Committee held a hearing on the nominee on October
29th. Although some on the Committee wanted to delay taking action on
this nomination, at Senator Specter's insistence, we forged ahead. As a
consequence, the nominee was reported out of Committee on November 6th
of last year.
Then, in a rather extraordinary turn of events, a bipartisan
coalition of law enforcement groups organized to oppose this nominee.
The Pennsylvania District Attorneys' Association, the Commonwealth
Attorney General, the Fraternal Order of Police, the National
Association of Police Officers and the Law Enforcement Alliance of
America all mobilized to defeat this nominee. Through their efforts,
the Committee became aware of a number of instances in which the
nominee demonstrated hostility towards police officers and prosecutors.
Indeed, the Committee came further to learn that the nominee had not
been entirely forthcoming with the Committee. The number, and nature,
of these allegations made it impossible for the Committee to turn a
blind eye towards them.
In an effort to be fair, however, the Committee took the unusual step
of affording Judge Massiah-Jackson the opportunity to respond to these
charges in a second hearing. Unfortunately, the nominee's testimony in
that hearing was not particularly compelling--in fact was otherwise.
Some have complained that this latest hearing was tilted against the
nominee because she was asked about so-called new cases that she had
been informed of only the night before.
While I can understand those concerns, I would note that each of the
cases reviewed were actually Judge Massiah-Jackson's. Indeed, many of
the cases that were discussed should have been provided to the
Committee by Judge Massiah-Jackson herself. Thus, I hardly think it
fair to say that the Judiciary Committee was somehow disingenuous in
asking the nominee about her own cases.
In addition, claims have been made that the manner in which the
Committee has received critical documents has worked to the nominee's
disadvantage. While it is true that we have received documents in a
hodge-podge manner, efforts have been made to ensure that the nominee
was advised of cases that would be addressed. Moreover, I would again
like to emphasize, that these are the nominee's cases.
I would add that the Committee learned that Senator Specter was also
conducting his own investigation into the nominee's record. According
to the Philadelphia District Attorney's Association, Senator Specter,
as is his right, requested numerous transcripts from their office. In
an effort to keep the record straight and to provide all members access
to the information, the Committee sent a bipartisan letter, signed by
myself and Senator Leahy, to Senators Specter and Santorum requesting
that they provide the Committee copies of all material relevant to
Judge Massiah-Jackson's nomination.
I think it is safe the say the new information that the Committee has
received this past month has been troubling because of the concerns it
raised about the nominee, but I think it is also fair to say that the
documents have come to the Committee from a variety of sources, and in
a confused manner. This allegedly new material includes not only follow
up information requested by the Committee in order to fulfill its
ongoing duty to the Senate to evaluate the nominee, but also
unsolicited material such as trial transcripts, statistical information
from various entities including the Department of Justice, the
Pennsylvania District Attorneys' Association, the Philadelphia Bar
Association, the Philadelphia Bar Association Special Review Committee,
and other individuals.
The Committee has had no control over the timing, or the manner in
which it received these documents. I would just like to outline the
process by which many of the more significant documents were received:
The January 30, 1998, Report from the Pennsylvania District
Attorney's Association, with attached statistical and case analysis,
which the Committee received the week of February 2, 1998. This was the
first formal submission from District Attorney's Office concerning this
nominee. It was promptly distributed to all Committee members.
A February 12, 1998, Report from the Special Review Committee of the
Philadelphia Bar Association submission of in response to the District
Attorney's document, which was received by the Committee February 13,
1998, was copied and distributed that same day.
The week of March 2, 1998, the Committee received word from Senator
Specter's office that it had received material from Philadelphia
District Attorney's Office. The Committee was unable to have immediate
access to the materials because it was told that the materials were
being analyzed by Senator Specter's staff. Only after the Committee
insisted that it must have access to the material, and distribute it to
the other members, including the Minority, did the Senator's staff
provide access to a portion of the material. The Committee then had the
portion--approximately \2/3\ of the material--copied. Because the
Committee was unable to have access to the remainder of the material
immediately,
[[Page S1972]]
it was forced to wait until several days, and only then was it able to
have the rest of the material copied and distributed to the rest of the
members of the committee.
The March 6, 1998, Pennsylvania District Attorney's Association
submission in response to the Philadelphia Bar Assoc., was received by
senior Committee staff on Monday March 9, 1998, and distributed to
members on Tuesday, March 10, 1998.
On March 9, 1998, Committee received notice from Senator Specter's
office that it had received more case material from Philadelphia
District Attorney's Office. The Committee obtained copies of that
material from Senator Specter's office, made copies and distributed it
to the members. The Committee was later informed that this material was
actually sent to Senator Specter's staff on Friday, March 6. The
Committee as a whole received it some three days later.
A March 10, 1998, Report from Philadelphia Bar Association with
attachments was received on March 10, 1998, and was immediately
distributed to members.
On March 10, 1998, the Committee received a report from Department of
Justice, which was immediately distributed to members.
A Report dated March 11, 1998, from the Pennsylvania District
Attorney's Association was submitted in response to a Philadelphia Bar
Association submission. The material was submitted to senior staff on
March 11, 1998, and distributed to the Committee on March 12, 1998.
On March 12, 1998, copies of twenty new cases submitted by
Philadelphia District Attorney's Office were received by the Committee.
The Committee made arrangements to copy that material the same day, for
distribution early the following day.
In short, the collection of relevant information concerning this
nomination has been trying and ad-hoc. We all share the frustration of
having information presented to us at the last minute. Whether the
information is exculpatory or further damaging, Senators have a right
to be upset. However, it must be emphasized that, at least with respect
to the cases, it is material within the nominee's control. After all,
they are her cases we are discussing--many of which should have been
provided to the Committee by the nominee herself. Indeed, concerned
that Judge Massiah-Jackson had not been given the opportuntity to
review adequately those cases presented during the second hearing, the
final vote on the nomination was moved from last Thursday to this
Tuesday, and the nominee was afforded the chance to respond, in
writing, to any concerns expressed at the hearing. She availed herself
of that opportunity, and provided the Committee with a written response
to some of the allegations raised at the hearing. I find her responses
wanting. In any event, while the process of receiving and distributing
documents has certainly been aggravating at times, I do not think it
has been particularly unfair to this nominee.
I ask unanimous consent to have printed in the Record the letter from
Judge Frederica Massiah-Jackson, dated March 16, 1998, wherein she has
withdrawn her nomination.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
First Judicial District of Pennsylvania, Court of Common
Pleas, Judicial Chambers,
Philadelphia, PA, March 16, 1998.
Hon. William J. Clinton,
President of the United States, Pennsyvlania Avenue,
Washington, DC.
Dear Mr. President. It is with great regret--and personal
sadness--that I write to you today to ask that you withdraw
my nomination as a judge to the U.S. District Court for the
Eastern District of Pennsylvania.
You honored me and my family greatly by selecting me to be
the first African American woman to sit on that court. I had
looked forward to my service there as the next step of my
public service to the city and citizens of Philadelphia, whom
I care about so deeply.
After being found qualified to serve by the Specter-
Santorum Judicial Selection Commission, the Department of
Justice, the FBI, the American Bar Association and the Senate
Judiciary Committee, I have recently been subject to an
unrelenting campaign of vilification and distortion as I
waited for a vote on my nomination by the full Senate.
All of these mischaracterizations occurred when I lacked a
forum or platform from which to respond. Having finally been
accorded a hearing to respond to these charges last week, I
attempted to do so only to have hurled at me additional
``new'' charges. I have now responded to these new charges
and believe the record has been set straight once again--at
least the record to which I have been given full opportunity
to respond.
Today, however, the Senate is set to debate my nomination
for an unprecedented six hours--a process which will not
accord me any role or opportunity to set the record straight
yet one more time. I have been a fighter in what I believe
all my life, but allowing still more and more selective, one-
sided and unsubstantiated charges to go unanswered in this
politicized environment is not acceptable to me after my long
journey.
That journey has only reaffirmed for me the central belief
that our system of justice and the independence of this third
branch of government may be the most precious treasure
bequeathed to us by the Founding Fathers. I hold it dear and
will always try to do my part to ensure that the system works
for all coming before the bar of justice.
Thank you again for standing by me and honoring me with
your nomination, with your trust and with your confidence.
With sincere best wishes,
Very truly yours,
Frederica A. Massiah-Jackson.
Mr. HATCH. Madam President, this is a letter written to the Honorable
William J. Clinton. I am glad to have that in the Record.
Again, I express my sorrow that it had to end this way, and I wish
the very best to Judge Frederica Massiah-Jackson. I hope she will take
this in a way that will be instructive, informative and, hopefully,
helpful to her if she continues to serve on the highest trial court in
the State of Pennsylvania, the Court of Common Pleas. I hope she will
benefit from this experience instead of it being a detriment to her. If
she will treat law enforcement officials fairly, if she will be tough
on crime when it is clearly shown, and if she will be totally honest in
her dealings on that bench, I have great belief that she will yet serve
in many, many good ways the people of Pennsylvania.
I wish her the best. I wish her family the best. And I, again, am
sorry this has turned out this way, but I think it is the way it had to
turn out under the circumstances.
Madam President, I ask unanimous consent to have printed in the
Record the speech that I would have made had this nomination come to
the floor and not been withdrawn. I feel it is incumbent upon me to do
so because of Ms. Jackson's letter.
There being no objection, the statement was ordered to be printed in
the Record, as follows:
Statement of Orrin G. Hatch in the United States Senate on the
Nomination of Judge Frederica Massiah-Jackson, February 10, 1998
Mr. President, I rise today to discuss the record of Judge
Fredrica Massiah-Jackson, President Clinton's nominee to be a
United States District Court Judge for the Eastern District
of Pennsylvania.
Judge Massiah-Jackson, who currently serves as a
Philadelphia Court of Common Pleas judge, was nominated by
President Clinton on July 31, 1997. The Judiciary Committee
initially held a hearing on Judge Massiah-Jackson's
nomination on October 29th of last year. She was reported
favorably out of the Committee on November 6th. I was one of
those voting to report her favorably to the floor. Since the
nominee was reported out of the Judiciary Committee, however,
certain allegations have been made regarding her fitness to
serve as a district court judge. In particular, questions
have arisen regarding the nominee's ability to weigh cases
impartially and to treat police officers and prosecutors
fairly.
Before I turn to those criticisms, however, I would like to
state that I understand the difficulty of Judge Massiah-
Jackson's situation and appreciate her willingness to have
appeared before the Judiciary Committee not just once, but
twice.
I would further add that I am impressed with Judge Massiah-
Jackson's numerous accomplishments. She appears to have a
lovely family and has plainly demonstrated a commitment to
the legal profession. For those accomplishments, I commend
her. Her family should be proud of her.
Nevertheless, it is important to remember that fitness for
the federal bench is measured not solely by one's hard work,
or even by her facility with the law. After all, federal
judges are nominated by the President and confirmed by the
Senate for what amounts to life terms. They wield enormous
power in our society, power that must
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be exercised fairly and impartially. The judicial role
demands that a judge be willing to uphold the Constitution
and abide by the rule of law. When an individual dons the
judicial robes and ascends the dais to assume her seat on a
federal court, she takes an oath to be impartial and to treat
all individuals--regardless of social status--fairly.
As a consequence, no one has a right to Senate confirmation
any more than she has the right to be nominated by the
President. An important part of the Senate's responsibility
is to advise the President with respect to his choice in
nominees and ultimately to consent to their appointment. This
is a function I take seriously. In fact, I believe that every
member of this body takes his vote to confirm federal judges
seriously. And it is with this measure of seriousness and
deliberation that I approach the vote to confirm Judge
Massiah-Jackson.
With that, I would like to address what I believe to be the
three issues with which I have significant concerns regarding
the nominee's record. First, I will discuss concerns about
her candor with the Committee. Second, I will address
allegations that she is particularly lenient in sentencing
convicted criminals. And finally, I would like to speak to
her animus towards prosecutors and police officers.
Candor: First, I would like to explore the nominee's candor
before the Committee. During the Judiciary Committee's
background investigation of Judge Massiah-Jackson, we called
her attention to an article in the Philadelphia Dailey News.
In that article, it was reported that the nominee identified
two undercover officers in open court and warned the
spectators to watch out for them. The article generated
considerable interest because the nominee had acquitted a man
accused of possessing $400,000 worth of cocaine because she
did not believe the testimony of the police officers. It was
the second time Judge Massiah-Jackson had acquitted alleged
drug dealers apprehended by the same officers.
In the earlier case, the undercover officers had testified
that they found two bundles of heroin on a table next to the
defendant. Judge Massiah-Jackson not only disbelieved the
testifying officer's statement, but she went one step
further. As the officers were leaving the courtroom, it was
reported that the judge told the assembled spectators to
``take a good look at these guys [the undercover officers]
and be careful out there.'' [Philadelphia Dailey News (May
21, 1988)].
Committee staff asked the nominee whether the circumstances
described in that article were true. The nominee told staff
that she simply did not recall the incident. Thereafter, she
was faxed a copy of the article and asked to provide the
Committee with a letter commenting on the article's
allegations. Although the Committee received the nominee's
letter, she utterly failed to address the incident with the
undercover police officers. At that time, at least, she did
not repeat her claim that she could not recall the incident.
Instead, she avoided discussing the incident altogether.
At the nominee's initial confirmation hearing, she was
again directly questioned about this incident. Instead of
answering the question directly, she indicated merely that
she respected the role of law enforcement officers. She
neither claimed that she could not recall the incident, nor,
as she did most recently, state that she was actually
admonishing school children in the audience to be respectful
of police officers.
Shortly after the hearing, the Committee again gave the
nominee the opportunity to respond to the allegations made in
the news article. In response to a written question, the
nominee changed her earlier claim that she could not recall
the incident. Instead, the nominee categorically denied ever
having warned spectators to beware of the undercover
officers. She stated--in writing--that:
``I have read the 1988 article and it is inaccurate. I
would not and did not make any such statement to the
spectators. I have great respect for law enforcement officers
who have very difficult jobs and work in dangerous
situations.'' [Follow-up questions p. 17].
Now, given the fact that the undercover officers had not
previously come forward, I was unwilling to credit an
uncorroborated newspaper story over the nominee's direct
testimony. I did not believe it fair to derail a nomination
on the basis of a single, uncorroborated newspaper account.
Following her initial hearing, however, the undercover
officers discussed in the article came forward and provided
written statements to the Committee refuting her
representations and corroborating the newspaper article.
Detective Sergeant Daniel Rodriguez, who actually testified
before Judge Massiah-Jackson, confirmed that the nominee said
to courtroom spectators: ``take a good look at these guys,
and be careful out there.'' Rodriguez further explained that
``What the judge said jeopardized our ability to make buys.
And it put us in physical danger.'' Detective Terence Jones,
who also submitted a statement to the Committee, corroborated
Rodriguez's statement.
Judge Massiah-Jackson, in her subsequent hearing, retreated
from her earlier denial that the event ever occurred and
instead claimed that in ``reconstructing the incident,'' she
now believes she was just talking to school children present
in the courtroom and that the officers most likely
misunderstood her comment. She further argued that she often
talked in such a manner to visiting students, hoping that
they would respect and acknowledge police officers.
Regardless of whether the officers should have felt
concerned about their safety, I am troubled by two things:
First, that the nominee denied that the event had ever
occurred. If she had not remembered the event, she should
have simply said that. I am concerned that, when it appeared
to suit her, the nominee denied ever having made such a
statement.
Second, I question her most recent assertion that she often
lectured school children visiting her court room. In fact,
Detective Rodriguez was to have appeared before Judge
Massiah-Jackson in a subsequent narcotics in case. In that
later case, the officer explained to the Assistant District
Attorney that Judge Massiah-Jackson had recently placed him
in danger by identifying him before a crowded courtroom. He
further noted that she had also identified his partner, who
was also in plain clothes and had not testified in the case.
The Assistant DA was sufficiently concerned by Judge Massiah-
Jackson's behavior that she sought to have the nominee
recused. Although the nominee denied the Assistant DA's
recusal motion, she admitted, on the record that she does
tell criminal defendants to get a good look at undercover
police officers. Her exact quote was: ``I do say that to
certain defendants.'' [Commonwealth v. Ruiz, p. 4]. In other
words, the nominee did not claim then, as she does now, that
she routinely talked to school children in this fashion.
Rather, she explained on the record that she often told
``certain defendants'' to watch out for undercover police
officers.
The Newspaper article appears consistent with the officers'
understanding of the events that transpired in the nominee's
courtroom and with the nominee's statement in the record.
Indeed, the newspaper reported that the DA's office was so
``concerned by some of the decisions made by the judge in
drug cases'' that it decided to ``begin reviewing drug cases
that come before Massiah-Jackson and decide, on a case by
case basis, whether to ask her to disqualify herself'' on the
ground of her inability to preside fairly. [Judge Overrules
Cops, Clears Suspect, Philadelphia Dailey News (May 21,
1988)]. I thus find the nominee's explanation for her
statements wanting. I doubt very much the DA's office was
sufficiently concerned to urge the nominee to recuse herself
in drug cases if all she was attempting to do was to connect
with school children.
Unfortunately, this is not the only incident with which I
am convinced that the nominee did not provide the Committee
with complete information. As a routine matter, well before a
hearing is scheduled, judicial nominees who are presently
sitting judges are asked to provide the Committee with a list
of all of the cases in which they have been reversed. Judge
Massiah-Jackson, in response to that question, provided the
Committee with a list of 14 cases in which she had been
reversed. None of the cases she identified involved a
sentencing issue.
At her hearing, concerned about her alleged leniency in
sentencing, Judge Massiah-Jackson was expressly asked whether
she had ever been reversed on a sentencing issue. She said
no. I took her answer at face value.
After the hearing, the Committee again, in writing, whether
there were any other cases in which the nominee had been
reversed. In response, the nominee identified an additional
reversal which, due to her oversight, she had failed to
include in her original submission. Once again, however, the
newly discovered reversal did not involve a sentencing issue.
Although the nominee brought no new reversals to the
Committee's attention, the Committee was subsequently
apprised of at least five additional cases in which the
nominee was reversed. Now, it is certainly possible that a
nominee could overlook a
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case or two. What is troubling to me, however, is that among
those additional reversals brought to the Committee's
attention were at least two reversals on sentencing issues,
one of which, Commonwealth v. Easterling, was a reported
case. The other, Commonwealth v. Williams, presents a
particularly troubling picture. There, the defendant, in
attempting to take the victim's purse, viciously slashed the
victim with a straight razor. He pleaded guilty to robbery
and possession of an instrument of a crime. At sentencing,
however, the nominee not only miscalculated, to the
defendant's favor, the offense gravity score used to
determine the sentence, but also refused to apply the deadly
weapon enhancement provision of the Sentencing Guidelines.
When the prosecutor tried to bring the nominee's error to her
attention, she evidently accused him of being ``vindictive.''
On appeal, the Superior Court found that she used the wrong
offense gravity score and erred in not applying the deadly
weapon enhancement.
Now, I understand that the nominee has presided over a good
many trials, perhaps even thousands. But the nominee herself
testified that she thought her decisions had been appealed
only about 89 times, which is not unusual. The vast majority
of the cases that come before a judge sitting on the Court of
Common Pleas are not the sort that result in an appeal.
Ordinarily, they are cases that result in guilty pleas or
settlements. So when we talk about appeals, we are not
talking about an overwhelming number of cases.
However, when asked specifically to provide the Committee
with each case in which she was reversed, the nominee failed
to inform the Committee of at least two sentencing cases--one
of which was publicly reported--in which she was reversed for
imposing too lenient a sentence. Her failure to report these
cases is particularly troubling in light of the fact that she
was asked on three separate occasions to report her reversals
and, in her testimony before the Committee, specifically
denied that she had ever been reversed on a sentencing issue.
Leniency: In addition to these reversals for illegal
sentences, I would like to provide you with an example of why
I am so concerned about Judge Massiah-Jackson's ability to
weigh the facts fairly and her leniency in sentencing. Before
I speak to those concerns, however, I would like to say a
word about the claim that the nominee is in reality a tough
sentencer. I have been quite interested in the statistical
data presented in this case by both the Pennsylvania Bar
Association and the Pennsylvania District Attorney's
Association. Statistical duels must always be carefully
scrutinized. Nevertheless, provided they are used correctly,
statistics can be very revealing. I've taken a look at the
Philadelphia Bar Association's assertion that Judge Massiah-
Jackson's conviction rate is actually higher than that of the
average Philadelphia Court of Common Pleas judge. I am
unpersuaded.
The Bar Association's assertion is based on a basic error
in statistical analysis. The Bar Association took the
nominee's bench trial convictions as a percentage of her
overall dispositions. It found that, on average for the years
1984 through 1991, her conviction rate was 24%. In contrast,
it found the average conviction rate for Philadelphia Court
of Common Pleas judges during that period to be only 18%.
Under the Bar Association's analysis, Judge Massiah-Jackson
seems very tough on criminals. The Bar Association has made a
fundamental error, however.
Overall dispositions include guilty pleas, jury trials,
bench trials, transfers, decisions not to prosecute and a
variety of other things. The category is a real mix. That
wouldn't present a problem if all judges had about the same
ratio of bench trials to overall dispositions. But they
don't. It was therefore an error to calculate bench trial
convictions as a percentage of overall dispositions.
The bottom line is that Judge Massiah-Jackson has a high
bench trial conviction rate, because she has had a lot of
bench trials, not because she is tough on crime. For the same
reason, her bench trial acquittal rate is far above average
too.
The proper thing to do in Judge Massiah-Jackson's case is
to compare bench trials to bench trials. A disposition as a
result of a bench trial, where no jury was involved, is
likely a more accurate measure of an individual judge's
leniency. When you do that, the picture completely changes.
During the relevant period, 64.6% of Judge Massiah-Jackson's
bench trials resulted in convictions, while 70.1% of
Philadelphia Court of Common Pleas bench trials did so. In
other words, the average Philadelphia Court of Common Pleas
judge convicts more often and acquits less often than Judge
Massiah-Jackson. If you look at bench trials only, you'll see
that her acquittal rate is really 18.4% higher than the
average acquittal rate for the Philadelphia Court of Common
Pleas. Her conviction rate is correspondingly lower.
As a consequence, when scrutinized carefully, the
statistics show that Judge Massiah-Jackson is less inclined
than other judges on her court to convict after a bench
trial and more inclined to acquit. In reality, then, the
nominee is significantly more lenient than other
Philadelphia judges in her treatment of criminal
defendants.
Regardless of the statistical claims that are made, I think
it is important to note the bi-partisan opposition that the
nominee has engendered among law enforcement personnel. I
think the people who work in the trenches--the prosecutors
and the police officers--have a better handle on this than we
can ever hope to have.
In particular, a few cases serve well to illustrate this
point. I certainly do not have time to cover all the cases in
which the nominee is alleged to have been lenient in
sentencing, but I would like to offer a few examples that I
think illuminate her overall record.
At the outset, I would note the frustrations of using
individual cases to characterize a nominee's record. It is
always difficult to accurately consider a nominee's overall
fitness for office when we are forced to rely on individual
cases. Nevertheless, when a nominee has been a judge for as
long as this nominee has, decided cases are important
indicators of how the nominee is likely to perform on the
federal bench. After a fairly exhaustive review of this
nominee's record when she sat on the criminal bench, I do not
believe that the case sampling we have analyzed distorts her
record. In fact, the 50 troublesome cases originally
identified by the District Attorneys' Association occurred
during a one year period in which the nominee rendered only
some 200 verdicts. Similarly, in a two-year period wherein
the nominee heard a total of 66 aggravated assault bench
trials, it was discovered that she convicted as charged only
15 times. She acquitted in 37 cases and found the defendant
not guilty of the more serious charge in 14 cases. Thus, I
think the several cases I will highlight today serve to
represent the nominee's overall leniency towards criminals
and her animosity towards law enforcement.
In Commonwealth v. Johnson, for example, the defendant
brutally raped a ten year old girl. Following a jury trial,
the defendant was convicted of rape. Because the victim was
only ten years old, a mandatory minimum sentence of five
years applied. The nominee, however, had the discretion to
impose a minimum term of ten years. The prosecutor, planning
to argue in favor of a higher sentence, asked Judge Massiah-
Jackson to order a presentence report and victim impact
statement. The nominee refused, however, stating ``What would
be the point of that?'' [Tr. 631-32]. She subsequently
sentenced the defendant to the mandatory minimum--only five
to ten years for raping a ten year old girl. The nominee
stated on the record that she would not have imposed the
sentence if it were not mandatory ``because I just don't
think the five to ten years is appropriate in this case even
assuming you were found guilty.'' [Tr. 9]. Perhaps the
saddest part of this story is that it did not end with Judge
Massiah-Jackson's exceptionally lenient sentence.
Unfortunately, this defendant was arrested only last year for
allegedly raping a nine year old boy.
Similarly, in Commonwealth v. Freeman, the nominee again
demonstrated inappropriate leniency in sentencing. In that
case, the defendant shot and wounded the victim in the chest,
allegedly because the victim had laughed at him. Incredibly,
the nominee convicted the defendant of a misdemeanor instead
of felony aggravated assault. She sentenced the defendant to
only two to twenty-three months' imprisonment and then
immediately paroled him so that he did not have to serve
prison time. The felony charge would have had a mandatory
five to ten year prison term. Judge Massiah-Jackson explained
her decision stating that ``the victim had been drinking
before being shot and that [the defendant] had not been
involved in any other crime since the incident.'' How the
unarmed victim's drunkenness could have possibly mitigated
the defendant's sentence is beyond me.
Finally, I would like briefly to address the nominee's
alleged bias against the state, and how that particularly
affects crime victims. In Commonwealth v. Hicks [549 A. 2d
1339 (Pa. Sup. Ct. 1987)], for example, the defendant was
charged with robbery, theft, and aggravated assault, among
other things. At trial, the defense motioned for a
continuance because one of its witnesses, a police officer,
was not present. Defense counsel had asked the DA two days
prior to subpoena the officer as a favor. The DA subpoenaed
the officer, but he did not receive it. Judge Massiah-Jackson
did not believe that the DA had subpoenaed the officer. She
then recharacterized the officer as a State witness and
demanded the State drop the case. When the State refused to
do so, explaining that it was prepared to go to trial and
that the officer was not its witness, Judge Massiah-Jackson
dismissed the case purportedly because the State failed to
subpoena a defense witness. She then inaccurately entered in
the court record that the state was not ready to go to trial.
The appeals court reversed the decision stating it was
``unable to determine the basis for the trial court's
decision,'' and that the trial court ``was unable to justify
its decision by citation to rule or law.''
[[Page S1975]]
Her animus against police officers is similarly evident in
Commonwealth v. Nesmith, [Opinion No. 2954 (June 26, 1995),
aff'd, (Pa. Super. Ct. 1996)], where the defendant, while
speeding in his car, hit a woman, stopped to observe that she
was lying injured in the street, and then left the scene.
As the defendant fled the scene, one of the victim's
relatives chased after him. After driving several blocks, the
defendant stopped his car and attempted to flee on foot when
the victim's relative confronted him. As the two men began to
fight, the defendant's relatives jumped in the fight and beat
the victim's relative unmercifully with fists and bottles.
The victim's relative, whose head was split open, was taken
to the hospital for his injuries.
The hit and run occurred shortly after the defendant had
been released from prison on parole for an unrelated assault.
In that case, the victim sustained severe injuries, including
broken legs, back and pelvis. After a bench trial, Judge
Massiah-Jackson convicted the defendant of aggravated
assault, simple assault, reckless endangerment, criminal
conspiracy, and leaving the scene of an accident. She advised
the defendant that if he paid $3700 in restitution to the
victims, the Court would find the restitution a ``mitigating
factor'' at sentencing, even though the sentencing guidelines
called for ``a lengthy period of incarceration.'' (R. at 139-
140a). The State objected to any leniency at sentencing, but
Judge Massiah-Jackson, all but ignoring the victim's
injuries, responded, ``The only behavior here is this is a
traffic accident case.'' (R. at 143a).
Despite the fact that the defendant had numerous prior
convictions, including 8 adult convictions, and that the
recommended guideline sentencing range was 38-54 months, the
nominee sentenced the defendant to only two years probation
for the aggravated assault. In justifying her excessive
departure from the guideline range, the nominee cited the
defendant's cooperation in making restitution over a three
year period and the fact that the defendant was not a danger
to the public. She claimed that the defendant's actions were
``not really criminal. He had merely been involved in a car
accident.'' She further opined that the defendant's prior
arrests might have been due to police officers like Officer
Houck [Huck] who unlawfully stopped the defendant. (R. at
216-220a).
It took the defendant three years to pay the restitution
amount of $3,700. During this period, the defendant alleged
to the Court that the arresting officer in his case, Officer
Houck, had been ``harassing'' him and had stopped him on
several occasions. Judge Massiah-Jackson was extremely
concerned and asked if there was anything she could do for
the defendant. She even offered to ``write a letter to the
commander of the 39th District.'' (R. at 161a). In contrast,
the DA had no knowledge of any harassment and reminded the
judge that she had not even heard from the police officer.
Judge Massiah-Jackson asked the DA to speak with the officer
to find out what had happened.
Without corroborating the allegations, the judge then
directed her attention back to the convicted defendant, again
expressing concern for his plight and distrust for law
enforcement saying the following: ``It won't be Houck next
time, it will be someone else and they'll say, `Oh, I didn't
know anything about it.' And we'll find you on the streets
somewhere and that's what will happen. That's what will
happen.'' (R. at 162a). Judge Massiah-Jackson told the
defendant he did not have to explain anything to her because
she knew ``what's going on'' and understood it ``very well.''
(R. at 166a).
At the next court appearance, the DA subpoenaed Officer
Houck to explain the so-called harassing incidents to the
Court. The officer explained that he had indeed stopped the
defendant because the defendant was driving recklessly
without a license. (R. at 174a). But the nominee refused to
believe the officer. Judge Massiah-Jackson instead found the
defendant's uncorroborated story to be credible, and warned
Officer Houck that: ``[i]f any harm comes to Mr. Nesmith or
his family or his friends, then the commissioner will be sent
a copy of this transcript and I'll volunteer to be a fact
witness against you.'' (R. at 187a) (Emphasis added).
This statement is outrageous. The nominee appears to be
suggesting that the officer might at some point harm the
defendant or his family. Judge Massiah-Jackson then
admonished the DA stating the DA would be an ``accomplice in
whatever may or may not happen to Mr. Nesmith'' because the
DA had subpoenaed Officer Houck. When the DA reminded the
Court that she subpoenaed Officer Houck only because the
Court had asked her to do so, Judge Massiah-Jackson said
nothing.
At her second hearing, the nominee inexplicably said she
volunteered to be a ``fact witness'' for the defendant
because she could not be a character witness. She failed to
explain her refusal to credit the officer's account over that
of an oft-convicted defendant.
Finally, in a case that demonstrates troubling disregard
for a crime victim, as well as the State, in Commonwealth v.
Lafferty, Nos. 3883-3888 (Feb. Term 1988), the nominee was
notified prior to trial that the defendant and victim in a
rape case may have had AIDS. Judge Massiah-Jackson responded
``Why are we having a trial? We are talking about life
expectancy of three years for both of them. What difference?
What kind of punishment can we give [the defendant]? * * *
What's the purpose of the trial long range?'' (R. 3-4). When
the State suggested that it may as well tell everyone who is
HIV positive that they can do whatever they want because they
will not be prosecuted, Judge Massiah-Jackson responded,
``It's just a thought.''
Based on the Court's extended diatribe on why AIDS
defendants cost the State too much money, the State motioned
for the judge to recuse herself. (R. at 13). Judge Massiah-
Jackson denied the motion stating the DA had not articulated
any specific reason warranting recusal and initially denied
that the State had a right to appeal the recusal. (R. at 16).
Although the prosecution pleaded with the court to allow it
to try the case before another judge that same day to avoid
the lengthy delay of an appeal, Judge Massiah-Jackson refused
to allow another judge to hear the case and forced the State
to appeal her denial of recusal. (R. at 34). She then reduced
the defendant's bail to assure his immediate release pending
appeal.
The victim died while the appeal was pending. The appeal
was withdrawn and it went to trial before Judge Massiah-
Jackson. Despite the Commonwealth's evidence which include:
(1) the deceased victim's prior testimony that the
defendant had broken into her house, awakened her, raped her,
and beat her when she tried to escape;
(2) the victim's taped 911 call to police reporting the
rape;
(3) police photographs of the victim's injuries after the
rape; and
(4) the emergency room medical report.
Judge Massiah-Jackson found the defendant not guilty of
rape, not guilty of involuntary deviate sexual intercourse,
and not guilty of aggravated assault. She convicted him only
of simple assault and sentenced him to 1 year probation.
Although the victim is no longer with us, the defendant is
still alive today.
Conclusion: I believe these cases represent a troubling
pattern of undue leniency towards criminal defendants and
hostility towards the state. The Pennsylvania District
Attorney's Association presented the Committee with over 70
separate cases detailing the nominee's troubling record. In a
submission to the Judiciary Committee, the Pennsylvania Bar
Association noted that the nominee presided over ``confused
and tragic cases.'' Indeed, it was pointed out during our
Committee hearings that North Philadelphia, where the nominee
sits, is, sadly, plagued by crime, drugs, and the terrible
human toll those tragic social ills take. Yet it is those
citizens laboring in the shadow of rampant crime who would
benefit most when our laws are applied and criminal conduct
is appropriately dealt with.
I am disappointed to say that information that has emerged
since the Judiciary Committee held its initial hearing on
this nominee strongly suggests to me that she was somewhat
less than candid with the Committee, is lenient in sentencing
convicted offenders, and has demonstrated a certain degree of
unfairness with respect to the police officers and
prosecutors. Indeed, since the Committee's vote, it has been
virtually deluged with letters from prosecutors and law
enforcement agencies in Pennsylvania that document a
disturbing pattern of open hostility toward the law
enforcement community. These condemnations have been bi-
partisan and overwhelming. In fact, I have never seen such
widespread opposition to a nominee from the law enforcement
community.
To date we have received letters from the Attorney General
of Pennsylvania, the Philadelphia and the National Fraternal
Orders of Police, the National Association of Police
Organizations, the Law Enforcement Alliance of America, the
Pennsylvania District Attorneys Association, and letters by
numerous District Attorneys around the state including one
from Lynn Abraham, District Attorney for Philadelphia. Each
of these letters expresses opposition to this nominee's
appointment because of her record of hostility to
prosecutors, law enforcement and victims of crime. The
Fraternal Order of Police, in an open letter to President
Clinton and the Judiciary Committee declared that: ``Judge
Massiah-Jackson consistently parades her anti-police bias by
using her power and authority as a judge to belittle, harass,
and threaten law enforcement officers who appear in her
court. Her contempt for prosecutors appearing before her is
so rancorous that a broad grassroots effort has been led by
members of her own political party to oppose her elevation to
the federal judiciary.'' I cannot turn a blind eye to such
allegations.
Some of the nominee's supporters have asserted that law
enforcement has attempted to distort her record. But it seems
to me that the most expedient path here was for law
enforcement to speak out in support of the nominee. They are
the ones who will have to continue to appear before Judge
Massiah-Jackson if her nomination is defeated. Thus, they
have a great deal to lose in this process. Recognizing the
political risks law enforcement had to take to oppose this
nominee, I commend them for their willingness to come forward
and do what they believed to be the right thing.
While her candidacy was in Committee, I resolved my serious
misgivings about Judge Massiah-Jackson's nomination in her
favor. My decision in Committee, however, was based largely
on the representations made by the nominee, both in answer to
the written questions and at her initial hearing. In my
opinion, these recent developments call the nominee's
statements before the Committee into serious question and
oblige me to change my vote. After having heard the
[[Page S1976]]
nominee's testimony last week and having reviewed and
considered the information that has been provided to the
Committee by law enforcement officials about her conduct on
the bench, her alleged bias against law enforcement, her
flawed judicial rulings, and, above all, her apparent lack of
candor with the Committee, I cannot in good conscience
continue to give her the benefit of the doubt. I have the
highest personal regard for Senator Specter, who has ably
promoted her candidacy, but I now do not believe that Judge
Massiah-Jackson should be confirmed to a position on the
federal bench. I take no pleasure in voting against this
nominee. She has obviously accomplished much in her life.
Nevertheless, the Constitution obligates me to evaluate this
nominee with an eye toward determining whether she will
uphold the Constitution and whether she will abide by the
judicial oath to ``administer justice without respect to
persons . . . And impartially discharge all the duties
incumbent [upon a federal judge].'' I am not now convinced
that she can abide by that oath and thus I feel obligated to
cast my vote against her.
Mr. HATCH. I yield the floor.
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Madam President, I thank the distinguished Senator from
Utah, the chairman of the Senate Judiciary Committee, for his
leadership in this matter and in so many other matters. He is an
outstanding legal scholar, an outstanding lawyer, a man of integrity,
ability, and fairness who works extraordinarily hard to make sure
everyone who comes before the committee has a thorough opportunity to
express themselves and to defend themselves, and that others who have
information to share are allowed to do so.
I think it was an extraordinary event that he allowed a second
hearing to be held for the Massiah-Jackson nomination. That was a very
fair thing to do. I agree with the distinguished chairman that it is a
good idea and a good thing that this nomination has been withdrawn.
Ms. Frederica Massiah-Jackson has a number of problems with her
nomination. I would just like to make a few points about the process
and about her nomination.
District Attorney Lynne Abraham, a Democrat in Philadelphia, who has
served a number of years, and has also served on the judicial bench in
Pennsylvania with Judge Massiah-Jackson, wrote us a letter saying that
she had not opposed or commented on nominees of any kind before, but
she wrote a letter stating she felt that she should do so on this
occasion.
Among other things, she said:
This nominee's judicial service is replete with instances
of demonstrated leniency toward criminals, an adversarial
attitude toward police and disrespect toward prosecutors
unmatched by any other present or former jurist with whom I
am familiar.
That was a letter written reluctantly and in sadness, but a letter I
think she felt she had to share with us. Her opinion was shared by the
District Attorneys Association in Pennsylvania, the Fraternal Order of
Police, and the National Fraternal Order of Police.
We were also presented a list of 50 cases in which we were given
detailed statements of sentences and judicial rulings by this judge,
prepared by district attorneys who had no obligation to do that but did
so because they were concerned about it. Those cases have been around
here for well over a month and have never really been effectively
rebutted. So I think to say the newly uncovered twenty cases were
somehow critical in this matter is not really accurate. I think the new
cases were additional troublesome matters, but the whole list of cases
previously submitted were quite troubling also.
Just briefly, Madam President, while I am relieved that this
nomination has been withdrawn, I think it shows fully why the Senate
should carefully and thoroughly examine judicial nominees.
Specifically, I thank Senator John Ashcroft, who is here today, and
Senator Strom Thurmond for placing a temporary hold on this nomination
after it was voted out of the Judiciary Committee by a 12-to-6 vote
last fall.
At that time, this nomination was moving toward confirmation last
fall. It is a classic example of why the Judiciary Committee and the
Senate as a whole should deliberately screen judicial nominees.
President Clinton has suggested that the Senate should speed up
confirmation of Federal judges. With all due respect, the Massiah-
Jackson nomination demonstrates why the Senate should confirm Federal
judges at a fair but careful pace.
Judge Massiah-Jackson's nomination was reported out of the Judiciary
Committee with approximately a dozen other judicial nominees at the end
of last year. There was an effort to confirm these judges quickly
before the year ended. Without Senator Ashcroft's and Senator
Thurmond's temporary holds, this nominee would have been confirmed, I
have no doubt. If this had happened, it would have been unfortunate,
because many of Judge Jackson's unacceptable decisions had not yet been
uncovered.
In addition, as of last fall, the above-mentioned law enforcement
organizations had not studied this nominee's record in detail. In fact,
when Judge Massiah-Jackson's nomination was reported out of committee,
none of these groups formally opposed the nomination. In fact, Senator
Specter held a hearing in Pennsylvania to allow people to state
objections. He gave them an opportunity to do so, but none came forth
at that time. Without Senator Ashcroft's and Senator Thurmond's hold,
this nominee would have been confirmed, in all probability, before her
record had been adequately examined.
A Federal judgeship is a lifetime appointment. The confirmation
process is the only chance to review a judicial nominee's
qualifications. The confirmation process is literally the point of no
return. Unlike State judges, Federal judges cannot be recalled or voted
from office. This is why it is so vitally important for the Senate to
carefully fulfill its constitutional duty to advise and consent to the
President's nominees. Judge Learned Hand, referring to the lack of
control over federal judges, once said, ``They can't fired us. They
can't even dock our pay.''
A Federal judge has extraordinary power. Many of those powers involve
decisionmaking authority that is absolutely unreviewable on appeal. For
example, if a judge, at the conclusion of a prosecutor's case,
dismisses the case and grants a judgment of acquittal to a defendant,
that is the same as a jury verdict of acquittal, and the Government
cannot appeal. Such directed verdicts simply cannot be appealed. So I
think it is important that this process be allowed to work, and it did
work. I believe that Judge Massiah-Jackson will have the opportunity as
a State judge to demonstrate her abilities and skills there, to
continue to serve the people of Pennsylvania.
I was impressed with her demeanor and courtesy and the way she
handled herself at her hearing, but I do feel like the just conclusion
was reached.
Madam President, that is the conclusion of my remarks. I yield the
floor.
Mr. ASHCROFT addressed the Chair.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. ASHCROFT. May I inquire as to the state of the proceedings.
The PRESIDING OFFICER. We are in a period for morning business, with
statements limited to 10 minutes.
Mr. ASHCROFT. I ask unanimous consent that I be able to speak for up
to 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ASHCROFT. Thank you.
____________________