[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1977-S1980]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                NOMINATION OF FREDERICA MASSIAH-JACKSON

  Mr. ASHCROFT. Madam President, I want to take just a few minutes to 
speak about the nomination of Frederica Massiah-Jackson to be a U.S. 
district judge for the Eastern District of Pennsylvania, a nomination 
that was withdrawn earlier today. I think this is the right move at the 
wrong time. It should have been clear to the administration over a 
month ago when we debated this nomination on the floor that this 
individual was not fit to serve as a Federal judge appointed for life.
  At that time, I called for the President to withdraw the nomination. 
And I am glad that he has finally seen fit to do so, or that the 
administration finally saw fit to follow that course, although the 
letter is really a withdrawal request from the nominee herself. I 
remain troubled that this individual was nominated for a lifetime 
appointment in the first place, and, once nominated, did not withdraw 
sooner.
  One enduring lesson of this nomination is that it is critical for the 
Senate to take its constitutional advice and consent role seriously. We 
have heard much in recent weeks about the so-called ``vacancy crisis'' 
in the Federal courts and that the Senate needs to speed up its 
processes to give judicial nominees a quick up-or-down vote. Today's 
action by the administration agreeing to withdraw this nomination 
demonstrates the danger of worrying more about filling the courts than 
fulfilling our constitutional obligation to screen judicial nominees.
  Last November, this nomination was on the verge of confirmation. At 
the end of the last session, there was a tremendous effort to rush a 
number of nominations, including this one, through the Senate along 
with others in a series of confirmations at the close of business. I 
resisted those efforts because I felt this nomination had serious 
defects that demanded complete examination in the light of day. Once 
this nominee's record was examined in the open, it became clear--
including clear, I think, ultimately to the President--that this 
nominee was not fit. I also resisted those efforts because law 
enforcement officials in Philadelphia informed me that they were 
gathering additional information concerning the nominee. In the light 
of these concerns, I placed a hold on this nomination, and I refused to 
lift it despite the insistence of several.
  Some would point to this as an unnecessary delay that has contributed 
to the so-called ``vacancy crisis.'' But we would be creating an actual 
crisis, not solving an imagined one, by giving individuals confirmation 
when they do not deserve it. We would have been creating, in my 
judgment, a crisis by confirming Judge Frederica Massiah-Jackson with a 
lifetime appointment.
  The Senate has a constitutional obligation to give its advice to the 
President with respect to judicial nominees and, in a case like this, 
to withhold our consent. I take this responsibility seriously, and we 
must all take this responsibility seriously, in the light of the 
nominees the President has sent to the Senate.
  This nominee demonstrates the caliber of nominee the President has 
sent to the Senate. Notwithstanding his elaborate vetting process and 
the ABA screening, this is the nominee whom President Clinton chooses 
for a lifetime appointment. One has to wonder about any vetting process 
that raises no objections to a nominee like this one. And one has to 
wonder what kind of evaluation process the American Bar Association 
conducts that it deems Massiah-Jackson ``qualified.''
  But the truth of the matter is this: The Constitution does not give 
the Justice Department, nor does it give the

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White House Counsel's Office nor the ABA, a formal screening role in 
judicial nominations. The Constitution entrusts that to the U.S. 
Senate. It is an important responsibility. And we would not be taking 
our constitutional responsibilities seriously if we did not scrutinize 
nominees, as we have done in this case ultimately.
  The Senate Judiciary Committee has now had its second hearing, and in 
my judgment, that hearing shed little additional light on this 
nomination. The hearing did make it clear that Judge Massiah-Jackson 
was less than forthcoming in her first hearing. It is now clear--as it 
was last month--that her claim that she had never been reversed in a 
sentencing appeal is false. It also was evident that she had failed to 
apprise the committee of other cases in which she had been reversed on 
appeal.
  Indeed, a number of new cases were raised at the hearing that make it 
even more obvious that this nomination should be rejected. Case in 
which child rapists were given light sentences, or where Judge Massiah-
Jackson wondered aloud from the bench whether the Commonwealth should 
have been wasting time and prison space on a defendant who had AIDS.
  But, in general, the nominee's inability to remember key details of 
cases that had been raised publicly over a month ago--let alone the new 
cases raised at the hearing--rendered the hearing pointless.
  Judge Massiah-Jackson failed, in my view, to provide compelling 
answers to the questions raised about her record. As a consequence, it 
is clearly time for the Senate to stand up and be counted and reject 
this nomination.
  Nomination fights are not pleasant, but there is a principle worth 
fighting for here: America deserves better than this.
  This nominee is so far below the minimum quality we should expect 
from a Federal judge it is tragic.
  The local law enforcement community is horrified that they are about 
to be saddled with this judge for life. They are concerned that many in 
Washington seem to be willing to rubber-stamp nominees, no matter how 
unqualified.
  The thrust of the objections of local law enforcement officials--and 
the basis of my own opposition--are fourfold. This nominee: has shown 
disrespect for the court by using the English language's most offensive 
profanity in open court; has recklessly risked the lives of undercover 
police officers by disclosing their identity; demonstrated hostility to 
prosecutors by suppressing evidence and dismissing charges against 
criminals; and shown leniency to criminals in sentencing violent 
criminals to probation-only, and using lesser-included offenses to 
avoid mandatory minimum sentences.
  Philadelphia District Attorney Lynne Abraham, Democrat, at great 
political cost, came out against the nomination in a letter to Senator 
Arlen Specter on January 8. Her letter captures the nature of the local 
law enforcement community's concern. She wrote:

       This nominee's judicial service is replete with instances 
     of demonstrated leniency towards criminals, an adversarial 
     attitude towards police and disrespect toward prosecutors 
     unmatched by any other present or former jurist with whom I 
     am familiar.

  The Senate cannot confirm this nominee in the face of the strong 
opposition of local law enforcement community. To do so would be the 
height of arrogance and another example of the ``Washington knows 
best'' mentality.
  The American people deserve a better caliber of nominee. This 
nomination sends the wrong message to criminals, to law enforcement and 
to victims of crime. The Senate should vote to reject the nominee now.


              Contempt for Prosecutors and Police Officers

  Example One--Commonwealth v. Ruiz.
  In this case, Judge Massiah-Jackson acquitted a man accused of 
possessing $400,000 worth of cocaine because she did not believe 
testimony of two undercover police officers, Detective-Sergeant Daniel 
Rodriguez and Detective Terrance Jones. It was the second time she had 
acquitted alleged drug dealers nabbed by the same officers. The first 
time, the two undercover officers had testified that they found two 
bundles of heroin on a table right next to the defendant's hand. The 
judge not only refused to believe this testimony, she went one step 
further. As the officers were leaving the courtroom, the judge 
reportedly told spectators in the court: ``take a good look at these 
guys [the undercover officers] and be careful out there.''
  Detective-Sergeant Daniel Rodriguez confirmed this outrageous 
courtroom incident in a signed letter to the Senate. The detective-
sergeant had the following comments regarding this incident:

       I thought, ``I hope I don't ever have to make buys from 
     anyone in this courtroom.'' They would know me, but I 
     wouldn't know them. What the judge said jeopardized our 
     ability to make buys. And it put us in physical danger.

  Detective Terrance Jones, the other undercover officer ``outed'' by 
Judge Massiah-Jackson in open court, also confirmed the facts in a 
signed statement to committee staff. He stated that the comments 
``jeopardized our lives.'' Detective Jones also notes:

       [A]s a law enforcement officer who happens to be African-
     American I am appalled that self interest groups and the 
     media are trying to make the Massiah-Jackson controversy into 
     a racial issue. This is not about race, this is about the 
     best candidate for the position of federal judge.

  Example Two: Commonwealth v. Hicks, (6/12/87.)
  In this case, in an action that led to a reversal by the appellate 
court, Judge Massiah-Jackson dismissed charges against defendant on her 
own motion.
  Although the prosecution was prepared to proceed, the defense was not 
ready because it was missing a witness--a police officer who was 
scheduled to testify for the defense apparently had not received the 
subpoena. The defense requested a continuance to clear up the mix-up 
concerning the subpoena. The Commonwealth stated that it had issued the 
subpoena. The defense did not allege any wrongdoing or failure to act 
on the part of the Commonwealth. Nonetheless, without any evidence or 
prompting from defense counsel, Judge Massiah-Jackson decided she 
simply did not believe that the Commonwealth's attorney subpoenaed the 
necessary witness.
  Judge Massiah-Jackson held the Commonwealth liable for the defense's 
unpreparedness and, on its own motion, dismissed the case.
  As it turned out, the subpoena had been issued but the officer was on 
vacation and had not received it.
  Judge Massiah-Jackson's decision was reversed on appeal as an abuse 
of discretion. The appellate court concluded that:

       Having carefully reviewed the record, we are unable to 
     determine the basis for the trial court's decision to 
     discharge the defendant. Indeed the trial court was unable to 
     justify its decision by citation to rule or law.

                          judical temperament

  Example One: Commonwealth v. Hannibal, 6/25/85.
  In court, in response to prosecutor's attempt to be afforded an 
opportunity to be heard, the following exchange took place on the 
record:

       The Court: Please keep quiet, Ms. McDermott.
       Ms. McDermott for the Commonwealth: Will I be afforded----
       The Court: Ms. McDermott, will you shut your f***ing 
     mouth.--Transcript of June 25, 1985 at 17.

  Judge Massiah-Jackson was formally admonished by the Judicial Inquiry 
and Review Board for using intemperate language in the courtroom.
  Example Two: Commonwealth v. Burgos & Commonwealth v. Rivera, 12/87.
  During a sentencing proceeding the prosecutor told Judge Massiah-
Jackson that she had forgotten to inform one of the defendants of the 
consequences of failing to file a timely appeal. Such a failure would 
prejudice the Commonwealth on appeal. Judge Massiah-Jackson responded 
to this legal argument with profanity, stating: ``I don't give a 
s**t.''
  District Attorney Morganelli, of Northampton County, Pennsylvania, 
has suggested that the reason there are not more instances of foul 
language on the record is that Judge Massiah-Jackson's principal court 
reporter routinely ``sanitized the record.''
  It does not appear to be a coincidence that both of these profane 
outbursts were directed at prosecutors. Instead, Judge Massiah-
Jackson's foul language appears to be part and parcel of her hostility 
to law enforcement.

[[Page S1979]]

                         Leniency in Sentencing

  Example one: Commonwealth v. Richard Johnson, 1988.
  This case was one of the relatively few cases before Judge Massiah-
Jackson where the defendant chose a jury trial over a bench trial. What 
transpired in this case will give you a sense of why defendants before 
Judge Massiah-Jackson would choose a bench trial.
  In this case, the jury convicted the defendant of raping a ten-year-
old boy. The verdict carried with it a minimum sentence of five years.
  Judge Massiah-Jackson admitted in court to crying when she heard the 
verdict because she said she though that the resulting minimum sentence 
was too harsh. She said:

       In this case I'll be frank. If I had had the trial and if 
     it was not a mandatory, I would not have imposed the five to 
     ten year sentence because I just don't think the five to ten 
     years is appropriate in this case even assuming that you were 
     found guilty.

  Judge Massiah-Jackson had discretion to impose a sentence at least 
twice the mandatory minimum for this heinous crime; instead, she cried 
at the thought of sending the child-rapist to jail at all.
  Unfortunately, Judge Massiah's compassion did not extend to the young 
victim.
  The judge refused to hear a victim impact statement. She asked the 
prosecutor, ``What would be the purpose of that? . . . [W]e know what 
the sentence is . . .''
  The prosecutor stated, ``[U]pon reading about the impact on this 
victim, you may want to consider more than the five year mandatory 
minimum.''
  Judge Massiah-Jackson replied, ``Why would it be important? There's a 
mandatory minimum of five years. Have a seat.''
  Having apparently decided already that she was not going to use her 
discretion to give the defendant more than the mandatory minimum, Judge 
Massiah-Jackson prevented evidence of the crime's impact on the young 
victim from being introduced.
  Example two: Commonwealth v. Nesmith, 1994.
  The defendant had a criminal history of 3 prior juvenile arrests and 
1 adjudication and 19 prior adult arrests, 8 convictions, 3 
commitments, 3 parole violations and 2 parole revocations. He was tried 
and convicted of striking a pedestrian with his car, leaving her 
seriously injured--broken legs, pelvis and 4 bones of the back--by the 
side of the road, fleeing the scene of the crime and then beating into 
unconsciousness one of the women's relatives who tried to thwart his 
escape.
  The defendant committed these crimes while on parole, having just 
been released from prison for an assault conviction. Over the 
Commonwealth's strenuous objection, Judge Massiah-Jackson sentenced him 
to two year's probation--well below the bottom of even the mitigated 
sentencing range. Judge Massiah-Jackson, however, explained that the 
defendant's actions were ``not really criminal. He had merely been 
involved in a car accident.''
  Example three: Commonwealth v. Freeman.
  Defendant shot and wounded a Mr. Fuller in the chest because Mr. 
Fuller had laughed at him. Judge Massiah-Jackson convicted the 
defendant of misdemeanor instead of felony aggravated assault. She 
sentenced him to two to twenty-three months and then immediately 
paroled him so that he did not have to serve jail 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 [defendant] had not been 
involved in any other crime since the incident.''
  Example four: Commonwealth v. Burgos.
  During a raid on the defendant's house, police seized more than 2 
pounds of cocaine along with evidence that the house was a distribution 
center. The defendant, Mouin Burgos, was convicted. Judge Massiah-
Jackson sentenced defendant only to one year's probation.
  Then-District Attorney Ronald Castille (R) criticized Judge Massiah-
Jackson's sentence as ``defying logic'' and being ``totally bizarre.'' 
He commented:

       This judge just sits in her ivory tower . . . She ought to 
     walk along the streets some night and get a dose of what is 
     really going on out there. She should have sentenced these 
     people to what they deserve.

  Example five: Commonwealth v. Williams.
  I would like to provide just one more example of Judge Massiah-
Jackson's leniency in sentencing--an example that I think is also 
relevant to whether we should have another hearing on this nominee.
  In this case, Commonwealth v. Williams, the defendant robbed a 47-
year old woman on the street at the point of a razor. The defendant 
used the razor to slash the woman's neck and arms, and then took her 
purse. The victim had to undergo surgery to repair the slashed tendons 
in her hand, and was forced to wear a splintering device that pulled 
her thumb back to her wrist. The defendant plead guilty to first-degree 
robbery. Under the Pennsylvania sentencing guidelines, that offense 
carries a range of 4 to 7 years, with a mitigated range of 3\1/4\ to 5 
years. Despite these sentencing ranges, Judge Massiah-Jackson sentenced 
defendant to a mere 11\1/2\ to 23 months. In order to do so, Judge 
Massiah-Jackson not only had to deviate substantially below the 
guidelines range, but also had to ignore a mandatory weapons 
enhancement that raises the minimum sentence 1 to 2 years.
  The Commonwealth appealed this meager sentence and Judge Massiah-
Jackson was reversed for her sentencing errors.
  This decision is important not only because it demonstrates her 
leniency in sentencing, but also because of what it says about the 
equity of giving Ms. Massiah-Jackson an additional hearing. We have 
heard a lot about Judge Massiah-Jackson's right to be heard and have 
been given the impression that she has been the victim of sandbagging 
by her opponents. It is true that there is information that was not 
available at the time of the Committee's hearing. This sentencing case, 
for example, was not addressed at the hearing. But that is no one's 
fault but Judge Massiah-Jackson's. The committee's standard 
questionnaire asks every candidate to list any judicial decisions which 
were reversed on appeal. Judge Massiah-Jackson failed to list this 
case, and indeed testified that she had never been reversed on a 
sentencing appeal.
  I point this out to make clear that this is not just a simple matter 
of giving someone a right to confront new allegations. It strikes me 
that we are creating a troubling precedent by affording nominees a 
second hearing, at least in part, to explain materials that were 
requested prior to the first hearing.


                    Leniency in Suppressing Evidence

  Commonwealth v. Smith.
  Judge Massiah-Jackson has also demonstrated leniency in improperly 
suppressing evidence. The case that perhaps most dramatically 
illustrates this point is Commonwealth v. Smith, a case discussed by 
the Chairman of the Judiciary Committee on the floor yesterday.
  In this tragic case, the victim, a 13-year-old boy, was raped at 
knife point in some bushes near a hospital. Eventually, the young boy 
managed to run away from his assailant, nude and bleeding. Two nurses 
at the hospital saw him, and he told them what had happened, pointing 
out the bushes where he was attacked. The two nurses called the 
hospital security guards. They saw the defendant emerge from the bushes 
with his clothing disheveled, and then saw him walk quickly away. The 
women yelled out for the man to stop, and the police arrived on the 
scene and apprehended the defendant. The defendant denied raping the 
boy, but the police searched him and found a knife matching the 
description of that used in the rape. At that point the police arrested 
the defendant. Shockingly, Judge Massiah-Jackson ruled that the police 
lacked probable cause to arrest the defendant, and suppressed all the 
evidence including the identification of the defendant by the two 
nurses.
  Not surprisingly, the appellate court, when confronted with this 
dubious judgment, reversed Judge Massiah-Jackson.
  It has been pointed out that, after remand to the trial court, the 
defendant was acquitted in a trial before a different judge. But what 
seems to have received less attention is that all this

[[Page S1980]]

occurred after Judge Massiah-Jackson was reversed by the appellate 
court. Unlike the second judge, who conducted a full trial, Judge 
Massiah-Jackson threw out evidence on the ground that the police lacked 
even probable cause to arrest the defendant--despite his proximity to 
the crime scene and the victim. It is, of course one thing to acquit 
someone after a trial, but the notion that the police officers did not 
even have probable cause to arrest the defendant is just shocking. And 
the appellate court agreed.


                  Opposition from Police Organizations

  Philadelphia F.O.P.
  The Philadelphia Lodge of the Fraternal Order of Police announced its 
opposition to the confirmation of Massiah-Jackson on January 13. And 
just yesterday I had the privilege of attending a press conference in 
which Philadelphia F.O.P. President Richard Costello made his 
opposition to this nominee unmistakably clear.
  National F.O.P.
  The national Fraternal Order of Police announced its opposition on 
January 20th. In coming out against this nominee, National F.O.P. 
President Gilbert Gallegos stated, ``Judge Massiah-Jackson has no 
business sitting on any bench, let alone a Federal bench.'' After 
describing the incident in which Judge Massiah-Jackson pointed out 
undercover police officers in open court, Mr. Gallegos stated, ``I 
cannot adequately express my outrage.'' The National F.O.P. President 
concluded that: ``To confirm Judge Massiah-Jackson would be an affront 
to every law enforcement officer and prosecutor in the nation, all of 
whom have the herculean task of fighting crime. We shouldn't have to 
have [both] the judges and criminals against us.''
  National Association of Police Organizations.
  The National Association of Police Organizations announced its 
opposition on January 22.


                 opposition from local law enforcement

  Lynne Abraham, D.A., Philadelphia.
  Philadelphia District Attorney Lynne Abraham, a Democrat, at great 
political cost, came out against the nomination in a letter to Senator 
Arlen Specter on January 8. She wrote:

       My position on this nominee goes well beyond mere 
     differences of opinion, or judicial philosophy. Instead, this 
     nominee's record presents multiple instances of deeply 
     ingrained and pervasive bias against prosecutors and law 
     enforcement officers--and, by extension, an insensitivity to 
     victims of crime. Moreover, the nominee's judicial demeanor 
     and courtroom conduct, in my judgment, undermines respect for 
     the rule of law and, instead, tends to bring the law into 
     disrepute.
       This nominee's judicial service is replete with instances 
     of demonstrated leniency towards criminals, an adversarial 
     attitude towards policy and disrespect toward prosecutors 
     unmatched by any other present or former jurist with whom I 
     am familiar.

  John Morganelli, D.A., Northampton County.
  Northampton County District Attorney John Morganelli, a Democrat 
announced his all-out opposition to the nomination on January 6, 1998.
  Mr. Morganelli provided members of the Committee with a letter 
detailing the numerous incidents of unprofessional conduct that have 
marked Judge Massiah-Jackson's tenure on the state trial bench. The 
concluding paragraphs of that letter are worth quoting at length:

       [Judge Massiah-Jackson's] record is one of an unusually 
     adversarial attitude towards the prosecution and police. Much 
     [in her record indicates] personal animosity towards 
     prosecutors and police in general. Other portions of her 
     record indicate a tendency to be lenient with respect to 
     criminal defendants.
       This judge sat as a fact finder in the vast majority of her 
     cases because criminal defendants almost always felt it 
     advantageous to waive their right to a jury trial in order to 
     present their case directly to the judge. . . . In addition, 
     she has shown a lack of judicial temperament with respect to 
     vulgar language from the bench on the record and much of it 
     off the record. Also, as indicated above, Judge Massiah-
     Jackson has attempted to meddle with the appellate process in 
     Pennsylvania by contacting appellate courts and improperly 
     attempting to influence appellate decisions. Her comments, 
     conduct, record and lack of judicial temperament by itself 
     should call into question her stature to serve as a Federal 
     Judge.
       Numerous District Attorneys and police organizations in the 
     Commonwealth of Pennsylvania oppose this nomination as a slap 
     in the face to the law enforcement community.

  Executive Committee, Pennsylvania District Attorneys' Association.
  The Executive Committee of the Pennsylvania District Attorneys' 
Association, in a unanimous vote, officially opposed the nomination on 
January 8. The President of the Association wrote a letter on January 
26th expressing the Association's opposition.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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