TO PUT IT in language she would understand, Frederica Massiah-Jackson would be a bleeping disaster on the federal bench. Well, "bleeping" isn't exactly the word she would use, but this is a family newspaper.
Massiah-Jackson is a garbage-mouth who sits on the Philadelphia Court of Common Pleas. President Clinton nominated her last summer to the local US District Court; she comes up for a vote in the Senate this week. If nothing else, confirming her would certainly add a blue streak to federal court proceedings.
Philadelphia trial judge Frederica Massiah-Jackson has been nominated by President Clinton to the federal bench.
Consider the following, from the transcript in a 1985 case over which Massiah-Jackson presided:
The Court: Please keep quiet, Ms. McDermott.
Ms. McDermott: Will I be afforded —
The Court: Ms. McDermott, will you shut your [bleeping] mouth.
Pennsylvania's Judicial Inquiry and Review Board has already censured Massiah-Jackson for her courtroom profanity. Vulgarity is so customary when she is on the bench, according to the Northampton County district attorney, John Morganelli, that the official record usually has to be "sanitized" by court reporters.
Morganelli's information comes in an extraordinary 10-page, single-spaced letter he sent last month to the Senate Judiciary Committee. Rude language is the least of the problems with Massiah-Jackson. Far more worrisome, he warns, is her naked disdain for prosecutors and police and a sympathy for criminals that results time after time in the release of dangerous felons. Morganelli catalogs a horror show of Massiah-Jackson's rulings, pleading "desperately" for the Senate to kill her nomination.
Now, district attorneys rarely oppose federal judicial nominations so openly, especially when made by a president of their own party. (Morganelli is a Democrat). But this is a rare case. The Judiciary Committee has received not one but 11 letters about Massiah-Jackson from Pennsylvania DAs — including one from Lynne Abraham, the DA for Philadelphia and herself a former judge (and another Democrat). The nominee's record, she writes, "is replete with instances of demonstrated leniency toward criminals, an adversarial attitude toward police, and disrespect and a hostile attitude toward prosecutors unmatched by any . . . jurist with whom I am familiar."
What are these prosecutors so exercised about? Cases like these:
* Commonwealth v. Nesmith. By the time he showed up before Massiah-Jackson, Nesmith's criminal record included 22 arrests and eight convictions. This time he'd struck a pedestrian with his car and driven off, leaving her in a gutter with two broken legs, a fractured pelvis, and four broken vertebrae. When one of her relatives tried to stop Nesmith from escaping, he was beaten unconscious. Yet Massiah-Jackson sentenced him to just two years' probation. His actions, she said, were "not really criminal. He had merely been involved in a car accident."
* Commonwealth v. Freeman. This defendant shot Robert Fuller point-blank in the chest — a clear case of felony aggravated assault, which carries a mandatory five- to 10-year sentence. But Massiah-Jackson convicted him of only a misdemeanor, gave him two to 23 months, and immediately paroled him. Her explanation was that the victim — the victim! — had been drinking before the attack and that the defendant hadn't committed any new crime since the assault.
* Commonwealth v. Williams. When the defendant shoved a razor under the victim's nose and demanded her purse, she handed it over. He slashed her anyway, damaging her so severely that she required surgery. Williams, a repeat criminal, pleaded guilty. Under the sentencing guidelines, he should have gotten a minimum of four to seven years. Massiah-Jackson gave him just 11 1/2 to 23 months — and instant parole.
But of all the cases cited by Morganelli and analyzed by researchers at the Project for the Judiciary, none illustrates Massiah-Jackson's indulgence of criminals more vividly than Commonwealth v. Smith. In this 1992 case, the defendant grabbed a 13-year-old boy on the street, dragged him into a row of bushes, and warned, "Be quiet or I'll cut your heart out." He forced the child to perform oral sex, then spent the next 30 minutes sodomizing him. When the victim began crying, Smith sliced his face with a knife.
Eventually the child escaped, naked and bleeding. Two women saw him and immediately cried for help. Soon after, they saw Smith crawl out of the bushes and straighten his clothes. He quickly walked away, but not before looking them in the eye. While he was still within sight, the women pointed him out to a police sergeant, who stopped, questioned, and arrested him.
But before Smith's trial, Massiah-Jackson ruled that there had been no probable cause to arrest him, that the knife found on him could not be entered in evidence, and that the out-of-court identification by the two women was inadmissible. In other words, she ruled that a child rapist should walk free.
Massiah-Jackson's acquittal rate is nearly double that of other Philadelphia judges. Big surprise. The woman is a walking, talking criminal justice breakdown, and it is outrageous that she has been nominated to the federal bench.
That is, it would be outrageous — if it were still possible to be outraged by anything Bill Clinton does.
(Jeff Jacoby is a columnist for The Boston Globe).
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