Judge’S Derisive Notes Raise Ethical Concerns Jottings In Federal Courtroom Include Comments About Minorities

For years, U.S. District Judge Alan McDonald and his courtroom deputy in Yakima exchanged disparaging notes about people appearing in court - a possible violation of conduct rules for federal judges.

Copies of several dozen of the notes were recently obtained by The Spokesman-Review.

McDonald says the notes are private, were never intended for the public and are being misinterpreted. His critics say they raise serious questions about his judicial temperament and are grounds for a judicial misconduct investigation.

Most of the notes were provided to The Spokesman-Review by Kathryn Blankenship, McDonald’s court reporter for nearly a decade. She claims she was fired after testifying in a closed 1994 hearing about the note-passing and other alleged misconduct in McDonald’s court.

In one note, McDonald wrote “Ah is im po tent!” while a black man was testifying.

In another, in a courtroom full of Hispanic defendants and attorneys, his court clerk wrote: “It smells like oil in here - too many `Greasers.”’

Other notes comment about union officials, Mormons, a government prosecutor and other attorneys appearing before McDonald.

Some, written in court by McDonald and his deputy, Pam Posada, were obtained from a veteran Spokane attorney.

William Powell says he and his co-counsel noticed an unusual amount of note-passing in a 1990 jury trial before McDonald in Yakima. So they fished some of the notes out of a wastebasket during a recess and saved them.

The notes talk about Powell, likening him to a cadaver, and his client, a Spokane County road worker.

“There were literally hundreds of these notes passed during that trial. Of all the federal judges in our region, McDonald is by far the worst-behaved, and nobody is monitoring this behavior,” Powell said.

McDonald’s penchant for note-writing in the courtroom is also known among at least some Yakima attorneys. They are reluctant to speak out because they appear before McDonald, the only federal district judge based there, said a plaintiff’s lawyer who requested anonymity.

“These notes were passed constantly to the point where they were a distraction,” he said, referring to a trial he had before McDonald. “It’s a pattern of conduct that’s offensive.”

McDonald agreed to discuss the notes in a recent interview arranged by U.S. District Judge William Fremming Nielsen, chief judge of the sprawling federal court domain that covers Eastern Washington.

Nielsen sat in on the interview in his office in Spokane’s federal building.

During the interview, McDonald accused Blankenship of stealing the notes from his files, a charge she denies. He also lashed out at Powell for retrieving his notes from the court wastebasket.

“I don’t need to apologize for them because they were never intended to be in a situation where they could be misunderstood,” he said.

“These are my private, personal thoughts, and I don’t regard (the newspaper) as an appropriate judge of them any more than I do Ms. Blankenship.”

He said Blankenship had performance problems in Yakima and has carried on a vendetta against him since she was fired in 1995.

McDonald said he probably writes 900 to 1,000 notes a year, most concerning the court schedule. For the past four years, judges’ notes have been delivered to their clerks by computer instead of on paper.

McDonald, a millionaire Yakima attorney and agribusinessman, was nominated for the lifetime judgeship by President Ronald Reagan and confirmed by the U.S. Senate in 1985.

The 72-year-old judge has been on senior status since December 1996, drawing his full salary while handling a reduced caseload. He has retained the Hanford downwinder cases, the largest toxic tort litigation in Eastern Washington.

Making disparaging comments about people in court violates conduct rules for federal judges, said Stephen Gillers, a nationally known legal ethics expert and vice dean of the New York University School of Law.

“Speaking generally, if the notes reflect religious or racial animosity or demeaning comments, that’s a violation of the code of professional conduct for U.S. judges. There could be a sanction, including a public reprimand,” Gillers said.

A judge is a public official and cannot claim privacy for the notes, said John Strait, a professor of legal ethics at Seattle University School of Law.

“A judge who is biased privately is also biased when he sits on the bench. The federal judiciary doesn’t allow judges to duck these issues,” Strait said.

A note written by another judge recently became an issue in state court.

Last month Des Moines Municipal Court Judge Albert Raines was admonished by the state Commission on Judicial Conduct. He had passed a note to a female lawyer in which he drew himself giving her the “finger” after she asked for an unscheduled bathroom break.

Raines violated the state Code of Judicial Conduct by passing the inappropriate note, the commission said.

All federal judges write some personal notes in court, Chief Judge Nielsen said. But after seeing the notes from McDonald’s courtroom, Nielsen said he wouldn’t have written such critical comments.

Nielsen asked McDonald to explain the notes to The Spokesman-Review. “Respect for the court in the eyes of the public is critically important,” Nielsen said.

After the interview, Nielsen said he is satisfied with McDonald’s explanations. “Any communication that’s short is subject to misinterpretation,” he said.

The notes Blankenship kept are from the nine years she spent with McDonald before losing her job in 1995.

The judge and his deputy, Posada, “had a constant interchange of notes going,” Blankenship said in a recent interview. It’s the first she’s granted since filing a 1997 civil rights lawsuit accusing McDonald of retaliating against her.

Her case was dismissed last year by the 9th U.S. Circuit Court of Appeals, which said a judicial branch employee can’t bring a civil rights case against her former employer.

Blankenship’s Seattle attorneys have asked the U.S. Supreme Court to reconsider the ruling, arguing that two other federal circuits have disagreed with the 9th circuit.

The misconduct issues she alleges, including the note-passing, haven’t been litigated while the courts consider her right to sue.

Blankenship said the notes were sometimes passed to her in McDonald’s court after the judge and Posada exchanged them. Hundreds more were tossed in the wastebasket, she said.

“This went on in open court, with his robes on. I was too busy to bother with them because I was reporting the proceedings in court, so I just put them with the docket sheet for the day,” she said, referring to the notes she retained.

Blankenship hasn’t filed a judicial conduct complaint within the court system. She said such complaints go nowhere in a good-old-boy system where judges rarely criticize each other.

Two of the notes concern a black plaintiff in a trial in San Diego where McDonald was a visiting judge.

Jesse Jackson Jr., a retired Army lieutenant colonel, had been vice president of Imperial Savings Association, a California S&L that failed in the 1980s.

In 1991, Jackson filed a lawsuit against Imperial for firing him after he reported financial misconduct at the bank, said Roy Landers, Jackson’s attorney.

McDonald ruled against Jackson in a directed verdict - ending the trial before it went to the jury.

“Judge McDonald short-circuited that trial,” Landers said.

Landers, who also is black, said he sensed during the trial that McDonald disapproved of him and his client. “We felt extremely put off by his demeanor,” Landers said.

In one note, McDonald referred to Jackson as “Old Shoeless Jesse.” Earlier this month, the judge explained that was a reference to Shoeless Joe Jackson and the 1919 White Sox scandal.

In another note, which Blankenship said McDonald passed to her directly while Jackson was testifying, the judge wrote, “Ah is Im po tent!”

“I can tell you right now, that statement is racist. That is just astonishing from a federal judge,” Landers said when told of the notes. “Had I known then what I’m hearing now, I’d have filed ethics charges against the judge.”

McDonald explained that the note was referring to himself, not Jackson.

“This is a term of self-deprecation that I employ…. `Ah is the judge, because ah is im po tent,”’ McDonald said. “Whatever its original origin, it has no racial connotation to me. I’m about as color blind as anybody you know.”

Jackson disagrees.

“When I talk about that judge, I still get angry,” he said. “I was born in the South, and I know racism.”

Landers appealed the ruling. Before the 9th Circuit appeal was heard, he got a $15,000 settlement for Jackson from the Resolution Trust Corp., a government agency that had taken over the failed S&L.

Jackson now works as a computer expert for SAIC Inc., a Fortune 500 company in San Diego.

Other notes are from McDonald’s Yakima courtroom, where the docket is filled with cases involving Hispanic defendants and attorneys.

In a 1991 multidefendant drug case, Blankenship said Posada passed a note to the judge and then to her commenting on people in court.

“It smells like oil in here - too many `Greasers,”’ the note said.

Posada has been McDonald’s clerk since he became a federal judge. She came with him from his Yakima law firm. McDonald said she is an efficient clerk and a close friend.

Posada’s note “is not a joke. It’s personally offensive,” said George Trejo, a Hispanic attorney who represented Alfonso Mendoza in the case, USA. v. German Silva.

Trejo said he had a legal externship with McDonald while he was a student at UCLA Law School, and now specializes in major drug cases in 15 states.

“Assuming that it’s true that that note was written, I think Judge McDonald should step down from the bench for not dismissing Pam immediately. He should not tolerate any racism in his courtroom,” Trejo said.

McDonald said he’d never seen Posada’s note until the newspaper provided a copy. “Am I supposed to do something about something I don’t know about?” he asked.

Blankenship said McDonald laughed about Posada’s note during the trial. “I just shook my head, especially since Mr. Trejo, a member of our court family, was present.”

Such conduct only adds to Yakima’s reputation for having a racist court system, Trejo said. “There’s a disparate treatment accorded to Mexicans as compared to white people,” he said.

In a Dec. 14 reply to the newspaper’s request for an interview, Posada said she couldn’t comment because of rules for courthouse employees.

She said Blankenship was trying to use the newspaper to “harass the judge and embarrass the system, knowing that those of us who know the truth can’t be heard.”

Another note written by McDonald commented negatively about union representatives testifying in a railroad case. “Guys in black suits look like union mafia. Don’t they look like gangsters,” he wrote.

“That’s what I thought they were. That was my impression,” McDonald said recently. He added he couldn’t recall any other details of the case.

Another note, which could not be linked to a specific trial or date, referred to Mormons and several ethnic groups.

“He’s been a con man for a long time!” Posada wrote.

The judge replied: “Yes and in my experience, a Mormon money man makes the Jews and Chinese look like rank amateurs!”

In the recent interview, McDonald said: “I’m sure that I made the remark out of respect for the Mormons I know.”

In another exchange in court, Posada wrote, “he looks a little shifty doesn’t he?”

“Are you spelling that with an `F’ or a `T”’ the judge wrote back.

McDonald said he’s simply “earthier” than many other federal judges because of his rural Eastern Washington roots.

He explained that some of the notes he and Posada exchanged were jokes that helped “break the monotony” of court proceedings but didn’t affect the outcomes.

“She felt free to make those comments to me,” McDonald said.

When asked what judicial purpose the humorous notes served, McDonald replied, “I don’t know what the hell it serves.”

McDonald and his clerk also exchanged comments on a government prosecutor, Assistant U.S. Attorney Tom Rice of Spokane. Rice is a respected attorney and CPA who has prosecuted major federal cases in Spokane for 14 years.

Rice was shown copies of notes written by McDonald calling him “Rice Aroni.” He declined comment.

“I’ll bet Rice’s business experience is about as great as his legal acumen!” McDonald wrote. Posada called Rice “a devious little bastard” in one of the notes.

McDonald explained that the notes reflected his irritation at Rice for prolonging a trial into the next week. “It was just my reaction at the moment,” he said.

In Powell’s 1990 trial, McDonald and Posada mocked Thomas Lashbrook, a former Spokane County road worker. He had sued the county for wrongful termination after he was fired because of a wrist injury.

Posada used an expletive, writing, “If he hadn’t kept falling off the … grader, they wouldn’t be in this predicament.”

McDonald wrote that attorney Powell “looks like a cadaver with its eyes open! He needs some sun (or gin!)”

When shown the note, McDonald said, “I always liked Bill Powell and I always enjoyed having him in my courtroom. He’s a good advocate. … It must have been something about his appearance that inspired that remark.”

Powell and co-counsel John Bardelli won a $266,500 jury verdict for Lashbrook. But Powell never forgot the notes retrieved from the wastebasket.

After Blankenship filed her case against McDonald, Powell sent copies to her attorney, Victoria Vreeland.

Powell said he decided to speak out now because Blankenship, who worked for 12 years as a court reporter in Spokane Superior Court, was well-liked among Spokane lawyers and was treated unfairly in Yakima.

He also said he doesn’t expect to have another case before the judge.

McDonald said he’d be inclined to make an apology to Powell, but wouldn’t because of the way he obtained the notes.

“I sure as hell won’t make it to anybody that got into my garbage can to get offended,” McDonald said.