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JUDGE'S REMARKS SHOW SHE ASSUMES GUILT

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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11/2/2014
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While arraigning Daniel Bakken in February 2013 on a charge of stabbing his wife after she found love letters from his girlfriend, Jefferson District Judge Sandra McLaughlin had this to say to the defendant:

"She should have cut you."

Bakken turned out to be innocent. He was exonerated after the Louisville Metro Police surgeon determined the alleged victim's wounds were self-inflicted.

But in McLaughlin's court, the presumption of innocence — one of the most sacred principles in the American criminal justice system — is often forgotten, The Courier-Journal found in a review of videos of dozens of her arraignments.

To a defendant charged with a drug offense who said he has a job and was in school, she asked: "How do you do all that? Go to school, work, and traffic cocaine? You're very busy."

To a defendant charged with shoplifting who said he would contact his family to get money to post bond, she said: "You should have contacted them for money instead of stealing."

To a defendant charged with theft, she asked: "So that's your job? Stealing from people when you clean their house?"

Experts on judicial ethics say McLaughlin's flip remarks violate the Code of Judicial Conduct, which says judges must perform their duties impartially — and in a way that promotes confidence in the impartiality of the judiciary. Professor Monroe Freedman of Hofstra Law School said in an email that McLaughlin's comments demonstrate "bias and the appearance of bias based on charges" and that she "should not be on the bench."

In an interview, McLaughlin acknowledged that some of her remarks were inappropriate and spring from a "frustration" with defendants' refusal to comply with the law. "Sometimes I just want to shake them and say, 'What were you thinking?' "

She said she was just kidding when she said Bakken's wife should have stabbed him. She also said other judges make similar comments, and provided a reporter with transcripts of remarks by another district judge, Sean Delahanty, in which he told a defendant previously convicted of theft and charged with another one that he was "a terrible criminal" but "probably will make an excellent convict." He told another charged with assault that he was "fortunate to be a bad shot."

Brian Butler, a lawyer who McLaughlin asked to sit in on the interview, said judges have to presume allegations to be true — and look at people's criminal record — for purpose of setting bond. He said that while some of McLaughlin's comments could have been "worded differently," judges sometimes make "extrajudicial remarks" to send a message to defendants to mend their ways.

But in an email, the University of Minnesota's Stephen M. Simon, an emeritus clinical professor of law who trains all new Minnesota judges on ethics, said that such remarks — even when made at arraignment, where charges are read and bail is set — "foster a perception that the system is unfair," and that can contribute to community unrest.

Jefferson County Attorney Mike O'Connell, whose office prosecutes cases in McLaughlin's court, declined to comment, while Jay Lambert, a supervisor and director of training in the metro public defender's office said: "For a judge to imply a defendant's guilt at arraignment strips the defendant of the presumption of innocence, demonstrates the judge's clear alignment with the prosecution and sends a message that, in the judge's estimation, it is useless to challenge the prosecution's case.

"It is judicial misconduct of the highest order," he said.

Lowest rating

McLaughlin, 56, who is finishing her first four-year term, faces an election challenge from former District Judge Matt Eckert.

She is by far the lowest rated of Jefferson's 17 district court judges: Only 26 percent of the 120 lawyers who evaluated her in a Louisville Bar Association survey released in June said they were generally satisfied with her performance. The average score was 80 percent and the next lowest mark was 56 percent.

McLaughlin said she is rated poorly because the evaluation is dominated by defense lawyers who don't like the fact that she sets high bonds and is tough on defendants.

"I think I do a really good job balancing the rights of defendants and victims — and sometimes victims are forgotten," she said. "I feel a profound sense of responsibility to keep the community safe."

During the interview, McLaughlin asserted — incorrectly — that the public defender's office pays for its lawyers to join the Louisville Bar Association while the county attorney's office does not. In fact, the public defender's office doesn't pay bar dues, said Chief Public Defender Dan Goyette, while the county attorney's office reimburses 12 supervisors, said spokeswoman Jessie Halladay.

McLaughlin also incorrectly claimed that bar polls are open only to Louisville Bar Association members; in fact all attorneys with Jefferson County addresses are invited, the bar association says.

LBA executive director Scott Furkin has said its more than 4,500 members include a good cross section of prosecutors and criminal defense lawyers.

The Kentucky Center for Investigative Reporting reported in July — and The Courier-Journal confirmed — that McLaughlin has denied the appointment of public defenders to defendants charged with misdemeanors that carry jail time, in violation of state law.

She also has ruled defendants ineligible on the grounds that they are not indigent without reviewing the factors set out in state law, such as whether they are in debt or are supporting dependents.

The newspaper found that on Aug, 2, 2013, McLaughlin denied a public defender for Edward Benner, 27, who was charged with loitering and tampering with evidence during an apparent drug deal, on the grounds that "he's been telling me how hard he works and how he works so much he can't come back to town and then he says he can't afford to hire a lawyer."

Although he wasn't charged with buying or selling drugs, she refused to lower his bond when he said he couldn't afford to post it, saying, "Maybe you shouldn't be buying cocaine," she said. "Those are the allegations. You are not using your money very wisely."

In another case, she denied a public defender request from Damon Bradley, 46, who was charged with trafficking in a controlled substance, because police confiscated $3,000 from him when he was arrested. "Wherever that came from use it to hire a lawyer," she said.

Sitting in briefly for another judge, David Holton, on Oct. 4, 2013, McLaughlin denied a public defender for Leigh Pilkerton, 43, a woman accused of shoplifting $51 worth of goods from a Wal-Mart store, even though she said her only income was her disability check. Without the advice of counsel, Pilkerton then pleaded guilty to the charge.

When a lawyer who'd been a spectator in the courtroom alerted Holton about what had happened, later the same day he literally ripped up Pilkerton's plea, appointed her a public defender and passed the case to a later date.

Holton said in an interview that he appoints public defenders for any indigent defendant charged with an offense that carries a penalty of confinement, as required under state law.

McLaughlin, who has criticized other judges for "giving away public defenders like they are Chiclets," said she didn't remember Pilkerton's case and couldn't comment on it.

She said she is more discriminating in appointing public defenders than other judges because they are a "precious resource and should be reserved for those who are truly in need."

Butler said it is impossible for judges at arraignment — where dozens of cases are called — to take the time to review the financial status of defendants. And he said there is no reason for a judge to appoint a public defender for certain misdemeanors they know in practice aren't punished with jail time.

Early signs of trouble

McLaughlin was elected in November 2010 after working in private practice for about seven years. When she ran for judge in 2010, McLaughlin was endorsed by The Courier-Journal editorial board.

She previously served for five years as an assistant commonwealth's attorney until she was fired in 2004 for grabbing and yelling at a juror who voted to acquit a man McLaughlin had prosecuted for rape. McLaughlin at the time denied that she had assaulted or screamed at the juror, saying an eyewitness report from an assistant jury administrator was overblown.

Videos show that as a judge, McLaughlin has praised some jurors for their appearance while mocking others — even though she told the Kentucky Center for Investigative Reporting that "everyone in my court is treated fairly and respectfully."

Ralph Weaver, 66, for example, was awaiting his own arraignment at the Louisville Metro Corrections on a drunken-driving charge on June 17, 2013, when she pointed him out as an example to another defendant accused of violating an emergency protective order.

"Alcohol is not doing you any favors," McLaughlin told the man, whom she directed to look at Weaver.

"See that guy? That's what you are going to look like in not very long," she said.

"Yeah, you," she said to Weaver. "You've been drinking too long. Don't you think?"

Weaver, a stagehand at the KFC Yum! Center, said in an interview that he bruises easily and that his appearance was unrelated to drinking. "I felt like I was treated kind of rudely by this lady," he said.

When his case was called, McLaughlin let a prosecutor ask if he had any DUI charges in Indiana, where he lives, and when he answered yes, that prompted the prosecutor to raise his charged to second-offense drunken driving. McLaughlin said that wasn't improper, but later she agreed to reduce the charge.

In another case, she allowed Shawn Litteral, 33, to defend himself on May 20 on a shoplifting charge without conducting a hearing on whether he had knowingly and intelligently agreed to represent himself.

She found him guilty and sentenced him to 30 days in jail for shoplifting a $7.38 video from a Kroger store. "Take him into custody," she said.

A public defender who happened to be in the courtroom objected, claiming McLaughlin had violated his rights by failing to consider whether he was competent to represent himself.

McLaughlin later granted him a new trial, although she said that two of three judges she consulted on whether a hearing was required said it was not.

Videos of arraignments conducted by McLaughlin show that she empathizes with defendants who appear to be suffering from mental illness — she said she has dealt with mental illness in her family — and tries to make sure they are protected if they are kept in jail.

But videos also show she often treats defendants at arraignment — most of whom are making their first court appearance — as if they have already been found guilty.

To a Virginia resident, charged with two assaults, she said: "How could you have more than one assault here if you don't even live here? Do you just come in here and knock somebody around and head back out? What would make you pick up a candlestick and hit somebody?"

Commenting on another defendant, who was charged with trafficking in heroin and endangering a minor — a 15-month-old was riding in the back of his car — she said to the prosecutor: "He was probably teaching the minor how to be a drug dealer."

Denying the defendant a bond reduction and ordering him returned to jail, she said:

"Stop peddling that garbage to little children. And get out of here."

Sandra L. McLaughlin

Position: Judge, Jefferson District Court

Age: 56

Admitted to practice: 1999

Law school: University of Louisville Brandeis School of Law

Spouse: Dr. Arthur J. McLaughlin II, physician

Prior jobs: Attorney in private practice; assistant commonwealth's attorney

Code of Judicial Conduct

Canon 3: A judge shall perform the duties of judicial office impartially and diligently

Commentary: A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

Sandra L. McLaughlin in her own words:

• To a man charged with theft who says he's on disability: "You're on disability. Not working? How come we're working? Why are we working?" (Oct. 28, 2013)

• To a man requesting a bond reduction after being charged with assault for allegedly chasing his girlfriend with a bolt cutter: "If he admits it, I'll lower the bail. No, I'm just kidding." (Sept. 16, 2013)

• To a woman charged with wanton endangerment for pulling a gun on a boyfriend:

"Do you have children?"

Defendant: "I have two."

Judge: "Great. And not married. What is the world coming to?" (Oct. 28, 2013)

• To a young man charged with striking his mother who says he did so to keep her from going to a crack house: "I think he was being a good, solid citizen. Let's let him go home and have another round at his mom." (Aug. 2, 2013)

• To a woman charged with assaulting her boyfriend who says he hit her first: "Well, that's what you're supposed to do. We're going to release you." (Feb. 15, 2013)



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