The Judge Berry saga continues

I recently posted about the story of allegations levied against Judge Elizabeth Berry of Criminal District Court Number 3. The allegations were that Judge Berry had sent an email containing a racial epithet to her court reporter, Judy Miller. Now, it appears that some local attorneys have sought Judge Berry's disqualification from some 18 cases of theirs' because they believe the judge is racist.

Although I have not seen the recusal motions, my understanding is they were filed by local attorneys Lesa Pamplin and Glynis McGinty. As I understand it, the essence of the motions is that because of the alleged racial epithet, Judge Berry is prejudiced against their respective clients. My assumption here is that the 18 defendants are African-American.

On Tuesday, March 4, Ms. Pamplin and Ms. McGinty issued a news release focusing on the the alleged email. In the news release, the two attorneys call for Judge Berry to resign from the bench, as well as call for Ms. Miller's termination.

This is an interesting story. As I pointed out in my earlier post, there seem to be serious questions about the authenticity of the email. But of course, there should be some corroboration before we all go crazy looking for people's heads. For one thing, has anyone actually bothered to pull this email off the server?

As anyone that has ever worked a case involving computer issues, nothing is really ever deleted. So where is the email on the county server? Has anyone bothered to look on the judge's computer? Do we have any knowledge that this alleged email wasn't just written on someone's computer and printed off?

Although the story itself is very interesting and has some potentially serious consequences (Judge Berry comes up for reelection in two years), I find the "news release" somewhat troubling.

As I read this, the news release was drafted by several local African-American defense attorneys. For a bunch of defense attorneys to call for immediate resignation of a sitting judge on the basis of a potentially fraudulent email smacks of hypocrisy. Aren't we in the business of defending the accused?

Although it seems from reading the Star-Telegram article that perhaps Ms. Pamplin and Ms. McGinty have backed down from their desire to see the judge resign immediately, why would they ever want to see the court reporter Judy Miller fired? What did she do? Received an email. Who among us has not received an email that contained something that someone might find offensive? Talk about ridiculous.

There certainly should be some sort of investigation into this alleged email. But those of us in the criminal justice system should know better than anyone how accusations can destroy someone's life. To run out with a call for immediate resignation of the judge and a call for the termination of Ms. Miller is irresponsible and unprofessional.

But what the hell do I know?

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WHY IS ELIZABETH BERRY EVEN ALLOWED TO BE A JUDGE????

Visiting Judge Elizabeth Berry issued a sweeping gag order Friday in a capital murder trial that prohibits the news media from reporting or disseminating anything that happens in open court outside the presence of the jury.
The Star-Telegram is fighting the decision, and a hearing has been set for 8:30 a.m. Monday in Criminal District Court No. 4.
In the meantime, however, the Star-Telegram pulled several tweets and blog postings that had been reported since the trial began Tuesday, including testimony given outside the jury's presence, the judge's ruling on motions from the prosecution and defense, and an informal admonishment by the judge of two attorneys involved.
"We're going to fight it in court where it ought to be fought," said Jim Witt, vice president and executive editor of the Star-Telegram. "This is prior restraint, and they can't do that."
Attorney Tom Williams, who represents the Star-Telegram, raised concerns about the order with the judge late Friday after the trial recessed for the day.
Berry agreed to consider some changes to the order but not to the prohibition on discussions held outside the jury's presence. Williams said he planned to file a motion Monday morning formally asking the judge to withdraw portions of the order.
Among other restrictions, Berry's order states that the media may not interview attorneys, litigants, employees of the district attorney's office, parties, witnesses, victims or relatives of victims until the trial ends.
Bill Aleshire, an Austin attorney who volunteers for the Freedom of Information Foundation of Texas, said the order prohibits constitutionally protected freedom of speech not only for the press but for individuals.
"The public has a right to be involved in a trial -- to observe and get records of a trial -- not just the press, but the general public," Aleshire said. "To go beyond that and prevent interviews of someone who is not even a witness, it's unusual to say the least."
The judge's three-page "courtroom conduct order" lists 19 rules to be followed. The eighth, including all-capital words, reads, "Nothing except that which occurs in open court, adduced only in evidence or in argument BEFORE THE JURY may be disseminated."
The order was initiated "on the court's own motion" and warns that sanctions could include a contempt of court citation that could include confinement in jail for up to six months and a fine of up to $500 on each offense, and "such other sanctions as deemed necessary by the judge to ensure due and proper administration of justice."
"There are no warnings," the order says.
The order also forbids media interviews of anyone in the courtrooms, hallways or security areas of the courthouse, and discussions between any member of the Tarrant County district attorney's office with the media on any issue.
It also overturns an oral ruling in which Berry said audio recording would be allowed in the courtroom.
"As in all cases, the atmosphere in the courtroom must be quiet, calm and deliberative," the order says. "All persons attending the trial must be willing to commit to a serious attitude if attending this trial."
The U.S. Supreme Court has held that prior restraint of the news media -- forbidding publication of information -- is largely unconstitutional.
The court ruled in 1971 in the Pentagon Papers case and expanded the principle in a 1975 Nebraska case in which the justices concluded that the restraint violates the First Amendment.
Aleshire said the judge's order going beyond the confines of the courtroom is particularly questionable.
"The judge certainly has control of his or her courtroom, but I'm not so sure about the judge's control over the hallways and control over every reporter and potential interviewee," he said.
"If they are restricting people hanging around in the hallways for crowd control, that's one thing. But if the order just restricts speech by reporters or individuals not directly under the judge's purview -- such as attorneys or jurors -- that has some pretty serious implications from a First Amendment standpoint."
Berry was named a visiting judge in the capital murder trial of Kwame Rockwell, 36, of Fort Worth after Judge Mike Thomas became ill.

Read more here: http://www.star-telegram.com/2012/01/06/3640977/judge-restricts-reporting-on-capital.html#storylink=cpy