Sustained!: The Fifth Circuit's Disfavored

Monday, May 11, 2009

The Fifth Circuit's Disfavored - Judge Sam Kent

Today, Judge Samuel Kent was sentenced to 33 months in Federal Prison for lying during an investigation of alleged sexual harassment charges. Throughout most of his 18 years on the bench, Judge Kent enjoyed a reputation for being a no nonsense judge who did not "suffer fools lightly." He was known by many as being a pro-prosecution judge. Ironically, the very laws that have been flouted by the Fifth Circuit are the very laws that would have prevented Judge Kent's downfall.

On numerous occasions, I had the opportunity to appear before Judge Kent representing clients. In fact, Judge Kent presided over two federal criminal trials in which I defended people. Throughout the many experiences I had with Judge Kent, he showed me no favors. His rulings were tough and consistent with Fifth Circuit precedent (tough on criminal defendants). He was quick to ridicule defendants who had been found guilty that minimized their guilt or failed to accept responsibility. He said things that tore at the heart of a defendant and delivered some of his rulings with little compassion. However, he always treated me, as an advocate, with respect. Unlike some judges, he did not assume I was incompetent or that I would not be a zealous advocate for my clients. He believed in the constitution and would conduct fair trials. And as it is with most federal judges, he did not comfortably accept mediocrity from advocates in his courtroom. He exacted a high standard for lawyers.

But that was in the Courtroom. The story of what happened in Chambers, as told by Ms. McBroom and Ms.Wilkerson, had a remarkably different plot. It was a saga of sex games, sex talk, sex, sex, and more sex. The two women spoke about being trapped in a burning building of sexual harassment with Judge Kent wielding a can of kerosene. The whole story left the Fifth Circuit and other federal judges (who are usually seen as being above the fray) embarrassed and in search of political solace.

Strikingly, the Fifth Circuit's reputation and approach to discrimination cases may have fostered this all. For years, the Fifth Circuit has treated discrimination cases (a category in which sexual harassment cases are found) as disfavored claims. For years, the Court was repeatedly reversed by the United States Supreme Court for making discrimination cases harder to bring and easier to be dismissed. For years, plaintiffs with discrimination cases which had to be filed in federal courts were shunned by lawyers. For years, the Fifth Circuit fostered a culture that allowed employment discrimination to flourish. The Court was so embolden in its position against discrimination cases that it did what no other Court of Appeals court in the Country did; it created and employed the "pretext plus" standard in discrimination cases before an objection to it was SUSTAINED! by the United States Supreme Court (reaffirming that a plaintiff only had to show that the employer's race neutral reasons were a pretext for discrimination to defeat a motion for summary judgment). Judge Kent served under their guidance. He saw dismissal after dismissal affirmed even where the conduct appeared egregious....all under the guidance of the Fifth Circuit. If the allegations were true; and I do not know if they were because I never saw anything that led me to form a conclusion one way or the other, then it would not be surprising that a Judge would devalue a woman's right to be free from sexual harassment when his superiors also did so.

This whole thing could have been avoided by a different culture by the Fifth Circuit Court of Appeals regarding sexual harassment claims. Had the Court taken sexual harassment claims seriously, then McBroom and Wilkerson would have felt empowered to file a claim as soon as the first alleged incident happened. Ever wonder why these ladies did not do so? Ever wonder why women who worked with Civil Rights lawsuits at the Courthouse did not exercise their rights and bring an EEO claim? Perhaps like everyone else who worked in the Courthouse, they knew the results of discrimination cases in Federal Court. As Judge Kent reamed defendants who failed to accept personal responsibility for their actions, Kent bears the responsibility for this case and his punishment. However, the responsibility for allowing and fostering a culture of disrespect for women in the workplace must be shouldered by a higher court.

3 comments:

AnonymousMay 12, 2009 06:48 AM
You are so right about the 5th Circuit. I remember a sexual harassment case being dismissed by the 5th where a offshore worker was subjected to horrible behavior by his other male workers, including the laying of another's penis on his shoulder. It took the Supremes to bring that one back to trial. Your point is well taken.
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AnonymousMay 14, 2009 10:10 PM
Great post. Please continue blogging; you express a thoughtful and thought-provoking perspective, and, most importantly, you are saying things that need to be said.
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AnonymousMay 15, 2009 12:07 PM
Im not defending the judge by any means but would if the man is the one who is trapped in a burning building with two or more women weilding a can of kerosene? Would if the man is overtaken by the women and eventually believes he is the one that is doing something wrong? I dont know much about saga sex because I do not practice and choose not to study those things but I know the word. I know that when Lot and his daughters left Sodom and Gomorah that his daughters made him drunk and molested him. I know that Pharohs wife had wine running from her veins and countless other storys. I know that women have the ability to make a man drunk and believe that he is the abductor. I know that when a man begins to understand his wrongs that the women exercise their constitutional rights under the law. Would if the men is the one who is selective prey for women with understanding but not sound judgement? Would if the man is the one who is trapped with no way out but jail or imprisonment? Can a man get so tired of women that he'd rather go to jail? He is a judge and he knows all the rules and he understands the complete law. Could he not have protected himself with all of his defenses? Would if the man is the one who is battered and unprotected? Every one always believes that the woman is the victim but men are victims of the same crime. Its a treacherous and costly game and usually its played with the life of men but we don't hear their story. I think its because when the women get the men drunk on thier wine the men wake up and feel low down and vigorous. They think only of the horrible thing they have done and not the horrible women that made them drunk. Mighty men have been taken down by this kind of woman and as a result a good man turns rotten. A man who would have normally stood in a position of right standing becomes a judge of his own offense. He hates his crime but he defends himself by punishing others to ease his own pain. He is hard on the criminal because he hates what he becomes and he returns to the women because they are now his closest friends. They say the only way to get rid of a hang over is to bite the snake that bit you so if he did wield the karosene then who did he get it from? I agree with everything you said in your blog but there are men out there that suffer this kind of women and someone should advocate thier rights but most of them don't know their the victim.
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