SHOULD HE CONTINUE TO RECEIVE HIS PENSION?
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
These two questions have stirred considerable debate in both the legal community and general public in south Texas. Normally it is not a subject that would provoke a response by us. But the tenor of those demanding the impeachment of Judge Kent and those who have said he should not receive his pension have caused us some concern. Now that the federal judge has sentenced to 33 months in prison, we decided to weigh in on these two important questions.
The impeachment question is the most difficult one to address. Normally we would say that Judge Kent should be impeached because he was convicted of a serious felony. But the current congressional view of when a federal judge should be impeached gives us pause for concern.
Ninth Circuit Court of Appeals Judge Jay Bybee was head of the U.S. Justice Department’s Office of Legal Counsel under the George W. Bush administration before the former president rewarded Bybee with a life time federal judgeship appointment. Judge Bybee was the top Justice Department official who signed the legal memorandums authorizing the CIA to use torture techniques such as water boarding, wall-slamming and sleep deprivation during the interrogation of “terror suspects” in the wake of 9/11. Judge Bybee’s conduct at the time violated clearly established international law, existing federal law, and America’s longstanding policies for the treatment of captured “enemies of war.”
A significant number of organizations and media outlets have begun pushing for either the resignation or impeachment of Judge Bybee. For example, The New York Times in a recent editorial said that Judge Bybee’s role in the torture approval process “made it clear that [he] was not fit to make judgments about the law and the Constitution.”
The U.S. Justice Department’s Office of Professional Responsibility has concluded that no criminal charges should be leveled against Bybee or other Justice Department officials involved in the torture approval process. This decision prompted some legal scholars to suggest that Bybee be disbarred but even if judge were to be disbarred, disbarment alone would not be enough to remove him from the federal bench. Federal judges do not have to be members of the bar to receive a judgeship appointment.
Thus, with criminal charges highly unlikely, disbarment improbable, and resignation out of the question, the only legitimate sanction left available to those who have demand that Judge Bybee be held accountable for his if not illegal then highly unprofessional actions in the torture approval process is impeachment. But a Democratic controlled Congress, facing inevitable partisan Republican opposition, is not eager to initiate impeachment proceedings against Judge Bybee. Instead, Congress will likely elect to go after the Republican-appointed Judge Samuel Kent which has the bipartisan support of Rep. John Conyers, D-Mich., the chairman of the House Judiciary Committee, and Rep. Lamar Smith, R-San Antonio, the committee’s ranking Republican member.
As grandma would say, “that stinks to high heaven.” The prospect of Judge Bybee avoiding impeachment for approving the worst forms of human torture imaginable while Judge Kent will undoubtedly be impeached for lying to those investigating him for sexual misconduct leaves a bad taste in the mouth. He will serve a substantial portion of his 33-month prison sentence in a federal penal facility. That is enough punishment. Any decision by Congress to impeach Kent while letting Bybee skate is nothing short of “political water boarding” of Kent; and those Republicans like Rep. Smith and Rep. James Sensenbrenner, R-Wis., supporting Kent’s impeachment are willing to sacrifice him at the altar to save Bybee. We find Kent’s impeachment under this kind of political posturing to be offensive.
As for the pension question, that is easy to answer. He should be allowed to keep the pension he has earned.
By all accounts, Judge Kent was a difficult judge to not only work with but to practice before. He treated his court personnel in a terribly demeaning manner—and immediately lied about it when it became public knowledge. Attorneys and court room observers tell many tales of how arrogant, discourteous, and disrespectful of established legal precedent Judge Kent was during his 18-year tenure in the Galveston, Texas federal court room where he presided. How many of these tales are accurate we do not know. What we do know is that generally where there is smoke, there is fire, as the old adage says.
What can be said with certainty is that Judge Kent is, like all of us, an individual with many faces, mostly depending upon the situation we are confronting at any given moment in life. Two different faces of Judge Kent were captured in two letters to the editor of the Houston Chronicle following the judge’s guilty plea in February. The first was written by a friend of Kent and a Houston resident named Mary Poythress. She stated:
“It seems that there is a feeling among Chronicle letter writers that Judge Kent has no feeling or concern, so I would like to inform readers of some things they may not know about him. I have known Sam since he was a young boy. I knew his parents, and they were wonderful people. Sam married his high school sweetheart just as he got out of the Naval Academy, and he and his wife has a wonderful relationship. Unfortunately, she became seriously ill and was bedridden for many years. All that time, Sam took care of her. He kept great nurses looking after her and went straight home after work to give her his love and attention. Not all men would do that.”
Not all men would have that kind of character and courage. It takes tremendous character to care for a terminally ill loved one whether it is a bedridden spouse, a dying parent, or suffering child. In the face of death and suffering, many people find it easier—more comfortable even—to flee the burdens that come with watching a loved one die. Samuel Kent stayed the course, weathered the terrible storm raging about him, and, after making her as comfortably as possible, saw his wife off to the other side of life. That took remarkable courage.
The second letter was written by Houston attorney Thomas J. Bevans who apparently saw another face of Judge Kent. He wrote:
“In response to the Feb. 27 City and State cover article ‘Lawyer says Kent deserves pension’, I am a practicing attorney who appeared before Judge Samuel Kent in the past. A few years ago, I chose not to take a case out of the U.S. District Court at Galveston because of Kent’s caustic remarks and sarcasm. He once put a three-page memo in one of the case files telling me how stupid I am.
“Now Kent wants our sympathy so he can get his pension. How about sympathy for his victims? Kent is just a lot of defendants who appeared before him. He is sorry only because he was caught. Kent does not deserve anyone’s sympathy or pension.”
The issue of Judge Kent’s pension was put on the social table for public discussion right after the judge’s guilty plea to a single obstruction of justice charge. Kent’s attorney, Dick DeGuerin, made general statements to the media that his client had served well on the bench for 18 years but is now a “psychologically broken man” who earned his pension.
“The truth is he’s been a walking basket case for several years,” DeGuerin told the Chronicle. “He’s not the same man since his wife, Mary Ann, died a long and tragic death. He probably should have taken off a year and gotten psychological help … His entire world crashed down on him, more so as the trial neared. It got worse and worse. He was almost hospitalized last Saturday for his own safety.”
DeGuerin made the case that Judge Kent served a “solid 18 years” on the bench and is entitled to the pension if he can establish a genuine psychological disability.
“Yes, he was caustic. Yes, he was sarcastic,” DeGuerin said.
But DeGuerin pointed out that is not a legitimate basis to deny the judge the pension he worked 18 years to earn.
“In other situations, someone who commits misconduct on the job doesn’t forfeit their pension. He worked 18 years. He earned it,” DeGuerin said. “He’s broke.”
We agree with DeGuerin. Judge Kent “earned” his pension. This is not issue of whether Judge Kent “deserves” either the pension or our “mercy” as attorney Bevans suggested. This issue is about one thing: the rule of law. If it is determined under the rule of law that Judge Kent is entitled to his pension because of some “psychological disability,” then he should receive it.
Fortunately, it is the rule of law that protects us as a society from all those who instinctively find it more comfortable to march in the parade of revenge than crusade for human mercy. There are many former professional people in this country who have not only engaged in personal misconduct but who have also been convicted of crimes who are currently drawing pensions.
A pension of not something given to people based on either his/her personality or whether he/she “deserves” it. A pension is something people earn through work—and one’s entitlement to it should never be based on a “popularity contest.”
Deciding whether or not Judge Kent should receive the pension should also not have anything to do with, as attorney Bevans suggested, sympathy for the judge’s “victims.” These victims have had their day both in the court of public opinion and in the federal courtroom to express their collective “outrage” against the former judge. That was their right. But it is not their “right” – nor anyone else’s – to demand that Judge Kent be denied a governmental benefit to which he is entitled.
The United States Supreme Court over the last forty years in a laundry list of cases has repeatedly held that an individual cannot be denied a governmental benefit without being afforded the procedural protections of due process of law. While the general public may not be aware of these due process protections, individuals in this legal community certainly should be.
We have written numerous times and in various contexts about the sanctity of the rule of law. It is our firm and unwavering view that the rule of law should always prevail over human emotion—especially those emotions rooted in the primal instincts of man to strike back, to get even, or to “kick a man while he’s down.” We understand that at an individual level it is easier to strike back than turn the other cheek. We can thank both God and our Founding Fathers that we have the rule of law to protect us from these baser “human” instincts.
We by no means condone all the things that Judge Samuel Kent was charged with doing or the single crime to which he pleaded guilty. That is a matter settled by the 33-month prison sentence given to him on May 11, 2009. We are confident that prison sentence sufficiently satisfied the rule of law.
But whether or not Judge Samuel Kent should receive his pension is not an issue for the criminal court to decide. This issue will be decided in another forum, but it must also be decided by the rule of law and not by the personal notions of revenge and spite of those who detest Kent. It is our position that the judge has “earned” his pension with eighteen years of work performed—unless there is some valid legal reason why he should not receive it.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair