The United States Court of Appeals for the Third Circuit issued a landmark decision ruling that that the First Amendment protects sitting judges from being criminally punished for their opinions, and vacated the guilty verdict rendered against retired Virgin Islands Superior Court Judge Leon A. Kendall in a criminal contempt proceeding brought against him by the Supreme Court of the Virgin Islands. Howard M. Cooper, a partner with Todd & Weld LLP, and Julie E. Green, of counsel with the firm, represented Judge Kendall in his appeal.
The Supreme Court of the Virgin Islands is the highest court in the territory. In 2009, the Court brought criminal contempt charges against Judge Kendall, a trial court judge, based upon a judicial opinion he wrote outlining his decision to recuse himself from presiding over a murder trial. In his opinion, Judge Kendall explained in detail that he could not preside over the trial in an unbiased manner where he believed the prosecution had engaged in gross prosecutorial misconduct in bringing charges about which an internal prosecution memorandum revealed it had "serious doubts." Judge Kendall's opinion openly criticized the Virgin Islands Supreme Court for its handling of pre-trial matters in the case in the face of what he believed to be the prosecution's misconduct. In response, the Virgin Islands court brought criminal charges against Judge Kendall. After a trial, specially appointed trial judge Edgar Ross recommended acquittal on all counts. Despite Judge Ross' decision, the Virgin Island's Supreme Court ordered the prosecutor to appeal Judge Ross's ruling to the Supreme Court itself. Thereafter, despite not having presided over the trial, the Supreme Court refused to adopt the trial judge's recommendation and found Judge Kendall guilty on all counts. Kendall appealed to the Third Circuit which granted certiorari in the case.
In a stunning and complete rebuke to the Virgin Island's high court, the Third Circuit ruled that there was no basis for the Supreme Court's prosecution of Judge Kendall under the law where "the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings" and that Judge Kendall's opinion "did not pose such a threat." In its 58-page decision, the Third Circuit further ruled that Judge Kendall properly recused himself from presiding over the murder trial. The decision also details the misconduct of Assistant Attorney General Jesse Bethel, Jr. at issue in the case.
"I am pleased by the Third Circuit's decision," Judge Kendall said. "Anyone who is interested in the basic civil rights of all citizens, even in the face of a powerful institution like the Supreme Court of the Virgin Islands, should read this decision. We are fortunate to live in a nation of laws which protect us from an abuse of power even by a court charged with carrying out the law. But for the excellent representation provided to me by my legal counsel, this vindication would not have been possible. I am deeply grateful to my counsel."
Judge Kendall's counsel, Howard M. Cooper, echoed Kendall's sentiments. "Judge Kendall stood up to the most powerful legal institution in the Virgin Islands because he believed that what he had done and what he had written in the face of prosecutorial misconduct was the right thing to do. At great personal cost, he has waited years to be vindicated and that day has now come. Judge Kendall is a true profile in courage."