I'll Have Mine Fried, Please

Anyone here eat at Feby's Fishery in Wilmington, Delaware, on February 15? If so, did you happen to overhear Superior Court Judge Peggy Ableman's chit-chat with her husband over dinner?

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the perfomance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, `An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

The defendant will not be executed, thanks not to the judge, but to the Roper decision declaring it unlawful to execute juveniles. The defendant was seventeen at the time of the murders for which he was tried.

The judge's remarks were overheard after the jury's verdict of guilty, but before a verdict on the penalty phase.

Sounds like a biased jurist to me. And, of course, her observations of defense counsel's performance will be pivotal in the inevitable habeas corpus petition for ineffective assistance of counsel.

Judge Ableman now finds herself in a tough spot. She has all but declared defense counsel ineffective. Question: Will she appear voluntarily at that habeas hearing to support the claim of ineffectiveness? Or will she try to quash the subpoena claiming judicial privilege?

Comments

[Nuge]

Just another example of the people in power thinking they are above the law. At every break during trial and at the end of every day, this same Judge instructed the jury not to speak a word to anyone, including their spouses, about the case. And to inform her if anyone attempted to speak to them about the case. She, probably after a few too many cocktails, decided to vent loud enough for 3rd parties to hear. She can't follow her own instructions. And even after being "caught", she continues to view herself above the law.

I do not know if she had the ability to accept or reject the jury's recommendation of death. If she did have this discretion, and didn't exercise it, that speaks volumes about her.

I'm wondering if she will recuse herself from presiding over the habeous hearing!

Nuge

[JR]

Nuge:

1. The jury was the finder of fact in this case, and not the judge. As a general rule, we don't trust juries. Juries must make their decisions only upon the record in the case. We believe juries are susceptible to outside influence and making decisions on unreliable evidence, so we try and shelter them. While it may be no more than a fiction, we believe judges have the ability to focus on the right things and put the wrong things out of their minds.

2. A federal district court judge will hear the habeas petition and not a state court judge.

[Three Generations]

JR, not necessarily. In fact, I think first the hearing will be in state court and then after exhaustion of state remedies, will it move on to Federal court. It probably won't be before the same judge, but it might be.

[JR]

TG: I stand corrected -- I trust your statement since you are a criminal defense attorney.

[Mike]

JR, habeas is confusing -- Even many lawyers confuse the issues, especially post-AEDPA. Some law schools offer full courses on habeas. Seton Hall class on post-conviction remedies. If you're going to do criminal work, you should lobby your law school to start a course. Absent that, be sure to take a course in federal courts.

[Traverse City Attorney]

But the point is well taken. All too often in today's justice system the judge decides what he/she thinks ought happen in cases. While this is a direct violation of their oath of office, there are no immidiate remedies to force a judge with an agenda to simply follow the law. Appeal rights don't begin to address the situation since the inclination of the appeal court is to affirm if possible. Further, the prospect of spending two years on appeal hardly serves the ends of justice..

[Esteban Parra]

There is a mistake in your post.

The defendant, Michael Jones, has not been sentenced as of April 2, 2005. Also, Jones can not be sentenced to death because in March the U.S. Supreme Court banned the death penalty for killers younger than 18 when their crimes were committed.

Here is a link to the story that you mention: http://www.delawareonline.com/newsjournal/local/2005/03/25judgesdinnertal.html

[Norm Pattis]

The jury returned a verdict in favor of death. Sentence cannot be imposed because of Roper. My post did not say, or suggest, that he had been sentenced, and is accurate. Thanks for reading, though.

[Wilmington Lawyer]

Judge Ableman is well-known in Wilmington for her sharp tongue. However, the opinion is very unusual, even for her, in that it specifically says that defense counsel "botched" and "bungled" the defense. This just isn't something we see Delaware judges write.

So, yes, not only should she be disqualified from hearing the post-conviction proceedings, but she should also be called as a fact witness (if the opinion doesn't already speak for itself).

Also, no one will accuse Judge Ableman of having an "agenda". She is actually quite a fair-minded judge -- she just can't contain that poison pen of hers all the time.