Virgin Islands judge up against the legal establishment

“Oh what a tangled web se weave,

When first we practice to deceive,”

By Sir Walter Scott in “Marmion”

In Greek mythology Sisyphus was a king who received a particularly harsh punishment from the Gods.

He was compelled to roll an immense boulder up a hill and when the boulder was about to reach the summit, it would roll down the hill into the valley below, forcing Sisyphus to start the arduous task of rolling the boulder up the hill all over again.

During his tenure as a superior court judge, Leon Kendall (now retired) was forced by the judicial “gods” of the Virgin Islands to roll that boulder up and down the “legal” hills. When that boulder was about to reach the summit of victory, it would fall down again into the valley below, forcing Judge Kendall to repeat the arduous task all over again.

Kendall endured a trifecta of legal challenges starting with the libel suit against The Daily News in October, 2007, and ending with his sentence for criminal contempt on Dec. 7, 2011. His first confrontation with the political elites in the Virgin Islands occurred in 2003, when he was nominated to be a judge of the Superior Court. Current Supreme Court Justice Maria Cabret, then the superior court’s presiding judge, and some prominent members of the Bar Association, publicly opposed his nomination. Approximately one month after he assumed his duties as judge, the territory’s dominant print medium, the Daily News newspaper, and others began an orchestrated campaign of libel against him by publishing a series of false, inflammatory and sensational articles that misrepresented his bail decisions. The centerpiece of the libel campaign was a series of articles concerning Kendall’s bail decisions in two criminal cases. People v Daniel Castillo and People v Ashley Williams.

Daniel Castillo appeared before Judge Kendall for a bail hearing on March 2, 2007 on misdemeanor assault charges. He was released on bail in the form of his personal recognizance. Subsequently, he was arrested for the brutal murder of 12-year-old Laquina Hennis. On April 14, 2007, The Daily News ran an article with the headline: “Despite history of violence, Castillo was released on his own recognizance after his arrest on assault charges.” The article went on to state that Judge Kendall released Castillo, despite Castillo’s history of violence, including charges of rape and weapons possession. The implication of this article was that Judge Kendall knew about Castillo’s history of violence, but nevertheless had released him, thus giving him the “opportunity” to murder the little girl.

Joy Blackburn, the Daily News reporter, repeated this story, again and again: on April 17, April 24, April 26 and May 3, 2007.

The articles were utterly false. No history of violence was ever presented to Judge Kendall during the bail hearing. In fact, the prosecutor in her presentation to Judge Kendall, stated as follows: “Your honor, the defendant has a prior conviction in 2003. It doesn’t specify exactly what it is. It must be the felony possession of stolen property. He has a rape charge in November 2004, which was dismissed. The defendant was born in St. Thomas, Virgin Islands, and we ask that bail be set in the amount of $500.

The public reaction to the Daily News articles was immediate. Protestors literally took to the streets and demanded that Judge Kendall either resign or be removed. The effect on Kendall’s reputation was equally devastating. One street protester carried a placard stating that the little girl died because of his mistake.

On March 16, 2010, the jury unanimously found that two of the defendants, Joy Blackburn and the Daily News were liable for publishing false and defamatory articles against Judge Kendall.

The court then reversed all of its prior decisions, granted the defendants’ motion for directed verdict and entered judgment as a matter of law in favor of the defendants on the very grounds that it had rejected in denying their motions for directed verdict, summary judgment and dismissal. Judge Kendall appealed the decision to the V. I. Supreme Court which affirmed the judgment. Judge Kendall has appealed that judgment to the United States Court of Appeals for the Third Circuit. The appeal is pending.

The judicial “gods” in the Virgin Islands were not amused when Judge Kendall obtained a favorable jury verdict against the Daily News, one of the leading media houses in the Virgin Islands and a staunch defender of the political establishment. They rolled that boulder down the hill.

In June 2007, Judge Kendall received a letter informing him that the V.I. Commission on Judicial Disabilities planned to investigate two complaints against him. The complaints were filed by the Judicial Watch, a right-wing, conservative, quasi legal organization from Washington, DC and a coalition of feminist groups which had been influenced by the sensational articles by Joy Blackburn of the Daily News. The complaints were apparently intended to have the Commission improperly serve as a court of appeals to review Judge Kendall’s bail decisions.

had Judge Kendall challenged the Commission’s constitutionality in a lawsuit filed in the federal District Court of the Virgin Islands. After trial, the District Court declared the Commission unconstitutional and permanently enjoined it from conducting any proceeding to remove him from the bench.

The Commission appealed to the U.S. Court of Appeals for the Third Circuit which affirmed the District Court’s decision, thus abolishing the Commission which had been in existence for 30 years.

*Colin A. Moore ([email protected]) is senior editor of the Caribbean American Weekly, and adjunct professor of constitutional law (ret) at Brooklyn College.

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The judicial “gods” of the Virgin Islands were not amused by the fact that Judge Kendall had scored another victory against them. He had not only obtained a jury verdict against the Daily News, the most powerful newspaper in the Virgin Islands, but he had also obtained a verdict from the federal District Court which eliminated the baseless complaints against him. Having failed to destroy his reputation by media exposure or by quasi-judicial removal, they decided to pursue a third option – criminal prosecution. They rolled that boulder down the hill again.

On August 13, 2009, the V.I. Supreme Court brought criminal contempt charges against Judge Kendall stemming from the murder trial of Basheem Ford and Jermaine Paris who were accused of killing Police Officer Ariel Frett. In that case, Judge Kendall had ordered the enforcement of a plea agreement to Involuntary Manslaughter after the prosecutor, former Assistant Attorney General Jesse Bethel, Sr. attempted to renege on the deal by lying to the Court about the terms of the plea. After refusing to appear for a change of plea hearing, the prosecutor was arrested. Attorney Bethel aided and abetted the obstruction of justice by participating in his release from jail without posting bail or obtaining the court’s permission. Upon his release from jail, he petitioned the Supreme Court to block enforcement of the plea agreement. In an opinion made public, the Supreme held that Judge Kendall had failed to follow the law and had relied on evidence not in the record and ordered him not to enforce the agreement. Immediately upon receipt of the order, Judge Kendall fully complied with it and did nothing further to enforce that agreement.

The Supreme Court charged Judge Kendall with criminal contempt for refusing to try the case and for recusing himself, even though it never ordered him not to recuse himself or preside over the trial.

After a protracted trial, The Supreme Court’s hand-picked Judge/Special Master found Judge Kendall “Not Guilty” of all charges of criminal contempt. The judicial “gods” were not amused. They rolled the ball down the hill yet again. This time, the Supreme Court ordered its hand-picked Special Prosecutor to appeal the “Not Guilty” verdict to the Court itself. It then set aside that verdict and entered a verdict of “Guilty” as charged, even though it did not hear the evidence or assess the credibility of its only material witness, Attorney Bethel. Judge Kendall has appealed the “Guilty” verdict to the U.S. Court of Appeals for the Third Circuit.

There is every likelihood that the contempt charges against him will be reversed by the Third Circuit Court of Appeals. The concept that the Virgin Islands Supreme Court can arrogate unto itself simultaneously, the functions of accuser, judge, prosecutor and appellate court is inconsistent with every legal, ethical and constitutional precedent

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