August 18. 2004 12:00AM
Board recommends Houma judge’s suspension
By JOHN DeSANTIS
Senior Staff Writer
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HOUMA -- Nine months after complaints surfaced that a Terrebonne Parish judge wore a racially offensive Halloween costume at a Barrow Street lounge and eatery, state judicial officials say he violated Louisiana’s Code of Judicial Conduct and the state constitution, recommending a suspension from the bench in excess of one year.
District Judge Timothy C. Ellender, elected four times and serving 12 years on the bench with no prior history of official blemish, "engaged in public conduct which brought the judicial office into disrepute," the Judiciary Commission of Louisiana declared in a decision made public Tuesday.
Ellender, the commission said, should be suspended without pay for one year and a day and ordered to pay costs to the body of more than $2,000.
"Judge Ellender’s integrity and his ability to be fair and impartial toward African-Americans who appear before his court as defendants in criminal and other proceedings will be forever in doubt," the 26-page decision reads. "Every decision he makes and judgment he renders concerning an African-American may be questioned and second-guessed."
The commission’s recommendation goes to the state Supreme Court, which will make the final decision on the punishment. It was not immediately clear when the court, which is not currently in session, would consider the matter.
Ellender has repeatedly acknowledged that he wore an orange prison jumpsuit, blackface make-up, handcuffs and an Afro-style wig on the night of Oct 31 during a party at 1921 Seafood Restaurant.
When first questioned about the behavior by The Courier, Ellender dismissed concerns as "a tempest in a teapot," an assessment noted by commission members in their report as one that "belittled the seriousness of the event, and thereby aggravated the unethical appearance of impropriety, in violation of Canon 1 of the Code of Judicial Conduct."
After the stunt garnered significant media attention, the judge offered an apology "to anyone who was offended," but never disclosed a clear understanding of why such offense might be taken, insisting that his act was merely a prank, and that he himself never intended any disrespect to minorities.
Attempts Tuesday and this morning to reach Ellender, who at all times cooperated with commission members during their investigation, according to the report, were unsuccessful.
During a secret June hearing during which he gave testimony, Ellender directly addressed public criticism surrounding his costume choice, according to transcript excerpts.
"All I can do is plead stupidity, ignorance and lack of judgment, sir. I don’t want you to feel sorry for me," Ellender said. "I did what I did, and I’m ready to suffer the consequences."
If the Supreme Court upholds the suspension recommendation, an interim judge would be appointed by the Louisiana Supreme Court, attorneys familiar with the process said Tuesday.
JUDGES COMPLAINED
Tuesday’s report contains only a recommendation to the body that has ultimate authority over judges, the Louisiana Supreme Court. When its justices review the record they may increase the severity of the punishment beyond what the commission recommends, or find a lower threshold. The options for sanctions, once a complaint has been determined as credible, are dismissal, suspension or censure.
The commission’s findings mark the first time any authoritative body has officially made a determination that Ellender’s controversial appearance packed more significance than a mere prank. The report also shed new light on how deep reverberations from Ellender’s conduct were felt.
The first people to file official complaints against Ellender were his four fellow 32nd Judicial District judges, George Larke, John Walker, Randall Bethancourt and David Arceneaux -- all of whom are white -- as well as Louisiana Supreme Court Justice Bernette Johnson, who is black.
Jerome Boykin, president of the Terrebonne Parish branch of the National Association for the Advancement of Colored People, who made public his complaint five days after the judges filed theirs, was unaware of their official move until Tuesday.
"That was a step in the right direction, they did the right thing," said Boykin, whose public posture made him a lightning rod for criticism from Ellender supporters. "The other judges who wrote a letter to inform the commission of Judge Ellender’s actions did not want to be part of his racist act, did not want to tolerate what he did and they did the right thing."
While expressing a sense of vindication after reading the recommendation, Boykin said the commission did not go far enough.
"This organization still has the position it has had all along," Boykin said. "We strongly feel the judge should be removed from the bench permanently."
The commission found that although a Courier review of comparative sentencing in Terrebonne Parish showed no statistical evidence of bias in the courtroom -- a study whose results were cited by Ellender himself at the hearing -- the effect of the costume nonetheless creates insurmountable negative perceptions.
"It is not sufficient that Judge Ellender’s record does not demonstrate racial bias. An appearance of bias toward blacks created a reality in itself," the report states.
NEW DETAILS
The report gives more details of the Oct. 31 events, through summaries of testimony from the June hearing, than ever before offered.
The 1921 Seafood Restaurant, the report said, is owned by Ellender’s brother-in-law, and the judge was at a private party there, although the restaurant was still open to members of the public who wished to enter and buy take-out seafood.
"Staff of the restaurant, including an African-American employee, were present," the report states. "Judge Ellender donned the prison garb and handcuffs, both borrowed from the Terrebonne Parish sheriff and the warden of the jail, as well as an Afro black wig. Mrs. Ellender attended the party dressed as a police officer."
The newly married judge told the commission that the gag had to do with his wife exercising her control over him in the prison outfit.
"Judge Ellender further represented to the commission that the couple’s costumes did not generate the laughs they expected and when he remarked that this was the case, his brother-in-law, who was costumed as the Buckwheat character from the Little Rascals show, offered the judge some black makeup."
Although Judge and Mrs. Ellender visited other locations that night, the commission report says, Ellender had removed the blackface makeup before doing so.
"I guess it’s walk a mile in my shoes, and I have never walked a mile in a black man’s shoes," Ellender told the commission, according to the report. "And evidently there’s a lot of black men who are a lot more sensitive than I am about that and, you know, I guess I just didn’t realize it. That’s about all I can say about it."
According to a transcript excerpt contained in the decision, Ellender was asked about the racial makeup of the party and the patrons at the restaurant, to which he replied that all people there -- except a cook -- are white.
Ellender was then asked whether he would have gone to a party where the racial makeup was different in such a costume.
"In this prison outfit, yes sir. But in the black face, no," said the judge, who was then asked why, to which he replied "Because it could offend somebody."
WITNESSES BLASTED
In its published conclusions, the commission noted an additional unpleasant byproduct of the Ellender controversy, citing the potential for division among African Americans in the Houma area.
"The commission feels sorry not for Judge Ellender, but for those African Americans living in Houma, La., who had to endure the insult of the judge’s costume," the report reads. "Included in that group were the black men who testified for Judge Ellender, who are now at least potentially at odds in an emotionally charged issue with persons such as Mr. Boykin and other members of the local NAACP. … Judge Ellender’s actions, which suggested his unethical bias, have created new and unnecessary problems for some members of his community."
Gary Williams, a former state trooper, attorney Kevin Thompson, Assistant District Attorney Juan Pickett and District Attorney Investigator Michael Garner, all of whom are black, testified as witnesses on behalf of Ellender. The men generally agreed that, while they saw the costume as being in poor taste, they either were not offended or were willing to move on.
Details of their testimony, disclosed for the first time with the report’s release, drew fire from Boykin.
"For them to go before the Judiciary Commission to testify for Judge Ellender, in my opinion, is a disgrace to the black community because they were purposely going there doing whatever they could say and do to help him," Boykin said.
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| Louisiana Judiciary Commission |
| To view the Louisiana Judicial Commission's findings on Judge Ellender, click here |
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