'Painting With a Broad Brush'

Oklahoma Gazette | October 26, 2005
A unique opportunity for law students at Oklahoma City University turned into a unique verbal attack from one judge to another court.

On Oct. 11, the Oklahoma Court of Criminal Appeals held a hearing at Oklahoma City University’s Sarkey Law Center on the death penalty case of Alfred Brian Mitchell, convicted of the 1991 murder of Elaine Scott. Mitchell is asking the court to reverse his death sentence.

Toward the end of the nearly two-hour hearing, Mitchell attorney Andrea Miller was arguing a point with Vice Presiding Judge Gary Lumpkin concerning an opinion in the matter from the federal 10th Circuit Court of Appeals. Lumpkin interrupted Miller and spoke his mind about the federal bench.

“I don’t mean this in a disparaging way,” Lumpkin said. “The 10th Circuit is so far removed from reality. They don’t have any practical criminal law experience. They all came from high paying law firms. They superimpose their own processes on parties and juries.”

It’s one thing for a judge to disagree with a ruling from another court, particularly when it involves a federal court ruling on a state court decision. But Lumpkin’s remarks seemed to cross a line and became more personal, criticizing the experience and background of federal judges.

University of Oklahoma law professor Rick Tepker said Lumpkin’s remarks are unusual.

“They’re unusual in public. They’re unusual in judicial proceedings,” he said. “What he is really doing is teaching a misleading idea about the state court’s duty to follow federal law. I think his remarks are most regrettable.”

An OU law professor since 1981, Tepker teaches courses on constitutional and employment law. He is also the historian for the 10th Circuit Historical Society.

Tepker, a commentary writer for Oklahoma Gazette, said there are two reasons why Lumpkin’s remarks were out of line.

“One, is he is painting with a broad brush everyone who is on the 10th Circuit, including the former attorney general of Oklahoma, Robert Henry,” Tepker said. “Second, what he is saying is the qualifications of these judges don’t measure up in his mind. He is going to either disregard or denigrate what they have to say about federal law. That in my judgment comes close to being a violation of his judicial duty.”

Robert Henry served as Oklahoma’s attorney general from 1987 through 1992. He was appointed to the federal court in 1994. When contacted by Oklahoma Gazette, Henry took the John Roberts approach and refused to answer any questions concerning Lumpkin’s comments. Henry’s office said the case may come before the 10th Circuit and therefore Henry could not comment.

“The judge has no further comment,” Henry’s office said in an e-mail to the Gazette.

The 19 judges who sit on the 10th Circuit have held positions as state attorneys general, district attorneys, United States attorneys, law clerks for the U.S. Supreme Court, in the U.S. Department of Justice and as a state representative.

In 2001, the 10th Circuit reversed Mitchell’s death sentence and ordered the case be resentenced. His convictions of rape and forcible sodomy were thrown out, in large part due to former Oklahoma City police forensic chemist Joyce Gilchrist. However, his murder conviction still stands.

But Lumpkin’s tangent may have more to do with his overall displeasure with federal judges than the Mitchell case.

“There is friction between courts,” Tepker said. “I don’t know what is animating this, but he’s got a beef with the 10th Circuit. He ought to sit down and write an article attacking their jurisprudence rather than a broad brush attack on what he thinks is their background.”

The Gazette tried to interview Lumpkin, but he turned down a request.

“I appreciate (Gazette’s) inquiry, however, since that case is still pending before the court I am unable to make any further comments regarding it at this time,” Lumpkin wrote in an e-mail to the Gazette. “My comments during the oral argument, with the parties present, are all I can refer you to due to our continued review of the case.”

His comments, however, were not shared by his fellow appeals court judges.

“For the record, Judge Lumpkin is speaking for himself,” said Presiding Judge Charles Chapel.

“Amen,” followed Judge Charles Johnson.

OCU law school Dean Lawrence Hellman said several courts, including the state Supreme Court and the 10th Circuit, have conducted hearings before students.

“We think it provides an opportunity for our students to see attorneys in action, to see courts in action,” Hellman said. “Then to review what they have observed with their professors in classes following the hearings.”

Especially when a judge lashes out at other judges.


SIDEBAR: For the record … In putting together the story on comments made by Oklahoma Court of Criminal Appeals Vice Presiding Judge Gary Lumpkin against the 10th Circuit Court of Appeals, Oklahoma Gazette made an open records request to copy or review the videotape made of the hearing. Three such requests were made, each one denied. The Gazette first made a request to Presiding Judge Charles Chapel, who denied the request citing state statute Title 51 Sec. 24A.3(2) of the Oklahoma Open Records Act. The statute gives specific definitions of a public body, including a city council, school board and court. The statute also provides an exemption for justices and judges of Oklahoma courts. A second open records request was sent to Chief Justice Joseph Watt of the Oklahoma Supreme Court, who is the presiding officer over all state courts. In this request, the Gazette argued the record in question (videotape) was made for the appeals court concerning an event conducted by the court as a whole, and while the statute exempts individual judges from open records, it does not exempt the court as a body. It is the Gazette’s opinion the videotape is in possession of the court, not a judge, and therefore should be an open record. Watt, while agreeing with the Gazette’s argument, denied the request, saying the videotape is not in his possession, therefore it is not his to give out. Watt said the release must be made by the “custodian of the record.” He also said if the record were his, it would be released. A third request was then made to the court clerk of the appeals court, under the assumption the court clerk is the custodian of the record. But the clerk denied the request, stating the court clerk’s office is not the custodian. Since the third denial, the Gazette has sent a letter to Watt, Chapel and the court clerk, asking them to reconsider their decisions on the grounds the court clerk is the custodian of the record and the videotape is an open record. The Gazette will continue to pursue the matter. —Scott Cooper

Oklahoma Gazette

In its inaugural issue of Oct. 15, 1979, Oklahoma Gazette, at that time an upstart, bimonthly publication with a mere 2,000 circulation, featured a page-one story about the Oklahoma City Council’s recent passage of an urban conservation district. Hardly sexy...
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