U.S. Magistrate Harry R. McCue, in remarks made recently from the bench that were directed at a black man appearing as an accused criminal in his courtroom, said he could not believe the man had been involved in alien smuggling because it was the “modern-day slave trade.”
McCue, who is white, also made several other comments at the hearing connected to the man’s race, ancestry or background. The session closed with the magistrate scheduling the next hearing in the case and his suggestion that “Abraham Lincoln’s birthday would be appropriate,” according to a transcript of the hearing.
McCue, who has earned a reputation for his uncanny ability to engineer settlements in complex, multimillion-dollar cases, has also been known for years around the downtown San Diego courthouse for his quick wit, biting humor and sharp tongue.
But in criminal cases, lawyers said, it is not unusual for McCue to engage in an extensive dialogue with accused criminals during which he notes a person’s ethnic or racial identity or makes seemingly gratuitous remarks about that background. The recent remarks raise the question of whether McCue is unaware of, or insensitive to, ethnic concerns, lawyers said.
“It’s particularly outrageous because it happened to a black defendant,” said Judy Clarke, head of Federal Defenders of San Diego, the 17-lawyer office that represents poor people unable to afford a lawyer in federal court and the agency that was involved in the case before McCue.
“It wasn’t a comment--that alien smuggling is the modern-day slave trade--made to the general world,” Clarke said, emphasizing that it was made to a black man. “The discouraging thing is that these were insidious racial comments by a judicial officer, and that’s sad. It’s wrong, and it’s sad.”
It’s also ironic, Clarke said, since the federal courts have been seen since the mid-1950s as the ultimate protector of individual civil rights, the “arena in which civil rights law was forged,” where desegregation was given legal sanction, she said.
“The concept is that the federal courts are the last stopping gap between the will of the majority and the civil rights of all of us,” she said. “A federal judicial officer should not begin to crack that door . . . . So the crack in the door is the scary part of those kinds of comments.”
McCue, 63, who has been a federal magistrate in San Diego since 1970, could not be reached for comment. He did not return repeated phone calls made to his office.
David Cohen, the lawyer from Federal Defenders who handled the Jan. 10 hearing before McCue in which the magistrate made the remarks, said he heard McCue make “comments in which he turned my stomach” in “six or seven” cases the same week.
“His sentences are not that out of line. It’s not outrageous the way he’s treating (accused criminals),” Cohen said. “It’s just outrageous what he’s saying.”
Calling McCue a “very bright, capable guy,” Clarke said, “You hear lawyers say, ‘That was vintage McCue,’ after coming out of court after comments like that,” referring to the Jan. 10 hearing.
“I don’t think he means them,” Clarke said. “I don’t think he’s a racist or a bad guy. But the comments . . . are representative of a kind of attitude that is scary, particularly when it’s coming from our federal bench.”
In recent years, McCue has not heard many criminal cases because of his abilities on the civil side. Federal magistrates try to settle civil cases in the months before a trial and can, under certain circumstances, actually preside over the trial, though a U.S. district judge usually hears the trial itself.
McCue’s record of settling complicated civil cases has, over the years, earned him extravagant praise from lawyers and judges. He presided over multimillion-dollar settlements in suits related to the collapse of the fallen La Jolla investment firm J. David & Co., of Nucorp Energy Inc. and of Oak Industries.
Magistrates, who are appointed for an eight-year term by the judges of the district court and earn $115,092 annually, also arraign and set bail for accused felons, who then go on to trial before a U.S. district judge.
In addition to pretrial work in felony cases, magistrates take care of most misdemeanor cases themselves, and McCue’s Jan. 10 comments came in a misdemeanor case in which he was filling in for departed magistrate Irma Gonzalez, who had handled the case before. She was appointed Jan. 3 to the San Diego Superior Court.
The Jan. 10 hearing concerned the case of Jonathan White, 29, of San Ysidro, who had pleaded guilty before Gonzalez in November, 1989, to one count of smuggling aliens and another count of aiding and abetting their illegal entry.
According to court documents, White and another man admitted they had illegally smuggled two Latino men across the U.S.-Mexico border on Oct. 31, 1989.
In exchange for White’s guilty plea, prosecutors dismissed the smuggling count itself, according to court records. Gonzalez then sentenced White to two years’ probation.
In the meantime, according to a transcript of the Jan. 10 hearing, White was convicted in state court of possessing cocaine and sentenced to a six-month sentence at the Donovan State Prison in Otay Mesa.
At the Jan. 10 hearing, federal prosecutors sought to revoke White’s probation--alleging that he failed to report to federal probation officials--and to tack on an additional six-month term.
Early in the hearing, White--who told McCue that his real name was Harvey Jordan Robinson--admitted to the magistrate that he had violated his probation by failing to report, according to the transcript.
As Assistant U.S. Atty. Peter Sholl and White’s lawyer, Cohen of Federal Defenders, debated whether the six-month term should run at the same time, or after, the state sentence, McCue said to White, “Jonathan is an old name--that’s a name of a king.” White agreed.
“So at least you’ve got a good name--good--OK,” the transcript reads.
A few moments later, Sholl reminded McCue that White had committed a separate federal crime by violating probation.
“Absolutely no question about it, and the least understandable considering that Mr. White has some kind of a biblical background, he recognizes that Jonathan is the name of a king and--who did good work for his people, and how he could fall in line and league with the alien smugglers, the worst kind of exploiters of human beings that exist in this world today--that it’s hard for me to understand,” McCue said. “Did you graduate from high school, Jonathan?”
“Yes, I did, and I had three years of college,” White said.
“Then you have a historical perspective of--you know what happened to the Afro-Americans,” McCue said.
“Yes, I do,” White said.
“And you know--alien smuggling is just, you know, directly analogous to that,” McCue said.
“That’s correct,” White said.
“It’s the modern-day slave trade,” McCue said.
“That’s correct, your honor,” White said.
Cohen, White’s attorney, said the dialogue was stunning. “People were saying, ‘What’s going on here?’ ” he said.
Sholl, the prosecutor on the case, declined to comment.
McCue wrapped up the hearing by deciding to defer White’s sentencing so that he could hear from a counselor or psychologist who would meet with the inmate at the Donovan prison.
White told McCue that he expected to walk out of Donovan on March 5.
“OK,” McCue said, trying to figure out when to hold the sentencing hearing in federal court. “Why don’t we do it sometime in early February? I would think Abraham Lincoln’s birthday would be appropriate, but that’s too soon. That’s February the 12th. Or actually, that’s--when’s Abraham Lincoln’s birthday?”
“You just said--February the 12th,” White said.
“You were listening to me,” McCue said, eliciting laughs on a tape of the hearing from which the transcript was prepared. “OK. You knew that without me telling you, though, right?”
“Yes, I did,” White said.
The next hearing was finally set for Feb. 27, and McCue said he wanted to make certain that White appeared at it. “If he really helps himself and redeems himself, I’d like to deal with him, shake his hand, congratulate him or something,” McCue said.
In no way does either of the two sequences in the transcript suggest that McCue is overtly racist, Clarke said.
“But I suppose that’s the problem with stopping it,” she said. “It can get very insidious in ways that only a person who is the victim of the comments can understand. Maybe a white defendant wouldn’t catch the drift or wouldn’t understand.”
Chief Assistant U.S. Atty. James W. Brannigan Jr. said he did not want to volunteer an opinion about the comments.
“The comments are there and, for what they’re worth, they’re there in print,” Brannigan said. “Far be it from me to criticize what he said. Everybody can make their own determination whether they’re racist or non-racist.”