San Diego’s federal judges have issued a ringing endorsement of U.S. Magistrate Harry McCue, telling him in a letter that they have the “utmost confidence” in him, although he was recently accused of making racially insensitive comments from the bench.
In the letter, the judges, who hire and fire magistrates, said they placed “great faith in (McCue’s) judicial ability, demeanor and temperament” and praised him for his considerable role in last fall’s settlement of a voting rights lawsuit that gave Latinos a majority in one San Diego City Council district.
The two-page letter was delivered to McCue Wednesday, two days after The Times detailed McCue’s recent in-court comments to a black man that included the magistrate’s suggestion that “Abraham Lincoln’s birthday would be appropriate” for the next session in the case. The letter was made available Friday to The Times.
Gordon Thompson Jr., the former chief judge of the San Diego court, said Friday that the federal bench is weighing whether to pursue “rather substantial” sanctions, perhaps ethical sanctions, against the federal public defender agency that condemned McCue’s comments. The head of the agency, Judy Clarke, said no ethical boundaries had been crossed.
The new chief judge of the court, Judith N. Keep, also expressed the court’s support for McCue. But Earl B. Gilliam, the court’s only black judge, noted Friday that the letter did not directly address the accusations of insensitivity stemming from the hearing, which took place Jan. 10 before McCue.
Gilliam stressed that he does not know whether the court will take any other action about McCue’s remarks and that he is not, simply by commenting about the letter, indicating dissatisfaction with McCue. “If there is further action, it will have to be discussed among the judges,” Gilliam said.
McCue, 63, who has been a magistrate since 1970, did not return a call Friday to his chambers. Magistrates are appointed for an eight-year term by the judges of the district court and earn $115,092 annually.
A federal magistrate, under certain circumstances, presides over civil trials. On the criminal side, a magistrate takes care of most misdemeanor cases and, in addition, arraigns and sets bail for accused felons, who then go on to trial before a district judge.
In his 20 years on the bench, McCue has earned a reputation for a remarkable ability to settle complex civil cases. Lawyers call him capable and fair.
But attorneys also say that, in criminal cases, it is not uncommon for McCue to engage in a conversation with accused criminals during which he notes a person’s ethnic or racial identity or makes offensive, seemingly gratuitous remarks.
At the Jan. 10 hearing, McCue told Jonathan White, 29, a black man appearing at a probation revocation hearing stemming from White’s conviction on alien smuggling charges, that he could not believe White had been involved in alien smuggling because it was “the modern-day slave trade.”
McCue also made several other remarks at the hearing connected to White’s race, ancestry or background. The session wrapped up 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.
In Monday’s article, Clarke, head of Federal Defenders of San Diego Inc., the 17-lawyer agency that represents poor people unable to afford a lawyer in federal court and the office that provided White’s lawyer at the Jan. 10 hearing, called McCue’s remarks “insidious racial comments by a judicial officer.” She added, “It’s wrong, and it’s sad.”
Clarke said Friday that she stood by her comments.
Thompson said, however, that he had heard from a number of lawyers since the article appeared and that “they felt it (the story) was totally inappropriate and a slap at Harry that was unnecessary.”
“In no way have they ever considered him to be, in any way, the least bit racist,” Thompson said. “This comes from almost every segment of the bar.”
Thompson--who wrote the letter to McCue on behalf of the bench, delivered on Thompson’s last day as chief judge--said the court’s judges are likely to complain to the Federal Defenders board of directors, to “take whatever action they feel is necessary.”
Thompson suggested that Clarke’s comments--and those by David Cohen, White’s lawyer, who said that he heard McCue make remarks “in which he turned my stomach” in “six or seven cases” the same week as White’s case--might violate lawyers’ ethical duties. But the judge did not elaborate.
“I am confident there was nothing even close to an ethical violation of any kind for any comments made by myself or my staff,” Clarke said Friday.
“I hope the focus of this will not be on Federal Defenders, because that is not the proper place for any of this story to focus,” Clarke said, saying it should be on McCue. “If anyone is concerned about anything, the focus should not be on us for making comments on Magistrate McCue.”
Charles A. Bird, a San Diego lawyer and president of the Federal Defenders board, said Friday that the panel had not been asked to discuss the matter.
“It’s not surprising that some cases are controversial,” he said. “It’s not surprising that some cases generate controversies between our lawyers and prosecutors, even between our lawyers and judges.”