Alvin Clay, 5: Who Judges the Judges?

The Honorable Leon Holmes 

Federal Judge Leon Holmes, the magistrate presiding over the Alvin Clay case, is admired by those who know him best.  Reading over the transcripts from this case, I was struck by Judge Holmes’ gracious and respectful manner. 

So why did the Honorable Mr. Holmes barely survive the federal confirmation process.

In 2004, critics like Patrick Leahy and Barbara Feinstein were brutal in their evaluation of the Arkansas jurist.  Senator Kay Bailey Hutchison, a conservative partisan from Texas, voted against Holmes because “He doesn’t have the fundamental commitment to the total equality of women in our society.  

 

           Patrick Leahy

    Kay Bailey Hutchison

Leon Holmes is a highly traditional Roman Catholic.  He has been criticized for asserting that wives should be subordinate to their husbands (an idea he borrowed from the book of Ephesians), that pro choice Americans are the moral equivalent of Nazis, and that the woman’s movement should be lamented for bringing us abortion, artificial contraception, and the gay rights movement.

 

“I have said some things that were openly harsh and unduly strident,” Holmes admits.  “If I could go back and change some of those things, I would speak more softly.”

But that doesn’t mean George Bush’s nominee is retracting anything he has written.  He doesn’t mean to give offense, but he believes what he believes.

Most of what you can learn about Leon Holmes on the internet comes from his political enemies.  Like Alvin Clay, Judge Holmes has been subjected to unwarranted allegations.  In fact, he had just emerged from his fiery ordeal on Capitol Hill when he was appointed to the Clay case.

Judge Holmes is no fool.  He understands that his personal beliefs must not guide his rulings from the bench.  “I think of a district judge as a humble position,” Holmes says.  His job is to determine what congress wants.  “I do not look on it as my job to make policy in the event that the statute is not what I want it to be or in the event that it is ambiguous.”

While the most strident criticism of Judge Holmes has come from pro choice and feminist circles, I am much more concerned about his views on racial justice.

Let me be clear, I am not accusing Holmes of being an old-school racist.  His doctoral dissertation at Duke focused on the views of Booker T. Washington and W.E.B. DuBois, noting how these seminal thinkers influenced Martin Luther King, Jr.  The Arkansas jurist is deeply concerned about race relations.  If you asked him if all American citizens should be equal in the eyes of the law I’m sure his head would nod in vigorous affirmation.  That’s not the problem.

 

Booker T. Washington believed that improvements in the lot of “the Negro” could only come through self-discipline and education in the manual trades while DuBois advocated swift and decisive change that was guaranteed to upset white folks.  Judge Holmes sides with Booker T. Washington.  That’s the problem.

The difference between Washington and DuBois is well illustrated by a fascinating recollection DuBois shared with The Atlantic Monthly in 1965. 

“I remember once I went with him to call on Andrew Carnegie — with whom he had a warm and financially rewarding relationship. On the way there Washington said to me:

‘Have you read Mr. Carnegie’s book?’

‘No,’ I replied, ‘I haven’t.’

‘You ought to,’ he said; ‘Mr. Carnegie likes it.’

DuBois chuckled softly. “When we got to Mr. Carnegie’s office,” he said, “he left me to wait downstairs. I never knew whether Mr. Carnegie had expressed an opinion about me or whether Washington didn’t trust me to be meek. It probably was the latter. I never read the book.”

Booker T. Washington taught that movements for racial equality are counter-productive if they deepen racial tension.  Judge Holmes agrees.

 

Consistent with this belief, Judge Holmes has argued that, in the wake of Brown vs. Board of Education, the federal government lacked the authority to desegregate public schools by judicial fiat. 

This suggests that when Judge Ronald Davies ordered Little Rock’s central High School to admit black students in 1957 he was overstepping his bounds.  Leon Holmes likely believes that integrated High Schools are desirable, but if the white majority objects, black folks should back off. 

 

George W. Bush’s controversial nominee doesn’t share the racial animus of Orval Faubus, the Arkansas governor who defied President Eisenhower in 1957, but he appears to sympathize with the governor’s stand.

Leon Holme wasn’t old enough for elementary school when the fight over Central High School erupted, but that event left an indelible mark on every white person in the state of Arkansas.  Popular opinion was solidly on the side of Governor Faubus; the paratroopers sent in to protect the Little Rock Nine were deeply resented.

  

Everybody needs a sense of place.  We want to honor our ancestors and venerate the traditions passed down from our grandmothers and grandfathers.  What do we do when Jim Crow segregation is part of the package?  How do we deal with the fact that our grandmothers and grandfathers intentionally and systematically reduced people of color to the level of animals?

I love my dog.  I treat him better than I treat most people.  But in my eyes, H.O. is still a dog.

Many southern whites loved their black servants.  They treated them better than they treated most white people.  But in their eyes, black people were still on the level of a dog.

The suggestion that the Jim Crow system was morally evil was deeply resented by southerners. 

 

The issue is complicated-intellectually and emotionally.

On the one hand, most white southerners (especially highly educated people like Leon Holmes) embrace the idea of racial equality.  On the other hand, these men and women need to celebrate their roots.

Against this background, Judge Holmes’ abiding interest in Booker T. Washington makes sense.  Washington taught that slavery, despite its horrors, was an expression of divine providence. 

In an article written in 1981 for Christianity Today (a journal for egghead evangelicals) Holmes wrote approvingly of Booker T. Washington’s approach to the race issue.  “He taught that God placed the Negro in America so it could teach the white race by example what it means to be Christ-like.  Moreover, he believed that God could use the Negroes’ situation to uplift the white race spiritually.”

But what if the Negroes don’t like being called Negroes?  What if they start calling themselves African Americans and taking to the streets in protest?  Is that spiritually uplifting to the white race?  Is it even tolerable?

 

And what if a black man named Alvin Clay, through his equally black attorneys, accuses two white federal prosecutors and a white FBI agent of perjury, withholding exculpatory evidence and pursuing a meritless and vindictive prosecution? 

What if the evidence supporting these allegations is overwhelming?

What do you do?

Here’s what Judge Holmes did (in the most dignified and gracious manner imaginable).

At the first pre-trial hearing, federal prosecutor Bob Govar testified that he played no role in presenting the Clay case to the grand jury.

On the basis of this testimony, Judge Holmes denied the defense motion alleging vindictive prosecution.  Govar denied the claim and Holmes took the federal prosecutor at his word.

Then, thanks to an oversight by Agent Hayes, grand jury transcripts fell into the hands of defense counsel.  These documents proved conclusively that Bob Govar had participated actively and enthusiastically in presenting the Clay case to the grand jury. 

The legal term is perjury.

George Hairston, Alvin Clay’s lead attorney, filed a motion for reconsideration based on Govar’s false statements and newly revealed evidence that FBI agent Hayes and federal prosecutors had lied to the grand jury, repeatedly, knowingly and blatantly.

Judge Holmes admitted that his original ruling had been mistaken, not because Govar had perjured himself but because the judge misunderstood Govar’s testimony.  The government, Holmes suggested, had made a few minor and innocent errors, but nothing serious. 

The fact that virtually every crime alleged against Clay in the original indictment has since been withdrawn, didn’t suggest there was a problem.  Grand jurors were not misled, Judge Holmes concluded, by the presentation of a few false “facts”. 

We have a very good reason to believe that jurors were misled by the testimony of bizarre witnesses like Rodney Hayes–they handed down an indictment.

Perhaps Judge Holmes comforts himself with the knowledge that Bob Govar and the entire Eastern Division of the Arkansas US Attorney’s Office have now been recused from the Clay case. 

If felonies are committed by the first set of prosecutors, we just bring in a new set.  Problem solved.

Assistant US Attorney Steven Snyder, the new prosecutor, has dropped all the unsustainable allegations from Alvin Clay’s indictment–Clay is now accused of assenting to Ray Nealy’s fraudulent acts. 

So all is well, right?

Not hardly. 

Steven Snyder knows he should drop the case against Alvin Clay, but that might suggest that the charges leveled by the Clay camp are legitimate.  That being unacceptable, Mr. Snyder soldiers on.

Judge Holmes let Bob Govar off the hook for the same reason Mr. Govar let State Trooper Clayton Richardson off the hook in Operation Wholesale–the reputation of the federal government was at stake. 

Every thinking person knew that Trooper Richardson was committing perjury every time he opened his mouth. 

Everyone who reviews the transcripts in the Clay case knows that Bob Govar, Rodney Hayes et al are guilty of vindictive prosecution, flagrant perjury and withholding exculpatory evidence.

They did it.  They knew what they were doing.  And they knew why they were doing it.

But not every felonious act can be punished; sometimes you’ve got to cut the system a little slack.

A federal judge who squeaked into his job by the slimmest of margins doesn’t want to ruffle any more feathers.  Forced to choose between a veteran of three decades like Bob Govar and an unheralded black defense attorney like Alvin Clay, Leon Holmes knew what to do. 

Holmes didn’t give these people a pass because he is a traditionalist Roman Catholic; he did it because he works within a dysfunctional system. 

How dysfunctional? 

Stay tuned.

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