This is the sort of thing that would only happen in Seattle (okay, maybe in Portland). A 55-year-old homeless man named Francisco Calderon punched a complete stranger in the mouth one day in November, giving him a bloody lip. The victim called 911 and Calderon was arrested and charged with assault. He pleaded guilty to the crime. That turned out to be his 72nd time being convicted of a crime, fourteen of those convictions were felonies. And yet, City Attorney Pete Holmes worked out a plea deal with Calderon’s public defender which would keep him out of jail. Instead, he would get probation and drug treatment. Enter Municipal Court Judge Ed McKenna whose job it was to sentence Calderon. McKenna wasn’t convinced no jail time was appropriate in the case and questioned the plea deal.
When the case was first brought to Seattle Municipal Court Judge Ed McKenna for sentencing on Dec. 10, he questioned the Assistant City Attorney about the plea deal in light of his Calderon’s long criminal history. The city attorney stood by the deal.
McKenna then asked that Calderon undergo a pre-sentencing review so he could better understand Calderon’s personal history before passing judgement. He also asked the Assistant City Attorney to review the plea deal, a message which could be interpreted as he was unhappy with it.
When the court’s probation department first contacted Calderon for the review, he refused to participate, telling officers “I don’t give a crap.”
Just days before a second sentencing hearing in January, he agreed to the review.
When sentencing day arrived, he refused to appear in court. McKenna had to sign an order for two marshals to forcibly remove Calderon from his jail cell. Calderon arrived in court handcuffed and chained around the waist with two marshals standing over him.
Having been literally dragged into court, Calderon pleaded to be allowed to serve probation instead of jail time, saying he didn’t foresee any future problems. Again, this is a person who is 55-years-old and who has been convicted of 72 crimes. Judge McKenna didn’t buy it:
“I’m not sure I have ever seen a more significant history of violent offenses,” McKenna said in court. “Everything in that criminal history tells me that he’s a violent offender and is going to re-offend.”…
“As a judge, I have a duty and responsibility to protect the citizens of Seattle and impose a sentence that I think is going to provide protection,” McKenna said in court. “I don’t think this court is willing to risk having someone else assaulted.”
So McKenna threw the book at Calderon. Instead of probation, he got 364 days in jail, the maximum possible sentence for the charge of 4th-degree assault. All of which seems perfectly sensible under the circumstances. But this is Seattle. In response, City Attorney Pete Holmes and director of the Department of Public Defense Anita Khandelwal wrote a letter accusing Judge McKenna of violating the canon of judicial ethics and specifically claimed he had invited a reporter and a local activist to court to witness the sentencing, perhaps as part of a “premeditated display.”
On Jan. 10, 2019, you sentenced Mr. Calderon, who was charged with and convicted of misdemeanor assault. Notwithstanding your Probation Department’s advice and the City Attorney’s and defense attorneys’ joint recommendation that Mr. Calderon be ordered to complete treatment with the balance of the sentence suspended (he had already served 50 days in jail), you sentenced him to 364 days in jail. This was an extraordinary sentence, the maximum allowed by the law, rarely imposed in Seattle Municipal Court. Enhancing the spectacle of this sentencing, you issued a “drag order,” requiring corrections officers to bring him to court against his will.
KOMO news reporter Matt Markovich and Jennifer Coats, a member of the group Speak Out Seattle, attended the sentencing. While we welcome the transparency that media and public scrutiny bring to court proceedings, we rarely see members of the press or the public watch these proceedings, and their presence in combination with your resort to a drag order raise the specter of a premeditated display.
In fact, evidence suggests that Ms. Coats and Mr. Markovich came at your invitation to witness your unusual sentencing philosophy at work. On Nov. 7, 2018, you spoke before the North Precinct Advisory Council regarding the need for longer jail sentences and the “pressures SMC judges” face from defense attorneys to keep the jail population low. You invited attendees, including Ms. Coats, to visit your courtroom. It is exceedingly unlikely that Ms. Coats and Mr. Markovich coincidentally decided to watch court on the same day…
We request that you either comport yourself in a way that conforms with the Canons of Judicial Conduct or that you recuse yourself in all criminal matters.
Here’s Holmes and Khandelwal claiming they are defending the integrity of the judicial system while claiming a judge was plotting a stunt:
As mentioned in the clip, Judge McKenna wrote a letter defending himself against the accusations.
“I categorically deny your allegations that I have violated the Cannons (sic) of Judicial Conduct by initiating invitations to my court and by pre-determining a sentence,” his response states. “Both individuals you reference have publicly denied any invitation on my part to observe the case or any form of sentencing collusion as you infer.”…
McKenna ends his letter by reminding both Holmes and Khandelwal of their ethical obligations to maintain the integrity of their profession.
“I intend no actions and I’m not asking you for an apology,” the letter reads. “I simply ask that each of you initiate an effort to publicly correct your errors.”
The claim about Judge McKenna inviting two people to court for a premeditated stunt was false. KOMO News Reporter Matt Markovich issued a lengthy statement explaining how he became aware of the case. He said, “At no point did Judge Ed McKenna invite us into his courtroom to cover the case of Francisco Calderon.” He added, “I had no prior knowledge of Judge McKenna’s sentencing. Any reporter who had done their due diligence in the case heard, would have researched what happened in a previous hearing and could see what may happen in the final sentencing.”
Jennifer Coats, who was also accused of being invited to court in the letter, has also denied that claim. “I initiated going to the courtroom on my own,” Coats said adding, “I was not invited.” She had written about Calderon for a Facebook site called Safe Seattle and was there of her own accord. Furthermore, she said neither the City Attorney or anyone else ever asked her about why she was there. Apparently, the City Attorney just leveled this charge without any evidence.
The allegations against Judge McKenna were too much for the Seattle Times which published a strongly-worded editorial today castigating the City Attorney for making a political hit on a judge who seemed to be doing his job:
This was a political hit. Coming after McKenna publicly voiced concerns about justice-system failures, it looks like retribution for McKenna threatening the status quo. It also sent a message to other judges that they best not speak out of turn.
One question is whether McKenna was seeking “harsh” sentences, or inquiring about a general dearth of jail sentences sought for crimes committed. A recent study of prolific offenders found Holmes’ office often agrees to little or no post-conviction jail time for repeat offenders, even if they violated terms of a prior release. Perhaps McKenna was asking prosecutors if they had forgotten something…
Will any other elected official dare speak the forbidden words that McKenna uttered, acknowledging that Seattle’s leniency and generous social services are attracting criminals from around the state and nation? He forgot the script saying it’s the fault of Jeff Bezos and evil homeowners who should make way for more apartments…
In going out on this limb, McKenna is building confidence that his court is independent from the City Hall political machine that’s failing too often to provide safety and civility.
It’s pretty clear what’s really happening here. Judge McKenna’s decision to set aside the agreement Pete Holmes reached with a defense attorney was an embarrassment. Holmes apparently has a reputation for being willing to accept light sentences for repeat offenders and that sort of thing has become less acceptable in the wake of the “Seattle is Dying” documentary. So Holmes came out swinging with a bogus insinuation about the judge inviting people to court for a premeditated stunt.
If the reaction of the Seattle Times is any indication, that doesn’t seem to be working out too well for Holmes. This incident shows there are still some people in authority in Seattle who think giving a man with 72 convictions a year in jail is too harsh, but not as many as there used to be. Thank goodness for that. Holmes should apologize for his behavior even though Judge McKenna hasn’t asked him to do so.