Retired V.I. Superior Court Judge Edgar Ross has recommended to the V.I. Supreme Court that former V.I. Superior Court Judge Leon Kendall be found not guilty of contempt charges filed against him by the high court.
Ross was appointed Supreme Court Special Master to preside over the case beginning with a hearing in March 2009 for Kendall to show cause why he should not be held in direct criminal contempt of court for obstruction of justice, failing to comply with the court’s order, and misbehaving in his official transactions as an officer of the court.
Though Kendall officially retired from the bench in October 2009, after a judicial career frequently fraught with public controversy, his presence is still felt. He has strenuously fought the contempt charges brought against him.
The charges stem from a scathing legal opinion Kendall wrote in July 2009, objecting to a Supreme Court ruling that overturned decisions he made in the murder case of Basheem Ford and Jermaine Paris for the fatal Feb. 8, 2007 shooting of off-duty VIPD Officer Ariel Frett.
Frett was gunned down after he intervened in an altercation in the Hospital Ground area and died later that day from multiple gunshot wounds.
The trial of Ford and Paris, which was scheduled for Jan. 30, 2009, heated up three days before the original date, when Kendall ordered the prosecution to uphold a plea of involuntary manslaughter that prosecutor Jesse Bethel had protested.
On Jan. 30, 2009, after repeated courtroom disputes with Bethel during hearings leading to the trial, Kendall ordered the prosecution to uphold a plea of involuntary manslaughter that Bethel had offered both defense attorneys by phone on Jan. 16, one of which was recorded on an answering machine and later presented in court.
Bethel said at the time that he may have misspoken and instead meant to make an offer for voluntary manslaughter, which carried a ceiling of 10 years in prison, as opposed to the five years carried by a conviction for involuntary manslaughter.
Kendall said he would enforce the oral agreement over Bethel’s protests, including Bethel’s promise not to comply with Kendall’s order to appear in court the following Monday.
Attorney General Vincent Frazer subsequently filed a motion asking the Supreme Court to vacate Kendall’s order, and in May 2009 the court ruled in the government’s favor, reversing Kendall’s decision.
Kendall recused himself from the case, which was turned over to V.I. Superior Court Judge James S. Carroll III.
In the meantime, Ford was found shot dead in the Market Square area July 9, 2009 and Paris was later acquitted of all charges in an April 2010 trial.
In July 2009, almost two months after the Supreme Court’s decision, Kendall published his 31-page public opinion in which he recused himself, disagreeing with the high court’s opinion in language the court calls ‘"inflammatory."
Kendall stated repeatedly in his opinion that the Supreme Court’s findings "make no sense," also calling the findings "improper," and "premised on erroneous conclusions."
The court order noted that Kendall could have filed a petition with the 3rd Circuit Court of Appeals, "yet failed to do so."
The court set a show cause hearing, which eventually took place March 2010, where Kendall pleaded not guilty to the three counts. Kendall moved for an acquittal, which Ross denied in a May 4 ruling.
According to court documents, Ross allowed Kendall to present his case in a show cause hearing Aug. 18. At which Kendall offered four exhibits into evidence, then rested his case. The plaintiff offered no rebuttal.
In his Dec. 22 ruling, Ross commented on each of the counts. On count one, obstruction of the administration of justice, Ross found that Kendall made beyond any reasonable doubt, "inflammatory remarks and characterizations about the Supreme Court of the Virgin Islands that appeared calculated and intended to prejudice the Court in public estimation, destroy or call into doubt this court’s function and position as the highest local court in the Virgin Islands."
However, Ross found that the plaintiffs did not establish, "beyond a reasonable doubt, that Judge Kendall obstructed the administration of justice through his inflammatory remarks in his July 7, 2009 opinion.
On the second count, failure to comply with the court’s order, Ross wrote: "for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms." Ross said Kendall argues that the only order directed at him was not to enforce the oral plea agreement, with which he complied.
Ross found that the evidence does not establish beyond a reasonable doubt that Judge Kendall acted with intent to violate an order of the Supreme Court.
The third count, misbehaving in his official transactions of the court, Ross found that the plaintiff failed to establish beyond a reasonable doubt that Judge Kendall’s reasons for recusing himself did not comply with the American Bar Association’s Model Rules of Judicial Conduct.
In conclusion, Ross wrote the plaintiff failed to establish beyond a reasonable doubt, that Judge Kendall should be held in indirect criminal contempt for the three counts.
Indirect criminal contempt means that the action happens outside the court, as opposed to in the courtroom, itself.
Ross said Wednesday his findings "have been recommended to the Supreme Court to accept as written, modify, or adopt." The Supreme Court Clerk’s office said Wednesday, no order has been issued by the court.