Has Seattle Judge Ed McKenna stepped out of line?

Two of Seattle’s top legal authorities — and common adversaries — have joined together for an open letter to Seattle Municipal Judge Ed McKenna.

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The Seattle Times reports that City Attorney Pete Holmes and Department of Public Defense Director Anita Khandelwal have written a joint letter to Presiding Municipal Judge Ed McKenna, asking him to step down.

They are not asking him to step down from the bench, rather, his position as presiding judge. They accuse McKenna of violating the canons of judicial ethics.

“Our concerns are based on your repeated comments regarding the sentencing recommendations made by prosecutors, the role of defense counsel, and the problems you perceive in the criminal legal system, as well as your conduct during the sentencing of Francisco Calderon,” the letter states, further asking McKenna to step down as presiding judge so that his conduct “does not further tarnish the reputations of of your fellow Seattle Municipal Court judges.”

The letter also objects to McKenna’s criticisms of prosecutor’s sentencing recommendations. Holmes and Khandelwal also took offense of McKenna’s participation in a Downtown Seattle Association City Maker breakfast, moderated by KIRO Radio’s Dave Ross. McKenna spoke about the challenges he faces as a judge at the forum.

In response to the letter, Judge McKenna gave KIRO Radio this statement: “I take issue with the assertions made by Ms. Khandelwal and Mr. Holmes. The letter was released to the media before I received it. Having just received the letter, I need time to consider it and I will be issuing a formal response in the near future.”

Former Seattle City Councilmember and Mayor Tim Burgess issued his own statement on his Facebook page Wednesday night, defending McKenna.

Judge McKenna is a distinguished jurist who was chosen by his peers as the presiding judge of the Municipal Court. Is this what happens when someone challenges orthodoxy? Is this a ‘warning’ to other judges not to deviate from the approved approach to crime? This and other official responses to the anger in our neighborhoods over crime and disorder has been dismissive and centered on attacking those who speak out. These are serious issues requiring rational discussion not personal attacks or dismissive attacks.

Judge McKenna and context

KIRO Radio’s Mike Lewis spoke with four attorneys, off the record and for background, to get an idea of the context around Judge McKenna, and the open letter from Holmes and Khandelwal.

He reports that the consensus was that the troubling part of the letter was a portion where they point out that Judge McKenna has spoken with city attorneys and prosecutors outside of the court and criticized the city’s sentencing recommendations, away from defense counsel. The letter states he has urged prosecutors to recommend longer sentencing. They quote McKenna as saying he looks like “the bad guy” when he orders longer sentencing.

“Generally speaking, if a judge asks for a specific sentencing in a specific case, that is absolutely out of line according to the judicial code of conduct in the State of Washington,” Lewis said. “… you don’t step out of your lane like this.”

“If a judge is asking broadly for doing more regarding sentencing recommendations, that is not necessarily considered out of line, but as one person put it, ‘it smells like a fish,'” he added. “This is not something that you should do as a judge. And broadly speaking you ought not go out and be making speeches on this sort of thing. Whether or not you agree with the way Pete Holmes runs his office, it is within his discretion to decide who to charge, what to charge, and what sentencing recommendations.”

The way the courts normally operate is that the judges “keep their yaps shut,” Lewis said, about these topics. One reason for that is because if a judge speaks publicly, it can affect an appeal on a case.

“Whether or not you agree with McKenna is not really the point,” he said. “It seems to be a consensus among people who actually like him quite a lot, is ‘maybe just stop talking.'”

Lewis also points out that the letter and McKenna’s public conduct is “competing grandstanding.”

“The other thing (that people told me) is that, regarding Pete Holmes’ letter, when you have a problem with a judge, you settle this in private, with a meeting, you do not release a letter like this,” Lewis said.

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