Howard Bashman, author of the first, best and most informative appellate law blog How Appealing just issued TalkLeft a challenge:

"Will TalkLeft condemn today's action by Louisiana's Supreme Court because it removed from office a trial court judge whose conduct caused convicted criminals to obtain their freedom? Only time will tell."

You bet we criticize the Louisiana court's decision. Not because we delight in convicted criminals going free, but because the sanction of removal was far too harsh for this Judge's misdeeds.

First, we acknowledge, as did Sharon Hunter, the Judge under attack, that in the past several years her court lost key parts of trial transcripts resulting in 11 reversals including five murder cases. (Note, the sources for the quoted material below are New Orleans Times Picayune articles published August 19, 18, 17, 16 and 12--available on Lexis.Com.).

The Louisiana Supreme Court had several options in Judge Hunter's case: Upon finding she engaged in the specified misconduct, they could have censured, suspended or removed her. The Court chose the harshest sanction, removal.

Judge Hunter, and her lawyer, Jim Boren of Baton Rouge, one of the finest and most dedicated lawyers we know, argued that Judge Hunter should be disciplined, but not disrobed, and that she deserved a second chance. We agree.

First a little background. Six years ago, Judge Hunter became the first black woman to sit on the criminal court bench in New Orleans. She is a New Orleans native who received a bachelor's degree in political science from Xavier University and graduated from Southern University's law school in 1980.

Boren told the Court that Hunter was a rookie judge when the trial tapes in question were lost, and that despite the "public humiliation" of the past several months, being suspended from the bench and blasted by the Judiciary Commission, she wants to improve.

Boren charactarized Judge Hunter as a hard-working, honest judge who fell off track. He said this was in part attributable to the fact that as the first black woman judge in New Orleans Parish, she was an outsider who lacked the mentors that other new judges have.

As Boren pointed out, Judge Hunter was not the first New Orleans Judge to have problems with transcripts. She did not invent the problem. She did not do anything intentional in delaying them. The problems occurred early on in her judgeship, and she had tried to correct the problem. The record corroborated her improvement.

Judge Hunter personally apologized while appearing before the Lousiana Supreme Court for the mismanagement of her courtroom. But she also made it clear that while she would take the fall, part of the blame for messy record-keeping lay with former employees, particularly court reporters who routinely broke her rule against removing audiotaped recordings of trials from the courthouse.

In owning up to the problems, Judge Hunter told the Court,

"I've taken responsibility, and I do feel responsible as a judge and a supervisor. .. I fault myself for not doing something more aggressive in supervising former court reporters. It's a massive caseload over there. Court reporters frequently take tapes in and out. You trust them because they are licensed professionals."

Her lawyer said Judge Hunter is willing to have a supervisor present in court to help her improve her managerial skills. He compared the judge's management problems to "clumsiness, using an analogy of a child breaking its parents' priceless vase while dusting. It's broken, he said, but that is different than if the child had smashed the vase while playing ball in the house."

Hunter has undergone a "high-tech lynching" of her character, Boren said. (The same phrase was used by U.S. Supreme Court Clarence Thomas to describe his embattled 1991 confirmation hearings.)

Hunter acknowledged, through Boren, that she has not been great at accepting criticism or dealing with subordinates and problems. But neither have other judges. In a brief to the Court, Boren said, "Let the judge who is without those sins cast the first vote to remove her."

Boren said the Judge knows she has to "clean up her act." He also pointed out that one of her cases was resurrected last week after tapes of the trial were found by court staff. On Wednesday, the 4th Circuit Court of Appeal reinstated a murder conviction and life sentence for one of the affected defendants.

Charles Jones, one of the 4th Circuit judges deciding the case, acknowledged Judge Hunter's turnaround in a concurring opinion and wrote, "Much has been made of this district judge and her competence as a trial judge, but the newfound tapes prove she did her job."

Significantly, as Boren argued, Judge Hunter's administrative bungling and disorganized files came nowhere near the intentional misconduct of other judges who have been subjected to removal.

"This is not something evil, this is not a fraud or a theft," Boren wrote in his brief. "This is a judge who is poorly organized and is not a good administrator or manager but who is not incorrigible and who is not beyond redemption."

Many of Judge Hunter's constitutents support her. As one of them, Glenda Harper, wrote to the Times Picayune (published August 12),

"Selection of judges by the power elite (i.e. merit selection) is an idea whose time has passed. I am a 61-year-old black woman who remembers our struggle to get our constitutionally guaranteed right to vote. It amazes me that we are still fighting for our right to elect the people we choose. Your current editorials focusing on Judge Sharon Hunter as an example of the poor state of the judiciary are simply a smoke screen for your real agenda."

"Judge Hunter worked hard to campaign for the seat she now holds. The problems she faced as the only black female judge on the Criminal Court bench were not all of her making. The people of Orleans Parish elected her as judge. If they believe she is incapable of serving as judge, they can vote her out of office Oct. 5. "

"I remember from growing up in New Orleans that when white people were the majority in Orleans Parish, they elected all white judges. Now that black voters have the political strength to do the same thing, conservatives like Sen. John Hainkel offer "merit selection" for judges. What they really want is to retain the power to hand-pick judges. This would undermine the power of black voters in Orleans Parish and the choices we make at the polls. "

Since 1970, the Louisiana Supreme Court has removed only four elected judges. Bottom line, as her attorney Jim Boren said,

"Hunter is not asking for a full exoneration ... Punish her for the mistakes she made, but don't give her the death penalty."

Another lawyer, Darleen Jacobs, practicing 32 years in New Orleans said, give her some supervision, but don't kick her off the bench. "She cares about the community, which is more than I can say for some other elected officials. She's got my vote."

"We were not lazy. We were not indifferent to people's rights," Hunter said. "We do apologize for anything we have been charged with. By no means was any of it intentional. We apologize."

She has our vote too. The punishment should fit the crime. There was no fraud, no intentional misconduct, and the Judge clearly suffered from a lack of guidance. She should have another chance.

Howard, the ball is back in your court now.

Update: Howard has responded in an update to his earlier post, and Ernie the Attorney takes issue with our position. We'll grant Ernie some leeway as he hails from Lousiana, but we stand by our position: For negligence accompanied by an apology and a plan to improve, as opposed to illegal or fraudulent misconduct, it should be the voters who decide whether Judge Hunter stays or goes. She had planned to run for re-election on Oct. 5, and now she can't. Her district has been effectively disenfrancished by the Court.

(but, Ernie was correct that we incorrectly identified the court Judge Jones sits on, and we've corrected it.)