Photo Credit: Why ethics and law are not the same thing, In The Black, https://www.intheblack.com/articles/2015/04/01/why-ethics-and-law-are-not-the-same-thing.
By: Lindsey Phillips
Research and Writing Editor, American Journal of Trial Advocacy
On October 1, 2019, ex-Dallas police officer Amber Guyger was convicted of murder for shooting and killing Botham Jean after she claimed she thought he was an intruder when she mistook his apartment for her own.[1] The next day, after the completion of Guyger’s sentencing hearing, Judge Tammy Kemp walked over to Guyger and gave her a Bible along with some encouraging words about how to develop a relationship with God before giving her a hug.[2] The entire country was taken aback by Judge Kemp’s actions. Some applauded the judge for demonstrating compassion and forgiveness in a criminal justice system that often seems to lack both of those things.[3] Others criticized the judge, claiming that the compassion and forgiveness she exhibited to Guyger, a white female, is rarely shown to African-American defendants—although, interestingly enough, Judge Kemp is an African-American woman.[4] Others condemned the judge for stepping outside her role as a neutral government actor.[5]
Of the people who believed Judge Kemp violated her duty to remain neutral, the Freedom From Religion Foundation (FFRF or “the Foundation”), a national nonprofit organization that defends the separation of church and state was at the forefront. On October 3, 2019, the Foundation filed a complaint against Judge Kemp with the Texas Commission on Judicial Conduct.[6] In its complaint, the Foundation described Judge Kemp’s actions as “inappropriate” and “unconstitutional.”[7] The Foundation asserted that Judge Kemp “was acting in her official governmental capacity,” and therefore was subject to both the Establishment Clause of the First Amendment to the United States Constitution and Article I, Section 6 of the Texas Bill of Rights.[8] The Texas Bill of Rights states, in relevant part, that Texans shall not be compelled to “support any place of worship” and provides that “no preference shall ever be given by law to any religious society or mode of worship.”[9] The complaint set out in full what Judge Kemp said to Guyger.[10] Judge Kemp stated:
You can have [my Bible]. I have three or four more at home. This is the one I use every day. [inaudible] This is your job for the next month. You read right here: John 3:16. And this is where you start, ‘For God so loved the world that he gave his one and only Son, that whosoever . . .’ You stop at ‘whosoever’ and say Amber, [inaudible] You start with the Gospels. Then [inaudible]. You read this whole book of John. [inaudible] . . . He has a purpose for you. There is no reason why [inaudible] . . . It’s not because I’m good. It’s because I believe in Christ. I’m not good. You haven’t done as much as you think you have, and you can be forgiven. You did something bad in one moment in time. What you do now matters.[11]
In closing its complaint, the Foundation urged the Texas Commission on Judicial Conduct to examine Judge Kemp’s conduct to determine whether her actions constituted violations of Canons 1, 2, 3, and 4C of the Texas Code of Judicial Conduct.[12]
The first canon of the Texas Code of Judicial Conduct declares that “[a]n independent and honorable judiciary is indispensable to justice in our society.”[13] The second canon instructs judges to avoid the appearance of impropriety and act in a way “that promotes public confidence in the integrity and impartiality of the judiciary.”[14] The third canon instructs judges to execute their duties in a diligent and impartial manner.[15] Section B of the third canon further says that a “judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, . . . based upon . . . religion.”[16] Section C of the fourth canon states, “A judge may participate in civic and charitable activities [as long as doing so does] not reflect adversely upon the judge’s impartiality or interfere with the performance of judicial activities.”[17] None of these canons explicitly prohibit a judge from doing what Judge Kemp did; however, it is the Foundation’s assertion that her actions are implicated by these canons because she “promote[d] [her] personal religious beliefs while acting in her official capacity.”[18]
So, did Judge Kemp’s actions violate the Texas Code of Judicial Conduct? As a typical legal mind would state: “It depends.” There are potentially valid arguments for both sides of the coin in this debate. Those who believe that Judge Kemp’s actions did not violate her judicial ethical obligations point to one primary fact – the proceeding was over.[19] In fact, this was Judge Kemp’s own defense to her actions.[20] In an interview with the Associated Press, she stated, “I didn’t do that from the bench . . . I came down to extend my condolences to the Jean family and to encourage Ms. Guyger because she has a lot of life to live.”[21] The interaction does not appear to be a part of the trial record, which substantiates the claim that the proceeding had indeed ended.[22] Furthermore, Guyger’s conviction and sentence had already been decided when the interaction occurred. Both the conviction and sentence were decided by a jury—not Judge Kemp—which could refute the claim that any potential impartiality had an effect on the outcome of the case.
Even when considering these arguments though, claims that Judge Kemp violated the Texas Code of Judicial Conduct are certainly not without merit. Some, like the Freedom From Religion Foundation, argue that the proceeding was not over. In its complaint, the Foundation stated, “Judge Kemp transmitted her personal religious beliefs as a state official in an official proceeding of the gravest nature, a setting that imposed on everyone in the courtroom: attorneys, staff, family members and the convicted.”[23] Others point out that even if the proceeding was over, there may be post-trial motions or appeals in this case.[24] If any post-trial motions or appeals were before Judge Kemp, her impartiality would undoubtedly be called into question.[25] But whether the proceeding was truly over is really irrelevant because the second canon of the Texas Code of Judicial Conduct instructs judges to avoid even the “appearance of impropriety in all of the judge’s activities” and act in a way “that promotes public confidence in the integrity and impartiality of the judiciary.”[26] Judge Kemp’s actions created an appearance of impropriety, and the backlash surrounding her actions suggests that the public’s confidence in her impartiality was diminished. While it is reasonable to allege Judge Kemp violated all the canons mentioned in the Foundation’s complaint, at the very least, she certainly violated the second canon.
Toby Shook, one of Guyger’s
attorneys, said that what Judge Kemp did showed a “perfect display of
compassion.”[27]
Indeed, compassion was the theme of the
day when Guyger received her sentence. Moments
before Judge Guyger demonstrated this “perfect display of compassion” to
Guyger, the victim’s brother, Brandt Jean, gave an extremely emotional speech,
forgiving Guyger and encouraging her to develop a relationship with God before
giving her a powerful embrace himself.[28] The Freedom From Religion Foundation acknowledged
this and stated in its complaint that it is nothing wrong with “private
citizens express[ing] their religious beliefs in court, but the rules are
different for those acting in a governmental role.”[29] The strongest supporters of Judge Kemp’s actions
use the ideals of compassion, forgiveness, and hope to form the basis of their
support. But perhaps those same people
would not be as quick to support her conduct if she were a Muslim judge who
gifted a defendant with a Quran and instructed on how to follow Muhammad, or a judge
who practiced Judaism and gifted a defendant with the Torah. Compassion,
forgiveness, and hope are often ideals that are indeed lost when defendants
experience America’s criminal justice system. Finding ways to ensure all defendants, not just
a select few, experience compassion, forgiveness, and hope despite their
mistakes is an important goal that the criminal justice system should have. However, doing exactly what Judge Kemp did is probably
not the way to achieve such a goal. Ultimately,
the Texas Commission on Judicial Conduct has a controversial decision to make
because it is the entity responsible for deciding whether Judge Kemp violated
her ethical duties and whether she should be reprimanded in any way. Until the Commission makes a decision, it is
probably safe to say this: Judge Kemp’s decision to hug Guyger may have been
both legal and ethical, but the gifting of her personal Bible and the
conversation that accompanied that gift was neither legal nor ethical.
[1] Ashley Killough & Madeline Holcombe, Emotions Run High in and Outside of Courtroom After Amber Guyger Sentenced to 10 Years for Botham Jean’s Murder, CNN (Oct. 3, 2019, 10:17 AM), https://www-m.cnn.com/2019/10/03/us/botham-jean-amber-guyger-trial-wrap/index.html?r=https%3A%2F%2Fwww.google.com%2F.
[2] Doug Stanglin, Atheist group says Texas judge “crossed the line” when she handed a Bible to Amber Guyger, USA Today (Oct. 4, 2019, 12:27 PM), https://www.usatoday.com/story/news/nation/2019/10/04/atheist-group-complains-texas-judge-tammy-kemp-bible-amber-guyger/3862737002/.
[3] Reis Thebault, Judge Defends Giving Amber Guyger Hug and a Bible, Saying She “Could Not Refuse”, Wash. Post (Oct. 8, 2019, 5:05 AM), https://www.washingtonpost.com/nation/2019/10/08/dallas-judge-defends-giving-amber-guyger-bible-hug-saying-she-could-not-refuse/.
[4] Id.
[5] Id.
[6] Stanglin, supra note 2.
[7] Letter from Dan Baker and Annie Laurie Gaylor, Co-Presidents, Freedom From Religion Found., to Tex. Comm’n on Judicial Conduct (Oct. 3, 2019), https://ffrf.org/images/1JudgeKempletter.pdf.
[8] Id. at 3.
[9] Justia, https://law.justia.com/constitution/texas/sections/cn000100-000600.html (last visited Oct. 19, 2019).
[10] Letter from Dan Baker and Annie Laurie Gaylor to Tex. Comm’n on Judicial Conduct, supra note 7, at 1-2.
[11] Id.
[12] Id. at 3.
[13] Texas Code of Judicial Conduct,
Click to access txcodeofjudicialconduct.pdf
(last visited Oct. 19, 2019).[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Letter from Dan Baker and Annie Laurie Gaylor to Tex. Comm’n on Judicial Conduct, supra note 7, at 3.
[19] Thebault, supra note 3.
[20] Dana Branham, Judge Tammy Kemp Defends Giving Fired Dallas Officer Amber Guyger a Hug and a Bible After Trial, Dallas Morning News (Oct. 7, 2019, 4:52 PM), https://www.dallasnews.com/news/courts/2019/10/07/judge-amber-guyger-case-defends-giving-fired-officer-hug-bible-after-trial/.
[21] Id.
[22] Thebault, supra note 3.
[23] Letter from Dan Baker and Annie Laurie Gaylor to Tex. Comm’n on Judicial Conduct, supra note 7, at 3.
[24] Thebault, supra note 3.
[25] Id.
[26] Texas Code of Judicial Conduct, supra note 13 (emphasis added).
[27] Branham, supra note 20.
[28] Killough & Holcombe, supra note 1.
[29] Letter from Dan Baker and Annie Laurie Gaylor to Tex. Comm’n on Judicial Conduct, supra note 7, at 2.
American Journal of Trial Advocacy 