A misconduct complaint against San Diego-based U.S. District Judge Roger Benitez, who ordered a U.S. marshal to handcuff a suspect’s 13-year-old daughter during a hearing, will be reviewed by a higher court, the U.S. 9th Circuit Court of Appeals Tuesday.
The handcuff exercise, which brought the girl to tears in court, was designed to deter her from using drugs and end up in court like her father, Benitez explained to her, according to a transcript of the Feb. 13 hearing.
Instead, the father’s attorney described the incident in a motion as “psychologically damaging and damaging.”
Four days after the hearing, Chief Justice of the Southern District of California, Dana Sabraw, contacted his 9th Circuit counterpart “concerning allegations of judicial misconduct” by Benitez, according to a court order confirming the investigation submitted on Tuesday.
Now a 9th Circuit judge will review the complaint, conduct an investigation and decide what action to take, which may include dismissing the complaint, taking corrective action against Benitez or forming a special commission to investigate further. The initial review will be completed by 9th Circuit Chief Judge Mary Murguia unless she is disqualified from adjudicating a complaint against Benitez, in which case the highest active judge not disqualified will take over.
Murguia wrote in the order that she was making the complaint against Benitez public “in order to ‘maintain public confidence in the judiciary’s ability to redress misconduct or disability’.”
Benitez declined to comment on Tuesday through his clerk, who wrote in an email that the judge “regrets not being allowed to comment on matters pending before the court”.
The incident was made public for the first time Monday by the legal blog Above the Law and performed at a hearing for the girl’s father. He could not be reached for comment Tuesday and his appointed Federal Defenders of San Diego attorney did not respond to messages. The Federal Defenders executive asked for a list of questions about the incident but did not respond Tuesday.
The hearing was held to revoke the girl’s father’s probation, following completion of a five-year prison sentence on drug distribution conspiracy charges and another five years of supervised release that did not go well.
According to a transcript of the hearing, Benitez gave the man a chance to address the court before he was sentenced to prison for violating the terms of his probation. The defendant told the judge that he grew up in San Diego, which means he constantly runs into people he knows and falls back into previous bad habits.
“It’s a recurring cycle. It’s a revolving door,” the defendant said.
He went on to say that the only way he believed he could change his life was to “leave behind what I know, leave behind everyone I know.” Then he told Benitez that his daughter is “following the same footsteps as I am now”.
The judge interrupted the defendant and asked him what he meant. The man told the judge, “She’s actually growing up where I grew up, so she’s meeting the same people I grew up with, which will lead her down the same path I’ve been on.”
After some additional arguments about his case, Benitez addressed a US marshal in the room.
“Do you have handcuffs?” he asked the marshal. He then turned to the defendant’s daughter on the stand, asked her name and then asked her to stand next to her father’s lawyer.
“Do me a favor,” Benitez told the Marshal. “Handcuff her.”
The girl began to cry, according to a request from the client’s attorney, Mayra Lopez.
Benitez then asked the marshal to escort her to the jury box. Lopez wrote that her client’s daughter continued to cry before Benitez released her after a “long hiatus”. But he didn’t let her return to her seat immediately.
“Don’t go now,” Benitez told the girl twice. “Look at me. Look at me. Do you see where your father is?
“Yes,” replied the girl.
“How did you like the way those handcuffs felt?” Benitez asked her.
“I didn’t like it,” she replied.
“How did you like sitting there?” asked the judge.
“I didn’t like it,” the girl replied.
“Good. That was the message I was hoping to give you. So your dad has made some serious mistakes in his life, and look where it got him. And as a result, he has to spend time away from you. And if you don’t be careful, young lady, you’ll get handcuffed and find yourself exactly where I put you a minute ago,’ Benitez said.
“And one day you look back and say to yourself, ‘Where has my life gone?’ And the answer will be that you’ve spent most of your life in and out of prison — in and out, in and out, in and out, in and out — and that will probably be because of drugs,” he said.” You are a very cute young lady and I feel like you have a great life ahead of you, but what I just heard about your father, from your father, makes me very concerned.
A view of the neighboring federal courthouses in downtown San Diego.
(Kristina Davis / San Diego Union-Tribune)
Benitez then told the girl to go back to her seat and proceeded to sentence her father to 10 months in prison – the term recommended by his lawyer, the prosecutor and the US Parole Board. But he spoke to the girl again after he imposed the sentence.
“I hope the next time you’re tempted to do drugs, even weed, okay, even weed, you remember what happened here today,” he said. “I hope you remember this mean old face.”
He added that she had “so much life” ahead of her and urged her to tell her mother if she was ever tempted to take drugs.
Days after the hearing, her father’s lawyer filed a motion asking another judge to re-sentence her client. The case was turned over to U.S. District Judge Robert Huie, who re-sentenced him to a term already served. That was the “most appropriate sanction given the harrowing events,” Lopez had argued.
The incident stunned many in the legal and juvenile justice community.
“It really surprises me that a judge, or anyone else, would feel the need to handcuff someone in front of others when there is absolutely no misconduct,” said Naomi Smoot Evans, executive director of the Coalition for Juvenile Justice, a national group focused on keeping children out of the justice system and promoting high standards of care for those involved in criminal cases.
Smoot Evans said it is not best practice to handcuff young people while they are in court, even if they are criminal defendants, let alone a teenage girl who has done nothing wrong.
“At least she showed that she was a sincere daughter and made her father feel loved and supported,” said Smoot Evans. “And in doing so, she was humiliated.”
Multiple studies over the years, tactics of “scare”—typically exposing youth to harsh conditions in adult prisons, usually with parental consent—have been shown to be not only ineffective, but can actually increase crime and delinquency.
“Teenagers are at such a vulnerable age,” said Smoot Evans. “A perception that used to exist is that we could scare someone straight. If they could only see how dangerous a prison is, they would stay away…but that doesn’t match what we know about adolescent brain development.”
The first scared straight program was started in the 1970s by inmates serving life sentences in New Jersey. That original program was the subject of a television documentary in the 1980s that fueled the growth of such initiatives, but later research found them to be ineffective. Despite those academic findings, such programs again took center stage in a reality television series on cable channel A&E from 2011 to 2015.
But many of those programs have been disbanded.
The complaint against Benitez is not his first controversy. In 2003, the American Bar Assn. gave Benitez a rare “unqualified” rating when President George W. Bush nominated him for the lifetime district court position. At the time, he was a federal magistrate and before that a state judge in Imperial County.
In recent years, Benitez has become a darling of 2nd Amendment groups who have praised his ruling on gun cases, earning him the nickname “St. Benitez” among gun aficionados.
