Court to rule on judge's costume

Last Halloween, a judge from Houma went to a costume party dressed as a prisoner. He wore something borrowed -- an orange inmate jumpsuit courtesy of the local sheriff -- and something new -- a black Afro-type wig.

But when he arrived at the party, Judge Timothy Ellender felt his get-up wasn't much of a hit. His brother-in-law, dressed as Buckwheat from the old "Little Rascals" series, had an idea.

He offered the judge some of his own black face paint. Ellender, who is white, accepted. But parading around in blackface and jailhouse shackles for one night may cost him dearly. On Tuesday , the Louisiana Supreme Court will hear arguments in Ellender's disciplinary case. The penalty could range from a censure to suspension or removal from office.

The longtime Terrebonne Parish district court judge has apologized to Houma's black leaders for the costume and blamed his conduct on "mere stupidity and ignorance." Any insult to the black community, Ellender said, was an accident, and he denies that his stunt calls into question his ability to fairly preside over black people in his courtroom.

Ellender also said he would accept a public censure. But the Louisiana Judiciary Commission, which formally charged him with misconduct in March, disagreed and wants the high court to suspend him for a year and a day without pay, and charge him the $2,100 it spent on the investigation.

"Judge Ellender engaged in public conduct which brought the judicial office into disrepute," the commission concluded. His "integrity and his ability to be fair and impartial towards African-Americans who appear before his court as defendants in criminal and other proceedings will be forever in doubt."

Ellender was first elected to the bench in 1983 and has won re-election four times, most recently in October 2002. This is the first time he has faced either private or public discipline during a lengthy career, the commission said.

At his closed-door hearing before the commission in June, Ellender called four witnesses, all black, who testified that he is fair and impartial. The judge had apologized to all four, including State Trooper Gary Williams and lawyer Kevin Thompson, and all said they took him at his word.

Thompson told the commission that the costume did not offend him, though he deemed it "stupid" and "disappointing."

As for his take on how the black community in Houma reacted, Thompson said, "The apology came out, you know, we pretty much just let it alone at that."

Not everyone in the community agrees. The local chapter of the National Association for the Advancement of Colored People wants Ellender removed from office.

"Judges are held to higher standards," said Jerome Boykin, president of the Terrebonne Parish NAACP, under questioning by Ellender's attorney at the commission hearing. "We're talking about someone who makes decisions on people's lives, and that's the difference."

Behind the makeup

At the June hearing, the commission heard from Felipe Smith, an English professor at Tulane University, who discussed the significance of black-face minstrelsy in contemporary American society.

Smith, a founder of Tulane's African and African Diaspora Studies, said that a white man putting on black face makeup and an inmate's clothes suggests "an intent to connect blackness as a racial characteristic with criminal behavior or being a part of the criminal population."

Even the historic Zulu parade of Mardi Gras was brought up during the hearing. The Carnival krewe, which has both black and white members, features blackface makeup each year as part of the satirical spirit of Mardi Gras.

But Smith said there is a "definite difference" between the Zulu Carnival group performing in blackface and a white person doing the same.

It's the question of being "an insider in an ethnic group," he said, and people who "can wipe off the paint and who can move away . . . who don't bear any kind of consequences for the performances."

It was unclear how premeditated the judge's blackface performance was. But the commission concluded that the judge certainly appeared with it in public.

Ellender explained that this was his regular Halloween party, one he had been going to for a decade, at the 1921 Seafood restaurant, owned by his brother-in-law, and that arrived wearing just the inmate costume -- no makeup. Other than those invited to the party, the only people in the restaurant were the employees and about five people eating dinner.

Ellender was with his wife, and their costumes had a theme. The judge's wife dressed as a police officer, and the intended image, Ellender said, was that she "had her husband under control."

A week later, the Houma newspaper reported Ellender's costume, and a national media blitz ensued. Within days of the news reports, the commission received six written complaints, including letters from Justice Bernette Johnson and the Terrebonne NAACP, along with one from 32nd Judicial District Judges George Larke, John Walker, David Arceneaux and Randall Bethancourt.

'A disgrace'

Rob Robertson, a high school teacher in suburban Chicago, said that when he read a news story about Ellender's costume to his class, they were stunned. "They thought I was making it up," Robertson wrote in a complaint to the commission, dated Nov. 11, 2003. "What a sad, sad day. . . . A person given this kind of public trust cannot afford to make these kinds of 'stupid' mistakes."

Maria Ludwick of New Orleans also wrote to the commission, calling Ellender's costume choice disgraceful.

"He should be removed from office," Ludwick wrote. "He has brought disgrace to an already tainted system full of corruption and questionable practices."

Roderick Johnson, a black inmate who pleaded guilty to possession with intent to distribute cocaine last year, was infuriated at the news of the judge's costume.

"How can a man judge me, and then go back and mock me?" wrote Johnson, who was sentenced to 16 years by Ellender. "It was a disgrace to me and everyone that he's ever sentenced. When he put on that costume, that's exactly how he sees black people in his eyes."

Ellender defended himself, saying his garb did not perpetuate the notion that black people are criminals. And he testified, without any contradiction, that he wiped off the black paint before leaving the restaurant.

He said he would have worn the inmate costume to a party that was not all-white but not the blackface, "because it could offend somebody." About 15 people, white people and "one Indian fellow," Ellender said, were at the party, yet the Houma restaurant was open for take-out orders. One of the restaurant employees present was a black woman.

Ready for consequences

The makeup did get laughs, Ellender told the commission.

"It was more humorous, yes," he said. He added that it would have been even funnier had he applied blue paint, because anytime one adds "coloration" to a costume, "it's going to accentuate the humorous nature of it."

In its report, the commission called that explanation "incredulous, disingenuous and nonsensical."

At the hearing, the commission asked Ellender, who called the media attention a "tempest in a teapot," how he was faring. "Don't feel sorry for me," he said. "I did what I did, and I'm ready to suffer the consequences."

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copyright The Times-Picayune, October 18, 2004
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Gwen Filosa can be reached at gfilosa@timespicayune.com or (504) 826-3304.