The 9th US Circuit Court of Appeals is investigating a misconduct allegation against a federal judge who called a 13-year-old girl out of the spectator’s gallery at her father’s supervised release revocation hearing and had her handcuffed and placed in the jury box, according to court documents.
US District Court Judge Roger Benitez paused a February 13 hearing in San Diego to call up the defendant’s teenaged daughter, who was attending one of her father’s hearings for the first time, according to a sentencing memorandum filed by the defendant’s attorneys, which cited a transcript of the proceedings.
Before the incident, the defendant told the judge he planned to leave the area once released and expressed concern over his daughter hanging out with the wrong people.
Minutes later, Benitez ordered a marshal to handcuff the girl, who had been crying, and told her to sit in the jury box, according to the memorandum, which was filed February 23. She continued to sob, the document says.
There was a long pause, according to the document, and Benitez then had a marshal take the handcuffs off the girl. But before allowing her to return to her seat, he scolded the girl, called her “an awfully cute young lady” and warned that if she didn’t stay away from drugs she would wind back up in handcuffs, court documents say.
“I think the intent was to embarrass or humiliate her,” said Michele McKenzie, an attorney representing the girl and her mother. “I think that was the very clear message sent to her by someone with tremendous amount of power.”
Benitez has not yet responded to CNN’s request for comment.
His administrative law clerk told the San Diego Union-Tribune in an email that the judge “regrets that he is not permitted to comment on matters pending before the court.”
The girl attended with her aunt and a family friend to show support for her father during a hearing in which he planned to admit to violations of his supervised release and be sentenced for 10 months. The newly filed sentencing memorandum asks the court to consider the father’s time served as his sentence.
McKenzie declined to share the seventh grader’s name to protect her identity.
“She feels bad and was made to feel bad though she has done nothing wrong,” McKenzie said in a phone interview with CNN. The actions of Benitez are “really out of touch with the reality,” McKenzie said. “It shows a complete lack of understanding of what families – particularly the children of those in the criminal justice system – are going through.”
Chief Judge Dana Sabraw of the Southern District of California contacted the higher court on February 17 about the allegations. Mary Murguia, the chief judge of the 9th Circuit, said in an order filed Tuesday that she reviewed court transcripts and identified a complaint.
The misconduct review is likely to take weeks or months. Typically, the 9th Circuit’s judicial council would assign a special committee to review, evaluate, and issue a recommendation based on their findings, Scott Cummings, a legal ethics professor at UCLA, said. Any punishment could include censure or even suspension.
McKenzie said her client’s humiliation was public.
“At a minimum the 9th Circuit should censure him publicly,” McKenzie said, adding that the judge’s actions “send a message that by even attending a hearing, the public could be a target.”
“I also think apologies go a long way,” said McKenzie.
Cummings calls this incident “unprecedented” in his 20 years as a legal ethics professor. “I have never heard of anything like this – targeting a young child who is there to support the defendant,” said Cummings.
From October 2021 through September 2022, there were 1,520 complaints against federal judges, according to federal court data. Most complaints against federal judges were filed by prison inmates and other litigants.
Calling Benitez’s actions as reported “a rogue act by one particular judge,” Cummings said he doubts involving the public in hearings like this would set a precedent.
“It would be dangerous and damaging for the court system and the rule of law,” he said.
He said it was appropriate to question whether Benitez is fit to hear more cases. Benitez was nominated for his current position in 2003 by President George W. Bush.
Benitez was ultimately confirmed by the US Senate in 2004 by a 98-1 vote, with only Sen. Dick Durbin, Democrat from Illinois, voting against.
CNN’s Steve Almasy contributed to this report