A judge who sent a woman to prison for inviting dozens of Littleton Facebook friends to join in a “killing spree” in memory of Columbine slayer Eric Harris was not ethically obligated to recuse himself from the case because his two children attended Columbine High School when the 1999 massacre occurred, federal appeals judges have ruled.
“When does a judge’s background and experience create an appearance of bias or prejudice necessitating recusal?” a three-judge panel of the Tenth Circuit Court of Appeals asked while issuing their decision.
Tenth Circuit judges Terrence O’Brien, Harris Hartz and Gregory Phillips answered their own question Tuesday: Not here. Not in this case.
In doing so, they rejected the appeal by Melissa Jordan, who on June 17, 2012, wrote a message on her Facebook page saying, “There are only two things I’m going to worry about when zero day comes. Not killing enough people and surviving my suicide attempt.”
On July 20, 2012, the day of the Aurora theater shooting, Jordan made another post: “I can’t wait till my zero day. This shooting in Colorado has me excited.”
Jordan was referring to a 2003 movie called “Zero Day,” about a school shooting inspired by Columbine.
“James Holmes had 6,000 rounds of ammo, but only killed 12,” she posted on July 21, 2012. “He had full body armor but didn’t shoot at the cops, and he rigged his apartment with explosives but told the police before they entered, so nobody got blown up. I could have done sooo much better…I’m going to show the world what a mass murder really is. 85 people dead. 160 injured. I’ll get it done!”
Jordan was arrested on Jan. 13, 2013, in Charleston, S.C., and was charged with making two threats using interstate commerce. She was later transferred to Denver, where on Aug. 21, 2013, she was scheduled to change her plea to guilty.
She changed her mind about pleading when she .
In response to the plea, Jackson said his first reaction to the prosecutor’s suggestion that Jordan’s act didn’t involve deliberation was, “Are you kidding? Of course it involved deliberation. This wasn’t accidental.”
He criticized the deal and explained how the case affected him personally.
“I don’t know where all of you folks were or what you were doing when Columbine occurred. But I know where I was. I was a judge in Jefferson County. My kids went to Columbine High School. Frank DeAngelis is a friend of mine. We knew, my wife and I and my kids, knew people who were killed and people who were injured. And when somebody invokes the name of Eric Harris to make threats to go back to Littleton, Colorado, and start killing people, itap something that this judge at least takes very, very seriously,” Jackson said in court.
He also noted that when he was a Jefferson County judge he presided over Columbine-related cases.
Concerned about Jackson’s comments, Jordan delayed pleading guilty that day. She pleaded guilty to one of the counts on Jan. 16, 2014, in a deal in which a Denver federal prosecutor recommended that she be sentenced to three years of probation.
On Sept. 11, 2014, Jackson sentenced Jordan to six months in prison and three years of community supervision, explaining that federal guidelines for her crime recommended a sentence between 15 to 21 months.
“So I’ve had up-close and personal contact with these things,” Jackson said. “I’m very aware of copy-cat events that have occurred. You might be surprised — maybe not — to know that there have been literally dozens of mass shootings in the United States in the last 20, 25 years. Actual mass killings. They’ve occurred in schools. They’ve occurred in shopping centers. They’ve occurred in military bases. They’ve occurred on a railroad train. They’ve occurred, as we know, in a theater.
“This is nothing to joke about,” Jackson said in open court. “We don’t take these things casually anymore.”
Jackson explained that he didn’t have to follow the plea deal recommendation, held no personal animosity towards Jordan “whatsoever,” but noted her criminal history that included embezzlement, bogus checks and carrying a concealed weapon. She was on probation when for embezzlement when she wrote the Facebook messages.
“Here we have a young woman who, perhaps like Klebold and Harris, perhaps like others of these people that have become household names, were bullied in school. They were outcasts, they were isolated, they were thought of as being different. They were mistreated by their peers…,” Jackson said just before Jordan pleaded guilty.
Jackson said Jordan’s two past felony convictions were less concerning than her misdemeanor conviction for possessing a .45-caliber handgun. He noted that her friend found the gun and a journal containing a hit list of people she planned to kill, a suicide note and statement about a planned shooting spree at her workplace. She also had two books on serial killers.
“This was, again, in 2009. Itap worrisome,” he said. “This event in 2012 has certain deja vu all over against aspects to it.”
Jackson also noted that Jordan had previously always received a suspended sentence and never served a prison term. Having said that, he explained that he was more concerned about deterrence than whether she would actually kill.
“You can’t just go around making threats to kill people, mass killing people, in Colorado, and not expect a consequence,” he said. “And if it sets her back, I am sorry. But I have to do what I have to do.”
Jordan’s attorney had argued that his client never intended to carry out the threats. It was noted that she had not received mental health treatment previously and had a chaotic childhood including physical, sexual and mental abuse. Jordan pointed out that some of her Facebook posts were not true threats because they did not target a specific victim. Prosecutors had agreed.
Four days after her sentencing, Jordan appealed, arguing that Jackson had an obligation to recuse himself because of his personal connections to the Columbine shooting.
Jackson denied the request, explaining that “I unequivocally state that I harbor not bias or prejudice against Ms. Jordan,” adding that all judges in Colorado or anywhere are repulsed by Columbine and judges, like jurors, “do not check their background or experience at the door.”
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“Judges are people, and we bring our own histories with us to the job. If something in our background creates an actual bias or even the appearance of impropriety, we must disqualify ourselves from the particular case…But my judgment is that (my) history, though certainly part of whom I am, does not create an impermissible bias or appearance of impropriety,” Jackson wrote.
The appeals court sided with Jackson, concluding that Jordan did not contend that he harbored any actual bias or prejudice. They explained that the judge and his family had not been victims of Columbine and that Jordan’s threats of a mass shooting are “universally deplorable,” a sentiment shared by Congress and society as a whole.
“A judge should recuse only for good and sufficient reasons, never to avoid a difficult task or indulge a party,” said the ruling written by O’Brien. “Considering all the facts, we easily conclude the judge’s comments did not create an appearance of bias or prejudice.”
He also noted that Jackson’s sentence was substantially less than guidelines recommend, calling it a “just sentence.” The ruling also said Jackson had helped create a committee addressing mental health issues and was sympathetic to mentally ill people like Jordan.
“The judge performed a painstakingly thorough, almost wrenching, analysis of the factors,” O’Brien wrote. “In sum, the totality of these circumstances reveals a judge who, while personally familiar with the Columbine shooting and its aftermath, studiously and publicly demonstrated an ability to separate those tangential matters from his judicial duties.”
Although they ruled that the judge didn’t error in failing to recuse himself, the decision left open the door that a different judgment may have been justified under different circumstances.
“To be plain, ‘(an) error must be clear or obvious under current, well-settled law,'” O’Brien wrote, referring to a 2011 decision by the 10th Circuit. “In general, for an error to be contrary to well-settled law, either the (U.S.) Supreme Court or this court must have addressed the issue.”
The ruling was not binding or precedent setting, O’Brien wrote.
In late July 2012, Littleton police and the FBI began investigating tips that dozens of people were planning to attend a “killing spree” in Littleton.
On May 22, 2012, two months before the theater shooting, Melissa Jordan invited friends of “Eric Rebdomine,” a nickname for Harris, to “join me on September 14th and kill as many people as possible.” She urged friends to spread the word. Eventually, 180 people were invited and 37 said they were coming,” according to federal documents.
Jordan wrote seven more “killing spree” messages, encouraging people to participate in a massacre including one posted on July 8, 2012, that said “I’ll show you what it’s like to be hated. Maybe then you’ll understand. I’m the one holding the gun. I have the power now. I’m the one laughing in your face as I pull the trigger.”
O’Brien noted that “fortunately” the killing spree never happened, but he added “the local police were placed on heightened alert.”
Updated Feb. 13, 2017 at 10:27 a.m. The following corrected information has been added to this article: Information about Judge R. Brooke Jackson’s involvement in other Columbine-related cases has been clarified.
