Fair Trial / Free Press Panel

The Clarion Call and Justice Henry

Jennifer McCabe is a “cops and courts” reporter for the Clarion Call, a newspaper in largely rural Empire County in upstate New York. For months, her work has been impeded by what McCabe views as poor transparency in the courtroom of Empire County Court Justice Eldon Henry.

In case after case, Justice Henry has conducted on-the-record colloquies with prosecutors and defense counsel in his chambers and denied her access to those conversations. In addition, the judge’s clerk has refused to produce public court records on pretexts such as McCabe’s failure to have a case number despite her having the names of the parties involved — a bureaucratic demand no other judge in the county places on reporters or members of the public seeking court records.

McCabe writes a story for the Clarion Call about Justice Henry’s unorthodox policies. The judge declines to comment on the story, but McCabe is informed by courthouse sources that it left him seething.

The remark had allegedly been heard by several people at the party, one of whom sent the judge a scolding email the following day that is excerpted in the complaint.

The anonymous email sent to McCabe says the complaint had been filed five months ago with the State Commission on Judicial Conduct, though the sender was not aware of whether the matter was under investigation.

McCabe writes back and tells the tipster that she will be unable to write about the complaint unless she can corroborate that it is genuine. The anonymous emailer refers the reporter to a local attorney.

In a phone conversation with McCabe, that attorney confirms — off the record — that he represents the whistleblower; that the whistleblower was at the party and heard Justice Henry use the slur; and that the document was indeed submitted to the judicial disciplinary panel.

The attorney says the whistleblower was moved to reach out after Justice Henry presided over a case in which a local police officer was charged with using excessive force and racial epithets against Black motorists during traffic stops but was acquitted in part due to key evidentiary rulings from the bench.

McCabe reaches out to the judge, who again declines to comment. McCabe also reaches out to the disciplinary panel, whose spokesman tells her he can neither confirm nor deny any investigation until a matter is resolved. She also calls the State Office of Court Administration and asks if the judge has been subject to any sort of restriction in his assigned cases; the spokesman for the state judiciary refuses to discuss whether any action of that sort was taken.

The judge’s attorney seeks to depose the reporter to get McCabe to reveal her sources; the Clarion Call fights the subpoena.

Two months later, with the question of the subpoena still in contention, Justice Henry leaves the bench, citing unspecified health issues and saying he is giving up the practice of law.

A week later, the state commission releases a finding acknowledging it had been investigating the incident at the party, where numerous witnesses heard him use the racist epithet — though he continues to deny it. The commission notes that Justice Henry’s departure from the bench settles the disciplinary matter.

After the Clarion Call’s attorney is successful in getting the subpoena quashed, Justice Henry withdraws his lawsuit.