Tuesday, October 27, 2009

Justice Frank Sullivan Lays Down the Law (Politically Speaking!)

On Thursday of last week, Indiana Supreme Court Justice Frank Sullivan delivered an excellent keynote address at the Muslim Alliance of Indiana's "Access to Justice" luncheon, which promoted MAI's modest means legal clinic. But Sullivan's remarks raised eyebrows.

Sullivan advocated a merit selection system for all judges, which was a gutsy move for a guy in a room full of elected Marion County judges.

If I put aside personal affection for many members of the local judiciary, what Justice Sullivan said makes terrific sense. We need a judiciary more insulated from political pressure than one mindful of getting slated by a handful of politically-active Democrats and Republicans, which is how Marion County picks its judges.

Two quick exhibits on that score.

I am absolutely certain that Democrat Judge Annie Christ-Garcia got it right when she found Democrat City-County Councilor Doris Minton McNeil not guilty. (I never believed the State would be able to establish an intentional touching of the officer required by the battery statute, as opposed to an intoxicated "falling into"). But would anybody believe that Judge Christ-Garcia never thought, even in passing, about the political repercussions of convicting versus not convicting? How could you not do so if you are human, in particular when you are part of a system that makes you play politics.

Doesn't every judge say, "Crap!" when a politically sensistive case hits the docket? And, because of judicial elections, won't some people assume an extremely capable and fair-minded Democrat judge put it in the tank for a Democrat city-county councilor because of fear of political retribution, regardless of what really happened?

I was not present for the Hamilton Avenue trial, and based on how strongly Judge Robert Altice (R) was recommended by the Indianapolis Bar Association (96% favorable), we should assume he also ruled correctly on the evidence. But can anybody say with certainty that Altice, a former prosecutor, never thought, even for an instant, about the political ramifications of entering a not guilty finding in Indianapolis' biggest murder case ever? That it never occurred to him that he could potentially doom his own electoral chances, but in addition, hand Democrats a shovel with which to bludgeon Carl Brizzi politically?

Are we supposed to also believe that Brizzi never envisioned Judge Altice thinking about the ramifications when he gave away the death penalty for nothing more than having a bench trial before Altice? Seriously, who does not believe Brizzi played handicapper and reached the conclusion that the political damage of foregoing the death penalty would be minor compared to the outcry if he didn't get a conviction. If Brizzi wasn't pretty confident that Judge Altice would convict, would he have made the deal? I've heard some say that Brizzi's stronger concern was that a CSI-obsessed jury would never convict without any physical evidence. That's a fair point. But what if Brizzi had been in, say, Democrat Grant Hawkins' court? Would he have still made the deal?

Even if Judge Christ-Garica, Judge Altice, and Prosecutor Brizzi could all prove politics never crossed their minds, and maybe they can, isn't there intrinsic harm from a system that has even lawyers wondering to what degree these kind of considerations might influence decision-making, even if only subconsciously, in close cases? And can't we objectively see how public skepticism about judicial decisions in political cases would be engendered by a slating system?

There is a reason federal judges have lifetime appointments. The Federalists knew it would be necessary to insulate judges from political pressure to ensure that they make accurate but politically unpopular decisions.

Some may correctly point out that even lifetime judicial appointees can play politics on the highest level, a la Bush v. Gore, but any step toward more judicial independence is still a positive step. If we switched to merit selection and retention elections every four years (instead of every six like with the Court of Appeals and Supreme Court), we would improve faith in our judicial decisions while giving the electorate a modicum of ability to bounce a judge for particularly egregious conduct.

Would this hurt the political parties by taking something valuable away from precinct committeepersons? Yes. They would have fewer offices to slate. But a merit-based system would take away equally, so there is no competitive disadvantage suffered by either party by support of this idea.

Lest someone in my own party suggest iPOPA is on a quest to oust sitting judges, I would respectfully submit that the only ones who should be nervous are the ones who know they wouldn't keep their offices if judged on their merits. In other words, you'll learn a lot listening to who is complaining about this post.



Anonymous said...

Politics is always going to be a part of the selection. By switching to a "merit" system, the pool of people who make the selection simply shrinks; it does not mean that the selectors suddenly lose all of their political senses. Look at our Indiana Supreme Court and Court of Appeals. They are a very fine group of judges, but I believe that it would be naive to think that politics did not play some role in their selection or it is simply a coincidence that Republican Governors Appoint Republican Judges and Democrat Governors appoint Democrat Judges. At least with elections, the people get to decide who their judges will be (even if they are swayed by *gasp* politics) and there is a better chances to vote out the bad judges than if the only way to get out a certain bad judge is through a retention vote.

Anonymous said...

Of course politics played into it! Christ-Garcia recused herself at the last minute from the Lawrence Township Trustee case because after letting Doris off easy she knew she couldn't do it again with this case and not get serious backlash. I believe she was absolutely correct, but there was definitely a political calculation in her decision.

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Anonymous said...

I'm not sure what the right solution is. It's obvious that politics are going to control the decision either way, so I'm not sure that we are better off with merit selection. The goal is to get the most fair and impartial judiciary, but even in the federal system you don't necessarily get that. I'll agree that the whole slating process seems flawed, but the options are all equally flawed.

On a different note, I spoke with someone that sat through the whole trial, and they said that while there was clearly reasonable doubt, there was no way the judge could have found him not guilty...he will seek re-election after all. This person wants to be a prosecutor, and is not at all defense minded.

Chris Worden said...

Anon 4:59: Sometimes I am not artful in how I express things, and this is one such occasion.

I KNOW politics will play a part in merit-based judicial selection, but it's a broader politics, such as D versus R and activist versus strict constructionist. It's not politics of the individual case, which is the most nefarious impediment to "justice of the outcome," as Justice Sullivan termed it.

How many of us think members of the Supreme Court hold back for fear of being replaced in a retention election? I can tell you I can't name a lawyer who thinks this, and I've asked a LOT of them.

Now, in contrast, ask a lawyer if they think some of the death penalty cases that the Supreme Court commmuted to Life Without Parole would have been decided that way if the Justices had to be slated and elected among a slew of other judges every four years.

Sorry, but I want a judge who knows that he or she can decide on the facts of a particular case without having to worry as much about getting booted out of office.

Anonymous said...

I just prefer my politics to be "front porch politics" instead of "back room politics". I believe that the electorate should have some say in the type of judge that will be hearing the cases in a given county. Slating is not perfect, but at least it is not set in stone. The electorate can and has bucked the slate. (And the slating system in Marion County is not a universal thing throughout the state).
In addition, our current system has at least two checks on judges in the event that a judge loses sight of the law, the people can vote the judge out or if the judge is truly that bad the Indiana Supreme Court and judicial qualifications can step in. I do not see that great of a benefit in giving up one of those checks, and granting job security to sitting judges is not an overwhelming concern for me.
The people of Indiana are not stupid, they have been able to elect judges since we became a state and the wheels have not fallen off the system.

Paul K. Ogden said...

Excellent post. By the way, the key vote in Bush v. Gore was 7-2 with D's voting with R's in the majority. There was a 5-4 vote too, but the vote that found the selective recount was unconstitutional was 7-2. It was 5-4 against having them do a full recount.

I agre with Anon 4:59. The so-called merit system for state appellate judges is fraught with politics, just politics with fewer people.

The federal system is far from perfect too. Although the selection process is more along the lines of what I would endorse, I think the lifetime appointment creates a system where federal judges are a little too isolated from real life. There is an attitude there that sometimes is a little less than the more down-to-earth county court judges. (I'm struggling to not use a particular word, which you can guess.)

I agree by the way. Altice, from all accounts is a fine judge by all acoounts, but it's hard to remove the political equation. I would have went with the jury, even with possible death hanging over my client's head. I think the likelihood of conviction by a jury was much less.

Paul K. Ogden said...

Anon 4:47, Marion County slating is not a "universal thing around the state." That's the understatement of a lifetime. 90 of 92 counties do not "slate." I believe Allen County is the only other one that does. Slating is about party bosses making the decisions not the party electorate.

Paul K. Ogden said...

Anon 4:47, I would disagree that the JQ Commission or the Supreme Court could simply step in if the judge is "bad." There has to be some misconduct involved. Making bad decision sis not misconduct.

Anonymous said...

I am one of the 590 precinct committepersons who votes in slating along with the vices for each committeeperson. I resent the remarks of Paul Ogden that those of us who vote in slating are "party bosses". We are your neighbors, your friends, or your co workers. Most of us work hard and get little or nothing for doing it. We do it because it is something that we believe in and we want to be contributing members of our community. We are not party bosses .....not even close to it.