Judicial Professionalism in a New Era of Judicial Selection - Patrick Emery Longan

Judicial Professionalism in a New Era of Judicial Selectionby Patrick Emery Longan^*

I. Introduction

On October 22, 2004, the Mercer Law Review and the Mercer Center for Legal Ethics and Professionalism co-sponsored a Symposium on recent developments related to the election of judges. The Symposium was the Fifth Annual Georgia Symposium on Professionalism, the latest in a series of programs funded by a consent order and judgment that settled allegations of litigation misconduct involving the du Pont Corporation several years ago.' That order awarded $2.5 million to each of the four ABA-accredited law schools in Georgia to establish professorial chairs devoted to ethics and professionalism, and it also granted each law school $250,000 to endow the symposium series. The symposia rotate among the four law schools. Mercer's Walter F. George School of Law held the first of these symposia in 2001 and, after programs sponsored by Emory university, the university of Georgia, and Georgia State university, Mercer's turn to host the symposium came around again. The Symposium was held in cooperation with the Court Futures Committee of the State Bar of Georgia, chaired by Ben Studdard, Chief Judge of the State Court of Henry County, Georgia. In 2003 the Court Futures Committee began a comprehensive study of judicial selection in Georgia for the purpose of making recommendations for any needed changes. Its work was ongoing when the Symposium was held, and many members of the Committee attended and participated in the discussions.

The purpose of this Article is to provide background and an introduction for the papers and proceedings that follow. The Article begins with Part One, a background discussion of the three purposes that must guide any discussion of judicial selection or re-selection. Those principles are the need to ensure that judges can decide cases as free as possible of political pressures, the need to make sure that judges are accountable in some way for misbehavior, and the need to attract and retain people of the highest quality to the bench. These background principles are discussed through the stories of three judges, former Justice Penny White of the Tennessee Supreme Court, United States District Judge John McBryde of the Northern District of Texas, and former Chief Justice Roy Moore of Alabama. Part Two of the Article is organized to conform roughly to the organization of the program. It discusses the recent cases that have changed how judicial elections are regulated and describes the response of the Georgia Supreme Court. It then explores a number of ways to improve judicial elections and, more drastically, alternatives to the election of judges. The Article concludes with Part Three, which contains some personal reflections regarding how state judges should be selected and re-selected. My preference is a "functional" approach that employs different procedures for trial and appellate judges because of their different roles in the system of justice.

The Mercer Law Review and the Center for Ethics and Professionalism wish to thank Judge Hugh Lawson, whose creativity and courage in shaping the consent order and final judgment made this Symposium, and the others in the series, possible. The Symposium also could not have occurred without the dedicated assistance of Judge Ben Studdard and the other members of the Court Futures Committee of the State Bar of Georgia. Finally, we wish to thank our speakers and all those who attended for making the Symposium such an enjoyable and informative occasion.

11. Part One : Underlying Issues and three Cautionary Tales

Judicial selection requires a balance of two competing values: judicial accountability and judicial independence. These two values cannot truly be reconciled, because to the extent a judge is accountable, the judge is not independent, and to the extent the judge is independent, the judge is not accountable. If reconciliation is not possible, then the goal is to achieve an appropriate balance. A third value of judicial selection, making sure that the bench is occupied by people of the highest possible quality, is not inconsistent with the other two values. Indeed, good judges do not need procedures that ensure accountability in order to act responsibly, and conversely, these judges do not need protection in order to act independently. For these reasons, and for the simpler and more obvious reason that good judges will make good decisions and run efficient courts, it is important to attract and retain people of the highest quality to the bench. Part One of this Article discusses these issues in the context of three "cautionary tales."

A. Independence: Justice Penny White

Penny White, a justice on the Tennessee Supreme Court, was the subject of a retention election in 1996.² In June of that year, the court decided Richard Odom's appeal from his conviction and death sentence.³ Odom was convicted of the brutal rape and stabbing death of an elderly woman in a parking lot. He was sentenced to death after a sentencing hearing in which the trial judge did not allow Odom to present psychiatric testimony, even though Odom had the right to do so under Tennessee law at the time. The Tennessee intermediate appellate court reversed the conviction and remanded for a new sentencing hearing. The Tennessee Supreme Court affirmed that decision in an opinion that received no publicity at the time it was rendered.⁴ The Odom case was Justice White's first and, as it turned out, only death penalty case as a member of the Tennessee Supreme Court.⁸

All five justices agreed that the case should be remanded for sentencing. One justice dissented from the part of the opinion that would later prove to be most troublesome for Justice White.' In addition to its recognition of the problem with the expert's testimony, the court analyzed whether the State had proved at sentencing, as an aggravating circumstance under Tennessee law, that the "murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death."⁷ Despite the evidence that the victim was stabbed multiple times and raped, the court concluded that the evidence did not meet the statutory definition.' The language of the court's opinion provides important context for what followed:

The issue remains whether the evidence in this case was sufficient to uphold a finding of the (i)(5) aggravating circumstance. We well understand that almost all murders are "heinous, atrocious, and cruel" to some degree, and we have no purpose to demean or minimize the ordeal this murder victim experienced. In our view, however, rape (penile penetration) does not ordinarily constitute "torture" or "serious physical abuse" within the meaning of the statute. Were we to hold otherwise, every murder committed in the perpetration of rape could be classified as a death-eligible offense. Such a result, obviously, would not sufficiently narrow the class of perpetrators, nor would it distinguish the "worst of the worse" for whom the ultimate penalty must be reserved. In a similar vein, and with the same disclaimer above-appearing, we must reject the conclusion that the three stab wounds evidenced in this case constituted "torture" or serious physical abuse beyond that necessary to produce death. As we consider the circumstances here, we do not intend to diminish what surely must have been a terrifying and horror-filled experience for the victim. Most assuredly, the murder was reprehensible in the purest sense of the word—nearly all murders are. However, the aggravating circumstance under review must be reserved for application only to those cases which, by comparison or contrast, can be articulately determined to be the very "worst of the worse." As previously stated, the defendant contends that the evidence does not support the jury's finding that the murder was "especially heinous, atrocious, or cruel." We have thoroughly considered this contention and conclude that under the criteria we have discussed the evidence in the record does not support the jury's finding of the "heinous, atrocious, and cruel" circumstance.⁹

This part of the decision, however, did not preclude the prosecution from trying to prove the presence of this aggravating circumstance on remand."

Justice White did not author the opinion, but she, along with three other justices, agreed with it.¹¹ As her retention election approached, it became clear that this decision was going to be a political problem for her. The Republican Party of Tennessee distributed 2500 flyers to party leaders about a "Just Say No" campaign for Penny White's retention." The Tennessee Conservative Union sent out a letter describing Mr. Odom's case as follows:

[Seventy-eight] year-old Ethel Johnson lay dying in a pool cf blood. Stabbed in the heart, lungs, and liver, she fought back as best she could.

Her hands were sliced to ribbons as she tried to push the knife away.

And then she was raped.

Savagely. . . .

But her murderer won't be getting the punishment that he deserves.

Thanks to Penny White.¹³

These attacks were not fair or even accurate. The court's opinion, as quoted above, was sensitive to the brutal nature of the crime. All the justices agreed that a new sentencing hearing was required. Four agreed that the evidence, as presented, did not meet the statutory definition of heinous, atrocious, or cruel.¹⁴ Yet, Justice White could not respond to the allegations about the particular case because Mr. Odom had filed a petition for rehearing, and Justice White was bound by the Code of Judicial Conduct" not to comment on a pending case.¹⁶ She lost her retention election and is now on the faculty of the University of Tennessee College of Law.¹⁷

Political pressures like those exerted against Justice White are a danger to impartial justice. The judge's obligation is to decide cases according to the law, not according to the political...