The Justice Clarence Thomas Dissent That Broke My Heart.

Solo dissent in case striking black jurors unconvincing

As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods.

And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on color blindness because it’s better for blacks.

What’s more, I respect what I’ve seen of Thomas personally. I’ve never forgotten seeing him greet by name the members of the maintenance staff at the Supreme Court who polish the miles of brass on the court’s many staircases. Once I asked him about it, and he said he sometimes felt he had more in common with them than with the other justices. I didn’t think it was a line then, and I don’t think so now.

But now I confess to feeling a bit upset about Thomas’ solo dissent in Foster v. Chatman on Monday, a decision that reversed the capital conviction of a black man from Georgia because the prosecution used its peremptory challenges to strike all the black members of the jury pool.

Thomas is from Georgia. The facts of the case, going back almost 30 years, demonstrate egregious racial stereotyping by the prosecution. Yet Thomas was unwilling to join his seven colleagues, among them some serious conservatives, in striking down the conviction.

Why, exactly, did Thomas bend over so far backward to argue for sending inmate Timothy Foster to his death? And is there something — anything — admirable that can be gleaned from his dissenting opinion?

There was a technical issue at stake in the case — namely, whether the state supreme court decision denying the prisoner’s claim was based on state or federal law. On this point, Thomas’s view is defensible, if unconvincing.

Foster was convicted for the heinous sexual assault and murder of Queen Madge White in Rome, Ga., in 1986, almost 30 years ago. He appealed through the Georgia courts, relying among other arguments on the claim that the prosecution systematically excluded all the black jurors in violation of the Supreme Court’s opinion in Batson v. Kentucky, a landmark 1986 decision.

The Georgia courts denied Foster’s claim because he couldn’t prove the exclusions were motivated by race. But when Foster re-presented his claim in his post-conviction habeas corpus proceeding, he had more evidence to support it. Foster now had documents showing that the prosecution actively identified and marked the black prospective jurors (with a capital B) and excluded them from the jury based on their race.

A superior court in Georgia rejected Foster’s claim anyway, saying that he hadn’t shown new facts sufficient to overturn the conviction. Foster then went to the state supreme court, which denied his claim in a single sentence.

The Supreme Court won’t review a state court judgment if it rests on what lawyers call “adequate and independent state grounds.” The idea is that the court is the highest authority on federal law and the U.S. Constitution, but state supreme courts are the highest authorities on state law.

But as Chief Justice John Roberts wrote in his doctrinally subtle opinion for the court, the Georgia Supreme Court never said it relied on state law grounds to deny Foster’s claim. Its silence left Roberts the option of concluding that the state court had rested its judgment on the federal constitutional law issue of whether the Batson precedent had been violated. That allowed the court to hear the case.

Roberts then went on to assess the evidence. He concluded that the prospective jurors were indeed excluded based on race, invalidating the conviction.

Thomas’s dissent started with the technical issue. He said that the “most obvious” reason for the Georgia court dismissing the case was that Foster had already litigated it. Georgia bars successive relitigation of the same issue at the habeas stage. This, said Thomas, meant there was an adequate and independent state ground for the judgment — and the court had no business hearing the case.

Thomas’s argument here was what I would call wrong but reasonable. Probably the Georgia high court did reject the claim as already litigated. But it’s the job of a court to say what it’s doing — particularly when a man’s life is on the line and there has been notable racism in obtaining his conviction. The state court’s silence is and should be sufficient basis for the Supreme Court to hear the case.

Where Thomas really made me sad was in his attitude toward the underlying issue of whether the conviction was tainted. He went through the black potential jurors excluded and systematically accepted the prosecutors’ excuses for challenging them. He urged deference to the trial judge’s judgment, and he discounted the documentary evidence, saying it wasn’t clear who had highlighted or marked the black potential jurors’ names on the list that was in the prosecutors’ files.

To all this I can only say: Really?

I appreciate that Thomas wants to keep his judgment free of any bias that might arise because of his own race. In this he follows the model of Justice Felix Frankfurter, who (echoing St. Paul) said that “as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.”

But race neutrality shouldn’t be race blindness. Thomas’s decision shows he isn’t willing to bend his usual rigor to save a black defendant, which is perhaps worthy of a kind of admiration. But the facts here are so clear that Thomas’s dissent makes it seem like he bent over too far to seem fair — and in the process would have sacrificed the integrity of the judicial system, not to mention a man’s life.

Noah Feldman is a professor of constitutional and international law at Harvard.

Read more here: http://www.kentucky.com/opinion/national-opinions/article79918152.html#storylink=cpy

Editor's note: Ever since Anita Hill busted Clarence Thomas before a shocked audience, the man has NEVER been the same. Yep.

Kentucky Supreme Court Upholds Removal Of Harlan Circuit Judge, Russell D. Alred.

Kentucky Supreme Court upholds removal of Harlan judge
By Jack Brammer

FRANKFORT — The Kentucky Supreme Court has upheld a decision by the Judicial Conduct Commission to remove Harlan Circuit Judge Russell D. Alred from office for misconduct.

In a 62-page opinion Monday written by Chief Justice John D. Minton Jr., the state's highest court agreed with the commission's finding of eight of nine counts of misconduct by Alred.

"From our review of the record, it is clear that Judge Alred engaged in a pattern of misconduct, displaying disregard for the law and the Kentucky Code of Judicial Conduct," said the opinion. "He continually refuses to accept responsibility for his actions or acknowledge his wrongdoing."

An attorney for Alred, Marcus Carey of Erlanger, argued before the Supreme Court in April that Alred was treated unfairly and should be allowed to keep his job.

The Judicial Conduct Commission ordered Alred removed last September.

Alred agreed not to preside over cases after the commission ruling last year, but he still receives his salary.

The high court's ruling does not take effect immediately. Alred can ask the court for a rehearing.

Alred was the fourth judge since 1984 to be removed from office by the commission.

The commission had offered a deal in which Alred would receive a 90-day suspension if he would admit ethics breaches, but he refused.

The panel judged Alred guilty of numerous ethics violations, including having improper involvement in cases, failing to dispose of cases fairly, using his office to advance personal interests and misrepresenting his actions.

In the Supreme Court ruling, Justices Mary Noble and Wil Schroder concurred with Minton's opinion. Justice Daniel J. Venters concurred in a separate opinion, which Justice Lisabeth Hughes Abramson joined.

Justice Bill Cunningham concurred in part and dissented in part in a separate opinion, which Justice Will T. Scott joined.

In his opinion, Cunningham wrote, "Judge Alred has not killed or physically injured anyone. He has not molested his secretary. He has not stolen a dime.

"In fact, he hasn't even been charged with a crime of any kind — misdemeanor or felony. None of his friends or family members has gotten rich or gone free because of his missteps. He has not enriched himself financially nor engaged in any kind of debauchery.

"His judicial misconduct has been primarily on behalf of children and against criminals. In all his excessive exuberance, he has failed to grasp his professional responsibility. He simply has not learned how to conduct himself as a judge."

Read more here: http://www.kentucky.com/2012/07/23/2267865/kentucky-supreme-court-upholds.html#storylink=cpy

Kentucky Judicial Commission Votes To Remove Harlan County Circuit Judge Russell D. Alred From Office.

Judicial commission votes to remove Harlan circuit judge from office
By Bill Estep

Harlan County's circuit judge violated a long list of ethics rules and should be removed from office, a state disciplinary panel has ruled.

Judge Russell D. Alred is only the fourth judge the Judicial Conduct Commission has ordered removed from office since 1984.

Alred had improper involvement in cases, failed to dispose of cases fairly, used his office to advance personal interests and misrepresented his actions, the commission said in a decision released Monday.

In one of the more high-profile charges, the commission ruled that Alred abused his power by appointing a special grand jury in April 2010 to investigate county Judge-Executive Joe Grieshop, who was being opposed for re-election by Alred's cousin.

Alred wrote the order in a way to discredit Grieshop as the election approached, the commission said.

"The actions of (Alred) show a blatant and persistent failure to uphold the impartiality and integrity of the judiciary," the commission said in its order.

The commission also said some of Alred's positions at a hearing on the charges last month were "at best, disingenuous and, at worst, blatant misrepresentations."

The commission convicted Alred on nine of the 20 ethics charges he faced and voted 6-0 to remove him from office.

Each charge dealt with a number of provisions judges are supposed to follow.

Alred continued his fight against the charges Monday, however, filing an appeal with the Kentucky Supreme Court.

The removal order won't take effect during the appeal.

Alred said that the commission's findings were wrong and that chairman Stephen Wolnitzek was biased against him because Alred had criticized the commission's investigator, a friend of Wolnitzek.

The decision to punish Alred was "cut and dried" before the commission heard testimony last month, Alred said.

Political opponents who covet the circuit judge's job fueled the charges against him and used the commission to further their aim, Alred said.

He said that if the state Supreme Court upholds the order to remove him, he will appeal to federal court.

"I'm going to fight it to the bitter end," Alred said.

Jeff Mando, a Covington attorney who prosecuted the charges against Alred, said he will seek an order suspending Alred during his appeal if Alred will not step aside voluntarily until the Supreme Court rules.

"I think the fair and impartial administration of justice in Harlan County is best served if Judge Alred is not deciding cases while his appeal is pending," Mando said.

Mando said there are concerns about how people would view Alred's rulings during his appeal and about possible retaliation by Alred.

Alred said he would act in a professional manner if he stayed on the bench during the appeal.

Mando said Alred's argument that Wolnitzek pushed through a biased decision against him does a disservice to the panel, which includes several judges.

Alred's claims were a desperate attempt to divert attention from the evidence against him, Mando said.

If the Supreme Court upholds the commission's order stripping Alred of his office, senior judges probably would handle cases in Harlan County until Gov. Steve Beshear appointed a replacement.

The charges against Alred have caused a good deal of tension in Harlan County, where even the judge said politics is sometimes a blood sport.

Two of the charges on which he was convicted involved the special grand jury he appointed last year to investigate Grieshop during the Democratic primary for judge-executive.

Sheriff Marvin Lipfird's office had investigated a claim by a female drug addict that Grieshop was giving her pills in return for sex.

Investigators concluded the woman, who was trying to get a break on drug charges, was not credible.

However, Commonwealth's Attorney Henry Johnson and Alred discussed letting a grand jury hear the case to avoid any perception that local officials declined to pursue charges because of Grieshop's position.

The issue blew up politically after Alred issued a public order — before the election in which his cousin opposed Grieshop — to empanel a special grand jury.

The order spelled out that the panel would investigate alleged drug-dealing from Grieshop's office but not until after the election.

That would have left the issue hanging until after the vote.

Alred could have sealed the order or not specified Grieshop was the subject of the inquiry, the conduct commission said.

Alred also knew there was no evidence for an indictment when he called for the special jury, the commission said.

The commission also noted Alred issued the order the same day he saw a sworn statement Grieshop had given, saying that Alred had asked Grieshop to get back some county land leased to another man because Alred wanted to use it for a drug-testing lab.

Alred said he was not motivated by politics or anger to appoint the panel to investigate Grieshop.

However, the commission said it was clear the statement angered Alred.

Johnson presented the matter before the election to a regular grand jury, which cleared Grieshop.

Other charges on which the commission convicted Alred were:

■ He pushed for the county fiscal court to build a water park with $500,000 donated by two doctors convicted in a drug case.

Judges are not supposed to lobby such government bodies that way.

The commission also said Alred filed a court order that misrepresented the facts surrounding an earlier order giving him control of the money.

■ He barred a woman charged with fraud from substitute teaching at an elementary school that Alred's children attended.

Alred took that action without holding a hearing, and there was no basis for the order, the commission said.

■ He urged police to investigate allegations about illegal gambling machines at local businesses, then presided over the case of a man who was charged as a result.

Alred should not have handled the case because his impartiality could reasonably be questioned, the commission said.

■ He filed a complaint against Kentucky Utilities over electricity charges, then asked an attorney for KU for a $12,500 donation for playground equipment at James A. Cawood Elementary School, which Alred's children attended.

The company made the donation before Alred dismissed his complaint.

Alred also raised money from other sources for the playground.

Alred's actions violated fund-raising rules that apply to judges and constituted an improper use of his office, the commission said.

■ He barred a public defender from his court without giving her a chance for hearing.

Alred said that the woman had missed court appearances and that he wanted to make sure defendants were properly represented.

The commission, however, said there was no legal basis for his order.

Read more: http://www.kentucky.com/2011/09/19/1888613/judicial-commission-votes-to-remove.html#ixzz1YSCInaMy

Fen Phen Judge, Joseph "Jay" Bamberger, Is Next In Line For Permanent Disbarment.

Judge in fen-phen case also faces disbarment

Former Boone Circuit Judge Joseph "Jay" Bamberger - who once was named Kentucky's co-judge of the year - now faces the possibility of permanent disbarment.
Former Boone Circuit Judge Joseph "Jay" Bamberger - who once was named Kentucky's co-judge of the year - now faces the possibility of permanent disbarment. /
Written by Jim Hannah

The Kentucky Supreme Court will have the final say on whether former Boone Circuit Judge Joseph "Jay" Bamberger

will be permanently disbarred.

Bamberger presided over the scandalous fen-phen settlement that has already destroyed the legal careers of at least three lawyers, and chased him from the bench.

The unanimous vote recommending disbarment was taken Tuesday in Lexington by the Kentucky Bar Association's Board of Governors, the same day the board also voted to disbar famed Cincinnati lawyer Stan Chesley, 75, of Indian Hill for his involvement in the scandal.

Bamberger - who once was named Kentucky's co-judge of the year - couldn't be reached for comment.

Bamberger was the only circuit judge in Boone and Gallatin counties from 1992 until Jan. 5, 2004, when he went into semi-retirement and became a senior status special judge. He resigned from that assignment in February 2006 rather than face removal from the Kentucky Judicial Conduct Commission, which said Bamberger's actions "shocked the conscience" of its members.

Chesley and lawyers William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr.

took $125 million of the $200 fen-phen settlement intended for 440 people who suffered heart valve damage after taking fen-phen. The lawyers then lied to the fen-phen victims about how much of the money they took and tried to cover it up when authorities began investigating.

A trial commissioner, who took the further step of recommending Bamberger be stripped of his law license for life, said the former judge signed orders "authorizing and sanctioning the largest-scale fraud in the history of the Commonwealth of Kentucky."

The commissioner said Bamberger engaged in conduct involving "dishonesty, fraud, deceit or misrepresentation" in the fen-phen case. The commissioner concluded it was "inconceivable" that Bamberger did not know what he was doing in allowing and covering up the scandal, particularly given that he benefited personally from the fraud.

Multiple investigations of the scandal have called into question the relationship between Bamberger and the trial consultant who helped negotiate the settlement - Mark Modlin. Modlin was paid $2.05 million for helping negotiate the fen-phen settlement with Chesley.

One investigation found Bamberger also attempted to preside over a case in Pike County in which Modlin was acting as a trial consultant without disclosing that the two owned property together. That land was later sold.

Modlin was seriously injured in a golf-cart accident while playing golf with Bamberger in 1987. Bamberger took the lead in organizing his care, recruiting people to take turns helping Modlin when he was recovering. The judge testified in a civil suit arising from the wreck that Modlin was one of his two or three best friends.

Bamberger also appointed Modlin, Gallion, Cunningham and Mills as directors of a foundation funded by $20 million siphoned from the fen-phen settlement. Modlin received a $6,500 monthly stipend and a $1,000 monthly expense allowance. Investigators said Modlin, Gallion and Cunningham received a $5,000 monthly stipend and a $350 month expense allowance from the foundation.

When Bamberger took semi-retirement, Modlin, Gallion, Cunningham and Mills made Bamberger a director on the foundation. He also received $5,000 per month plus the $350 expense allowance. That money has been returned.

Gallion and Cunningham were convicted of fraud and are serving lengthy federal prison sentences. Mills was found not guilty by a federal jury after arguing he was too drunk during the time of the settlement negation to participate in the conspiracy.

Thanks To Federal Judge Danny Reeves, Clay County Vote Buying Circuit Judge Cletus Maricle Gets NO "Miracle" As He Draws Over 26 Year Prison Sentence.

Former Clay circuit judge sentenced to more than 26 years in vote-buying case
By Bill Estep

Cletus Maricle, a Kentucky Circuit Court Judge, in an udated file photo supplied by the Administrative Office of the Courts on 1/23/03. Keyword: Prescription for Pain series, drug, drug abuse, drug dealers, prescription drug abuse. Former Clay County Circuit Judge Cletus Maricle, one of eight Clay County residents on trial in a vote-fraud case before U.S. District Court in Frankfort, March 2010. Photo provided. ADMINISTRATIVE OFFICE OF COURTSBuy Photo

FRANKFORT — Cletus Maricle, a former Clay County circuit court judge, was sentenced to 320 months — 261/2 years — for being the mastermind in a racketeering conspiracy that bought votes in an attempt to control the county, a federal judge ruled Thursday.

U.S. District Judge Danny C. Reeves said Maricle, 67, deserved a longer sentence than his counterparts because he was the head of the organization.

Maricle was convicted of conspiring with other county officials in schemes that involved racketeering, money laundering and voter fraud. He also was convicted of obstruction of justice.

Maricle and seven other county residents were convicted last March of using the county election board as a vehicle to corrupt elections in 2002, '04 and '06.

Others convicted in the case are Douglas C. Adams, the former Clay County school superintendent; former county Clerk Freddy W. Thompson; Stanley Bowling, who was a magistrate; Charles Wayne Jones, the county's Democratic election commissioner; William E. Stivers, a precinct worker; Bart Morris, who owned a garbage company that got local contracts; and his wife, Debra Morris.

Maricle's attorneys said they will appeal.

Read more: http://www.kentucky.com/2011/03/10/1665117/former-clay-circuit-judge-sentenced.html#ixzz1GDFMilkf

Senior U.S. District Judge In Atlanta, Jack Camp Jr., Arrested For Buying Drugs For Stripper. Let The Good Times Roll.

U.S. judge bought drugs for stripper, feds say
By Matt Smith and Emma Lacey-Bordeaux

Atlanta, Georgia (CNN) -- A federal judge in Georgia has been arrested on drug and weapons charges after federal agents say he bought drugs for a stripper with whom he was having an affair.

Senior U.S. District Judge Jack Camp Jr. has been charged with posession of cocaine, marijuana and the painkiller roxycodone, according to court documents. He is also charged with posessing a firearm as an unlawful user of controlled substances and with aiding and abetting the posession of drugs by the stripper, who had a prior drug conviction.

Camp was arrested Friday after federal agents said he bought drugs from an undercover agent. He made an initial appearance Monday in a federal court in Atlanta and was released on $50,000 bond.

The charges allege that Camp had been paying the stripper for sex since the past spring and was fronting money to buy drugs for both of them. Before the sting that led to his arrest, he told her, "Let me pay him, because you've already got a record," the affidavit states.

Camp, 67, is the former chief judge for the northern district of Georgia. He was appointed to the bench by then-President Ronald Reagan in 1987 and took senior status in 2008. His lead attorney, Bill Morrison, would not discuss the facts of the case but played down his client's public office.

"This is really a case between Judge Camp and his wife," Morrison told reporters outside the Atlanta federal courthouse. "It's not a case of Judge Camp being a judge, it's a case of Judge Camp being a husband."

The dancer, who is not identified in court papers, had a prior drug-related federal felony conviction on her record and "recently began cooperating with the FBI," according to the charges -- but she began recording the judge before she became an informant, the affidavit states.

The woman has been promised immunity from prosecution, but also had fewer tapes than she originally told agents from other law enforcement agencies, according to a footnote in the court papers.

In the deal that led to his arrest, Camp carried at least two pistols, his arrest affidavit states. According to the paperwork, it was one of at least three transactions in which he was armed.

"I'll watch your back anytime 'cause I'm afraid, and I not only have my little pistol, I've got my big pistol," the affidavit quotes Camp as telling the woman beforehand. "So, uh, we'll take care of any problems that come up."

They took separate cars to the meeting, which took place in the parking lot of a suburban Atlanta nightclub. According to the affidavit, Camp pocketed the drugs and told the undercover agent, "We'll call you again."

"Former Clay County Judge Says He Bought Votes, But Not Recently". Well, Knock Me Over With A Feather!

Former Clay County judge says he bought votes, but not recently
By Bill Estep

FRANKFORT — Former Circuit Judge R. Cletus Maricle admitted he bought votes in an election in Clay County more than 20 years ago, but he flatly denied taking part in more recent vote-fraud conspiracies in which he is charged.

Maricle, who was circuit judge for Clay, Jackson and Leslie counties from September 1990 to June 2007, said he bought votes in a 1983 election for circuit judge. Maricle, a Democrat, was a lawyer in Manchester at the time.

"I didn't get too many, because I didn't have much money," Maricle testified Thursday.

Earlier, a former Republican county election commissioner testified he and Douglas C. Adams, who would later become the school superintendent, bought votes in competition with Maricle in that 1983 race.

The former GOP election commissioner, Kenneth Day, said the bidding to bribe voters got so hot that he ended up paying one person $800.

Maricle said Day was right about him buying votes in 1983 but denied Day's testimony that Maricle double-crossed a candidate in 1985 by taking money to buy votes for him but using it to buy votes for an opponent.

Maricle also denied he helped fix a jury verdict in a 1990 civil lawsuit to guarantee a big damage award for one side, contradicting testimony from Day, a convicted drug dealer.

Maricle and Adams, now both retired, are on trial in federal court in Frankfort on charges that they headed a scheme to buy and steal votes from 2002 to 2007, when both were in office.

The others charged with them are county clerk Freddy W. Thompson; Charles Wayne Jones, a former county Democratic election commissioner; William Stivers, also a former election official; Magistrate Stanley Bowling; and William "Bart" Morris and his wife Debra, who allegedly paid voters.

They have denied the charges.

Maricle, 66, took the witness stand in his own defense Thursday, disputing details of earlier testimony against him.

For instance, there has been testimony that he did favors for people in court in return for help in rigging elections, but Maricle said he did not do that. In one particular case at issue, he wasn't the judge, Maricle said.

Maricle also said he did not promise to get one woman, Wanda White, a job in return for helping rig an election in 2006, as she said he did.

Maricle said he was not involved in buying votes in elections in 2002, 2004 and 2006 — the years he allegedly headed the scheme to corrupt elections.

Witnesses have testified that Maricle took part in a plan to steal votes in the May 2006 primary, in which his son-in-law, Phillip Mobley, was running for property valuation administrator.

The plan involved duping people into walking away from voting machines before completing their ballots, then having corrupt election officers switch the votes to Mobley and others.

Maricle acknowledged he wanted Mobley to win but said he did not take part in vote fraud to make that happen.

"I didn't do anything illegal," Maricle said.

Mobley is an unindicted co-conspirator in the vote-fraud case, U.S. District Judge Danny C. Reeves said in a ruling this week.

Prosecutors are expected to cross-examine Maricle on Friday.

Former U. S. Supreme Court Sandra Day O'Connor Leads Efforts To Undo States' Voting For Judges. What Do You Think?

Effort Begun to End Voting for Judges
By JOHN SCHWARTZ

A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O’Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election.

As a state legislator in the 1970s, Justice O’Connor helped Arizona create a merit selection system for judges. She is now chairwoman of the O’Connor Judicial Selection Initiative, announced this month by the Institute for the Advancement of the American Legal System at the University of Denver, to help make judges more than “politicians in robes,” as she has put it.

The group plans a new push to fight judicial corruption, and the perception of corruption that campaign money can cause, by encouraging state initiatives to scrap direct judicial elections. The work will include traveling from state to state, by invitation, to work with lawmakers, policy makers and advocates to build support for selection systems through public education, legislative counsel and political campaigns.

Rebecca Love Kourlis, the founder of the institute, acknowledged that getting voters to give up the right of direct election was “a hard sell,” but she argued, “You’re going to get a better caliber of judge over all.”

Merit systems — like the one that appointed Justice Kourlis to Colorado’s Supreme Court, where she served from 1995 to 2006 — generally involve a selection commission and regular “retention” elections in which voters can decide whether to keep their judges in power. Many states also have separate panels that report on judicial performance so that voters can go to the polls armed with information.

“This is all about an informed vote,” Justice Kourlis said.

According to the institute, 23 states and the District of Columbia have a commission-based system for at least some of their judges. No state has shifted to an appointive system in 15 years, but Justice Kourlis said the moment could be ripe.

Judicial elections have become “tawdry and embarrassing,” she said, and the Supreme Court decided an important case this year concerning judicial conflicts of interest that underscored the potentially corrupting influence of campaign contributions to judicial political campaigns, “which changes the landscape, from a legal perspective, and makes us hopeful that this is the time.”

Some, particularly within the business world, have expressed skepticism about merit selection. The U.S. Chamber of Commerce Institute for Legal Reform has taken no official position on judicial selection, but issued a report in October warning that some state judicial selection programs “have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

Nonetheless, efforts are under way in some states to switch. Nevada will vote in November on a constitutional amendment that would set up a selection process. State Senator William J. Raggio, Republican of Reno, said that voters rarely knew much about the judges, and that many candidates ran unopposed.

Ohio, too, is considering a partial move to selection commissions, and held a forum last month with judges and lawmakers to lay out the issues.

In the interview, Justice O’Connor recalled her early days as a lawyer in Arizona when she took a female client into court on a domestic matter.

“ ‘Ms. O’Connor, bring the little heifer in,’ ” she recalled the judge saying.

“That’s not real encouraging,” she said. “We can do better.”

Justice O’Connor said that no other nation elected its judges. “Nobody,” she said emphatically.

At international legal conferences, she said, “they’re all amazed” when the discussion of the American system comes up. “They say, ‘How can that be?’ ”

Former Supreme Court Justice, Sandra Day O'Connor: "STOP Electing Judges." What Say Ye?

Read more here and give us your take on the issue of electing judges.

I Agree That Attorney Angela Ford Deserves Much KUDOs. Read More.

Attorney toppled diet-drug case Goliaths
By Andrew Wolfson

She stands only 5-foot-3 and says she weighs “just north of 100 pounds.”

She has said she once was so painfully shy that the thought of speaking before a group would cause her stomach to knot and her hands to perspire. She disliked school, earning mostly Bs and Cs at Louisville's Mercy Academy, and in her first year after high school she worked as a dental hygienist.

But Angela Ford grew increasingly confident as she grew older, and went on to become the first female student government president at the University of Louisville.

And now the 51-year-old lawyer has proven herself on a much larger stage.

Taking on powerful interests, virtually by herself, the Lexington practitioner helped expose one of the biggest legal scandals in U.S. history — the theft of tens of millions of dollars from Kentuckians injured by the diet drug fen-phen.

Her five-year fight culminated last month in the sentencing of disbarred lawyers William Gallion and Shirley Cunningham Jr. to long prison terms and a court order of $127million in restitution to her 423 clients, who previously were represented by those same lawyers.

Ford will get one-third of what is recovered; she's been paid about $7.5million so far, although part of that has gone to other lawyers who assisted her.

Fellow lawyers applaud Ford's perseverance in what many say was a long-shot challenge against targets that included a judge once named Kentucky's co-judge of the year.

“If somebody had come into my office with this case, I would have said, ‘You've got to be kidding,'” said Louisville trial lawyer Gary Weiss. “She took a difficult case and spent a fortune of time and money, and (has) done a service to her clients and society.”

“She ought to get the lawyer of the year award,” Weiss said, “maybe lawyer of the decade.”

Client Jackie McMurtry of Louisville said: “They tried to block her at every turn. She never faltered.”

And Michael Hance, president of the state's plaintiff trial lawyers group, the Kentucky Justice Association, said, “She has shown that the justice system works.”

Editor's comment: what is particularly spectacular is that Angela turned in one of hers, fellow lawyers, who were giving the Bar a bad name, as if the Bar was not getting its share of bad names -- some well deserved.

To continue reading this wonderful piece, click here.

Another Reason To Thank Chief Justice John Minton.

Clay Co. judge's business dealings lead to his removal from lawsuit
By Bill Estep - bestep@herald-leader.com

A Clay County circuit judge can't preside over a voyeurism lawsuit against the local hospital because he has property interests with an attorney representing the people suing the facility, the state's chief justice has ruled.

The ties between Circuit Judge Oscar Gayle House and Manchester attorney R. Scott Madden cast doubt on House's ability to remain impartial, Supreme Court Chief Justice John D. Minton said in his opinion.

Minton ordered that a new judge be assigned to the case. He did not say that House had engaged in any improper conduct. But that wasn't the test, the chief justice said.

The question was whether the ties between House and Madden, viewed from the "objective perspective of a reasonably prudent person" raised doubts about House's ability to not favor either side in the lawsuit, Minton said.

They did, Minton said.

Attorneys for the hospital and other defendants had asked that House be removed from the case after learning the judge owns a small piece of property with Madden and rents a house from Madden and members of his family.

Madden is one of several attorneys who represent two people suing Manchester Memorial Hospital, its parent company and several employees.

Defense attorneys did not argue that House did anything improper in the case.

But the ties between House and Madden — and the fact the judge did not disclose them — raised an appearance of impropriety that justified disqualifying House, attorneys for the hospital argued.

"The hospital believes it cannot get a fair trial" with House presiding, said Knoxville attorney James H. London, who represents the hospital and other defendants.

The lawsuit alleges that the hospital had a hidden camera in a room where employees changed clothes outside two surgical suites.

Operating-room nurse Angel Edwards and Terry Nitz, a nurse anesthetist, filed the lawsuit in July 2007 charging that the hospital and employees had violated their privacy, broken the state law against voyeurism and caused them emotional distress.

The hospital has denied doing anything improper.

Minton's order means a new judge will consider a request to set aside a ruling by House that was very critical of the hospital.

House said the facility and other defendants had willfully failed to properly preserve evidence from the hidden camera — undermining the plaintiff's case — and stonewalled efforts by attorneys for Nitz and Edwards to get information.

The defendants had engaged in "reprehensible" conduct, House said.

As a result, House said he would bar the hospital from using certain defenses, make the defendants pay some of the plaintiff's costs, and allow some information to be presented to jurors as fact even without images from the camera.

London said the defendants strongly contest that they failed to preserve any evidence they should have.

London said he had attorneys do research on House after he handed down that "very arduous" ruling, which turned up information cited in the request for House to be disqualified.

"It concerned me greatly," London said of the ruling.

Madden had argued that his landlord-tenant relationship with House and their ownership of a small piece of property that produces no income didn't create even an appearance of impropriety, and did not merit removing House from the case.

Madden also said that ordering House off the hospital case not only would run counter to previous ethics opinions, but could cause problems because he and his law partners have dozens of other cases pending before House.

London said Minton's order could affect some other cases. However, if the ties are disclosed, attorneys can agree that it's okay for House to remain on cases involving Madden, London said.

"Our problem was that it was never disclosed," he said.

Tennessee Bar Fight. Kentucky Could Use One.

Tennessee Bar Fight
Busting the monopoly on judicial selection.

Tennessee is moving the dial on how it chooses judges, changing parts of the so-called merit selection method that has governed the state for decades. Under a new plan approved by the legislature on Friday, the lawyers who have dominated judicial selection are getting put back in their place.

The extraordinary influence of the bar is a hallmark of the judicial selection method used by more than two dozen states. Sometimes called the Missouri Plan for its state of origin, a slate of potential nominees is chosen by a judicial nominating commission and presented to the Governor for a pick. Designed to reduce the pull of politics on judges, the plan instead gave power to lawyers who sat on the commissions and pushed state courts to the left.

Under Tennessee's old version of this plan, commissioners were chosen from lists submitted by various legal special interests including the Tennessee trial lawyers association, the district attorneys general conference and the Tennessee bar association. Under the new system, all 17 members of the Judicial Selection Commission would be picked directly by elected officials, rather than by the lawyers groups. The change should reduce the power of a professional guild to control state jurisprudence and reintroduce accountability through elected officials.

Tennessee is the latest state to push back against this insider "merit" selection amid widespread dissatisfaction. In 2006, Democratic Governor Phil Bredesen grew so frustrated with the subpar slates of nominees that he sued the judicial nominating commission for the right to consider others -- and won. The system was put on the path to extinction last year as lawmakers declined to renew it.

Tennessee would thus have automatically reverted at the end of June to the judicial elections required under its Constitution. The new plan buys the state two years to consider other alternatives. One good idea lawmakers should revisit would allow the governor to reject two slates of nominees and then choose a nominee from among anyone who applied for the position. Though likely a rare occurrence, the possibility of being rendered irrelevant would have a bracing effect on the nominators.

That improvement was excised from the state Senate's version of the bill, but Tennesseans are bound to hear more about it. Lieutenant Governor and Senate Speaker Ron Ramsey is one of several Republicans running for Governor in 2010, and voters should ask why he didn't push harder for broader choices of nominees. In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it's dysfunctional, the Governor should be allowed to take the reins.

The Tennessee plan that was supposed to prevent the tawdry appearance of litigants and special interests involved in electing judges instead ended up with them selecting the judges behind closed doors. The state's reforms will open the commission's meetings to the public and are a good first step toward bringing transparency and accountability to those judging the judges.

The Paducah Sun/Editorial: "OOPS, Stevens' Honor Restored, But Not His Senate Seat." I AGREE.

The Paducah Sun/Editorial

OOPS
Stevens' honor restored, but not his Senate seat

"In my 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case."

Emmet Sullivan
U.S. District Judge

Never mind.

We’re real sorry you were falsely convicted of seven felonies, ignominiously ending your half century of public service. Too bad your conviction wasn’t set aside until after you lost the U.S. Senate seat you had held for 40 years. Such is life.

That’s what the Justice Department is telling U.S. Sen. Ted Stevens, who was convicted last October of seven felony counts of lying on Senate financial disclosure forms to conceal gifts and home renovations from a wealthy contractor. Yesterday a U.S. District judge dismissed the corruption convictions against the Alaska Republican.

Judge Emmet Sullivan said, "In my 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case."
It was so bad that the judge opened a criminal investigation against the six prosecutors who bungled the case. Sullivan appointed a special prosecutor to investigate rather than trust the Justice Department to conduct an internal probe.
The judge found that the prosecutors deliberately withheld from defense attorneys information that would likely have exonerated Stevens.

In particular, prosecutors withheld notes from an interview with their star witness in which he gave contradictory statements from those he later made on the stand regarding renovation work at a Stevens-owned house at the center of the case.
Despite the conviction, Steven nearly held onto his seat, losing to the former mayor of Anchorage by less than 4,000 votes.
The conviction was on appeal, but Attorney General Eric Holder announced last week that he was dropping the case after the prosecutorial misconduct became public.

Although no one has tried to tie the case to political opponents, either in Washington or Alaska, unrelated circumstances and the convenient timing of the conviction — a month before the November elections — provide rich fodder for conspiracy theorists. Democrats were just a seat or two from gaining a super-majority in the Senate. Thanks to the controversy, the seat went from safely Republican to up-for-grabs. And anything that smacked of corruption in Alaska politics had the bonus benefit of tainting a Republican presidential ticket featuring Sarah Palin.

So the conviction — and now its reversal — are lighting up the blogosphere with predictable rumors of political conspiracies.

But, whether or not bloggers dredge up anything of substance, Stevens’ treatment was inexcusable. He said “(the prosecutors’) conduct had consequences for me that they will never realize and can never be reversed.”

This is not the worst thing Stevens has suffered. The 85-year-old has a tough hide, having survived more than his fair share of personal tragedy. As a child, he helped care for his blind father and mentally disabled cousin while living in the home of his paternal grandparents. Both his grandfather and his father died before Stevens was 15. He lost his first wife in a plane crash in which he also sustained serious injuries. He is also a cancer survivor.

He’ll survive this, too. But the 2008 election results can’t be overturned.

The zealous, and perhaps renegade, prosecutors failed to send Stevens to jail. But, whether intentionally or not, they succeeded in the more consequential feat of snatching a U.S. Senate seat from one party and delivering it to the other. It’s disconcerting to know they can do that even to one of the most powerful men in the country.

"Lock 'Em Up".

Lock 'Em Up
Jailing kids is a proud American tradition.
By THOMAS FRANK

At first glance, the news from Luzerne County, in northeastern Pennsylvania, is not good. In what is known locally as the "kids for cash" scandal, two judges have pleaded guilty to accepting $2.6 million in kickbacks from a for-profit juvenile correctional facility -- a privately owned jail for kids, essentially.

And here is what the judges delivered, according to the charges of the U.S. Attorney overseeing the case: In 2003 one of them, Judge Michael Conahan, who had authority over such expenses, defunded the county-owned detention center, channeling kids sentenced to detention to the private jail -- along with the public's money.

For good measure, the feds charge, Mr. Conahan also agreed to send the private facility $1.3 million per year in public funds. Over the succeeding years, the private jail, along with a second lockup-for-profit that had opened in another part of the state, won tens of millions of dollars in Luzerne County contracts, allegedly with the two judges' help.

What has drawn the media's attention, though, is the remarkable strictness of the judges' judging. Mr. Conahan's alleged partner in the scheme, Judge Mark Ciavarella Jr., reportedly sent kids to the private detention centers when probation officers didn't think it was a good idea; he sent kids there when their crimes were nonviolent; he sent kids there when their crimes were insignificant. It was as though he was determined to keep those private prisons filled with children at all times. According to news stories, offenses as small as swiping a jar of nutmeg or throwing a piece of steak at an adult were enough to merit a trip to the hoosegow.

Over the years Mr. Ciavarella racked up a truly awesome score: He sent kids to detention instead of other options at twice the state average, according to the New York Times. He tried a prodigious number of cases in which the accused child had no lawyer -- here, says the Times, the judge's numbers were fully 10 times the state average. And he did it fast, sometimes rendering a verdict "in the neighborhood of a minute-and-a-half to three minutes," according to the judge tasked with reconsidering Mr. Ciavarella's work.

My question is, what have the Luzerne County judges done that deviates in the least from our American political traditions? These jurists have merely taken to heart the unvarying message of 40 years' worth of election results -- that more people, many more, need to go to jail -- and have come up with an entrepreneurial solution to the problem.

We the people say it loud and clear every Election Day, in high-crime periods as well as peaceful stretches: More of our population needs to be behind bars. We love retribution so much we make hits of TV shows in which society's ne'er-do-wells come in for lectures not only by stern, righteous judges, but by tattooed, mulletted bounty hunters as well.

And over the years we have embraced all sorts of instruments ensuring that more people got locked up for longer and longer stretches: Three strikes laws, mandatory sentencing laws, zero-tolerance policies. Maybe they aren't "fair," but they've helped to make the U.S. number one in percentage of population in the clink -- in fact, as Virginia Democratic Sen. Jim Webb pointed out in Parade magazine on Sunday, America has an amazing 25% of the world's prisoners.

Taking this path has not always been easy. In the 1990s, when we started to realize that child crooks were "superpredators" who needed to go to prison along with everyone else, some were unwilling to act. Others stepped up. "We've got to quit coddling these violent kids like nothing is going on," said Sen. Orrin Hatch (R., Utah) in 1996. "Getting some of these do-gooder liberals to do what is right is real tough. We'd all like to rehabilitate these kids, but by gosh we are in a different age."

But taking law and order to the next level in this different age required money, by gosh. Privatizing bits of the prison industry was a step in the right direction, but what we didn't have -- until recently -- were proper instruments for incentivizing the judiciary. That's what the "kids for cash" judges were apparently experimenting with.

Today the do-gooders revile those efforts as "kickbacks," but before long we will see them as legitimate tools of justice. Our laws governing lobbying and campaign contributions have struck the right balance between the wishes of the people and those of private industry, so why are we so quick to doubt that the same great results can be achieved by putting the government's justice-dealing branch on the same market-based course?

The public will get to see their neighbors' kids go to jail, the judge who sends them there will be able to afford a nice condo in Florida, and the company that satisfies the public's desire for punishment will make a handsome profit. It will be a win-win result for everyone.

Pennsylvania Highest Court Overturns Juvenile Sentences In Judge kickback Scandal. Read More And Be Outraged.

Talk about Judges misbehaving, and acting like the Mafia.

Read the Master Commissioner's report, and then read the Court's ruling.

In case if you are wondering what happened to the judges, they plead guilty to federal corruption charges.

You know, what most people do NOT understand is that TYRANNY starts and ends at courtroom doors -- not anywhere else.

Despotism happens because judges are corrupt, and are bought and sold like cattle at livestock auction houses.

That is why my continued outrage.

Kentucky Chief Justice John Minton SHINES Again, Will Require Courthouse Contractors To Post Bond Required By Law.

Read more here, or excerpts below:

Companies building courthouses must insure 100 percent of their work
By Linda B. Blackford - lblackford@herald-leader.com

Construction managers working on 35 state courthouse projects have bucked state law by not fully bonding their work, but now will have to provide millions of dollars to insure their work immediately, according to an audit released by the Chief Justice of the state Supreme Court on Tuesday.

A legal opinion by Northern Kentucky lawyer William Geisen concluded that state law, regulations of the Administrative Office of the Courts and the contracts between construction managers and counties for new courthouses require 100 percent payment and performance bonds as soon as the contracts are signed.

Instead, in the past few years, several construction managers in the AOC's $880-million courthouse construction program have provided bonds for only between 5 and 6 percent of the construction cost.

"Mr. Geisen conducted a thorough and unbiased review of current bonding practices on our courthouse projects and found that the Administrative Office of the Courts has allowed certain construction managers to furnish performance and payment bonds that are legally insufficient," said Chief Justice John D. Minton. "I will be asking the county judge-executives to require the construction managers on their projects to immediately furnish a performance and payment bond equivalent to 100 percent of the contract sum.

"I am deeply committed to restoring the integrity of our construction program," Minton said.

The bonds are a form of insurance to guarantee the construction work.

The additional cost of the full bonds — which could be as much as $3.6 million— will be paid by the affected construction companies. The premium for 100 percent bonds is already included in what the state pays construction managers.

Minton became chief justice last year, replacing Joseph E. Lambert, who oversaw the ambitious $880-million program to put a new courthouse in every county.

Minton appointed Geisen to investigate the program after the Herald-Leader revealed that Codell Construction of Winchester was routinely bonding only the amount of its fee on courthouse projects rather than the 100 percent required by state law. AOC Facilities Director Garlan VanHook resigned shortly before the audit began.

Uninsured courthouses

Codell has been the construction manager on more than 60 percent of the courthouse projects since 1998; Codell is the manager on 24 of the 35 projects currently at issue, or nearly 70 percent. The construction managers on the remaining 11 projects are Alliance Construction of Glasgow or Branscum Construction of Russellville.

In some cases, bonds were not provided at all, or only provided in the last two months after open records requests for the bonds were sent to the county governments.

Washington County, for example, is about to open its new $12-million judicial center. The contract for the project was signed on March 13, 2006. Codell did not acquire the performance bond until Jan. 8, 2009.

"Codell obviously disagrees with several of Mr. Geisen's legal opinions and conclusions, but respects his efforts and will comply, as they always have, with the AOC's bonding requirements for the courthouse projects," said John W. Hays, an attorney for Codell.

'A red herring'

The total cost of the courthouse construction underway or about to start is $381 million, so Geisen's opinion could cost the companies millions of dollars.

At issue are the bonds required for construction management at-risk, a mode of construction used by the AOC. Under such a contract, the construction manager takes on the total risk of the project by holding all the contracts with subcontractors. The bonds are required to protect the public, which is considered the owner.

Instead, Codell and other companies were bonding their fee—about 5 percent of the project's cost—and requiring the subcontractors, such as plumbers and electricians, to bond themselves for 100 percent. Otherwise, they said, the project would be "double bonded."

However, the required bonds protect the owner from problems with the construction manager. If Codell or another company went bankrupt under the current practice, the county could not recoup large losses.

Geisen called the double bonding issue a "red herring raised by certain CMs-At Risk within the program in an apparent effort to avoid the actual requirements" of state and AOC regulations.

In his opinion, he said the practice of under-insurance came out of a meeting on Dec. 18, 2007, between AOC, several construction managers and several architects. The construction managers "apparently convinced" the AOC representatives that bonding their fee and the subcontractors would be acceptable.

Louisville construction attorney Bruce Stigger and bond expert Todd Loehnert, who first noticed the AOC bonding practice, said they were pleased with Geisen's opinion.

"It was important to the construction industry and the people of Kentucky that this type of wrongful conduct be immediately corrected," Stigger said. "Hopefully all contractors will now play by the same rules when performing public works projects."

The bonding issue sparked a flap between Codell and two national bonding groups. The two groups wrote letters to 35 county judge executives reminding them about the state law requiring 100 percent bonds. In return, Codell threatened to sue the groups.

Now I Understand Why Clay County, Kentucky Judge Is The ONLY Accused Sitting In Jail.

The allegation is that the sitting Judge is a DANGEROUS man who coached witnesses to commit perjury, and could intimidate witnesses.

Read more.

In Kentucky I Say: Move Along Kids. Nothing New Here To See Or Read, Part Two.

Read more from the C-J, and move along, folks.

Don't forget where the story is coming from -- Kentucky.

"A Lily-White Bench".

A lily-white bench

Two black judges out of the 40 who now preside over Jefferson County's circuit, district and family courts hardly constitute a racially representative bench for an area whose population is 19 percent black.

But a lily-white Jefferson County bench is intolerable, though lily-white is what Jefferson County's bench is going to be when longtime District Judges Janice Martin and Toni Stringer move into the senior status judge program.

Louisville NAACP president Raoul Cunningham and others have been sounding the alarm for weeks. Gov. Steve Beshear must be prepared to assure racial diversity in our courts, where -- let's face it -- African Americans are overly represented as defendants.

But Gov. Beshear needs help -- and no excuses. He should have a long list of talented black attorneys who will be strong candidates when there are vacancies that the Governor must fill. Getting up that list is a shared responsibility, not just of the official Judicial Nominating Committee but also of others who strive to identify and correct disparities in the judicial system.

As for Jefferson County, two black judges need not be a magic number. We'd like to see more African Americans appointed, and subsequently elected by the people, to fill some of the other vacancies being created by the senior status program.

Too bad for Kentucky, but at the moment there's a virtual stampede of experienced judges who are retiring to the senior status program that provides enhanced retirement benefits to those who agree to work part-time for five years.

In the past we've editorialized that the program is a taxpayer rip-off, and we'll be glad to see it stop accepting new judges next month. Should judges, even fine ones like Martin and Stringer, be eligible to retire with 100 percent of their salaries after just 20 years -- and able to add to that up to $30,000 more for serving as special judges?

Editor's comment: Is there ANY reason why the Courier-Journal isn't concerned about other areas of Kentucky outside of Jefferson County, like Warren County and others, which has had NO -- YES YOU HEARD ME, NO --Black/African American judge(s) EVER!?

District Court Judge For Allen And Simopson Counties, Frank Wakefield, 11, Suspended For 30 Days Without Pay.

From the Associated Press:

FRANKFORT, Ky. --
A rural Kentucky judge has been suspended for 30 days without pay for talking too much in court and for being rude.

The decision issued Friday by the Judicial Conduct Commission said that District Judge Frank H. Wakefield II routinely "engaged in lengthy and rambling discourses" in his courtrooms in Allen and Simpson counties. The panel found the topics weren't even related to the cases at hand.

Wakefield didn't immediately return a call to his home in Franklin.

An investigation also documented reports that Wakefield often belittled people in his courtroom, which violates a judicial canon that calls for judges to be dignified and courteous.

The panel also determined that Wakefield violated judicial canons by interrogating people in open court without regard to their privilege against self-incrimination and by publicly opposing a fellow judge who was seeking re-election.