James M. Redwine

Circuit Court

The Cure for Black Robe Fever

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In response to both the states of Indiana and Oklahoma’s CLE requirements I am currently engaged in a forty-hour online Mediation course presented by the National Judicial College in Reno, Nevada. I may subject you, Gentle Reader, to the exciting content of this course before long. Hey, why should I have all the fun alone. But for this week I thought you might prefer another of those true courtroom dramas such as the one presented in last week’s column about my service as a prosecuting attorney that helped keep me from falling too deeply into the Black Robe Syndrome. The case that today’s column is about occurred about 25 years ago in front of me in the Posey County, Indiana Circuit Court. To my chagrin, I confess it is all too true and was first confessed to by me in a Gavel Gamut article on August 07, 2006 and appears in the book Gavel Gamut Greetings from JPeg Ranch.

The whole embarrassing courtroom episode reminded me of Dorothy’s serendipitous traipse along the Yellow Brick Road in the land of Oz with the cowardly Lion, the Scarecrow and the Tin Man in search of a brain for the Scarecrow, courage for the Lion, a heart for the Tin Man and the Wizard of Oz for Dorothy. When the mighty Wizard of Oz is finally seen for what he really is by Dorothy his façade of omnipotence gets shattered.

It is probably a good thing that we sometimes have false images of our leaders.  I remember my feelings of dismay when I was told by one of my grade school teachers that the painting of George Washington that hung in our classroom and in which The Father of Our Country looked so stern and powerful portrayed General Washington with his lips tightly pursed because he had ill-fitting false teeth.

And I will not disclose at what advanced age I still clung to Santa Claus and the Easter Bunny.  I might have been slow to catch on but I was happier than my peers.

We may be wrong, but most humans believe in pomp and circumstance and the regalia of office.  Police officers have badges, soldiers have uniforms and presidents have Air Force One.  We do not need to know about what happens behind the scenes.

Then there are judges.  Judges have courthouses, high benches, gavels and those flowing black robes. Hey, it’s kind’a cool. And, of course, some judges have spouses who are not so easily impressed by all the accoutrements since they see their judges asleep on the couch in dingy tee shirts and torn Levi’s.

But what brings the old “feet of clay” sharply into focus are those unexpected events that occur in court where some citizen decides to act like this is a democracy and he or she is an American.

While there are many instances where I have been made to realize that the trappings were for the office and not for me personally, my wife Peg’s favorite story involved a case from about ten years ago where I was imparting great judicial wisdom and admonitions to a young woman who had been found guilty of stealing.

As I was regaling the full courtroom with the majesty of the law and how it fell so heavily on this poor young miscreant, all of a sudden the huge double doors in the back of the courtroom burst open and a large woman with her hair in curlers wearing a housecoat and bunny slippers charged up towards my bench. She was the young woman’s mother and she was not amused and certainly not impressed by my lecture to her daughter.

The lady stopped just behind the bar that separates the hoi polloi from those who are paid to serve them. She stood to her full height and said very loudly:

                     “If you weren’t wearing that long black dress, I’d come up there and slap your face!”

Then she turned and marched slowly and grandly out the back of the courtroom giving me what for the whole time.  The packed courtroom was split between amazement and amusement.

As for me, I knew how the old Wizard of Oz felt.

A Legal Revolution

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Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

Why?

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There were telephone calls, personal inquiries and Facebook posts. Thank you everyone! It speaks well for Posey County that people today are taking an interest in recognizing a terrible injustice that previous Posey County citizens committed and perpetuated by silence over one hundred years ago.

I have been a citizen of this fair county since 1976 and have been deeply involved in our legal system. From 1976-79 I served as the Chief Deputy Prosecuting Attorney, from 1979-80 as County Attorney to the Board of Commissioners, from 1976-81 as a practicing attorney, from 1981-83 as judge in what was then the Posey County Court (now the Posey Superior Court) and from 1983 to 2019 as the Posey Circuit Court Judge. And while I will retire as a full-time judge December 31, 2018, the Indiana Supreme Court has appointed me as a Senior Judge for 2019. In other words, I have had and have some responsibility for aiding in the administration of justice in Posey County.

Therefore, I believe it is my duty to help seek justice, at least in memory, for the seven men who were murdered during one week in October 1878. The murderers included two hundred white Posey County men who were aided by the silent complicity of the rest of our citizens. Since I first found out about these murders I have spoken and written about the events. The following is the Preface of my historical novel JUDGE LYNCH! that was published in July 2008.

PREFACE

On March 14, 1990, I spoke to the Posey County Coterie Literary Society in the courtroom of the Posey Circuit Court in Mt. Vernon, Indiana. As a thank you, the Society presented me with William P. Leonard’s History and Directory of Posey County (1882). The presentation was made by the Society’s President, Ilse Horacek. I read the book the following weekend and was struck by three brief paragraphs found at page 101:

“Annie McCool, a white prostitute, was murdered at Mt. Vernon, by some unknown person, in September, 1878. Her murderer was supposed to have been a negro paramour.

Daniel Harris, a negro, on October 11, 1878, shot and killed Cyrus Oscar Thomas, a son of Geo. W. Thomas, Esq., of Mt. Vernon, while the latter was in discharge of his duty as Deputy Sheriff. Harris was indicted by the grand jury at the October term of the Circuit Court in 1878, and at the August term of that court in 1881, the prosecutor, William H. Gudgel, entered a nolle prosequi. It is supposed by some and denied by others that Harris was murdered by the friends of his victim who disposed of his body by means which will forever leave its whereabouts a mystery.

James Good, Jeff Hopkins, Wm. Chambers and Edward Warner, all colored, were hanged October 12, 1878, by a body of unknown men, from trees in the Public Square, at Mt. Vernon for murders and other heinous acts committed by them during that year.”

I could not find any further description of these events that had occurred right outside my court chambers so I contacted Ilse who brought me a copy of the Western Star newspaper of October 17, 1878, that she had pieced together from the microfilm records stored at the Alexandrian Public Library in Mt. Vernon.

As a German child during World War II, Ilse observed firsthand the denial of civil rights by those in power. After marrying a soldier from Posey County whom she met in Germany, Ilse made her home in Mt. Vernon and has always been vigilant in the cause of equal justice for all. Ilse pointed me to other sources for more information.

One thing that I personally observed was the four old hangman’s nooses that are still on display at the Posey County Jail. On May 21, 1992, I took those nooses to be props for a speech I had been asked to give on the 1991 Rodney King police brutality case to our local Kiwanis Club. The reaction of the crowd of business and professional leaders to my comparison of the 1991 case in Los Angeles to the 1878 lynchings in Posey County was a surprise to me. That is when I began in earnest to search through the old court records in the courthouse catacombs and the Indiana State Archives.

I have also written about the events of October 1878 several times over the last few years in my weekly column, “Gavel Gamut”. The column appears in our three Posey County newspapers, The Mt. Vernon Democrat, The Posey County News, and the recently revived Western Star as well as The Carmi Times in Illinois.

Each October for the past three years I have reprised the murders and the cover-up. On numerous occasions I have solicited family diaries or records, such as a copy of the photograph Glenn and Kenneth Curtis saw in the 1950’s. Perhaps this book may help bring out more facts.

The Harrison family is often referred to in news accounts and even court records as Harris. For the sake of consistency, Harrison is used throughout this book.

Much of this novel is rooted in fact. But, because many in the white community of 1878 had good reason to avoid exposure and many in the black community were driven out, I have taken poetic license to tell the story and call for such atonement as may be possible.

Jim Redwine, May 2008

That is WHY. Why NOW you might ask? Because there has been no atonement, no recognition, no justice and no memorial for 140 years. The time is now!

Options

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Peg and I voted early. I am not aware of whose idea early voting was, but it was a good one. Perhaps the period could be expanded and maybe a safe and secure system of voting from home could be devised. My opinion is that the more citizens who cast one legitimate ballot the better. If we can deliver packages by drone, get gourmet meals sent to our homes and pay our taxes over the internet we should be able to hold legitimate elections that meet our current lifestyle and encourages all who are qualified to vote. Of course, such a system would need to ensure only those qualified vote and ensure that there is only one vote per voter. But as we plan to colonize Mars and the Moon we ought to be able to call upon our ingenuity to increase our options here on Earth.

In my view that is what differentiates us from all other species, options. And the important decisions as to who should lead us forward are one critical area where options matter most. We should not only encourage maximum participation in elections, we should make that participation inviting and easy. After all, we know our society demands maximum ease in such things as satellite and cable TV, drive-through fast foods and shopping by index finger, so why should we make voting less accessible?

Some of you will read this article on or before Election Day on November 06, 2018. If you have not voted, please do so. You will feel better when your taxes come due if you feel you have had some input into who sent the statements to you.

I see participation in our democracy much as I view the case settlement system I helped devise in the Circuit Court of Posey County, Indiana. Let’s take a divorce for example. Two spouses who once loved one another and perhaps had children together or operated a business, now need to go new directions. How can the vital issues of child custody and property division best be resolved? Is it better to have the divorcing spouses turn their future over to a complete stranger, a judge, or might they be happier if they work together to resolve things for themselves? This system of keeping the couple’s options open leads to happier children and a much greater chance of a better future for all involved. In other words, such a court case is kind of like an election where the participants, the voters, have the option to impact their own destiny.

We may make a bad choice occasionally, but we can rectify matters at the next election if we stay involved. One thing is for sure, if we do not vote we cannot impact the selection of those people who control our lives. And if we lose control we are in the same position as all other species, that is, we will have no control because we did not exercise our options.

Judging Judges

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Much as a judge must decide the cases in front of her or him, on Tuesday, May 08, 2018 Posey County voters must decide whom to nominate to run in November’s general election for Circuit Court Judge. When a judge is deciding a case the first thing is to analyze the evidence. Voters can do the same thing before they cast their votes. Whether the office in question is President of the United States or Circuit Court Judge the process should be the same. Such things as relevant experience and prior good or bad behavior should be considered. But especially with judges there is no substitute for good character and mature judgment.

Judges decide the issues most dear to us. Such matters as who goes to jail, how children are reared and how property is divided are just a few of the countless critical issues a judge must determine. Voters must determine who can best untangle these often thorny cases.

If you have followed this column, you know I have often written about the process of judging and what makes a good judge. However, after more than 37 years of my own experience as judge where I have observed and dealt with countless judges I am convinced that the most vital qualification for judging is good character. Of course, voters should consider a judicial candidate’s honesty, background, experience, past successes or failures and good or bad behavior, but the most important factor in evaluating a potential judge is character. Without good character nothing else matters. With good character other deficiencies can be overcome.

While politics should never play a role in a judge’s decisions, Indiana requires in most of our 92 counties that judges be nominated by a political party. I think this is not the best system of judicial selection, but such matters are within the Legislative Branch’s authority. And, since I believe in democracy and I think democracy works best with a clear separation of the Legislative, Executive and Judicial branches, I must defer decisions on the method of selecting judges to the Legislature.

So that means on Tuesday, May 08, 2018 Posey County must select judicial candidates for the general election in November. The Posey County Republican Party has already determined that Attorney Craig Goedde will be the Republican candidate. Congratulations to him.

As for the Democrat Party, which has honored me with its nomination for judge seven times, a judicial nominee for this election is still needed. With the criteria referred to earlier in mind I respectfully suggest Attorney Trent Van Haaften would be an excellent choice. I have known Mr. Van Haaften since he and our son played Pony League baseball together on a team his father and I helped coach. They also played football together for Mt. Vernon High School from which they graduated in 1983. Mr. Van Haaften was president of their Senior Class. I can speak about him from long-time personal knowledge. Of course, each voter should decide for themselves.

Both Mr. Van Haaften and Mr. Goedde are hardworking and knowledgeable attorneys who have handled many cases before me and I know them both personally. Each has mature judgment and sound character. Either would work well with the unopposed and excellent candidates for Prosecuting Attorney, Travis Clowers, and Sheriff, Tom Latham. I would have confidence Posey County’s legal system would continue to well serve all of us if either is elected judge.

Hello From Reno

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At their regular meeting held 03 April 2018 the Posey County Board of Commissioners listened attentively and courteously to my plans for an auxiliary courtroom. President Jim Alsop and Commissioners Jay Price and Carl Schmitz asked relevant questions and made helpful suggestions.

A small but highly useful courtroom can be in operation on the first floor of the courthouse within a short time and for relatively little expense, certainly less than $50,000 for the physical plant and about $40,000 per year salary for a full-time court reporter. The judicial officer could be a senior judge or magistrate who would serve as needed. Senior judges are paid by the State of Indiana so there would be no cost to Posey County for a per diem judge. A magistrate would probably have to be paid by the county.

The Posey Circuit Court has not been allowed a new court reporter position for twenty years although I have noted the real need in several budget requests and our caseload has grown dramatically since 1998. The new full-time court reporter could be dedicated to this new court but could help relieve the burden on the existing court reporters when not in session with the on-call judge(s). Mental health, juvenile delinquency, Children in Need of Services and other confidential or sensitive hearings that usually involve few people but can be emotionally draining or rambunctious as well as numerous logistical matters that strain the regular Judge’s docket could be conducted in this smaller courtroom.

And Posey County’s Sheriff and Judges have long sought video capability for inmates, expert witnesses, disabled persons and numerous other routine matters, warrant applications, for example, or confidential electronic meetings between clients and attorneys.

The Commissioners sought to have a joint meeting about these issues with the Posey County Council on April 17, 2018 but schedules of all the necessary participants could not be accommodated for that date. The Commissioners wanted Chief Probation Officer Rodney Fetcher and me to set forth our plans then. As fortune would have it, I had planned to attend that April 17th meeting, but the Commissioners and Council had to reschedule it to May 01, 2018. Rodney will be there prepared to respond to any inquiries, but I will be helping teach other judges at the National Judicial College in Reno, Nevada on that day. Perhaps I can call in or attend electronically. I know we could work out such a video/audio conference if our new courtroom were already in operation.