James M. Redwine

Circuit Court

Mental Gymnastics

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Former President Donald Trump is facing both state and federal charges in several courts of law. These charges present difficult challenges to the judges in each case with the most important judicial task being to guarantee that all parties receive a fair trial. However, that duty to the people directly impacted by each case must be carried out without violating the right that our Founders knew to be the right that was essential to guaranteeing all of our rights, Freedom of Speech.

While several of the Founders championed freedom of expression as fundamental to democracy, Benjamin Franklin, a newspaper publisher himself, led the debate:

“Freedom of speech is a pillar of a free government;
When this support is taken away, the Constitution of
a free society is dissolved, and tyranny is erected on its ruins.
Republics derive their strength and vigor from a popular
examination into the action of the magistrates.”
 

Benjamin Franklin was born in 1706 and was immersed in the printing of politically focused newspapers in Philadelphia when fellow printer John Peter Zenger was prosecuted for libeling British Governor William Cosby in New York City in 1734. Zenger was jailed pending his jury trial but when he was tried the jury acquitted him in spite of the clear violation of the British Colonial law. The jury made up its own mind in spite of an atmosphere of bias from the government.

Currently, some of the judges in Donald Trump’s cases have fashioned gag orders that threaten punishment if Trump says things about the possible evidence, the witnesses, the prosecutors or the judges. The reasons given by the judges for these gag orders all claim they are to protect the parties and witnesses from attempted coercion and to prevent the tainting of any future jury pool. In other words, the judges have no faith that potential jurors can do what judges must do in every case. That is, put aside any irrelevant matters and decide Trump’s cases only on the law and the facts.

As a judge for over forty years I find this lack of confidence in jurors ill founded. Judges decide almost all cases without a jury if there is no plea agreement in criminal cases or no settlement in civil cases. In other words, people have confidence a judge in a criminal case may receive an indictment from a grand jury the judge impaneled or approve a charge brought by a prosecutor and still decide the case. Or, a judge may issue an arrest or search warrant based on in depth out of court statements and then set that information aside and still fairly decide guilt or innocence. If one person, a judge, can do this so can twelve. Of course, statements by parties that threaten physical harm should not be tolerated. However, comments about the evidence, the prosecutor or the judge that offend the judge come with the robe, even if those comments are unfair, unkind and untrue. Just ask John Peter Zenger, Benjamin Franklin, Thomas Jefferson, James Madison, etc., etc.

Jurors can be trusted, just as judges can be, to do their duty. CNN or FOX News can be eliminated from the jury room. The voir dire procedure is designed to exclude potential jurors who cannot do that. Does the legal system occasionally fail and a biased judge or jury render a decision based on pre-trial publicity or emotion? Unfortunately, that happens. But to deny America the vital protection of the First Amendment in an attempt to eliminate human frailty is a fool’s errand and an affront to our Sixth Amendment, Right to Trial by Jury.

Gentle Reader, I would like to share with you one of my own experiences as judge as an example of the public’s faith in the ability of a judge, or jury, to set aside bias and still fairly handle a case. Now, I might not process this case today the way I did a few years ago but I will let you be the judge of what happened then. Anyway, what follows is true, if perhaps, somewhat askew legally.

When I received my honorable discharge from the United States Air Force the only job I could find in Indianapolis, Indiana where I lived with my wife and son was selling P.F. Collier Encyclopedias door-to-door. We only owned one car, a 1956 Ford Fairlane convertible. I really liked that car but we decided we needed a new one so I sold it to a guy I worked with on the basis he would pay me each week. Well, the week after I gave him the keys he disappeared with my car. I did not see him again for twenty-five years when he appeared in my courtroom charged with a home burglary.

I had forgotten his name and he surely did not recognize mine. He and his attorney and the prosecutor had filed a plea recommendation and requested that I approve it based on a pre-sentence report prepared by my probation department. After reading the report I realized this man in front of me had stolen my car. When I confirmed that fact, I told him I would recuse and get him another judge. He said, “Ah, Judge, were you going to take the deal before you remembered who I was?” I said, “Yes”. He said, “Well go ahead.” I said, “No, go out and talk to your attorney”. He did. Then he and his attorney and the prosecutor said, “Judge, we really want you to stay on the case so we can get this done now”. I said, “Okay, but what did you ever do with my car?” He said, “Well, when we got to Oregon it quit running and my wife had me cut off the top and fill it with potting soil then she made a planter out of it.”

Now, I know I had other options but one thing this case showed me was a judge or jury can be fair even when personally offended. So suck it up judges and have faith the jurors will not be any less pure than you.

 

Affirmation Finally

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I wrote the first of my over 900 “Gavel Gamut” columns in 1990 at the request of my friend, Jim Kohlmeyer. Jim was the Posey County, Indiana Republican Party Chairman and the owner of the New Harmony Times newspaper (now The Posey County News owned by my friend, Dave Pearce).

Jim had recently purchased the paper and was desperate for filler. He asked me, the Democrat, elected, Posey County Circuit Court Judge, to write a column about “legal topics.” Jim did not care what I wrote. Since 1990 and every week since April of 2005 I have written about topics from local heroes to national issues as I saw fit. As those of you, Gentle Readers, will note, in several of my burnt offerings my wife, Peg, had to bear the brunt of my ramblings. However, most of “Gavel Gamut” has dealt with legal topics. A major theme has been the legal system, particularly judges. The federal courts and especially the United States Supreme Court have been the recipients of my chagrin over these thirty-two years during all of which I have served and am still serving as a judge myself. Although after thirty-eight years on the Bench as a partisan-elected judge I term-limited myself and now serve in other judicial venues, such as the Country of Georgia and the National Judicial College.

As I have written numerous times, my belief is that our American democracy is in danger from non-elected, life-tenured judges. I have stated this position frequently and I hold to it firmly.

However, even though I have often expected returning brickbats from those who champion appointing judges and granting them life-tenure, almost nobody has seemed to ever take umbrage from or stated their agreement with my position until October 3, 2022

Then, voila, along came that great journalist and philosopher, Fareed Zakaria whose excellent Sunday morning CNN show, GPS The Global Public Square, is the only national news program I find to contain news. On October 3, 2022 at 8:00 p.m. Fareed aired his special, “Supreme Power, Inside the Highest Court in the Land.”

Now, Gentle Readers, I am not claiming, although I wish I could, that Dr. Zakaria has ever heard of, much less been influenced by my analysis on any subject. However, his special clearly stated one of the greatest current dangers to our democracy is life-tenured members of the U.S. Supreme Court and the totally politicized method of their selection process.

            Let me say this about that (as President John F. Kennedy used to say), AMEN, brother Fareed!

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.