James M. Redwine

Judicial

Not Rocket Science

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The Rule of Law is not the stuff of artificial intelligence and differential equations. It is not about the James Webb telescope that may help disclose where and when we came from. It is not about a cure for COVID. No, the Rule of Law is far more complex, and perplexing, than any of those things. However, if properly applied, the Rule of Law can help us understand and deal with these challenges and others.

Law sounds simple. Treat others the way you wish to be treated. Respect the person and property of others. These principles are easy to say but thousands of years of human history prove they are extremely difficult to apply. Our Declaration of Independence sets out the basics of our legal system, “…[A]ll men are created equal,” and all men have the right to life, liberty and the pursuit of happiness. When Thomas Jefferson penned those simple ideals he owned slaves, and had children he did not acknowledge by at least one of those slaves. Also, women could not vote and the property rights of Native Americans were not even an afterthought. Were Jefferson and the rest of the 1776ers evil? No, they were human. We call these concepts ideals because the realities are nearly impossible to achieve. That is why we need the Rule of Law, to encourage us to try.

Our Constitution sets forth America’s aspiration to form a more perfect union. Surely none of our Founders was naïve enough to believe perfect self-government was achievable. That is not why goals are set. Just as it is the struggle of life that can separate us from all other animals and, perhaps from some humans, it is government’s role to help us strive for perfection. We have often fallen short and we always will. But just as we are fighting the war on COVID in fits and starts we can face our past failures in how we have behaved and strive to be better. There will never be a cure for our occasional imperfect collective missteps. That is why we need to acknowledge our past failures and seek to avoid future sins. We should do this together.

In her book, On the Courthouse Lawn, Sherrilyn Ifill points out the irony of many lynchings being carried out by large numbers of a community right at the seat of justice, the county courthouse. Also, our courthouses are often the site where the legal system has been used to deny human rights, such as through the separation of Native American families and establishment of some guardianships that led to murder.

Community recognition of these subversions of the Rule of Law is important. Monuments that show society admits its wrongs, even if long past, can help people heal and avoid new injustices.

Tribal Court

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Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

2021 South Dakota Fall Judicial Conference

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For all the South Dakota Judges here are the 5 handouts and the Pre-Trial Order from Jim Redwine’s October 14, 2021 presentation:

MISSION STATEMENTS

The Mission of the Posey County, Indiana Circuit Court is to help create a community in which individuals, families, and entities are encouraged and facilitated to resolve legal problems among themselves and to provide a forum in which legal issues that are not privately disposed of are fairly and efficiently decided according to applicable law in an atmosphere of mutual respect and positive innovation.

The mission of the Posey County, Indiana Probation Department is to provide information ordered by the court and to accept juveniles and adults who are transferred to the Department and to supervise, record, and report their compliance with the terms of their probation in a manner which meets governing standards, protects the public, assists victims, and provides for the rehabilitation of offenders consistent with the effective application of Department resources.

PROCEDURE FOR DEVELOPING A MISSION STATEMENT

Of course, you will need to finalize any Mission Statement after you return to your Court next week and I suggest using the procedure set out below for that process. For now, at your tables, please prepare and discuss preliminary Mission Statements for your Court. Thank you.

  1. Start with a positive attitude and an open mind.
  2. Determine what entities you want input from such as your staff, other Court Offices such as the Clerk’s Office, the Police Agencies, the Bar and the Public through a volunteer committee perhaps or members of the media.
  3. Define your Court’s and your immediate, short-term and long-term goals.
  4. Set forth written, simple guidance for stakeholders to give input.
  5. Ask for written suggestions and then objectively consider them.
  6. Give yourself and those involved a time line.
  7. Draft preliminary Mission Statements and test them with your staff then the Bar.
  8. Do not hesitate to carefully consider suggestions.
  9. Make and publish your Court’s Mission Statement.

CASE ADMINISTRATION

Your only job is to resolve controversies brought to you.

Discuss ideas with your fellow judges as how to best help the Parties to resolve their own problems fairly and efficiently.

How can you and your Bar move the disposition of cases as close to their initiation as is reasonable and just?

Discuss, share and develop court orders and procedures that accomplish these goals.

SECURITY PLANS

Rural Courts:  “I know everybody, everybody knows me, no one would want to hurt me. “WRONG!” Also irresponsible.

Every Court should have a Security Plan based on its particular circumstances. Follow the A.C.T. procedure in developing a plan for your Court.

  1. Assess your surroundings
  2. Create a Security Plan
  3. Train Yourself and your staff in the plan
  4. Take input from your staff, the Bar and law enforcement.
  5. Form and regularly consult with a Security Committee composed of persons with stakes in the outcome of any security problems.

Every court case can result in problems. Fence line disputes, family matters, landlord/tenant, etc.

Today, at your table with your colleagues, create a preliminary assessment of your Court’s security situation.

Starting Monday, October 18, 2021 implement the A.C.T. approach in its entirety.

ETHICS

Discuss the videos as to what decisions and actions you would and should take on questions of Recusal and handling Contempt.

Keep the guidance of the South Dakota Judicial Qualifications Commission in mind:

“Four things belong to a judge: Hear courteously; Answer wisely; Consider soberly and Decide impartially.”

  1. Uphold the integrity and independence of the judiciary;
  2. Avoid impropriety and the appearance of impropriety in all activity;
  3. Perform the duties of judicial office impartially and diligently;
  4. Conduct your extra-judicial activities as to minimize the risk of conflict with judicial obligations; and
  5. Refrain from inappropriate political activity.
Pre-Trial Order

 

Positive or Negative

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Equal Justice Initiative National Memorial Montgomery, Alabama

 

There is no memorial on the Posey County, Indiana courthouse lawn to the seven Negroes murdered by a white mob on October 12, 1878. There is a modest stele naming those soldiers with Posey County connections who served in   the Revolutionary War and an impressive statue honoring all who served in the Civil War. There are bronze plaques on the lobby walls of the Posey County Coliseum commemorating many of those who served. The Coliseum houses one of Posey County’s two courts and the other court is located in the courthouse.

Because I was the elected Posey Circuit Court Judge and because our son, James David Redwine, was a West Point graduate who would later earn a Bronze Star for Service on the front lines of both the Gulf War 1990-1991 and the Iraq War of 2003-2011 I was asked to speak at both the War Memorial Re-Dedication on Sunday, October 21, 1990 and Re-Dedication of the Soldiers and Sailors Monument on July 23, 2008. I was honored to do so and wrote the following poems for the occasions. The poems appeared in several newspapers after each commemoration:

 

WAR MEMORIAL RE-DEDICATION
(Sunday, October 21, 1990)

SUNDAY MORNING CHIMES

How dear it is to be alive:
To hear the peal of morning chimes;
To feel the invigorating sting of this autumn day;
To taste the rich and biting air;
To smell the acrid smoke of burning leaves;
To see the glory of Nature’s third act.

How satisfying to still be a player:
To know a child’s trust;
A family’s support;
A friend’s companionship; or
A lover’s caress.

How thrilling it is to learn,
To plan,
To strive
To serve,
To live!

These wondrous things:  These sensations;
These desires;
These dreams;
These visions.  This life,
Is what these heroes have sacrificed for us.

RE-DEDICATION OF THE SOLDIERS AND SAILORS MONUMENT
(Wednesday, July 23, 2008)

WELL DONE!

At Lexington and Concord, the young blood began to flow.
At the Battle of New Orleans, muskets killed our cousins and our foes.

At the Alamo and Buena Vista, we stood to the last man.
At Shiloh, Chickamauga and Gettysburg, brothers’ blood soaked the sand.

At San Juan Hill and when the Maine went down, our soldiers never flinched.
At Verdun and by the Marne, a million men died in the trench.

At D-Day and the Battle of the Bulge, after Hiroshima’s mushroom clouds,
At Incheon Landing the forgotten war brought many more funeral shrouds.

At Khe Sanh and during Tet, we held our own and more.
At the Battle of Medina Ridge, our Gulf War warriors upheld the Corps.

At Sinjar, Mosul, and places with strange names,
Our Iraqi War veterans now earn their fame.

In uniforms, our citizens have served well everyone.
Today, we here proclaim to them our solemn praise:  Well done!

 

It is fitting and proper that we honor those who serve and that we are permanently reminded of the horrors of war. Society needs to be constantly on guard and eternally grateful. Of course, the reasons that call for memorials about wars are much the same as why we need memorials to our collective evil done to some citizens by other citizens.

Since I first discovered, by accident, in 1990 the legal system’s long covered up murders of Daniel Harrison, Sr., Daniel Harrison, Jr., John Harrison, James Good, Ed Warner, William Chambers and Jeff Hopkins by, as the Mt. Vernon, Indiana Western Star Newspaper said on October 17, 1878, “two to three hundred of the county’s best white citizens” right on the Posey County, Indiana courthouse campus, I have called for accountability and a memorial to the victims. Society owes this atonement to the victims and we as a society need it for ourselves.

What the sign says. Pictures by Peg Redwine

Do Not Cross the Potomac River

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At the Rubicon

In 49 BC the Senate in the Republic of Rome ordered Gaius Julius Caesar to not bring his army across the Rubicon River into the city of Rome. Caesar said, “Let the die be cast”; that is, I’ll take my chances. He did, Rome as a Republic collapsed into civil war and instead of a representative government the Roman people got a dictator. Five years later, on the Ides of March, Caesar was deposed by force.

The people who founded the United States of America came from a tradition of great fear of military power over civilians. In fact, in our Declaration of Independence one of the main complaints against King George III was that, “He has affected to render the military independent of and superior to the civil power.”

This great fear of military control over the civilian populace of America was guarded against in our Constitution. Article I, section 8 endows Congress with the power and authority to declare war, and to raise armies and militias to suppress insurrections. Article II, section 2 establishes that the democratically elected President shall be in control of the armed forces as the Commander-in-Chief.

In his exhaustive and exhausting treatise, The Framer’s Coup, The Making of the United States Constitution, Professor Michael J. Klarman points out the vital importance to our Founders that “[I]n all cases, the military should be under strict subordination to, and governed by, the civil power.” See p. 330.

We Americans profess pride in and support of our military as long as we are assured our military remembers its place. That system has worked pretty well and we are likely to maintain it in spite of political pressure being brought upon the generals to undermine their Commander-in-Chief. As I recall from my service days, I did not always recognize as wise what my military superiors thought was wisdom. Joseph Heller in his prescient novel, Catch-22, had a pretty firm grip on the banality of much of the military. On the hand, our politicians sometimes also fall a little short of a full deck. Still, at least we have the opportunity to have some say in who our civilian leaders will be and we can fire them.

Therefore, for me, I’ll chose to bob and weave with the occasional civilian loser versus a palace military coup. Back off oh ’ye purveyors of a Banana Republic. As Scarlett O’Hara said, “Tomorrow’s another day” and as Annie said, “Tomorrow is only a day away.” I can wait. Elections, yes, coups, no.

Another look at the Rubicon

Distancing

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President Lincoln reportedly used to occasionally sit on the back steps of the White House and talk to old friends who might just drop by. President Truman used to play poker at his Key West, Florida White House with ordinary folks. President Jackson invited the hoi polloi to his inauguration and they came and trashed the White House. There was a time America’s leaders thought of Americans as equals, or at least not as persona non grata. Now there are fences and armed guards at the White House and the only time a president makes personal contact with Americans is to have a photo op. Democracy is now pretty much non-democratic.

Our politicians often ascribe the responsibility for this metamorphosis to need for security, that is, fear of contact with us. I suggest it has more to do with their desire to just pick up their tax payor funded paychecks while being left alone. Kind of like getting COVID-19 checks not to work. Anyway, my experience in working for the public has been that it has not been a concern for my security or anyone else’s that has brought about such distance between public servants and the public. But it comes more from a realization that there simply is very little difference between those who control the government and those who are controlled by it, and the controllers are afraid that will be found out. At least that is true with the judicial branch and the legal system. I invite you, Gentle Reader, to return with me to at least one incident from those “thrilling days of yesteryear” to help me illustrate my concerns about the loss of direct connection to our office holders.

When the State of Indiana used justices of the peace to process most minor legal matters such as driving offenses and small civil claims, the “courts” were often held in the homes or store fronts owned by the justices. One would appear before some non-formally trained person who would dispense justice in a relaxed atmosphere and at little cost. Then we “improved” the system by requiring legally educated and licensed judges and publicly financed court facilities. Everything became more complex, costlier and more distant.

In Posey County, Indiana the County Court that replaced the Justice of the Peace system in 1975 was jammed into a portion of the 1927 Memorial Coliseum Building. The original coliseum was built as a community center. It had a swimming pool, a gymnasium, a stage for shows and a pool table. The new County Court, including the judge’s chamber, took up three small rooms next to where the pool table was. And another feature was the closet in the approximately 20-foot by 30-foot courtroom where the Daughters of the American Revolution ladies kept their regalia to be used in their meetings that also were held in the courtroom.

When I was the Chief Deputy Prosecuting Attorney for Posey County, 1976-1978, I tried six-person jury trials in that courtroom. As we had no separate jury room we would try a case then leave the jury in the courtroom alone to deliberate on their verdict. Everyone in the courtroom could reach out and almost touch everyone else. Of course, there was little pretense of confidentiality. I know it sounds bizarre but it worked okay and no one, including the judge and the attorneys, could arrogate themselves into special status. Please let me tell you about one of my favorite cases from that halcyon time.

I was a little younger then and one of the cases I prosecuted involved a misdemeanor charge against a Billy ______ who was about my age. Billy represented himself in the jury trial. After Billy and I traded accusations and insults during final arguments the judge gave the case to the jury then ordered the courtroom cleared except for the jury. Billy and I stepped out to the adjoining room where both a soft-drink machine and the pool table were located.

As we attempted to ignore one another, Billy turned to me and said, “Hey, Jim, do you play pool?” As I grew up in Pawhuska, Oklahoma at a time when the only thing other than the ball field was the pool hall, of course I played pool.

“Yeah, Billy, I play pool and I can beat you at that too. By the way, I thought you did okay in court, but be prepared for the gavel to fall.” I was much more sure of myself then.

“Jim, do you want to put anything on the pool game?”

“No, Billy, that would be illegal; go ahead and break.” I did not mention that a portion of my tuition at Oklahoma State University came from non-legal lucre.

Well, we played as the jury was busy deciding they didn’t care if I thought Billy was a menace to society; they sided with Billy. Since that trial Billy and I have had several contacts of the legal variety and you may note Billy is still playing pool but now my pool table is in my barn.

In my opinion, America could use a reprise of some of that by-gone legal system where the people who are processed and those who do the processing are not separated by layers of convolution. As Eva Peron might say, ♫ I’ll keep my promise, don’t keep your distance.” ♫