James M. Redwine

Justice

A Difficult Subject

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Photo by Peg Redwine

The bedrock of America’s system of criminal law is Due Process with its inviolate premise that persons charged with crimes are presumed to be innocent until and unless proven in court to be guilty. Our United States Constitution and every state’s constitution provides these rights to each of us should we be charged by one of our governmental entities with any offense of a published, written and officially enacted violation. What does it say about the procedure and the presumption of innocence if the identity of the alleged victim is not revealed but the person charged with an offense is named publicly?

We have no burden of any kind to prove our innocence or to even speak in our own defense. We have the right to be represented by a licensed attorney and if we cannot afford to pay for those legal services, the government will do so. We have the right to see, hear and confront our accuser and to cross examine them, under oath, in open court and, in felony cases, before an impartial jury of our peers. We also have the right to compel by law witnesses and other evidence on our behalf. We may appeal any verdict to higher courts. Torture of any kind to force a confession is forbidden. And, we have the right to demand all proceedings be made public so we cannot be tried in a secret tribunal. But, when it comes to allegations of sexual offenses, especially against minors, our legal system ignores several of these vital elements because reality gets in the way of philosophy.

Usually there are only two witnesses to an allegation of a sexual offense and, with young children, one of the two may not be capable of expressing themselves. Also, the legal system is faced with two extremely vital issues. If an offense has actually occurred, how can the wrong be righted and two, if the accused is innocent, how does she or he prove a negative. Further, is society more greatly harmed by a victim who is not believed or by an innocent person whose life is destroyed by a false, or incorrect, allegation? These are at the foundation of our legal and social systems and carry great consequences.

It is not easy to analyze these important issues. Minors are often too young to speak for themselves if they are, in fact, victims. True victims of sexual offenses, while they may feel no guilt, often still feel shame and experience real fear and anxiety that they may not be believed, especially about a beloved relative. Society does not blame the victim of a robbery, but it may wonder about the actions or motivations of a sexual victim.

How can we fairly balance the interests of actual victims, including their reluctance to even admit anything untoward happened, with an accused’s constitutional rights? More importantly, how does an innocent accused ever recover her or his reputation or mental health from a false or inaccurate allegation? Personally, I often worried that my status of never having been a victim or an accused may have affected my judgment as a judge in such cases. Also, I am an adult male, fairly secure financially and a product of a family environment where I was untouched by such influences. Or so I thought.

While I have often had to deal with these issues in my more than fifty years in the legal profession, it was my astonishment at my older sister’s long suppressed trauma and conflict that sharpened my focus. My beloved big sister, who always sought to protect and care for me, finally decided it would be better for herself and me to know that our mother’s father’s sister’s husband had attempted to molest her when she was ten years old. She escaped any physical damage but still suffers the turmoil of anger and guilt. Janie remained silent for over sixty years out of shame and fear of what harm the knowledge of the incident might do to the family.

I know my courageous and generous sister would never tell me such a thing unless it was true and unless she just finally felt compelled to expiate herself now that the other principal has passed and she is fighting heroically against a debilitating illness. So, Judge Redwine, how do I synthesize, analyze and balance this case? What of my years of faith in Due Process and the Presumption of Innocence? Where do we all come down on the Constitution versus the humanity of such realities as the Me-Too movement or child sexual perversion?

As for me, I not only now know about my long-suffering victimized sister, but I know our legal system has ruined the lives of innocent persons who were falsely or incorrectly charged. I guess we just have to take it one case at a time. It is too much of a Gordian Knot for the law to unravel. But, of course, as we humans must admit from time to time, we often can only do our best and if we can only find the answer as through a glass and darkly, it is still our duty to do so.

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Pro Bono Publico

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For the public good. We rarely take note of how much many people do for free. We just accept, and even expect, such civic minded persons as clergy people, medical personnel, fire and rescue workers and numerous other generous citizens to furnish our society with essential services. Who supports the schools, the religious institutions, civic organizations and countless, often nameless, beneficial causes? We know innumerable important services must get rendered but they are often given without fanfare and without recognition. What we do know is our lives are made better by a whole lot of people who owe us nothing and receive just that.

One of the most thankless public service groups is attorneys who take on unpopular people or causes. John Adams set the bar for putting right above his and his family’s personal interest in 1770 when, as a prominent lawyer and leader of the Colonials’ cause against England, he represented the British soldiers involved in the Boston Massacre. A crowd of Colonial protesters was fired upon resulting in five Americans being killed and six more wounded, the most famous of whom was Black citizen, Crispus Attucks, who is often referred to as the first martyr of the American Revolution. Of the eight British soldiers involved, six were found not guilty and two were convicted by a jury of manslaughter, not the original charge of murder.

Both John Adams, who became our second president, and his wife Abigail understood the Colonial public would revile Adams for representing the British. In fact, Adams claimed he lost half of his law practice due to his courageous actions. But it was a matter of doing the right thing and establishing that a fair trial was more important than succumbing to a mob mentality.

As Attorney Atticus Finch stood for in Harper Lee’s novel, To Kill A Mockingbird, when he defended poor Black Tom Robinson, justice was more vital to our American democracy than an attorney’s comfort and popularity. When the power of the government comes down on the defenseless, attorneys are often called upon to forego ease and incur the slings and arrows of what might otherwise be governmental power and public opinion run amok. They become the thin, and often disliked, line between tyranny and due process.

I often reflect on what my brother told me was the main reason I should follow his service and enter the legal profession, “You can do more good for more people in law than anything else”. While these lessons of courage, self-sacrifice and altruism may seem unnecessary after so many instances of the harm done by the ravages wrought by the swollen tide of misguided public clamor, our legal profession today may need a reminder. In our current culture of universities, corporations, municipalities and vapid national media bowing to governmental threats and malicious actions, we need our lawyers to once again put duty before fear and courage before capitulation.

In a July 31, 2025 article published by Reuters, the alarm bell has been rung. In their Special Report: How Trump’s crackdown on law firms is undermining legal defenses for the vulnerable, authors Mike Spector, Brad Heath, Kristina Cooke, Joseph Tanfani and David Thomas point to some of America’s most elite law firms as abandoning their core principles under financial pressure from the Trump Administration.

As for me, I do not spend much time assigning blame to those who threaten and coerce. I do not expect altruistic or ethical behavior from them. I do call upon the attorneys to remain true to what lawyers from Adams to today have stood for, an America where when a person has nowhere else to go, an attorney will seek the right regardless of the cost to that attorney or his law firm. Such selfless actions may not be seen as heroic by a public that may generally agree with governmental power being abused against those who are unpopular. Attorneys should not take up legal arms seeking accolades. Their oaths call for them to choose the harder right simply because it is right. Duty often calls for sacrifice and often the old adage, “No good deed goes unpunished”, is the result.

However, if one’s only motivation to eschew the easier wrong is public acceptance, such attorneys might as well resign themselves to lives of comfort and self-contempt. Right for right’s sake in the face of corruption for corruption’s sake is the core principle of America’s legal conscience. The events of our time are once again calling for lawyers to remember why they became lawyers.

Life From Above

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Israel has imposed a total blockade of humanitarian aid to the citizens of Gaza. No food, no water systems and no medical supplies are allowed to the more than 2 million people who live there. Israel enforces its prohibition militarily. Israel also bombs hospitals, schools, places of worship and residences. Since October 07, 2023 over 52,000 Gazans, including thousands of children, have been directly killed by Israel and many more are dying each day due to lack of food, water and medical care. The Zionist led government of Israel in March 2025 publicly announced these actions to be its official policy. Israel has received massive amounts of United States military aid to help enable it to implement these actions. The United States has the moral and legal responsibility to cease aiding this humanitarian catastrophe.

The moral issues are subject to debate, but the legal prohibition of United States military and civilian aid to Israel is specifically required by Section 6201 of the Foreign Assistance Act of 1961. Six United States Senators have just signed a letter addressed to the Comptroller General, Gene Dodaro, citing the Foreign Assistance Act, asking for an investigation of Israel’s, and other countries’, denial of human rights to others while receiving U.S. aid. The Act provides no presidential waiver for such actions. Aid to Gaza’s residents should be both massive and immediate. And history provides a guide. From 26 June 1948 to 30 September 1949, the United States and Great Britain operated the Berlin Air Lift that flew over 250,000 humanitarian flights over Stalin’s blockade of aid to Germany’s war-ravaged populace. Food, fuel, medical supplies and other non-military aid helped save countless lives. It would also be apropos for the West to help Palestine because there would have been no state of Israel in 1948 without America and England.

The United States has far greater capability in 2025 than it did in 1948. We can and should alleviate the suffering we helped create. It is both our moral responsibility and our legal duty under our own laws. Also, the only truly permanent road to peace and prosperity involving Israel and its neighbors must come from a Marshall Plan type of solution. America knows both the Berlin Air Lift and the Marshall Plan were humanitarian actions that helped bring much of the world peace, stability and prosperity since WWII.

Since history has proven how greatly we ourselves can profit by simply doing the harder right things, let’s do them. After all, our own laws require them, even if we do not do so because it is right and just.

 

Other Countries Heard From

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Photo by Peg Redwine

President Kennedy gave his inaugural address January 20, 1961 when I was a senior in high school. He was concerned about the Soviet Union’s 1957 Sputnik achievement and challenged American youth to respond. That September I entered Oklahoma State University and boldly majored in physics. By June 1962 I had learned how to smoke but not learned anything that would raise concerns in Russia. I changed my major to English and then in June 1963 decided to “ask what I could do for my country” without the headaches of college level studies. I became a 1960’s Okie and headed for California. On the way I took my first foray out of the United States to Nogales, Mexico.

My friend and fellow OSU dropout, Ed Kelso, and I drove his 1954 Mercury down to the Mexican border and were waved through without so much as a question, much less a visa. We stopped at the first bar we came to and ran into my old high school classmate Jim Reed and a few other guys from Pawhuska, Oklahoma who were there on a similar journey of cultural discovery. What I noted from my brief sojourn was my high school Spanish was sufficient as long as we had U.S. Dollars. I also received my first faint awareness of how lucky I was to have been born north of the border.

Another foreign country experience was when as a member of the National Judicial College faculty I was sent for two weeks (December 1999-January 2000) to Ukraine to teach Ukrainian judges. I liked the Ukrainian people but found their lives to be quite difficult. The judges told me they frequently did not receive their small monthly salaries and the Ukrainian government often failed to provide them and their families with promised individual family housing. Also, police corruption was in full view on the streets of Kiev and workers who were supposed to help repair such public assets as the fountain in “Freedom Square” did about as much work as I did at Oklahoma State. As the old Soviet saying went, “The government pretended to pay them and they pretended to work.” I left Ukraine with a greater appreciation of what our Founders sacrificed for us.

Then in 2003 the National Judicial College sent me to Russia for a week to teach Russian judges about jury trials. The old Soviet Union abolished jury trials after the 1917 Revolution and Russia was just reinstituting them into their legal system. Peg was able to be with me on that trip and we, once again, found the Russian judges to be friendly and gracious but the Russian culture caused us great chagrin. A good cup of coffee was truly a foreign concept, but the consumption of alcohol was quite prevalent. The idea of innocent unless proven guilty was belied by the defendants being housed in metal and plastic cages in the courtroom. And when a defendant on trial for murder was marched into the courtroom by four AK47 carrying uniformed guards right in front of the jury, my American sense of justice was assaulted. It was good to get back to my Indiana courtroom with its guarantees of equal justice. Russia was interesting, but the United States was good to come home to.

Most recently (June 2022-February 2023) Peg and I completed a six-month judicial teaching mission sponsored by the American Bar Association, the East-West Management Institute and the United States Agency for International Development. I was sent to the country of Georgia that until 1991 had been part of the old Soviet Union. My duties were to make friends, observe, work with and give suggestions to Georgian judges based upon my more than forty years of experience as an American judge.

We had a wonderful experience with the Georgian judges and our newly-made Georgian friends. They could not have treated us any better. Everyone we met was positive about our involvement and open to suggestions. We would gladly return to Georgia whenever invited. Of course, we did note substantial differences between the Georgian culture and America’s. Georgia is bordered on the north by Russia and on the south by Turkey. Twenty percent of Georgia is militarily occupied by Russia; that is a constant worry for the Georgian people. Peg and I thought how different our lives in America are. Our northern border is Canada which we visited in 2018 and is about as good a neighbor as any country could have. And our southern border is Mexico that appears to want to join us.

What this 2023 Fourth of July birthday party has helped us to reflect upon is, no matter how much CNN, MSNBC, FOX News and many in government service complain about America and malign it, many of the alternatives are pretty scary. After seeing how some of the rest of the world has to live, I find the ’ole USA absolutely marvelous. America has faults and foibles, but as Francis Scott Key wrote, it is really wonderful, “That our flag is still there.”

Photo by Peg Redwine

It Is Time

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Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”

Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.

Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.

In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.

Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.

Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.

Insomnia Revisited

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If you, as I, have trouble sleeping, this column should help. You may have read last week’s offering concerning the politicization of our federal courts. As warned in that article, today’s Gavel Gamut will further delve into MSNBC Alex Wagner’s suggestion that the legitimacy of America’s federal courts may be undermined by politics. If so, judicial independence and citizen confidence in our Judicial Branch may suffer.

Article III of the United States Constitution provides Justices of the Supreme Court and any lower federal court judges will be appointed by the President and confirmed by the Senate. The right for a citizen to vote for the President and the two senators from the citizen’s state of residence is the total opportunity Americans have to help select an entire branch of our three-branch government. Only the President and the one hundred senators have the constitutional right and opportunity to help select all federal judges. There are federal magistrates and specialty federal judges, such as bankruptcy referees, that are selected by either the sitting judges or special commissions. There are approximately 250,000,000 American citizens eighteen and over (eligible voters) who are cut out of all these selection procedures. So the power to select an entire branch of our government resides in 101 individuals and a few committees.

Further, when it comes to the Supreme Court, the Circuit Courts of Appeal and the District Courts, all these judges have life-time tenure and can only be removed involuntarily by impeachment. There are currently about 1,731 federal judges as appointed by a president. Since our nation’s founding in 1789, articles of impeachment have been brought against 15 federal judges of whom 8 were convicted. Therefore, the American people, except for a president and 100 senators, have no direct say in selecting or removing our federal judges who serve for life. Yet our Executive and Legislative branches are all subject to the will of the people and presidents may only serve 8 years. Our senators and congresspeople serve either 6 or 2-year terms and are subject to periodic popular, partisan elections.

Our system of federal judicial selection eliminates the populace from any control over an entire branch of our separate and equal three branch democracy. If there ever was justification for this extremely parochial and extremely partisan selection procedure for selecting federal judges, it has outlived its purposes. One hundred and one Americans should not have the power to exclude 250 million of their fellow citizens from helping to configure an entire branch of a democratic government.

A constitutional amendment to Article III may be needed if we are to ensure citizens have the option for input into selecting the extremely powerful federal judges who, already according to virtually every political pundit, legal theorist and media commentator, are the product of a shameful partisan vetting. But we have amended our Constitution 27 times for such things as the right to vote for Blacks and women, so we can do it for such an important right as selecting federal judges. Almost every federal judge whose decisions concern such general issues as guns, abortion, immigration, the environment, national defense, education, health care, public entitlements, infrastructure, interstate commerce, criminal justice, voting rights and water rights among many others, when the judge’s identity becomes public during a case, the judge’s name and his/her appointing president is mentioned. Every federal judge in every controversial case is identified as a Trump appointment, a Biden appointment, an Obama appointment or even a Bush appointment. Often the media will even identify the federal judge involved in a contentious case as a “Trump or Biden, etc.” judge. America no longer labors under a belief that federal judges are not the product of a highly partisan process. Therefore, why eliminate almost all Americans from such a transparent power struggle?

I suggest we amend the Constitution to establish a 10-year one-time term for all federal judges. Our existing federal judges who have already served 10 years would remain until the nearest federal election cycle which would not exceed 2 more years. We should pension out all sitting and future judges with their full salaries and benefits in return for them leaving the branch. Such pensions would cost us far less than we have spent in Ukraine or Iraq and we would be buying something of great value, the right to control our own judicial branch.

If we do not address our growing national internecine warfare over our highly political federal judicial selection process, we risk becoming like those countries where the people lose all confidence in the judicial process over which they have no control or even influence.