James M. Redwine

National Judicial College

Legal Slight of Hand

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After last week’s scintillating column on Constitutional Law I know you are eagerly awaiting promised round two on politics and the United States Supreme Court. Of course, America’s judiciary eschews any notion that court outcomes are sometimes a product of the political views of the judge or judges who decide the cases. At the National Judicial College where I have served as a part-time faculty member since 1995 one of the guiding principles is the effort to have completely impartial judging of all cases. That is a proper goal. However, is that goal always achieved? Let’s take a look behind the black robes of history starting with America’s most famous case, Marbury v. Madison, decided in 1803 a mere sixteen years after the end of the Constitutional Convention that occurred on September 17, 1787.

You may recall that last week we had sought guidance on understanding the U.S. Constitution from law professor Michael Klarman who spoke to the Indiana Graduate Judges Seminar in French Lick, Indiana in June 2019. In his book The Framers’ Coup, The Making of the United States Constitution, Professor Klarman gave an in-depth analysis of the political warfare that produced our Constitution. A similar phenomenon occurred when the fourth Chief Justice of the Supreme Court, John Marshall, blatantly grabbed for the U.S. Supreme Court the immense power to declare whether a particular law was constitutional. Marshall deftly, and unethically, used the virulent hatred between those early Americans who favored a strong central government, the Federalists, and the anti-Federalists who preferred a more citizen-centered national government. John Adams was our second president and he was one of the strongest proponents of a strong central government. Adams was defeated in an election by our third president Thomas Jefferson in a bitterly fought campaign. John Marshall served as Adams’ Secretary of State and Marshall and Jefferson despised one another. Just before Adams’ term as president ran out he appointed John Marshall to be Chief Justice of the U.S. Supreme Court. Marshall was succeeded as Secretary of State by James Madison who, incidentally, later became our fourth president.

Just before John Adams left office he also appointed numerous judges and justices of the peace as a sharp stick in the eye of the incoming president Thomas Jefferson. William Marbury, a wealthy businessman and vocal opponent of Jefferson, was one of Adams’ justice of the peace appointees. While Secretary of State, John Marshall had the duty of signing Marbury’s certificate of appointment and delivering it to Congress. Marshall failed to get that done and the task was left to new Secretary of State James Madison. But President Jefferson, who was angry at John Adams for the last minute appointments, ordered Madison to not deliver Marbury’s certificate. Marbury then filed a law suit in the Supreme Court seeking to have the Court order Madison to give Marbury the certificate of appointment.

If all this intrigue seems rather petty and even perhaps reminiscent of our current political climate involving nasty actions on all sides, well, the pettiness turned out to have a momentous affect on every court case in America after 1803. The squabble may have resembled a tempest in a teapot but Chief Justice John Marshall’s highly political decision in the case resulted in a federal judiciary of immense power, a power not contemplated by many of our Founders and Framers of our Constitution.

Because of his earlier direct connection to Marbury’s appointment John Marshall should have recused himself from the case and should have had no part in it. However, Marshall seized upon Thomas Jefferson’s hatred of John Adams to trade what Jefferson wanted, that is to prevent Adams’ last minute appointments, for a huge leap toward a strong centralized government where the Judicial Branch would have power over decisions of both the Legislative and Executive Branches’ decisions.

What John Marshall and two more members of the then five member Supreme Court decided was that the legislative act that purported to give jurisdiction over cases such as the one brought by Marbury violated the Constitution therefore the Supreme Court had no authority to order Madison to give Marbury his certificate. It might appear to have been a win for Jefferson over Adams, but it was the ultimate Pyrrhic victory as Marshall and all future courts used it as a nuclear weapon in the war between the Federalists and anti-Federalists. Supreme power over what the Constitution meant has resided in the Supreme Court ever since 1803.

For example, in Dred Scott v. Sandford (1857) Chief Justice Roger Taney, a former slave owner, and the U.S. Supreme Court ruled Negro slaves had no rights that the Constitution was bound to protect. Then in George Bush v. Al Gore (2000) a bitterly divided court led by Chief Justice William Rehnquist who had been appointed by Republican President Richard Nixon to be an associate justice then by Republican President Ronald Reagan to be Chief Justice handed the presidential election to Republican George Bush.

So, as America’s judiciary proclaims it must remain independent from outside influences and look only to the law and the facts, it might appear to some cynics that the blindfold often slips. Anyway, I am certain you probably feel the same sense of relief in finishing this column that I did in finishing law school and Professor Klarman’s book. On the bright side however, the rest of your day is bound to get better.

Mayberry We Miss You

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In December 1991 my family and I ate at Luby’s Cafeteria in Killeen, Texas. There was no trace of the bodies, blood and shattered glass from the October 16, 1991 mass shooting. We still felt their presence. Although I remembered the city riots of the 1960’s and 70’s and had closely followed the violence of 1968, the utter randomness of the Luby’s murders stoked more personal concerns. To slaughter people one did not even know struck me as much more horrendous than the misguided criminal actions of zealots.

While America’s 20th century experience with deadly violence from 1900 up to the 1960’s was extensive and tragic, as Jasmine Henrique reported in her article Mass Shootings in America: A Historical Review (Global Research News, 2013), the victims were almost always members of the killer’s own family or were the unfortunate object of a felonious act such as a specific, intentional robbery that was committed in secret. However, in most of the last half of the 20th century and the first nineteen years of the 21st century America has endured public mass killings of persons who were strangers to their murderers.

Memories of Luby’s came back to me as I participated in an internet class on judge and courthouse security taught by my friend and fellow faculty member Judge D. Neil Harris from Mississippi. Judge Harris along with other faculty of the National Judicial College including me are teaching a six-week course to seventeen judges from across America. Of course, it is not just the judiciary that needs to be concerned about security.

If you recall, when this course on general judicial topics started three weeks ago I suggested in this column there was much we modern judges could learn by examining how courts and judges arose originally. That is when humans considered net-working to be making friends with the folks in neighboring huts. As for court security in those bygone days about all that was required was for the judge to treat people who came to court as the judge would want to be treated. This worked pretty well until the world began to fill up with people who were not comfortable living in a smaller area.

But now, as William Wordsworth (1770-1850) might say, “The world is too much with us”. Or as Henry David Thoreau (1817-1862) might have nostalgically wished if he were in charge of courthouse security, “That security system is best that restricts the least”. Unfortunately, we can no longer simply return to nature. The world has moved on.

Whereas in 1950 there were 151 million people in the United States and it seemed space was infinite, in 2019 we have 327 million and it has become difficult to stretch out. Mayberry, our TV town of 2,000, has metamorphosed into what feels like a megalopolis from sea to sea and from Mexico to Canada. Sheriff Taylor, who did not even carry a gun, ordered Deputy Barney Fife to carry only one bullet and keep it in his shirt pocket.

It may be that over population has impacted our behavior. Dr. John Calhoun (1917-1995) studied population density using lab rats as subjects. While many other scientists point out humans are not rats and are more able to adapt as conditions change, it may be our precipitous increase in mass shootings of random victims has come about as, at least, a partial result of population density. In their analysis of Calhoun’s theories, Doctors Edmund Ramsden and Jon Adams in their article Escaping the Laboratory: The Rodent Experiments of John B. Calhoun & Their Cultural Influence (Journal of Social History, Spring 2009) stated:

“As population density (of the rat city) increased it became evermore difficult for an individual to control the frequency of social contact. The result was unwanted interaction, leading to adverse reactions such as hostility and withdrawal, and ultimately, to the type of social and psychological breakdown seen during the latter stages in his (Calhoun’s) crowded pens.”

To solve a problem it helps to understand the cause of the problem It may be there are more valid causes for mass shootings than increasing population density. If so, they should be defined. However, if our teeming mass of humanity is contributing, we should address it and use our Homo sapiens adaptability to assuage the carnage. Regardless, whatever the etiology of increasing societal, including courthouse, violence there is no doubt is is occurring.

As reported by Timm Fautsko, Steve Berson and Steve Swensen of the National Center for State Courts and the Center for Judicial and Executive Security, there were 199 incidents of courthouse violence from 1970-2009 with an increase noted each decade. As they posited:

“We live in a time when threats against judges and acts of violence in courthouses and courtrooms are occurring with greater frequency than ever before.”

As much as I yearn to return to Mayberry and rely upon my mother’s stated advice, “Jimmy, just be nice”, the evidence overcomes the myth. Society, including the judicial system, must face the reality of a 21st century world. Security is necessary. That is why the Indiana Supreme Court in its Administrative Order AD19 requires each county court system to develop a security plan, seek approval for that plan, implement that plan and update the plan every two years.

I do not like it and my guess is neither does the Supreme Court. However, I, and I believe they, know it is necessary.

The Circumspect Caveman

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If you read last week’s column you probably noted the current general topic is judicial education. Specifically, the focus of last week’s session was the definition of what is a judge and how did the concept of judging arise? We went back about 130,000 years to the hypothetical, and questionable, theory that Homo sapiens may have existed in North America before it had a name. The reason we are delving into these arcane mysteries is because the National Judicial College in Reno, Nevada has tasked some of its faculty, including me, with teaching an annual on-line course to judges from across North America. By design the course concentrates on general and basic aspects of what judges do and how and why they do it. So let us return to last week’s pedagogical construct of a truly elemental judicial system, that is, caveman justice.

You may recall we visited three hypothetical aboriginal families inhabiting a tiny cluster of huts. A dispute between two of the families had arisen over possession and use of certain flowers. Those two families agreed that instead of fighting with clubs they would agree to submit the matter to a member of the third family for a decision; voila, the first judge and the first court. But why would the dueling litigants accept the judge’s decision? Why not just ignore the judge’s imposed resolution and go back to trial by combat. How could the ancient society have confidence the judge was right, or if not completely right, at least fair? Judicial ethics were born. And that was the subject matter of this week’s NJC class.

If we assume the judge wants his or her family to enjoy the benefits of a peaceful community and we assume cooperation on such things as mastodon hunts by everyone is a benefit to all while bashing skulls is a benefit to none, we can find a basis for accepting a decision by an impartial judge. The rub, of course, is how to ensure the contentious parties believe the judge is impartial. That is why a large part of America’s judicial system places restraints and requirements on the behavior of judges. Judges, just as our caveman judge, have no armies nor do they have the power to raise revenue. All judges have to enforce their decisions is public confidence in the judge, or, at least, the overall judicial system.

So with our nascent judicial system from 130,000 years ago our judge could not play favorites and the two contesting parties would have to have confidence he/she was, in fact, impartial. People can accept a less that ideal resolution of their legal problem if they are convinced it was arrived at without prejudice. Therefore, our caveman judge must not talk to one family about the dispute outside the presence of the other family. And the judge must not accept favors from either family. Also, the judge must not voice any out of “court” opinions about the merits of the case.

Well, Gentle Reader, you might surmise there are a few more legal system details for mankind to work out other than our caveman justice. However, it all comes down to our judges must not only be fair, we must believe they are fair.

 

The Ultimate Sin

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NJC/Dred Scott Symposium

Joseph Campbell (1904-1987) was a professor of literature at Sarah Lawrence College in Yonkers, New York. Campbell was America’s recognized guru in the area of myth and religion. He postulated that the ultimate/unpardonable sin was to be unaware.

When Peg and I visited the just opened Equal Justice Initiative’s Legacy Museum and Memorial in Montgomery, Alabama earlier this month then participated in the Dred Scott convocation in St. Louis, Missouri last week, I was constantly made aware of Campbell’s admonition. I thought back to when I lived in an apartheid society of which I was barely conscious. When I saw the representations of lynchings and Jim Crow laws in Montgomery the stark reality of a separate and unequal daily life assaulted me. But when in St. Louis I listened to personal accounts of Black people who were on the unequal side of the equation, my own lack of alertness came into focus.

While you can anticipate the content of the displays at the EJI, when you walk through the hundreds of metal coffins inscribed with thousands of names of murdered Black people including several from Posey County, Indiana, you will naturally contemplate the evil we are capable of doing to one another just because someone may be an “other”. But when you hear directly from living persons who are still experiencing a denial of equal justice you are forced to confront your own previous lack of awareness.

The Dred Scott case was decided by the United States Supreme Court in 1857 and led directly to the Civil War four years later. It is only one of many wrong decisions of the Supreme Court but is probably the worst. Chief Justice Roger Taney (1777-1864) who sat on the Supreme Court for almost thirty years authored the 7 to 2 opinion. It held that Negroes could not be citizens of the United States and had no rights that white men were legally bound to recognize, and that Dred Scott must remain a slave.

On Monday, July 16, 2018 at Logan University in St. Louis descendants of Dred Scott (c.1799-1858), Confederate President Jefferson Davis (1808-1889) and Roger Taney along with one hundred and fifty judges, attorneys and academic scholars were brought together by Judge Judith Draper and her husband Justice George Draper in conjunction with the National Judicial College to engage in “reconciliation”.

NJC President Benes Aldana, NJC technology specialist Joseph Sawyer, Michael Roosevelt education specialist for the State of California Courts and I as an NJC faculty member presented the afternoon sessions after the descendants and audience members held an interesting and extremely positive discussion during three hours in the morning.

The relatives of Taney and Davis did not attempt to excuse slavery. They did, however, clearly and poignantly point out their ancestors had done many good things along with their egregious errors in moral and legal judgments. As Peg and I listened to them I was reminded of Mark Antony’s funeral oration for Julius Caesar:

“The evil that men do lives after them,

The good is oft’ interred with their bones.”

William Shakespeare, Act III, sc ii.

What the EJI and Dred Scott experiences did for me was force me to remember and dissect my experiences under the system of legal apartheid in my hometown of Pawhuska, Oklahoma. I had never given more than a passing thought as to why “Colored” boys could not enter the front door of the pool hall or come to the front part of the building. And now my home town is New Harmony, Indiana where, according to the book by William E. Wilson On the Sunny Side of a One Way Street at page 91 he wrote that when he was a boy in New Harmony:

“By the twentieth century New Harmony had lost the egalitarian faith on which it was founded a hundred years before, and Aunt Minnie’s Lizzie (Wilson’s Aunt’s Black servant) was the only Negro permitted to live in the town. She had a room in the hotel (owned by Wilson’s Aunt and Uncle) and never went out on the street, day or night. Uncle Harry and Aunt Minnie did everything possible to make Lizzie feel like one of the family, not only because she was an excellent cook but also because they loved her. Even so, I have often wondered since how Lizzie endured her ostracism in the town.”

And Wilson also writes of his father’s loss of his Congressional seat in 1925 because he refused to join the Ku Klux Klan.

Well, I am more “aware” now than I was before the visit to the EJI Museum and Memorial, the Dred Scott convocation and Mr. Wilson’s book, but realize there’s more I need to do while, I hope, there’s still time to do it.

I wish to sincerely thank the friendly and expert staff of our fine Alexandrian Public Library in Mt. Vernon, Indiana for providing me with several excellent reference works on Dred Scott and William E. Wilson’s interesting book on New Harmony.

 

For video of Peg’s pictures of the Convocation please go to: https://www.youtube.com/edit?video_id=qqOf6KZ7ZBw&video_referrer=watch

A Summer Place (Not the Movie)

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I was married, had a son and was broke when I started Law School in Bloomington, Indiana in the summer of 1968. Although I was working full-time on a night stock crew at a Kroger’s grocery store and was receiving the G.I. bill for my Air Force service, our family just made it. My mission was to get out of school as quickly as possible. I.U. allowed 44 of us new law students to enroll on a new 27-month plan instead of the normal three years with three summers off. Only 6 of us completed the program where we actually started in June 1968 and took the Bar Exam in the summer of 1970 before we graduated in August.

What this did for my family and me was to allow me to become a lawyer when that would not have been possible had we had to remain in Law School another year. My G.I. Bill benefits were used up by the spring 1970 semester and we could not survive on my Kroger pay.

Now I will leave it up to my past clients and those who have appeared in front of me as judge to determine if I.U. made an error in judgment in allowing me to cram three years of education into two. But as for me it was a necessity. However, it also showed me how the summertime, when most Law Schools are not in session, could be put to use.

Another long-term association I have had as judge is with the National Judicial College in Reno, Nevada. While NJC does conduct summer continuing education sessions for judges from every state and many foreign countries, these courses, due to the demands of working judges’ schedules, usually are a maximum of two weeks. In two weeks judges can have existing skills more finely honed. However, the in-depth education and training one should experience before being charged with the thousands of critical judging decisions affecting our citizens requires a greatly expanded curriculum and much more time. Unfortunately, in America today all judges get their judicial education after they become judges. Such a system of on-the-job training might work well for workers on a night stock crew, but it is anathema to receiving equal justice from new judges.

In some countries, the pool of potential judges is formed in Law Schools where those who wish to someday be a judge must complete a rigorous and specially designed regimen. That is in contrast to America where if one wishes to be a judge all that is required is that he or she graduate from a law school. And in Law School not even the law professors are likely to have a clue about what a judge’s role really entails.

What I suggest is a system of developing a pool of attorneys who have a Law School specialty of Judging much as in medicine where one must be trained as a neurologist before they operate on someone’s brain. Naturally the students who want to later be considered for election or appointment as judges should have at least all the education and training of any attorney who will appear in front of the judge, so the judicial specialty must call for additional Law School time just as a medical student who wants to specialize needs extra education and time. I suggest the three summers of a Law School education are a natural fit for a Judicial Specialty. I will more fully address these issues in future columns. Try to curb your excitement.

Judicial Bias

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The National Judicial College has asked me to submit an article on Implicit Judicial Bias for inclusion in its magazine, Judicial Edge, because unfortunately, as proven by the #MeTooMovement, Ferguson Missouri, and our current political climate, implicit bias is all too explicit in the good ‘ole U.S. of A even in our courts. Therefore, I have submitted the following article to NJC and since judges throughout America may be wasting their time reading it, why, Gentle Reader, shouldn’t you? Here it is.

A syllogism: All sentient humans have learned implicit biases, all judges are sentient human beings, ergo, all judges have implicit biases. The issue is not are judges biased. The issue is how can judges guard the people affected by the judge from her/his particular biases.

Bias is a learned characteristic. Churches, mosques, synagogues, schools, news media, entertainment, sports organizations, hobbies, political parties, legal institutions, families and friends are just some of the many teachers. I discovered some of my own predilections as a law student at Indiana University School of Law in Bloomington. In the entire student body there was one African American male, three white females, fewer than five Jews, no Arabs and one Oriental male. In 1968-1970 that mix seemed fine to me. Most students looked and sounded like me. Those who did not did not raise any issue about it nor did I.

As a practicing attorney for ten years I never appeared in front of a female, Black or Asian trial judge. I did appear in front of one Jewish trial judge a few times; it was okay. I realize the demographics of law schools and trial courts have changed greatly in fifty years. My concern is the learned biases may have survived the new order, at least in the general behavior of the judiciary. Or, if some implicit biases have withered in the face of changing faces, have those prejudices morphed into others?

When faced with trying a case with a Black protagonist or antagonist I sometimes remind myself of a case I prosecuted in 1974. The defendant was a coal-black, dreadlock wearing frequent flyer whom I had prosecuted for two prior felonies. His experienced white attorney pleaded for the defendant to not take the stand in front of the white judge and white jury and subject himself to my fiery cross-examination and the exposure of his unappealing rap sheet. However, the defendant loudly professed his innocence, of at least the crime in question, and demanded to tell his story. I was salivating.

George Willie …, the defendant, took the stand, looked each juror in the eye and said, “I may be a criminal, but I did not break into that building and steal that television.” Then he turned to me and said, “Redwine, why is you always after me? We should be on the same side, the white man stole your land!”

Well, the jury agreed with George Willie and I learned a lesson about my own implicit bias and George Willie’s. I just hope I never forget to apply this knowledge when I am judging others. I must acknowledge my implicit biases, bring them up in my analysis and then prevent them from affecting my judicial behavior and judgments. Of course, the knowledge a problem exists and the understanding it should be addressed do not guarantee a sentient judge will apply lessons learned to learned biases.

George Willie’s bias as represented in his assumption I was a Native American and therefore must be prejudiced against the white power structure was a revelation to me. I was born on the Osage Nation where Indians were an assimilated part of the power structure. My friends were Indian and white but to me they were just friends. Until George Willie’s bias placed me in a minority, I had never experienced the sense of being different or less than the majority. Thanks, George Willie. It was instructive that where I saw no difference in whites and Indians, I had learned in the segregated culture of Oklahoma in the 1940’s, 50’s, 60’s and 70’s to make negative judgments about African Americans.

The following is another example, there could be many, of my own implicit biases. I served in a case in which a twelve-year-old African American girl claimed she was raped by five teenaged African American males. My instincts led me to believe her in that case of sexual misconduct because she was first of all female and secondly young. But, I regret to admit, because the defendants were young, Black males, I found myself almost apoplectically unable to fairly judge the young men who had been waived to adult court and faced many years in prison. Fortunately, the local Black community was not subject to my particular biases. Several Black witnesses stepped up and established the girl was more a juvenile Jezebel than an ingenue. As the evidence developed, I realized I could have easily allowed my prejudices to help create several grave miscarriages of justice. Fortunately, the jury saw things more objectively.

So, as a judge I endeavor to remember the all-white church where I spent my first eighteen years, the mostly white law school where I studied precedent while failing to recognize prejudice and the practice of law in which what I thought was open mindedness was nearer myopia. Today when judging I strive each day to unlearn those lessons.