James M. Redwine

rule of law

Briefly Speaking

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I.

The Salient Issue 

One method of grappling with what are the most vital issues America must resolve is to first eliminate those issues that blur our thought process. Five years of partisan ill will have sapped our nation’s psyche. Our health and our economy have suffered as we have found it more entertaining to castigate those who disagree with our political views than to make the hard choices required to battle COVID-19 and its devastation of our society. The events of January 06, 2021 and our reactions to them will either continue us on our downward spiral, or perhaps, America can remember and apply the healing lessons from our history.

Immanuel Kant (1724-1804) and Gerald Ford (1918-2006) would address the January 06, 2021 attack on our Capitol Building differently. Kant, the great German legal philosopher, would hold it immoral to not require retribution against President Trump for the death and destruction that occurred after Trump’s call for a march on Congress even though President Trump had only fourteen days left to serve when the riot took place. Kant’s position on the legal duty to punish is set forth in the following example. If we envision an island society that decided to dissolve itself completely and leave the island at a time prisoners sentenced to be executed were awaiting their fate, it would be immoral to leave the island without first carrying out the executions. Kant’s rationale for this seemingly needless act was that the blood guilt of the prisoners would attach to the general society if justice was not administered. An eye for an eye would be called for according to Kant.

In contrast, President Ford invoked the wisdom and healing of Jesus when Ford issued a pardon to disgraced ex-President Richard Nixon (1913-1994) for Nixon’s role in covering up the burglary of Democratic National Committee Headquarters. Ford issued the pardon in September only one month after Nixon resigned in August 1974 to avoid impeachment. Instead of retribution, Ford chose mercy, but not just for Nixon; America needed relief too.

Of course, neither revenge nor mercy can, by definition, be perfect justice. However, when it comes to crimes against the State there are larger issues than justice for individuals. The greater good may require a more involved response. Fortunately, we have the wisdom of our Founders and the courage of such leaders as President Ford to aid us in our decision-making process. 

II.

Separation of Powers

Our Founders built our Constitution on the general theory of three equal branches of government. The events since the election on November 03, 2020 give evidence of the abiding legacy left for us in 1789. After the election the Judicial Branch rendered numerous decisions that upheld the Rule of Law. Vice President Pence in the Executive Branch has refused to use the 25th Amendment for political purposes, and the Legislative Branch has resisted attempts to usurp the will of the electorate to de-certify the Electoral College results. Our governmental framework has been stretched but has accommodated pressures from many angles.

All three branches are working together to identify and prosecute those individuals who violated our seat of government with physical destruction and death. With the cooperation of numerous law enforcement agencies and the courts, along with the laws previously enacted by our federal and state legislatures, those who brought nooses, pipe bombs and twist-ties to their pre-meditated crimes are being identified; and if probable cause to commit crimes is shown, and guilt beyond a reasonable doubt is proven using due process of law, just punishment should result. Gentle Reader, next week, if you are available, we can consider the differing treatments of individuals and the issue surrounding the legal concepts of attenuation of culpability. As to President or ex-President Trump, I respectfully submit that continuing to have our country divided about half and half concerning Donald Trump is akin to President Lincoln’s prescient declaration that a house divided against itself will not stand.

With that in mind I submit for your consideration a Gavel Gamut article I wrote right after President Ford died in which it was suggested Ford sacrificed his political career for his country in 1974. I have slightly modified the original article:

III.

Pardon Me, President Ford

(First published 08 January 2007)

President Gerald Ford died December 26, 2006. In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974. President Nixon had personally chosen Gerald Ford to replace the disgraced Vice President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland. Vice President Ford served under President Nixon until Nixon resigned in August of 1974. One month after Nixon resigned, President Ford issued him a full pardon for any crimes Nixon may have committed while president.

At the time, many Americans, including me, were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it. It was a time of a media feeding frenzy and blood in the water. President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice President Ford had no deal to pardon Nixon if Nixon would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate. Yet, after a few months I began to have second thoughts about my initial reaction to the pardon. I realized how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States. As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam. [Insert 4 years of partisan bickering during the Trump presidency and include at least 1 year of COVID-19.] We needed a new direction and a renewed spirit in 1974 just as we do today. Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh. Still, he put his country first. Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville, Indiana on April the 23rd, I took our son, Jim, out of school and we went to the Downtown Walkway to see the man who put country above self. For while William Shakespeare almost always got his character analysis right, when it comes to President Ford, “The good he did lives after him.” Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of his erstwhile political opponent President Ford: “President Ford was one of the most admirable public servants I have ever known.” And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had later come to realize that:

“The pardon was an extraordinary act of courage that historians recognize was

truly in the national interest.”

The Name Game

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Mt. Vernon High School
North Posey High School

On Monday, April 10, 2017 in the Posey Circuit Court a jury composed of attorneys from the Posey County Bar Association decided, that is declared, whether North Posey High School or Mt. Vernon High School or neither of them won the exclusive right to name the newly discovered planets of the dwarf star named Trappist-1. The Mock Trial was the centerpiece of the annual Posey County Law Day celebration during which America contrasts the role law plays in protecting our rights with systems where individual liberties are not paramount.

North Posey (A.K.A. Muhammad High School) student attorneys Zack Goebel and Veronica Inkenbrandt pitted themselves against Mt. Vernon (A.K.A. Peacock Throne High School) student lawyers Shane Vantlin and Ashley Ford. The case began when both fictional schools individually claimed to have developed a fund raising plan based on auctioning off the rights to name the seven newly found planets of Trappist-1, which are only 235 trillion miles from Earth. Each school claimed it thought of the scheme first but that the other high school purloined the plan.

Mr. Mike Kuhn and Ms. Michele Parrish are the advisors to the North Posey students who include the following participants and their roles as members of the two fictional private schools in Posey County, Indiana:

Hannah Braun – Sarah Jones, School Board President of Muhammad High School;
Ryan Daughtery – Jaime David, Edward Jones advisor;
Isaac Mayer – Akmed Barnes, Muhammad High School senior;
Josh Wiggins – Walter Cronkite, Science Reporter;
Lexi Fifer – Hagar Shunley, junior at Muhammad High School;
Jade Hill and Ethan Morlock, Alternates.

Mt. Vernon’s advisors are Ms. Lucy Steinhart and Mr. Tim Alcorn. Their students are:

Austin Bethel – Ibrehim Smith, School Board President of Peacock Throne High School;
Whitney Schaefer – Baretta Fife, Internal Revenue Agent;
Adam Duckworth – Julian Assange, Hacker;
Corinna Lambright – Rasheema Ellis, Morgan Stanley Financial Advisor;
Wade Ripple – Abdul Parker; senior at Peacock Throne High School; and,

If you want to know how the students and the Posey County Bar Association celebrated the Rule of Law over military might, you are welcome to tune in here next week.

Coming Soon to a Courtroom Near You

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On April 10, 2017 in the courtroom of the Posey Circuit Court the Posey County Bar Association and teachers and students from Mt. Vernon High School and North Posey High School will celebrate the Rule of Law. Law Day was established as a response to the Soviet Union’s military display on May Day.

This will be the thirty-fourth straight year the Bar and the schools have joined in the presentation of a Mock Trial in which the teachers guide their students in a jury trial. From 1984 until New Harmony High School closed the three schools rotated portraying the court personnel and each of two sides to a fictional case. Now the Bar Association provides the judge, Superior Court Judge Brent Almon, and the jury composed of attorneys.

The two high schools select students who enact the roles of witnesses called to testify by student attorneys who also argue their cases to the jury. The jury of practicing lawyers decides the outcome from which there is no appeal.

Over the years over a thousand Posey County students have learned by actual doing how their legal system works. Some of the student attorneys have gone on to become actual members of the Bar.

The Mock Trial is open to the public and will begin at 8:30 am on April 10. While cameras and recording devices are usually prohibited in Indiana courts, anyone who wishes to attend is welcome to take photographs and record the proceedings.

Next week the Mock Trial case and the names of the participants from the two high schools will be divulged.

Photo Taken by Rodney Fetcher

Judges and Politics

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In 2000 the Florida Supreme Court gave the presidency to Democrat Al Gore. Five judges on the U.S. Supreme Court reversed the Florida court and gave the presidency to Republican George W. Bush.

Bush won by two electoral votes. Gore barely won the popular vote. Three of the justices of the U.S. Supreme Court who dissented, John Stevens, David Souter and Ruth Bader Ginsburg, wrote:

“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Judges may make mistakes. Judges may be ignorant or lazy or may have any number of faults. The one characteristic judges must not have is a public perception of prejudice for or against persons or beliefs.

The only thing judges must bring to their role in our government is the ability to engender public confidence in the integrity of their decisions. We may, and I often do, disagree with judicial decisions (by other judges of course). However, if we have confidence the judges acted impartially, we can accept even bad rulings and move on.

That is why Canon 4 of the Code of Judicial Conduct which all judges should follow requires:

“A Judge or candidate for Judicial Office Shall not Engage in Political or Campaign Activity that is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.”

The Code also prohibits a judge from publicly, e.g. in a newspaper column, endorsing or opposing a candidate for public office.

These ethical proscriptions come to mind as I am currently engaged in helping to teach an internet course to judges for the National Judicial College. Judges from several states are participating as students or faculty. As with much of the judicial education in which I have been involved, in this course there is a great deal of side banter about many topics. In this current presidential campaign cycle politics is unavoidable. But unlike non-judicial conversations where my friends and family do not hesitate to state that one candidate is less than desired while the other must be elected, with judges I am reminded of the attitude Romeo’s friend, Mercutio had.

You may recall that in William Shakespeare’s play Romeo and Juliet the two families, Romeo’s Montagues and Juliet’s Capulets, were constantly feuding. In Act III, scene 1 Mercutio is stabbed by Juliet’s relative, Tybalt. As Mercutio lies dying he curses both sides by calling for, “A plague on both of your houses”. That pretty well sums up the ethical positions of my judicial colleagues.