Author: Sherrilyn Ifill

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My Bad!: The Supreme Court’s Assault on Judicial Elections

As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states.  Judicial elections  — especially for state Supreme Courts  — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states.  The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution.  The Supreme Court has played a huge role in intensifying this problem – beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001.  In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court.  Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th.  Yes, judicial candidates have free speech rights.  But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal.  Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial.  O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.

But the decision by states to elect their judges was a deliberate, conscious choice.  In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes.  They sought a judiciary that would be accountable to the public.  That same populist streak has kept judicial elections alive (in at least some form) in 38 states.

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The Newest Scottsboro Boy

Hear the words “Scottsboro Boys” and what comes to mind is the picture of southern injustice.   Nearly a dozen black teenagers taken off a train in Alabama in 1931 and accused of raping two white girls.  The sheriff calling out the militia to protect the boys from a mob lynching.  The defendants, illiterate young men whose families resided in other states, held under military guard.   A summary trial held six days after arraignment.  The boys tried without counsel.  Each convicted and sentenced to death.  The case successfully challenging their conviction, Powell v. Alabama, is central to our modern conception of the requirements of due process for criminal defendants.

Fast forward 80 years and Jeffrey Skilling, former president and chief operating officer ofcollapsed energy giant Enron, is the newest Scottsboro boy.  Skilling’s attorney argued on Monday before the U.S. Supreme Court that his client was tried and convicted in Houston in what amounted to a mob atmosphere.  Skilling, was convicted of securities fraud, conspiracy and insider trader for actions he took to cover up the financial collapse of Enron, which resulted in losses estimated at tens of billions of dollars for Enron shareholders.  Thousands of Enron employees lost their retirement funds.  Skilling was sentenced to 24 years, which he is serving in a minimum security prison.  He challenges his conviction on the grounds that the crime of “honest services fraud” is unconstitutionally vague, and on the grounds that he was tried and convicted amidst an atmosphere of “pervasive community bias.”

It’s true that feelings about Skilling and Enron CEO Ken Lay ran high during those days – especially in Houston.  It’s also true that government surveys indicated that potential jurors in Houston were more likely than those residing outside Houston, to believe that Skilling and Lay were innocent.  Skilling argued, nevertheless, that “overwhelming passions” gripped the pool of Texans from which the jury was selected, stoked by a “media frenzy.”  His prosecution was, according to Skilling, “as dramatic as any in U.S. criminal trial history.” (I’m not sure that the Scottsboro boys, Sacco and Vanzetti, Richard Hauptmann (kidnapper of the Lindbergh baby),the police officers who beat Rodney King, or O.J. Simpson, would agree with that assessment, but history will have to sort it out).  At oral argument, several members of the Court – Justices Sotomayor and Breyer among them – reportedly expressed serious concerns about the trial court’s voir dire of the jury.  The Court may yet find that Skilling – who was represented by some of the finest attorneys in the country, and who reportedly spent more than $30 million dollars on his defense —   is entitled to a new trial in a different venue. Read More