The Case of the Sleeping Justice

Summary

Another election, another set of bare-fisted battles for state Supreme Court seats. Think the presidential campaign ads were uncivil and misleading? Well…they were. But so were those put on the air by judicial candidates and their backers, who no longer blink at spending in the millions of dollars. Final tallies aren't in yet, but in the last week before Nov. 4, $5 million was spent on ads in these races, more than in 2006, according to figures compiled by the Brennan Center for Justice.

We covered the vicious campaign in Wisconsin earlier this year, and wrote about the battle in Alabama in October. After the fact, we've looked at some of the ads from two other states with particularly contentious races and found more questionable statements:

An ad run by an out-of-state group in Mississippi accused incumbent justice Oliver Diaz of "voting for" a child killer and a rapist. Diaz actually voted to give one defendant a DNA hearing and to stay the execution of another while the U.S. Supreme Court resolved the constitutionality of lethal injections. A committee set up by the Mississippi Supreme Court condemned the ad.
Michigan's chief justice produced an ad saying that his opponent ran for a seat on an appellate court so she could pay more winter visits to the beaches of Florida. But this is purely hearsay, and from an unidentified source at that.
An ad by Michigan's Democratic Party accused the chief justice of dozing off during a hearing on a lawsuit over the deaths of six children in a public housing fire. There are reasons to doubt that claim – which didn't surface until more than a year after the case was decided, just in time to appear in an election ad. Sworn witnesses disagree about its truthfulness.

Analysis

Wisconsin's Supreme Court contest earlier this year was a spring blizzard of deceptive attack ads. We wrote about it several times, and currently a three-judge panel is reviewing whether the court's newest justice, Mike Gableman, should be penalized for running a highly misleading ad against defeated incumbent Louis Butler. Other court races in ensuing months were relatively free of the kinds of scalding, deceptive claims we saw in the Badger State – or they were until the last few weeks leading up to Nov. 4, when several of them turned nasty.

We posted an article on Alabama's race in October. But the knives came out in other states as well – particularly Mississippi and Michigan. We think they're still worth noting in view of the escalating sums spent on ads in judicial races and their often savage tenor.

Mississippi Muck

Down in deepest Dixie, Mississippi Supreme Court Justice Oliver Diaz Jr. became the target of an independent, Virginia-based group called the Law Enforcement Alliance of America. An ad sponsored by the group, which isn't required to disclose its donors but has received money in the past from the National Rifle Association and emphasizes gun rights, accused Diaz of "voting for" a child murderer and a rapist, and to overturn the conviction of a "baby killer."

[TET ]

Law Enforcement Alliance of America Ad: "Protect Our Families"

Announcer 1: We need judges to protect our families in Mississippi. But when a 6-month-old child was raped and murdered…

Announcer 2: Supreme Court Justice Diaz is the only one voting for the child's killer.

Announcer 1: An elderly woman kidnapped, beaten and raped.

Announcer 2: Diaz, the only one voting for the rapist.

Announcer 1: A 20-month-old baby dead from blows to her head.

Announcer 2: Justice Diaz votes to overturn the baby-killer's conviction.

Announcer 1: Log on and tell Justice Diaz to protect Mississippi families, not criminals. Paid for by Law Enforcement Alliance of America.

Paid for by Law Enforcement Alliance of America. [/TET]

The first case mentioned in the ad is that of Jeffrey Keith Havard, convicted in 2002 of killing his girlfriend's daughter, 6-month-old Chloe Britt. He was sentenced to death. Havard's appeal on various issues went to the Supreme Court, which upheld his conviction in 2006. Diaz didn't participate in that decision, but earlier this year, Havard's case again went to the high court, which this time denied Havard's request for a hearing on whether he was entitled to DNA testing, among other issues. Diaz dissented.

Voting to allow a convicted defendant a hearing on possible legal errors at his trial is what appellate judges are supposed to do. It's what helps ensure that the wrong person isn't convicted or, as in this case, executed. Characterizing Diaz's stance as "voting for the child's killer" is – as a judge might say – out of order.

The second case highlighted in the ad involves Earl Wesley Berry, convicted of the 1987 kidnap and murder of a woman on her way home from choir practice.

The ad calls him a "rapist" but that's an embellishment contradicted by the Missippi Department of Corrections. In an official statement giving the factual background of the case it said Berry abducted his victim "intending to rape her" but "Berry did not do so." The ad also strains the facts by calling the woman "elderly;" she was 56.

Diaz voted once to uphold Berry's conviction. Then in 2007, when the case came back up to the state Supreme Court on a constitutional challenge to death by lethal injection, he voted to delay the execution until the U.S. Supreme Court ruled on the issue. He was in the minority, but his concern was validated after the U.S. Supreme Court stayed Berry's execution at the 11th hour (he had already eaten his last meal) so it could review the lethal injection process.

In this case Diaz voted to let the nation's highest court decide whether lethal injection was cruel and inhuman punishment, and it did. Berry was executed earlier this year, after the method was declared constitutional.

The last case mentioned is that of Bryan Kolberg, accused of killing 22-month-old Madison Watson in 1988. He was convicted and sentenced to death. The state Supreme Court reversed his conviction in 1997, before Diaz was on the court. Kolberg was re-tried and again found guilty; this time he was sentenced to life in prison. He again appealed, claiming a host of legal errors in his trial. The state Supreme Court upheld the guilty verdict this time. Diaz and the chief justice both dissented, saying Diaz should be re-tried because the judge failed to give proper instructions to the jury. On this one, the ad is correct: Diaz voted to overturn the conviction.

The ad was denounced by the state's Special Committee on Judicial Election Campaign Intervention, created by the Mississippi Supreme Court in 2002 following a nasty race two years earlier. The five-member committee issued a public statement on Oct. 29 (see attached document for full text):

Special Committee on Judicial Election Campaign Intervention: These ads violate the Code of Judicial Conduct with respect to judicial elections in that they urge a course of action which is not in keeping with the duty of a justice of the Supreme Court to decide the legal issues on an impartial basis. A judge is sworn to uphold the law and adjudicate cases in accordance with law, and not ignore the law based upon the popularity or infamy of those who appear before the court or the heinousness of the crime of which they are accused. Accordingly, the Special Committee condemns these ads as they urge a biased rather than an impartial court system.

Amen to that. But by the time the panel came out with its statement, the ad had already run more than a week. Several stations took it off the air at that point, but at least one put it back up after complaints from LEAA. Diaz's challenger, lower court judge Randy "Bubba" Pierce, said he had nothing to do with attack ads and the judicial conduct committee did not accuse him of any involvement. Smith won, making Diaz one of three incumbent state justices to lose their seats on the Supreme Court.

Siesta Time?

Almost a thousand miles to the north in Michigan, a devastating ad run by the state's Democratic Party accused Chief Justice Cliff Taylor of falling asleep while hearing a lawsuit over a Detroit apartment fire that killed six children.

The ad features gauzy footage of a man who appears to be a judge nodding off (it's labeled "dramatization"). "Judge Taylor fell asleep several times in the middle of our arguments," says an unidentified woman who, according to newspaper articles, is Juanita Fish, the mother of three of the dead children. "How could he judge based on the facts when he was asleep?"

[TET ]

Michigan Democratic State Central Committee Ad: "Sleeping Judge"

Announcer: One story's a fairytale. The other a nightmare. The fairytale, Sleeping Beauty. The nightmare, the sleeping judge, Cliff Taylor.

Woman #1: Judge Taylor fell asleep several times in the middle of our arguments. How could he judge based on the facts when he was asleep?

Announcer: Taylor was voted the worst judge on the State Supreme Court. And fellow judges called for an investigation of Taylor for misconduct and abuse of power. The sleeping judge, Cliff Taylor, he needs a wake up call.

Paid for by the Michigan Democratic State Central Committee. [/TET]

The Dec. 1, 2000 fire in a city public housing unit was big news at the time; none of the children was older than seven. Five days later, Geoffrey Fieger, a well-known trial lawyer representing the estates of the children, filed suit against the city and Detroit's public housing commission for $800 million.

The state's high court dismissed the case by a vote of 4-3 (with Taylor in the majority) in April 2007, ruling that the defendants were immune from liability.

Fish and Jo Ann Campbell, the mother of the other three children, both say Taylor was sleeping, and Campbell has even sworn an affidavit to that effect. But there are reasons to be skeptical about this claim.

For one thing, their allegation didn't surface publicly until the month before the election, more than a year after the case was decided. Taylor says it's untrue, and a lawyer for the city of Detroit and its housing commission has sworn out an affidavit agreeing with the justice. Michigan Government Television broadcast the arguments, and didn't catch any images of Taylor asleep on the bench. And perhaps most tellingly, the women's own attorney passed up an opportunity to back up their claim when we contacted him. We asked attorney Fieger if he observed any napping on the part of Justice Taylor. He didn't answer the question. Instead he sent us an email saying, "Cliff Taylor is the single worst judge in Michigan history. He could care less if six children burned to death." With such a low opinion of the justice, we wouldn't expect Fieger to be bashful about saying Taylor was sleeping if he had seen any evidence of it himself.

Healthy skepticism is warranted here. Since witnesses on both sides give conflicting accounts under oath, the best that can be said of the claim is that it isn't proven.

"Worst judge?"

The rest of the ad is largely true. In late 2007, Michigan Lawyers' Weekly hired Mitchell Interactive, a company that specializes in polling and opinion surveys, to ask attorneys who had argued at least one case before the court what they thought of the state's Supreme Court justices. Based on the 79 assessments that were completed (about a 10 percent return rate), Taylor scored lowest of the seven justices on four of eight "judicial characteristics": preparedness, efficiency, thoroughness of opinions, and overall knowledge of the law. He also ranked lowest when the judges' scores on all eight characteristics were added up and averaged, though when the lawyers were asked directly to name the worst of the justices, Taylor was second-from-the-bottom.

An Oct. 17 article in the Detroit Free Press called Taylor "the state's most bulletproof Republican" and said his path to a second term "seems unobstructed." But the "sleeping justice" ad delivered a real blow and may have been more responsible than any single other factor for Taylor's loss, the first time a Michigan chief justice has ever lost a reelection. "That ad had enormous impact, not so much in the legal community but in the non-legal world," said Todd Berg, the editor of Michigan Lawyers' Weekly.

[TET ]

Cliff Taylor Ad: "Hathaway Unqualified"

Announcer: Top newspapers and police groups endorse Chief Justice Taylor over unqualified Hathaway. 'Detroit Judge Hathaway is not a reasonable or qualified alternative.' 'She is not well qualified for the high court.' 'No compelling reason to make a change.' 'Hathaway has done nothing to distinguish herself.' She favored the proposal that was designed to tilt State government in favor of one political party. Hathway campaigned for Court of Appeals so she could spend most of the winter in Florida. Re-elect Chief Justice Taylor.

Paid for by the Committee to Re-Elect Chief Justice Taylor. [/TET]

A Day at the Beach, It's Not

Taylor was beaten by Democratic judge Diane Hathaway, but not before she was also tarred by a dubious attack ad. One of Taylor's spots claimed that she tried to win a Court of Appeals seat in 2006 so she could hang out at a Florida beach in the winter. That's a claim built purely on hearsay evidence that would never be allowed in court.

Its only basis was a editorial in the Michigan Chronicle, a Detroit weekly, endorsing Hathaway's opponent in the appeals court race. The sourcing for the allegation is extremely vague; this is the whole sentence from the article:

Michigan Chronicle, Oct. 25-31, 2006: A Detroit based minister said Judge Hathaway said that one of the reasons she is campaigning for a seat on the Court of Appeals is so that she would be able to spend most of the winter on the sunny beaches of Florida.

Got that? The editorial writer may have heard it from the minister (or perhaps there was still another intermediary) who may or may not have heard it from Hathaway herself. Who is the Detroit-based minister? We have no idea, nor, we'd guess, does Hathaway.

We'd hope for better evidence than that in a judicial race.

— by Viveca Novak

Sources

Eggert, David. "Dems Run Negative Ad against Michigan GOP Justice," The

Associated Press, 21 Oct. 2008. Associated Press, 21 Oct. 2008, "Analysis: Dems say Taylor fell asleep during case"

Jones, Terry L. "Pierce Unseats Diaz on Court," Hattiesburg American, 5 Nov. 2008

Lee, Anita. "Committee denounces judicial ads," The Biloxi Sun Herald, 31 Oct. 2008

Mitchell, Jerry. "Panel: Attack ad not truthful," The Clarion-Ledger, 30 Oct. 2008.

Finley, Nolan. "State GOP got outworked, outspent," The Detroit News, 9 Nov. 2008.

Ratings of Michigan Supreme Court Justices, Michigan Lawyers Weekly, Dec. 2007.

Findings of the Special Committee on Judicial Election Campaign Intervention. 29 Oct 2008.