Speaking of Elected State Court Judges...

A few hours after I raised concerns about whether elected state court judges can adequately protect the rights of unpopular parties, my colleague, Gabe Teninbaum, sent me this link.  It's a story about judicial misconduct charges against the notoriously pro-execution judge, Sharon Keller, of the Texas Court of Criminal Appeals.  Back in 2007, Judge Keller refused to accept a late filing from a defendant who was about to be executed, even though the United States Supreme Court had just granted certiorari in a case that would have affected the constitutionality of the execution.  An elected Texas state court judge who goes out of her way to ensure that an execution takes place, regardless of the rights at stake?  Shocking!  The New York Times adds its thoughts here.

Judge Keller also did her best to try to ensure the execution of Charles Dean Hood despite well-substantiated claims that the prosecutor in Mr. Hood's case was having an affair with the judge who presided over Mr. Hood's trial.  (Fortunately, Mr. Hood's case is still pending.)  It's fair to say that Judge Keller isn't particularly eager to investigate whether a capital defendant has a legitimate claim to make.

Here's more coverage about Judge Keller and her notoriously pro-execution bias.  So I'll ask again: why are elected judges such a good idea? 

Update: To see the formal charges against Judge Keller, see here.  And for a very telling news story excerpt about the problem with electing judges, see below the fold.

Here is an excerpt from a story about Judge Keller that illustrates the problem with elected judges:

When the 41-year-old Keller introduced herself, she told the audience she would be a "prosecution-oriented judge." That may seem like a throwaway campaign line, but to a stickler for judicial conduct like Bayless, it was inexcusable.

"I got to thinking that I guess people don't care much about the criminal courts, because what would happen if a judge ran for a family court seat on the platform that 'I am husband-oriented or wife-oriented,'" Bayless says. "They would be hung out to dry in the press, but here it seemed to pass without notice."

Keller would go on to beat Bayless in the runoff and take on Democrat Betty Marshall in the general election. This time Keller smoothed out her position and went from promising to be a "prosecution-oriented" judge to simply a "pro-prosecution" judge.

"I guess what pro-prosecution means is seeing legal issues from the perspective of the state instead of the perspective of the defense," she told The Dallas Morning News.

Of course, Keller simply could have promised to see things from the perspective of both the prosecution and the defense, but a pledge of objectivity doesn't help you in a judicial race. Instead, Keller stuck to uttering platitudes. Sure enough, Keller easily won election to the state's highest criminal court.

Since taking the bench, Keller has clearly kept her campaign promise of being a pro-prosecution judge, often earning derision from defense attorneys if not her own colleagues. In 1996, she concluded that a defendant received a fair trial even after evidence surfaced that the man had been tortured into giving a confession. Both the prosecutor and the judge in the case called for a new trial, but Keller disagreed, concluding that although the inmate's rights were violated, it didn't affect the outcome of the trial. In 2003, Keller voted with the majority to permit the execution of a condemned inmate whose lawyer suffered from bipolar disorder and had his law license suspended three times.

 

Comments

[James Bolan]

Andy - In a world where the balance of "power" needs to be maintained between political representatives and an independent judiciary, I can't think of a worse way to maintain that balance than by electing judges. - Jim Bolan

[Monroe Freedman]

The argument is made in Understanding Lawyers' Ethics (3d ed., 2004) that elected judges are unconstitutional. At the time, there were five Justices who appeared to be prepared to rule that way. I elaborated on that argument in a Utah bench-bar conference a couple of years ago, and still believe that it has considerable force (and that Justice Kennedy could be persuaded that way).

[Andrew Perlman]

Thanks, Monroe. I neglected to mention the very relevant pending United States Supreme Court case that raises similar issues to the ones you just mentioned. Here's a summary of the case: http://www.nytimes.com/2009/02/15/washington/15scotus.html

Oral arguments are in March.

[Andrew Perlman]

You can find briefs in the above mentioned case (including briefs by numerous amici), here: http://www.abanet.org/publiced/preview/briefs/feb09.shtml#0822

You can find the briefs by searching the word "caperton."

[David Hricik]

Nothing but personal anecdote:

I practiced in Texas when we had a very pro-plaintiff bench, and then things radically shifted (I don't practice enough to know if it's gone "too far" to the defense side, but that seems to be the case). Anyhow, there were huge efforts to oust the "liberal" judges, and those who were in favor of frivolous law suits. I wonder now if it will shift back...

I do know that firms were good at donating to judges when they had cases before them, but don't know and in fact never saw actual bias revealed, or anyone who felt that a contribution would directly affect a case. Still, it made me feel smarmy.

[Monroe Freedman]

The W. Va. case in the Sup. Ct. might well make some bad law, simply because the amounts of money involved are grotesquely high. Moreover, the critical point made in the opinion of Ginsburg for four dissenters in White v. Republican Party is that due process is violated whenever a judge decides a case that might reasonably be expected to affect her chances of re-election.

[Black Like Him]

Judges who are appointed for life enjoy virtual carte-blanche to abuse power without accountability. A civilian review board is critical to monitor the behavior of judges and lawyers and to recommend sanctions, etc. The fox cannot be expected to guard the chicken coup. It is that simple. It is of such great importance that any delay jeopardizes what little respect the citizenry has left for the Third Branch.