Missourians, they're coming after our non-partisan court plan again

The movement conservatives in Missouri are once more taking aim at our non-partisan judicial selection process.

You remember the Missouri Plan - it is the one that is so screwed up that 36 other states have adopted it and it is taught in law schools as an example of the non-partisan way that the judiciary should operate, that all might have equal confidence in the inherent fairness and non-partisan nature of our courts. But then, a sense of fairness does tend to elude those driven by the movement conservative ideology.

The Missouri Plan was put before the voters of the state in 1940 and passed overwhelmingly in response to the hijacking of the justice system by the powerful political machines of Tom Pendergast in Kansas City and Edward Butler of St. Louis. Under the Bosses, justice resided in their pockets, and nowhere else.

The amendment passed by our grandparents 68 years ago, dubbed “The Missouri Plan”, replaced judicial elections with a judicial commission comprised of judges, lawyers and citizens to review and interview applicants for vacancies on the bench, and winnows the field to three choices. The Governor then has sixty days to select the new judge from those three candidates. If he fails to do so in the allotted time, the decision reverts to the recommending body. At the first General Election following one year on the bench, the new judge faces the voters who decide whether the appointed judge shall be retained.

In balloting to determine whether judges be retained, the state Bar Association issues ratings for the judges before the election, and the ratings and recommendations are made available to the public. It is in the best interest of attorneys and citizens alike for judges to be fair-minded and non-partisan, so the ratings are extremely apolitical.

With Matt Blunt-force trauma stepping down to spend more time with his legal team, the foam-flecked loons are plotting to make it an issue once more, with the appointment of Stephen Limbaugh to the federal bench leaving a vacancy on the state supreme court.

Kraske today:

Within minutes of the Limbaugh vote, conservative critics of the Missouri court plan began mobilizing. They issued a series of news releases that, taken in sum, signaled that once again the state’s highly touted nonpartisan selection plan is in their crosshairs.

“I am committed to appointing a Missouri Supreme Court judge who will faithfully interpret our constitution and will not legislate from the bench,” Gov. Matt Blunt said.

Translation: Send me a conservative I can support.

John Elliott, president of the conservative Adam Smith Foundation, said he hoped the Appellate Judicial Commission, the group that screens candidates and prepares a slate of three judges for Blunt, “does not repeat last summer’s mistakes and nominate his replacement under a cloud of secrecy and corruption.”

He added: “In the event that does occur, I strongly encourage the governor to use his constitutional authority to reject the commission’s nominees.”

Translation: We’re prepared to go to war over this pick.

Said Charlie Harris, president of the Missouri Bar: “We … will see the same thing we saw this fall — an all-out assault on the nonpartisan court plan. My message to all citizens of the state and all lawyers of the state is to weather the storm.”

Game on.

Missourians might recall that we already did this last summer when Ronnie White announced his retirement. The movement conservatives, feeling their grip slipping, attacked the non-partisan process. They said the process is too secretive and lawyers have undue influence. The far-right fringe was pissed that Blunt had to select Patricia Breckenridge - they would have much preferred a conservative-activist stooge who would have furthered baby Blunt's wacky agenda to an actual judge. According to the naysayers, if the wingnut governor isn't free to pick a wingnut for the bench, the process is broken.

But in reality the system has worked very well for us for 67 years, and has served to keep the state courts as apolitical as possible, while efficiently and promptly filling vacancies on the bench with qualified jurists. In the years since 1940, it has been expanded to include all circuit court judges in Clay, Platte and St. Louis Counties.

One of the most elegant features of the plan is the way it defangs the money monster. Success in partisan elections depends on money, on the financial contributors of donors (a very specious proposition when we are talking about the very concept of Justice) and that is what pisses off the wingnuts the most - if they can't influence a process with money, it must be wrong.

The Missouri plan works so well that in the intervening decades, 36 additional states have adopted the plan in whole or in part.

Detractors say that the process is too reliant on the input of lawyers, but that argument doesn't get off the starting blocks with me. Who better to make judgments about legal professionals than other legal professionals? How deep is your experience with judging the competence of jurists? Mine is a thimble of the ocean. If you are like most people you don't know diddly about the court system because you have no business before the bar of justice. If the wingnuts have their way, judges would be elected like state legislators, and what a nightmare that would be if judges owed political favors to certain segments of the electorate, and naturally had a political bias against others. How could you call that justice?

The move to abolish the Missouri Plan gets full-throated opposition from the Missouri Bar Association and other professional organizations representing attorneys of diverse political backgrounds. Proponents of the plan say it eliminates the influence of politics as effectively as is possible. They say that a better alternative simply doesn't exist.

By the way, I have had a word or two to impart about the Adam Smith Foundation in the past, pointing out some things that weren't mentioned in Kraske's article. They are a little hard to take seriously, but he didn't tell you that. Let's go to the archives, shall we?

In June, a thinly-veiled BluntCo initiative rolled out to attack the judicial selection process. Flying under the flag of something called "The Adam Smith Foundation" the minions of the governor went on the attack, while simultaneously playing the victim card....neat trick, that.

June 26th, 2007

Adam Smith Foundation Launched

(Jefferson City) - The Adam Smith Foundation is proud to announce its official launch as an organization committed to promoting conservative principals [sic] and individual liberties for Missouri. Our Foundation seeks to provide Missourian's with information they need to hold their State and local elected officials as well as activist judges directly accountable for their actions.

"There are countless leftist political groups in Missouri, but only a handful of conservative organizations. We strive to fill an important void by holding politicians in Jefferson City accountable." said John Elliott, organization President. "Big spenders in state and local governments have forgotten that tax dollars belong to the citizens, and we will promote ways to reduce the size of government."

Blunt pursues this agenda at the peril of further splitting the Missouri GOP. When State Senator Kris Koster left the Republican party in August, he cited the Blunt Administrations attack on the judiciary was one of his key reasons for switching parties. Koster, a former prosecuting attorney for Cass County summed up the Blunt administration very well when he said “I can’t think of another administration in our lifetime that has such disregard and such contempt for the third branch of government.”

'Nuff said.

Challenging Prosecutor Immunity

Where does the responsibility lie for wrongful convictions? The supreme court may decide how to answer that question in a case the court is being asked to decide right now.

Prosecutors have traditionally been shielded from facing charges for wrongful prosecutions, even in instances when they behaved egregiously, and defendants were later found to be innocent of all charges.

In the past, the high court has ruled that prosecutors must have "absolute immunity" in order to do their jobs without fear of legal reprisal, but last year a ruling from the 9th Circuit Court of Appeals set of something of a panic when they ruled that supervising prosecutors could be sued for management failures that lead to wrongful convictions. That ruling cleared the way for Thomas L. Goldstein to sue former Los Angeles D. A. John K. Van de Kamp.

Goldstein's suit does not allege that Van de Kamp was directly involved in his wrongful conviction for a 1979 shotgun murder; rather it charges that he and a top deputy failed to establish a set of protocols to monitor and vet testimony from jailhouse informants, and false testimony from one of those informants led to Mr. Goldstein's wrongful conviction and incarceration. In the past the LA prosecutors office, the largest in the country, relied heavily on jailhouse informants, but there was no coordination of efforts or communication between various prosecutors, what promises had been made to informants or even what informers were reliable and what ones were scamming for their own benefit.

Goldstein was ordered released after 24 years in prison after the sole eyewitness recanted and doubts emerged about a supposed confession by Goldstein to an informant. Years after his conviction, Goldstein learned that his jailhouse accuser -- a three-time felon -- had lied in court when he denied having received promises of special treatment from another county prosecutor in exchange for his testimony.

"This suit is 29 years in the making, and it's about accountability," said Goldstein. "[It] will put every prosecutor's office on notice that they need a system for sharing information. And by doing so, it will result in fewer wrongful convictions."

In 1982, Van de Kamp was elected California attorney general. He served two terms. He ran unsuccessfully for governor in 1990 and has been a lawyer in private practice in Los Angeles since.

"I had never been sued in all my years in public office. But if this were the law, defense lawyers and civil counsel would be suing all the time. You can always allege a 'failure to train' or a management failure," Van de Kamp said.

Though Van de Kamp is personally named in the suit, legal experts said Los Angeles County would pay any judgment if Goldstein won. Public officials sued in the course of duties are indemnified by their agencies.

"John is not paying a dime," said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

Prosecutors are not totally immune from sanction for misconduct. State bar associations often levy punishments for violating codes of conduct, and prosecutors can be held liable for "inflammatory" statements made to the press during prosecutions.

In December, Los Angeles County Dist. Atty. Steve Cooley, the California District Attorneys Assn. and the National District Attorneys Assn. joined lawyers for Van de Kamp in petitioning the Supreme Court to review the 9th Circuit's ruling. They said the appellate ruling was a dramatic shift in the law. Complaints against prosecutors could easily become management-related suits against supervisors, they argued.

W. Scott Thorpe of the California D.A. group said the ruling created a perverse situation in which absolute immunity would shield a trial prosecutor who committed an "intentional violation of civil rights" yet a supervisor could be held personally liable for "unintentional violations" related to policies.

The justices may announce as soon as Monday whether they will hear Van de Kamp vs. Goldstein. If the court takes up the case, it will be argued in the fall.

If the appeal petition is rejected, leaving the 9th Circuit's decision in place, lawyers for Goldstein plan to question Van de Kamp and Livesay, also named in the suit, under oath. The lawyers want to determine what steps, if any, were taken in the 1970s to protect defendants from false testimony from jailhouse informants.

In 1972, the Supreme Court overturned a man's conviction in a forgery case because an unwitting prosecutor had told the jury that a business partner had not been promised anything in exchange for his testimony. In fact, an assistant prosecutor had promised the business partner that he would escape prosecution if he testified for the government. In its ruling, the high court said "the prosecution's office is an entity," and it had a duty to disclose the full truth about its dealings with informants.

So where should the line be? Egregious misconduct happens, and people are robbed of years - sometimes decades - of their lives. I am a citizen of this country, and I want my government to enforce societies laws and punish criminals and do their jobs to protect us.

But I don't think a prosecutor who suppresses evidence of innocence and goes for a conviction, any conviction, should skate away free of consequence, either.

By the way, the irony of this situation is not lost on Van de Kamp - he is the chair of the California Commission on the Fair Administration of Justice, a group established to prevent wrongful convictions. CCFAJ has pressed for a law that would require corroboration before testimony from a jailhouse informant could be used in a criminal trial. The California state lege approved such a measure last year, but Governor Schwartzenegger vetoed it - calling it "unnecessary" and a solution in search of a "perceived problem that arises in very few criminal cases."

The Blog of Independence appeals for a pardon for the “ACORN 4”

Todd (not a pseudonym) Elkins at The Blog for Independence has posted an impassioned appeal for pardoning the ACORN 4. I am proud to say that I was the first blogger to comment on his fine post, and I heartily second the motion.

He puts it very well – there is a place for Justice, yes. But sometimes Mercy is what is called for, and I think this is one of those times.

In the final analysis, what these people did was not a smart move – but they are not election-fixers. They were motivated by an $8.00 per hour wage, while canvassing door-to-door one scorching autumn afternoon. The odds that the actions of these four actually impacting the election is infinitesimally small. They did not file those registrations for the purpose of casting ballots – they filed them to make a living wage.

Todd makes the appeal much better than I can. Go visit his site and leave a comment of support. Turn his post into an online petition drive!

[Cross-posted from WTWC]

Now see, the U.S. attorney thing was - IS - a big deal...

There are a few sites I haven’t been visiting lately because I was more than a little put-off by the blasé attitude of the site-owners toward the U.S. Attorney purge. When I ran up against posts that had a "who cares?" tone, my answer was "I do!" and I left. For the most part, I haven't been back to those sites. I don't seek out aggravation and annoyances. I'll venture back eventually. maybe once Gonzo is, well, gonzo...

Here is the thing about the Purge: It is a big deal. It always was a big deal. That it wasn’t a big deal to some people – people who I had always thought to be dedicated to the Constitution and the rule of law – just left a sick feeling in the pit of my stomach.

I could not – can not – understand how anyone can just accept turning the Department of Justice into the department of “Just Us.” There is too much at stake. The very lynchpin of our Republic is in peril.

That is a big deal. Probably the biggest deal of my lifetime.

A big deal that is getting bigger.

The White House acknowledged yesterday that e-mails dealing with official government business may have been lost because they were improperly sent through private accounts intended to be used for political activities. Democrats have been seeking such missives as part of an investigation into the firing of eight U.S. attorneys.

Administration officials said they could offer no estimate of how many e-mails were lost but indicated that some may involve messages from White House senior adviser Karl Rove, whose role in the firings has been under scrutiny by congressional Democrats.

A lot of White House staffers it seems have violated the Presidential Records Act by using those outside email accounts. (Those accounts are for political correspondence. Anyone else get an Irony Alert?) Not only did they circumvent the PRA, they also used those unofficial email accounts to discuss the political purge of the eight United States attorneys.

The nongovernmental accounts were accidentally discovered by Democrats when the Justice Department released hundreds of documents related to the prosecutor firings.

One exchange showed deputy White House political director J. Scott Jennings sending an e-mail titled "USATTY" to Attorney General Alberto Gonzales' then-chief of staff, Kyle Sampson, from an address with a gwb43.com domain name.

"Does a list of all vacant, or about to be vacant, US Attorney slots exist anywhere?" Jennings wrote on Dec. 3 from his political account. Replied Sampson, a few minutes later: "My office. Want me to send to you tomorrow?"

Jennings had also communicated with Sampson and other Justice Department officials in August from his RNC-supplied address about how to install the administration's preferred replacement, onetime Rove aide Tim Griffin, for Arkansas U.S. Attorney Bud Cummins.

In one, Jennings passed on a strategy he said was suggested by Cummins, to have Griffin come on as an attorney in the Little Rock office until Cummins finalized his post-government plans. Jennings said the plan would "alleviate pressure/implication that Tim forced Bud out."

I have taken a few moments and communicated my concerns to both of my Senators, my Congressman and Representative Waxman’s Oversight Committee (contact information for every federal elected official is available in the left-hand sidebar – utilize it). It would probably be a pretty good idea if you did so too.

GUILTY ON FOUR COUNTS

Justice isn't dead. In fact, she seems to be responding remarkably well to therapy.

It isn't okay to out a CIA agent for political purposes, because you have been caught fixing *facts* and called on it.

It isn't okay to subvert justice and - let's call a spade a spade here - commit treason just to make some political hay.

Get it now?

Libby is guilty on four counts, and the Associate United States Attorney's who were fired for political reasons are pushing back. Hard. And good for them.

The Walter Reed scandal grows daily. And the squalor is not the worst of it. The neglect is the scandal.

The wheels are coming off the bus. It is obvious to all except the most willfully ignorant in our midst that the man in the oval office is not fit to live among us, and neither are his cronies.

The Bush administration is the gravest threat to the American way of life - to America herself - that has ever been faced in our history.

Can we get our impeachment on yet?