JUDGES AND THE POLITICS OF DEATH:
DECIDING BETWEEN THE BILL OF RIGHTS
AND THE NEXT ELECTION IN CAPITAL CASES
Stephen B. Bright1
Patrick J. Keenan2
Volume 73 Boston University Law Review Page 759

(May 1995)

Copyright (c) 1995 Trustees of Boston
University; Stephen B. Bright, Patrick J. Keenan
Outline of Article
I. Crime in Politics and the
Death Penalty in the Politics of Crime
II.

The Politics of Becoming and Staying a Judge

A.

Judges Face Election in Most States That Employ the Death
Penalty

B.

Prosecuting Capital Cases as a Stepping Stone to the
Bench

C.

The Death Penalty's Prominence
Retention, and Promotion of Judges
III.

A.

in

the

Election,

The Impact on the Impartiality of Judges

Overrides of Jury Sentences

B.

Failure to Protect the Constitutional Rights of the
Accused

C.

Appointment and Tolerance of Incompetent Counsel for
Indigent Persons

D.

Delegating the Judicial Function to the Prosecutor

E.

Judges Acting as Prosecutors

1

Director, Southern Center for Human Rights, Atlanta, GA;
Visiting Lecturer in Law, Harvard and Yale Law Schools; B.A. 1971,
J.D. 1975, University of Kentucky. This Article draws upon the
author's experiences in representing persons facing the death
penalty at trials, on appeals, and in postconviction proceedings,
and consulting with lawyers throughout the country on capital
cases since 1979.
2

B.A. 1989, Tufts University; J.D. 1995, Yale Law School.

Page 1

IV.
A.
B.
C.
D.
E.

Remedies for the Resulting Lack of Impartiality

Using Diffuse and Indirect Citizen Input in Appointment
and Evaluation Systems
Judicial
Election

Disqualification

When

Rulings

Could

Imperil

Altering Judicial Assignment Systems
Limiting the Deference Reviewing Courts Give to Judges
Influenced by Political Pressures
The Appointment of Counsel Independent of Judges

The "higher authority" to whom present-day capital
judges may be "too responsive" is a political climate
in which judges who covet higher office ¶ or who merely
wish to remain judges ¶ must constantly profess their
fealty to the death penalty . . . .
The danger that
they will bend to political pressures when pronouncing
sentence in highly publicized capital cases is the same
danger confronted by judges beholden to King George
III.
- Justice John Paul Stevens, dissenting in Harris
v. Alabama3
The thunderous voice of the present-day "higher authority"
that Justice Stevens described is heard today with unmistakable
clarity in the courts throughout the United States. Those judges
who do not listen and bend to political pressures may lose their
positions on the bench.
Decisions in capital cases have increasingly become campaign
fodder in both judicial and nonjudicial elections. The focus in
these campaigns has been almost entirely on the gruesome facts of
particular murders, not the reason for the judicial decisions.
Judges have come under attack and have been removed from the bench
for their decisions in capital cases -- with perhaps the most
notable examples in states with some of the largest death rows and
where the death penalty has been a dominant political issue.
Recent challenges to state court judges in both direct and
retention elections have made it clear that unpopular decisions in
capital cases, even when clearly compelled by law, may cost a
judge her seat on the bench, or promotion to a higher court. This
3

115 S. Ct. 1031, 1039 (1995) (Stevens, J., dissenting)
(quoting Duncan v. Louisiana, 391 U.S. 145, 156 (1968)).
Page 2

raises serious questions about the independence and integrity of
the judiciary and the ability of judges to enforce the Bill of
Rights and otherwise be fair and impartial in capital cases.
California has the largest death row of any state in the
nation.4 In 1986, Governor George Deukmejian publicly warned two
justices of the state's supreme court that he would oppose them in
their retention elections unless they voted to uphold more death
sentences.5
He had already announced his opposition to Chief
Justice Rose Bird because of her votes in capital cases.6
Apparently unsatisfied with the subsequent votes of the other two
justices, the governor carried out his threat.7 He opposed the
retention of all three justices and all lost their seats after a
campaign dominated by the death penalty.8 Deukmejian appointed
their replacements in 1987.
The removal and replacement of the three justices has
affected every capital case the court has subsequently reviewed,
resulting in a dramatic change. In the last five years, the Court
has affirmed nearly 97% of the capital cases it has reviewed, one
of the highest rates in the nation.9 A law professor who watches
4

NAACP Legal Defense & Educ. Fund, Inc., Death Row, USA 13
(Spring 1995) (fact sheet on file with the Boston University Law
Review) [hereinafter Death Row, USA] (cataloguing the 407 persons
on California's death row as of April 30, 1995).
5

Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron.,
Mar. 14, 1986, at 1.
6

Leo C. Wolinsky, Governor's Support for 2 Justices Tied to
Death Penalty Votes, L.A. Times , Mar. 14, 1986, at 3.
7

Henry Unger, Will Vote Against Grodin, Reynoso, Deukmejian
Says, L.A. Daily J. , Aug. 26, 1986, at 1.
8

Frank Clifford, Voters Repudiate 3 of Court's Liberal
Justices, L.A. Times , Nov. 5, 1986, pt. 1, at 1 (describing how
Rose Bird's "box score" of 61 reversal votes in 61 capital cases
became a "constant refrain of the campaign against her," and how
campaign commercials against the other two justices in the last
month of the race insisted "that all three justices needed to lose
if the death penalty is to be enforced"); see also Philip Hager,
Grodin Says He Was "Caught" in Deukmajian's Anti-Bird Tide, L.A.
Times , Nov. 13, 1986, pt. 1, at 3 (quoting defeated Justice
Joseph R. Grodin saying that he was defeated in a "tide of
opposition to the chief justice and frustration over the death
penalty").
9

Maura Dolan, State High Court Is Strong Enforcer of Death
Penalty, L.A. Times, Apr. 9, 1995, at A1 [hereinafter Dolan, State
Page 3

the court observed, "One thing it shows is that when the voters
speak loudly enough, even the judiciary listens."10 The once highly
regarded court now distinguishes itself primarily by its readiness
to find trial court error harmless in capital cases.
The new
court has "reversed every premise underlying the Bird Court's
harmless error analysis," displaying an eagerness that reflects
"jurisprudential theory" less than a "desire to carry out the
death penalty."11
The voice of "higher authority" has also been heard and felt
in Texas, which has the nation's second largest death row.12 After
a decision by the state's highest criminal court, the Court of
Criminal Appeals, reversing the conviction in a particularly
notorious capital case, a former chairman of the state Republican
Party called for Republicans to take over the court in the 1994
election.13 The voters responded to the call.
Republicans won
every position they sought on the court.14
One of the Republicans elected to the court was Stephen W.
Mansfield, who had been a member of the Texas bar only two years,
but campaigned for the court on promises of the death penalty for
killers, greater use of the harmless-error doctrine, and sanctions
for attorneys who file "frivolous appeals especially in death
penalty cases."15 Even before the election it came to light that
High Court Is Strong Enforcer of Death Penalty]; see also Maura
Dolan, State High Court Steering a Pragmatic Legal Course, L.A.
Times , Sept. 8, 1993, at A5 (describing the court's high rate of
death-sentence affirmation in mandatory review cases).
10

Dolan, State High Court Is Strong Enforcer of Death Penalty,
supra note 7, at A1 (quoting Professor Clark Kelso).
11

Elliot C. Kessler, Death and Harmlessness: Application of the
Harmless Error Rule by the Bird and Lucas Courts in Death Penalty
Cases -- A Comparison & Critique, 26 U.S.F. L. Rev. 41, 85, 89
(1991).
12

Death Row, U.S.A., supra note 2, at 9, 36 (stating that
Texas had carried out 93 executions between the reinstatement of
capital punishment in 1976 and April 30, 1995, and that 398 people
remained on death row awaiting execution).
13

Janet
Candidate;
at 1, 32.
Crim. App.

Elliott & Richard Connelly, Mansfield: The Stealth
His Past Isn't What It Seems, Tex. Law. , Oct. 3, 1994,
The case was Rodriguez v. State, 848 S.W.2d 141 (Tex.
1993).

14

John Williams, Election '94: GOP Gains Majority in State
Supreme Court, Houston Chron. , Nov. 10, 1994, at A29.
15

Elliott & Connelly, supra note 11, at 32.

Page 4

Mansfield had misrepresented his prior background, experience, and
record,16 that he had been fined for practicing law without a
license in Florida,17 and that -- contrary to his assertions that
he had experience in criminal cases and had "written extensively
on criminal and civil justice issues" -- he had virtually no
experience in criminal law and his writing in the area of criminal
law consisted of a guest column in a local newspaper criticizing
the same decision that prompted the former Republican chairman to
call for a takeover of the court.18 Nevertheless, Mansfield
defeated the incumbent judge, a conservative former prosecutor who
had served twelve years on the court and was supported by both
sides of the criminal bar.19 Mansfield was sworn in to office for a
six-year term in January 1995.20 Among his responsibilities will be
16

Id. Before the election, Mansfield admitted lying about his
birthplace (he claimed to be born in Texas, but was born in
Massachusetts), the amount of time he had spent in Texas, and his
prior political experience. Id.; Jane Elliott, Unqualified
Success: Mansfield's Mandate; Vote Makes a Case for Merit
Selection, Tex. Law. , Nov. 14, 1994, at 1 (reporting that
Mansfield was unable to verify campaign claims regarding the
number of criminal cases he had handled and had portrayed himself
as a political novice despite having twice unsuccessfully run for
Congress); see also Do It Now, Ft. Worth Star-Telegram , Nov. 12,
1994, at 32 (editorial calling for reform of the judicial
selection system in Texas and for an immediate challenge to
Mansfield's election because he had "shaded the truth of virtually
every aspect of his career"); Q & A with Stephen Mansfield; 'The
Greatest Challenge of My Life,' Tex. Law. , Nov. 21, 1994, at 8
(printing a post-election interview with Mansfield in which he
"retracts" a number of statements made before and during the
interview). Also discovered after the election was Mansfield's
failure to report $10,000 in past-due child support when he
applied for his Texas law license in 1992. Child Support
Allegations Threaten Judge Seat, Ft. Worth Star-Telegram , Dec.
10, 1994, at 29.
17

Williams, supra note 12, at A29.

18

Elliott & Connelly, supra note 11, at 32.
the support of victims' rights groups. Id.

Mansfield received

19

Elliott, supra note 14, at 1. Mansfield won 54% of the vote
in the general election; his opponent, Judge Charles F. Campbell,
received 46%. Id. Mansfield had previously won the Republican
nomination for the seat, winning 67% of the primary vote in
defeating John Cossum, a former state and federal prosecutor who
was working as a criminal defense lawyer in Houston. Elliott &
Connelly, supra note 11, at 32.
20

Robert Elder, Jr., The Conservative Era Begins: Mansfield,
Keller, Owen Join High Courts, Tex. Law. , Jan. 9, 1995, at 1.
Page 5

the review of every capital case coming before the court on direct
appeal and in postconviction review.
The single county in America responsible for the most death
sentences and executions is Harris County, Texas, which includes
Houston.21 Judge Norman E. Lanford, a Republican, was voted off the
state district court in Houston in 1992 after he recommended in
postconviction proceedings that a death sentence be set aside due
to prosecutorial misconduct, and directed an acquittal in another
murder case due to constitutional violations.22 A prosecutor who
specialized in death cases, Caprice Cosper, defeated Judge Lanford
in the Republican primary.23 Lanford accused District Attorney John
B. Holmes of causing congestion of Lanford's docket to help bring
about his defeat.24 In the November election, Cosper was elected
21

By the end of February 1995, 37 persons sentenced to death in
Harris County had been executed. Tamar Lewin, Who Decides Who
Will Die? Even Within States It Varies, N.Y. Times , Feb. 23,
1995, at A1, A13. Another 114 persons sentenced to death in
Harris County are awaiting execution on Texas' death row. Barry
Sclachter, Texas' Execution Record Defies Sole Answer, Ft. Worth
Star-Telegram , Feb. 12, 1995, at A10 ("Death sentences from
courts in Houston's county, Harris, alone have accounted for more
executions than the second-ranking state, Florida. It now has 114
inmates on death row."). Only 11 states besides Texas have over
100 persons under death sentence. Death Row, U.S.A., supra note
2, at 10 - 41.
22

Lanford became the center of controversy after he ruled that
there had been an illegal arrest and ordered the acquittal of a
man accused of killing a police officer. Barbara Linkin,
Controversial Judge Lanford to Leave Bench, Houston Post , June
13, 1992, at A-25. Lanford was also criticized for sentencing a
man convicted of child abuse to "10 years deferred adjudication."
Critics said that Lanford should have sentenced the man more
severely, but Lanford stated that the sentence was the result of a
plea bargain that the prosecutor had developed. Network
Affiliates Feature Bush Interview, Houston Post , Mar. 10, 1992,
at A-13.
23

Criminal Court Races Northcutt, Cosper, 4 Incumbents Deserve
to Win, Houston Post , Oct. 24, 1992, at A-28; District Judge,
Criminal Courts, Houston Chron. , Oct. 25, 1992, at 11. Cosper
was Harris County's chief appellate prosecutor in postconviction
capital litigation prior to running for judge.
24

The Texas Lawyer reported that "[c]ourthouse records, which
show a dramatic increase in the number of cases on Lanford's
docket in the months prior to the March 10 primary, lend credence
to his claim that prosecutors stalled cases in a calculated effort
to provide ammunition for the judge's opponent." Mark Ballard,
Gunning for a Judge; Houston's Lanford Blames DA's Office for His
Downfall, Tex. Law. , Apr. 13, 1992, at 1.
Page 6

after a campaign in which radio advertisements on her behalf
attacked her Democratic opponent for having once opposed the death
penalty.25
Judges in other states have had similar campaigns waged
against them. Justice James Robertson was voted off the
Mississippi Supreme Court in 1992. His opponent in the Democratic
primary ran as a "law and order candidate" with the support of the
Mississippi Prosecutors Association.26 Among the decisions for
which Robertson's opponent attacked him was a concurring opinion
expressing the view that the Constitution did not permit the death
penalty for rape where there was no loss of life.27 Robertson's
opponent exploited the opinion even though the U.S. Supreme Court
had held ten years earlier that the Eighth Amendment did not
permit the death penalty in such cases.28 Opponents also attacked
Robertson for his dissenting opinions in two cases that the U.S.
Supreme Court later reversed.29
25

Alan Bernstein, Campaign Briefs, Houston Chron. , Oct. 26,
1992, at A14.
26

David W. Case, In Search of an Independent Judiciary:
Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L.
Rev. 1, 15 -20 (1992); Death Penalty Caused Judge's Fall, Critics
Say, Greenwood Commonwealth (Miss.), Mar. 13, 1992, at 3;
Incumbent Robertson Defeated, Greenwood Commonwealth (Miss.), Mar.
11, 1992, at 1; Carole Lawes & Beverly Kraft, High Court Judge
Coddled Criminals, Critics Say, Clarion-Ledger (Jackson, Miss.),
Mar. 13, 1992, at 1B. The resolution of the prosecutors
association asserted that Robertson's opponent "best represents
the views of the law abiding citizens" and "will give the crime
victims and the good, honest and law abiding people of this state
a hearing that is at least as fair as that of the criminal in
child abuse, death penalty, and other serious criminal cases."
Case, supra, at 16 n.108.
27

Court's Ruling Morally Repugnant, Clarion-Ledger (Jackson,
Miss.), July 2, 1989, reprinted in On March 10, Vote for Judge
James L. Roberts, Jr. for the Mississippi Supreme Court, N.E.
Miss. Daily J. , Mar. 7, 1992, Campaign Supp. at 6. The case was
Leatherwood v. State, 548 So. 2d 389, 403 - 06 (Miss. 1989)
(Robertson, J., concurring) (expressing the view that there was
"as much chance of the Supreme Court sanctioning death as a
penalty for any non-fatal rape as the proverbial snowball enjoys
in the nether regions").
28

29

Coker v. Georgia, 433 U.S. 584 (1977).

Case, supra note 24; see Minnick v. State, 551 So. 2d 77, 101
(Miss. 1988) (Robertson, J., dissenting), rev'd sub nom. Minnick
v. Mississippi, 498 U.S. 146 (1990); Clemons v. State, 535 So. 2d
1354, 1367 (Miss. 1988) (Robertson, J. dissenting), rev'd sub nom.
Clemons v. Mississippi, 494 U.S. 738 (1990). Robertson's views
Page 7

Robertson was the second justice to be voted off the court in
two years for being "soft on crime."
Joel Blass, whom the
Governor had appointed to fill an unexpired term on the court, was
defeated in 1990 for a full term by a candidate who promised to be
a "tough judge for tough times" and to put criminals behind bars,
and whom, like Justice Robertson's opponent, the Mississippi
Prosecutors Association had endorsed.30 Justice Blass expressed
concern during the campaign that his opponent was misleading the
public, explaining: "Neither a Supreme Court judge nor the whole
court can send a person to prison." 31
The voice of "higher authority"
direct, but equally compelling ways.
in his dissent in Harris v. Alabama,
States Senate have "made the death
judicial confirmation hearings" for
bench.32 Several challengers for Senate
"routinely savaged their incumbent
federal judicial nominees perceived
punishment."33

can also be heard in less
As Justice Stevens observed
some members of the United
penalty a litmus test in
nominees to the federal
seats in the 1994 elections
opponents for supporting
to be 'soft' on capital

were distorted in the campaign. Although in his dissenting
opinion in Clemons Robertson had expressed the view that the trial
court's instruction on the "heinous, atrocious or cruel"
aggravating factor was unconstitutionally vague, id. at 1367- 68
(Robertson, J., dissenting), a circular distributed during the
campaign described his decision as "believing a defendant who
'shot an unarmed pizza delivery boy in cold- blood' had not
committed a crime serious enough to warrant the death penalty."
Case, supra note 24, at 18.
30

Tammie Cessna Langford, Two Vying for State's High Court, Sun
Herald (Biloxi, Miss.), June 3, 1990, at B-1.
31

Id. at B-5. Blass also raised the question of whether his
opponent violated the canons of judicial ethics by promising to be
tough on criminals. "The Supreme Court has the constitutional duty
to see to it that every defendant gets a fair trial. It is not a
question of guilt or innocence at that point, but a question of
due process," Blass said. Id. Blass was handily defeated by an
opponent who was not so constrained in his comments and who spent
$114,913, compared to Blass's $48,533, in campaigning for a
position that pays only $75,800 per year. Id.; see also Andy
Kanenglser, McRae Overwhelms Justice Joel Blass, Clarion-Ledger
(Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford,
McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at
A-1.
32

Harris v. Alabama, 115 S. Ct. 1031, 1039 n.5 (1995)
(dissenting opinion).
33

Id.; see also Neal A. Lewis, GOP to Challenge Judicial
Page 8

It is becoming increasingly apparent that these political
pressures have a significant impact on the fairness and integrity
of capital trials.
When presiding over a highly publicized
capital case, a judge who declines to hand down a sentence of
death, or who insists on upholding the Bill of Rights, may thereby
sign his own political death warrant.34 In such circumstances,
state court judges who desire to remain in office are no more able
to protect the rights of an accused in a criminal case than
elected judges have been to protect the civil rights of racial
minorities against majority sentiment.35 As Justice Stevens
observed, "Not surprisingly, given the political pressures they
face, judges are far more likely than juries to impose the death
penalty."36 In the three states that permit elected judges to
override jury sentences in capital cases,37 judges override jury
Nominees Who Oppose Death Penalty, N.Y. Times , Oct. 15, 1993, at
A26 ("Senate Republicans have given notice that they will
challenge any ... judicial nominees they consider insufficiently
committed to the death penalty.").
34

A classic example was provided in the case of the "Scottsboro
Boys," the African-American youths sentenced to death for rape in
Scottsboro, Alabama, whose convictions and sentences were twice
reversed by the U.S. Supreme Court. Norris v. Alabama, 294 U.S.
287 (1935) (reversing because of racial discrimination in jury
selection); Powell v. Alabama, 287 U.S. 32 (1932) (reversing
because of denial of counsel to the accused). Alabama Circuit
Judge James Edwin Horton granted the defendants a new trial in
1933 and was voted out of office the next year, ending his
judicial and political career. Dan T. Carter, Scottsboro: A
Tragedy of the American South 265 -73 (rev. ed. 1992). Horton had
encountered no opposition when he ran for the judgeship four years
earlier. Id. at 273. In the same election that saw Judge Horton
voted out of office, the state's attorney general, who had
personally prosecuted the Scottsboro defendants, was elected
lieutenant governor. Id.
35

See, e.g., Jack Bass, Taming the Storm; The Life and Times of
Judge Frank M. Johnson, Jr. and the South's Fight over Civil
Rights 159 - 60 (1993) (describing the necessity for federal court
intervention in civil rights cases because of the failure of
elected state court judges to enforce constitutional guarantees).
36

37

Harris, 115 S. Ct. at 1040 (Stevens, J., dissenting).

The judge has the power to override the jury's decision on
whether to impose the death penalty in Alabama, Delaware, Florida,
and Indiana. Id. at 1038. Judges do not stand for election in
Delaware. Del. Const. art. IV., s 3. In Harris, the Supreme
Court, over the sole dissent of Justice Stevens, upheld Alabama's
practice of allowing judges to override jury decisions on
sentence. The Court had previously upheld judge overrides of jury
Page 9

sentences of life imprisonment and impose death far more often
than they override death sentences and impose life imprisonment.38
Judges have also failed to enforce constitutional guarantees of
fairness.
It has been observed that "[t] he more susceptible
judges are to political challenge, the less likely they are to
reverse a death penalty judgment."39 Affirmance rates over a
ten-year period suggest that "[n]ationally there is a close
correlation between the method of selection of a state supreme
court and that court's affirmance rate in death penalty appeals."40
Even greater pressure exists at the local level.
Elected trial
judges are under considerable pressure not to suppress evidence,
grant a change of venue, or protect other constitutional rights of
the accused. An indigent defendant may face the death penalty at
trial without one of the most fundamental protections of the
Constitution, a competent lawyer, because judges frequently
appoint inexperienced, uncaring, incompetent, or inadequately
compensated attorneys.41 State trial court judges in many states
routinely dispose of complex legal and factual issues in capital
postconviction proceedings by adopting "orders" ghostwritten by
state attorneys general -- orders that make no pretense of fairly
resolving the issues before the court.
This Article examines the influence of the politics of crime
on judicial behavior in capital cases. A fair and impartial judge
is essential in any proceeding, but perhaps nowhere more so than
in
capital
cases,
where
race,42
poverty,43
inadequate
recommendations of sentence in Spaziano v. Florida, 468 U.S. 447
(1984). The jury's sentence is final in 29 states. Harris, 115 S.
Ct. at 1038. In four other death-penalty states, the jury plays
no role in the sentencing decision. Id.
38

Lisa Stansky, Elected Judges Favor Death Penalty, Fulton
County Daily Rep. (Ga.), Nov. 24, 1989, at 11 (quoting Dean Gerald
Uelman of Santa Clara University Law School, who has studied the
relation between methods of selection and judicial behavior).
39

Lisa Stansky, Elected Judges Favor Death Penalty, Fulton
County Daily Rep. (Ga.), Nov. 24, 1989, at 11 (quoting Dean Gerald
Uelman of Santa Clara University Law School, who has studied the
relation between methods of selection and judicial behavior).
40

Gerald Uelmen, Elected Judiciary, in Encyclopedia of the
American Constitution 170 -71 (Leonard W. Levy et al. eds., Supp.
I 1992).
41

See Stephen B. Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime but for the Worst Lawyer, 103
Yale L.J. 1835 (1994). For a description of the failure of judges
to discharge their constitutional responsibility to protect the
Sixth Amendment right to counsel, see id. at 1855 -57.
42

See U.S. GAO , Death Penalty Sentencing: Research Indicates
Page 10

court-appointed counsel,44 and popular passions45 can influence the
Pattern of Racial Disparities 5 (1990) (analyzing 28 studies of
capital sentencing and finding a "remarkably consistent" pattern
of racial disparities); see also David C. Baldus et al. , Equal
Justice and the Death Penalty 3 (1990) (describing a study of
capital sentencing in Georgia that found that the "worst
offenders" are not always those executed, that many of the
executed died for crimes that were not "among the most aggravated
and therefore the most blameworthy cases," and that race is at
least part of the explanation for this discrepancy); Samuel R.
Gross & Robert Mauro , Death & Discrimination: Racial Disparities
in Capital Sentencing 212 (1989) (concluding that "de facto racial
discrimination in capital sentencing is legal in the United
States").
43

Poor defendants are frequently assigned lawyers who are not
provided funds for expert or investigative assistance. See, e.g.,
Firsthand Accounts of Capital Justice, Nat'l L.J. , June 11, 1990,
at 40 (relating that 54.2% of capital trial lawyers surveyed felt
that courts provided inadequate funds for investigation and
experts, and quoting one Louisiana appointed counsel's complaint
that "[i]t was a waste of time to ask the court for funds. I knew
the bastards."); Fredric N. Tulsky, Poor Defendants Pay the Cost
as Courts Save on Murder Trials, Phila. Inquirer , Sept. 13, 1992,
at A1, A18 (reporting that in 20 capital cases in Philadelphia in
1991 and 1992 the court paid for investigators in only eight,
spending an average of $605 in each, and provided funds for
experts, both psychologists, in only two cases, costing $400 in
one case, $500 in the other); see also Joseph W. Bellacosa,
Ethical Impulses from the Death Penalty: "Old Sparky's" Jolt to
the Legal Process, 14 Pace L. Rev. 1, 13 -16 (1994) (discussing
the limits on fees for attorneys, investigation, and experts in
capital cases); Jeff Rosenzweig, The Crisis in Indigent Defense:
An Arkansas Commentary, 44 Ark. L. Rev. 409, 410 (1991)
(describing the denial of resources for expert and investigative
assistance in capital cases in Arkansas). Class considerations
may also come into play in the admission of victim-impact
evidence. As one judge has noted:
Not only does the admission of Victim Impact Statements
create two classes of defendants, those who kill worthy members of
society and those who kill less worthy citizens, it necessarily
creates classes of victims: those whose lives were so worthwhile
that their killer should be put to death, and those whose lives
are so worthless that their killer should only receive a sentence
that will put them back into society in less than ten years.
Livingston v. State, 444 S.E.2d 748, 760 (Ga. 1994) (Benham, P.J.,
dissenting).
44

Bright, supra note 39, at 1841- 66; see also American Bar
Ass'n, Toward a More Just and Effective System of Review in State
Death Penalty Cases, 40 Am. U. L. Rev. 1, 16 (1990) (finding that
"the inadequacy and inadequate compensation of counsel at trial"
Page 11

extermination of a human life.
The legal system indulges the
presumption that judges are impartial.
The Supreme Court has
steadily reduced the availability of habeas corpus review of
capital convictions,46 placing its confidence in the notion that
are among the "principal failings of the capital punishment review
process today").
45

The Mississippi Supreme Court, while expressing the hope that
"the days of lynch mobs are past," has observed "that the emotions
which compelled our forbears to such violence endure." Johnson v.
State, 476 So. 2d 1195, 1214 (Miss. 1985). For other examples of
the emotions that often accompany a capital trial, see Coleman v.
Kemp, 778 F.2d 1487, 1489 -1537 (11th Cir. 1985) (describing the
pretrial publicity of six murders and the reaction of the
community, including the testimony of one juror that community
sentiment was "fry 'em, electrocute 'em"); cert. denied, 476 U.S.
1164 (1986); Messer v. Kemp, 760 F.2d 1080, 1086 - 88 (11th Cir.
1985) (relating that the father of a murder victim lunged toward
the defendant during a trial in the presence of the jury screaming
and shouting "He'll pay! You're liable!"), cert. denied, 474 U.S.
1088 (1986); Angry Fathers Confront Gang Who Killed Their
Daughters, Legal Intelligencer , Oct. 13, 1994, at 4 (relating how
victims' fathers berated gang members, convicted of murder and
rape, during the capital sentencing phase of a trial, saying among
other things: "You are worse than spit. You belong in hell.");
Ex-Rosewell Woman's Killer Gets Life, Atlanta Const. , May 9,
1995, at C6 (describing the in-court attack by a victim's father
after a defendant received a life sentence for murder and rape;
the father attempted to strangle the defendant before four
deputies pulled him off); Steve McVicker, The Last Word: Judge
Bill "Roy Bean" Harmon Grandstands at a Murder Trial -- Again,
Houston Press , Feb. 17-23, 1994, at 4 (reporting that a victim's
father was allowed to yell obscenities at the defendant in the
presence of jurors and the press); Don Plummer, Slain Cop's
Father: 'All I Can Do Is Cry', Atlanta Const. , Nov. 8, 1994, at
B1 (describing the testimony and tears of co-workers and relatives
of a murder victim during the presentation of victim-impact
testimony at the sentencing stage of a capital trial).
46

The Court has limited the availability of the writ to
vindicate constitutional rights by: adopting strict rules of
procedural default, see, e.g. , Smith v. Murray, 477 U.S. 527, 533
-36 (1986), Engle v. Isaacs, 456 U.S. 107, 130 -34 (1982),
Wainwright v. Sykes, 433 U.S. 72, 88 - 91 (1977), and Timothy J.
Foley, The New Arbitrariness: Procedural Default of Federal Habeas
Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989);
excluding most Fourth Amendment claims from habeas corpus review,
Stone v. Powell, 428 U.S. 465 (1976); requiring deference to
factfinding by state court judges, see, e.g. , Sumner v. Mata, 499
U.S. 539 (1981), and Patton v. Yount, 467 U.S. 1025 (1984); making
it more difficult for petitioners to obtain an evidentiary hearing
to prove a constitutional violation, Keeney v. Tamayo-Reyes, 504
Page 12

state judges, who take the same oath as federal judges to uphold
the Constitution, can be trusted to enforce it.47 This confidence,
U.S. 1 (1992); adopting an extremely restrictive doctrine
regarding the retroactivity of constitutional law, Teague v. Lane,
489 U.S. 288 (1989), and James S. Liebman, More than "Slightly
Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction
in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991);
reducing the harmless error standard for constitutional violations
recognized in federal habeas review, Brecht v. Abrahamson, 113 S.
Ct. 1710 (1993); and restricting when a constitutional violation
may be raised in a second habeas petition, McCleskey v. Zant, 499
U.S. 467 (1991). See generally Louis D. Bilionis, Legitimating
Death, 91 Mich. L. Rev. 1643, 1650 (1993) ("A strong theme[ ],
embraced by a consistent and substantial majority of the Justices
... [is] sharply reducing the involvement of the federal judiciary
in the day-to-day business of reviewing capital cases"); Jordan
Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303, 303 04 (1993). Pending antiterrorism legislation includes even
further restrictions of habeas corpus. The Comprehensive
Terrorism Prevention Act of 1995, S. 735, 104th Cong., 1st Sess.,
141 Cong. Rec. S7857 (daily ed. June 7, 1995), requires deference
by federal courts to decisions of state courts unless the decision
is "contrary to, or involved an unreasonable application of,
clearly established Federal law," id. s 604(3), establishes a
statute of limitation for the filing of habeas corpus petitions,
id. s 601, further restricts when a federal court may conduct an
evidentiary hearing, id. s 604(4), and adds new barriers to
hearing a successive habeas corpus petition, id. s 605. See David
Cole, Destruction of the Habeas Safety Net, Legal Times , June 19,
1995, at 30.
47

See, e.g., Brecht, 113 S. Ct. at 1721 (rejecting the argument
that a less demanding harmless-error standard in federal habeas
review will result in the state courts refusing to find error
harmless, unless litigants showed "affirmative evidence that
state-court judges are ignoring their oath"); Sumner , 449 U.S. at
549 (expressing the view that deference to state court factfinding
is appropriate because "[s]tate judges as well as federal judges
swear allegiance to the Constitution of the United States, and
there is no reason to think that because of their frequent
differences of opinions as to how that document should be
interpreted, all are not doing their mortal best to discharge
their oath of office"); see also Rose v. Lundy, 455 U.S. 509, 515
(1982) (requiring dismissal of a habeas corpus petition containing
both exhausted and unexhausted claims and quoting Ex parte Royall,
117 U.S. 241 (1886): "State courts are 'equally bound to guard and
protect rights secured by the Constitution.' "); Duckworth v.
Serrano, 454 U.S. 1, 4 (1981) (relying upon and quoting Ex parte
Royall to recall the duty of both state and federal courts to
enforce the Constitution). But see Stone, 428 U.S. at 525
(Brennan, J., dissenting) (asserting that "[s]tate judges
popularly elected may have difficulty resisting popular pressures
Page 13

however, is frequently misplaced, given the overwhelming pressure
on elected state judges to heed, and perhaps even to lead, the
popular cries for the death of criminal defendants.
Part I of this Article briefly summarizes the increasing use
of the crime issue in local and national politics and the
extraordinary prominence of the death penalty as a litmus test for
politicians, including politicians who serve as judges, purporting
to be "tough" on crime. Part II examines the politics of becoming
and remaining a judge in such a climate. Part III assesses the
effect of this political climate on a judge's ability to preside
impartially over highly publicized capital cases.
Part IV
proposes some modest steps that might limit the influence of
politics and the passions of the moment on judicial behavior.
I. CRIME IN POLITICS AND
THE DEATH PENALTY IN THE POLITICS OF CRIME
During the Cold War, many politicians, seeking to avoid more
controversial and difficult issues, professed their opposition to
Communism. Because almost everyone aspiring to public office was
against Communism, politicians sought in various ways -- such as
support for loyalty oaths and investigation of unamerican
activities -- to demonstrate just how strongly they were opposed
to Communism.
Those who questioned the wisdom of such measures
were accused of not being sufficiently strident -- "soft" on
Communism.
Since the collapse of the Soviet Union and other Soviet-bloc
governments, crime has emerged as an issue that appears equally
one-sided.
No one is in favor of violent crime.
Politicians
demonstrate their toughness by supporting the death penalty,
longer prison sentences,48 and measures to make prison life even
not experienced by federal judges given lifetime tenure," and
calling for an assumption that there is "a general lack of
appropriate sensitivity to constitutional rights in the trial and
appellate courts of the several States").
48

See, e.g., Fox Butterfield, New Prisons Cast Shadow over
Higher Education, N.Y. Times , Apr. 12, 1995, at A21 (reporting on
California's plans to spend, for the first time, more on prisons
than for its two university systems -- because its prison
population grew from 23,511 to 126,140 in 15 years and the state
anticipated an even greater population due to the passage of a
"three strikes and you're out" law); William Claiborne, 'Three
Strikes' Tough on Courts Too, Wash. Post , Mar. 8, 1995, at A1
(describing the impact on judiciaries and prisons of new
California laws requiring twice the normal sentence for a person
convicted of a second felony, and 25 years to life for a third
felony); 25 Years for a Slice of Pizza, N.Y. Times , Mar. 5, 1995,
at 21 (relating that a 27-year-old man received a 25 -year
sentence under California's "three strikes and you're out" law for
stealing a slice of pizza).
Page 14

harsher than it is already.49 Those who question the wisdom, cost,
and effectiveness of such measures are branded "soft on crime."
Whether sound public policy emerges from such a discussion of
crime is a question to be addressed elsewhere.50 The emergence of
crime as a dominant political issue is, however, not only having
an impact on the behavior of politicians seeking positions in the
legislative and executive branches of government, but also on the
behavior of judges who are sworn to uphold the Constitution, a
document that protects the rights of those accused of even the
most serious crimes.
Even before the end of the Cold War, Richard Nixon
49

See, e.g., Rick Bragg, Chain Gangs to Return to Roads of
Alabama, N.Y. Times , Mar. 26, 1995, s 1, at 16 (reporting the
Alabama prison commissioner's purchase of 300 sets of leg irons,
at a cost of $17,000, to make Alabama the first state in the
nation to reinstitute chain gangs); Seth Mydans, Taking No
Prisoners, In Manner of Speaking, N.Y. Times , Mar. 4, 1995, at 6
(describing how a sheriff in Maricopa County, Arizona substituted
bologna sandwiches for hot lunches, discontinued all movies,
banned cigarettes and coffee, and housed some prisoners in tents);
Adam Nossiter, Making Hard Time Harder, States Cut Jail TV and
Sports, N.Y. Times , Sept. 17, 1994, at 1 (describing efforts to
take away television and exercise for prisoners in many states,
the Mississippi legislature's decision to clothe prisoners in
striped uniforms with the word "convict" emblazoned on the back,
and some Mississippi legislators' "talk of restoring fear to
prisons, of caning, of making prisoners 'smell like a prisoner'
"); David J. Rothman, The Crime of Punishment, N.Y. Rev. Books ,
Feb. 17, 1994, at 34, 34 -35, 37-38 (describing the severe
overcrowding in U.S. prisons, pseudo-military "boot camps" for
young offenders, and other aspects of the culture of punishment in
this country, where the rate of incarceration -- 455 per 100,000
-- is one of the highest in the world).
50

See David Von Drehle, Among the Lowest of the Dead: The
Culture of Death Row (1995) (describing Florida's experience with
its capital punishment statute enacted in 1973, the state's
inability to impose the death penalty consistently and swiftly,
and the burden the death penalty has placed on courts and other
institutions); Wendy Kaminer, It's All the Rage: Crime and Culture
(1995) (describing the gap between the crime debate in the United
States and what is needed to deal with the problem of violent
crime). See generally Rothman, supra note 47 (collecting
authority to question the wisdom of crime policies in the United
States).
For discussion of the wisdom of the "three strikes and you're
out" laws that have been passed in many states, see Joe D.
Whitley, 3 Strikes: More Harm than Good, Fed. Sent. Rep. ,
Sept./Oct. 1994, at 63, and Stephen R. Sady, The Armed Career
Criminal Act -- What's Wrong with "Three Strikes, You're Out?",
Fed. Sent. Rep. , Sept./Oct. 1994, at 69.
Page 15

demonstrated the potency of the crime issue by promising, in
campaign speeches and in his acceptance of the Republican
nomination for President in 1968, to replace Democrat Ramsey Clark
as Attorney General.51 Clark's defense of civil liberties and
procedural safeguards had led some, including Nixon, to denounce
him as "soft on crime."52 In 1988, Lee Atwater urged Republicans to
concentrate on the crime issue because "[a]lmost every candidate
running out there as a Democrat is opposed to the death penalty."53
George Bush was elected President that year with the help of
advertisements criticizing his opponent for allowing the furlough
of Willie Horton, who committed a rape in Maryland while on a
weekend furlough from a Massachusetts prison.54
As crime has become a more prominent issue in political
campaigns, the death penalty has become the ultimate vehicle for
politicians to demonstrate just how tough they are on crime.
During California's 1990 gubernatorial primary, an aide to one
Democratic candidate observed wistfully that the carrying out of
an execution would be a "coup" for her opponent, the state
attorney general.55 Candidates for governor of Texas in 1990 argued
51

Martin F. Nolan, In Riots' Political Fallout, Right May Gain
Might, Boston Globe , May 3, 1992, at 24 ("[Nixon] attacked
Johnson's liberal attorney gen- eral, Ramsey Clark, by promising
in every speech 'to appoint a new attorneygeneral' ....").
52

See, e.g., David Zucchino, Political Preoccupation with Crime
Isn't New, Dallas Morning News , Dec. 8, 1994, at 43A ("Nixon told
campaign crowds that crime was rising nine times faster than the
population. When ... Clark blurted out, accurately, that 'there
is no wave of crime in this country,' he became the laughingstock
of the campaign.").
53

John Harwood, Approving Atwater: GOP Committee Backs Its
Chairman, St. Petersburg Times , June 17, 1989, at 1A.
54

Stephen Engelberg, Bush, His Disavowed Backers and a Very
Potent Attack Ad, N.Y. Times , Nov. 3, 1988, at A1. See generally
Larry Martz et al., The Smear Campaign, Newsweek , Oct. 31, 1988,
at 16 (reporting on the general public dissatisfaction with the
tenor of the 1988 presidential campaign).
55

Michael Kroll, Death-Penalty Appeal in State's Governor Race,
Sacramento Bee , Oct. 30, 1989, at B13. The comment came after
the United States Court of Appeals for the Ninth Circuit upheld
the death sentence of Robert Alton Harris. An aide to Dianne
Feinstein (the latter was running against Attorney General John
Van de Kamp in the Democratic primary) said, "What a coup for John
[Van de Kamp] if Harris were executed in May just before the
primary .... I think Van de Kamp will welcome the execution." Van
de Kamp did not have the benefit of this hoped-for "coup";
California did not execute Harris until April 22, 1992. Katherine
Bishop, After Night of Court Battles, a California Execution, N.Y.
Times , Apr. 22, 1992, at A1.
Page 16

about which of them was responsible for the most executions and
who could do the best job in executing more people.56 One candidate
ran television advertisements in which he walked in front of
photographs of the men executed during his tenure as governor and
boasted that he had "made sure they received the ultimate penalty:
death."57 Another candidate ran advertisements taking credit for
thirty-two executions.58 In Florida, the incumbent gubernatorial
candidate ran television advertisements in 1990 showing the face
of serial killer Ted Bundy, who was executed during his tenure as
governor.
The governor stated that he had signed over ninety
death warrants in his four years in office.59
The death penalty has been a dominant political issue in
Florida for over fifteen years.
Bob Graham demonstrated in two
terms as governor and a successful race for the United States
Senate that, as one observer noted, "nothing [sells] on the
campaign trail like promises to speed up the death penalty."60
Graham's signing of death warrants enabled him to reinvent himself
as tough after being initially dubbed "Governor Jello."61 He
increased the number of warrants he signed when running for
reelection as governor in 1982 even though he knew they would not
be carried out,62 and again stepped up the number of warrants he
was signing each month when running for the Senate in 1986.63 One
56

See Michael Oreskes, Death Penalty Politics: Candidates Rush
to Embrace Execution, Courier-Journal (Louisville, Ky.), Apr. 8,
1990, at D1, D4.
57

Richard Cohen, Playing Politics with the Death Penalty, Wash.
Post , Mar. 20, 1990, at A19.
58

Id. (describing the Democratic primary campaign strategy of
state Attorney General Jim Mattox, and remarking that Mattox's
opponent -- then- Treasurer and later Governor Ann Richards,
herself a proponent of the death penalty -- may have found the
"nonlethal nature of her office" a disadvantage in the
competition).
59

Id. Bob Martinez proclaimed that Bundy and the other 89 had
each "committed a heinous crime that I don't want to choose to
describe to you [sic]." Id.
60

Von Drehle, supra note 48, at 325.

61

Id. at 268.

62

Id. at 200 - 01. Federal courts were granting automatic
stays of execution pending the decision of the U.S. Court of
Appeals on an issue that affected every capital case in Florida.
Id. at 200. One federal district court observed that the signing
of the warrants "ranges between legally unsound and futile," but
it had no effect on Graham. Id.
63

Id. at 293.
Page 17

assistant attorney general responsible for representing the state
in capital cases had to work so hard as a result of Graham's
warrant-issuing spree during his Senate campaign that the
prosecutor commented, "Nine months of Bob Graham running for the
Senate nearly killed me."64
Presidential candidate Bill Clinton demonstrated that he was
tough on crime in his 1992 campaign by scheduling the execution of
a brain-damaged man shortly before the New Hampshire primary.65
Clinton had embraced the death penalty in 1982 after his defeat in
a bid for reelection as governor of Arkansas in 1980.66 In his
presidential campaign ten years later, Clinton returned from New
Hampshire to preside over the execution of Rickey Ray Rector, an
African-American who had been sentenced to death by an all-white
jury.67 Rector had destroyed part of his brain when he turned his
gun on himself after killing the police officer for whose murder
he received the death sentence. Logs at the prison show that in
the days leading up to his execution, Rector was howling and
barking like a dog, dancing, singing, laughing inappropriately,
and saying that he was going to vote for Clinton.68 Clinton denied
clemency and allowed the execution to proceed, thereby protecting
himself from being labeled as "soft on crime" and helping the
Democrats to take back the crime issue.
Clinton's first three
television advertisements in his bid for reelection -- already
begun a year and a half before the 1996 presidential election -all focused on crime and Clinton's support to expand the death
penalty.69
64

Id.

65

Marshall Frady, Annals of Law and Politics: Death in
Arkansas, New Yorker, Feb. 22, 1993, at 105, 105.
66

George E. Jordan, Campaign 92: Clinton & Crime; Supports
Capital Punishment as Sign of Toughness, Newsday , May 4, 1992, at
3 (recounting Clinton's relatively liberal exercise of executive
clemency during his first term and his later transformation into a
death-penalty "hardliner"); Mark I. Pinsky, Will Clinton Again
Oppose Executions? Old Pal Says Maybe, L.A. Times , Jan. 31, 1995,
at A5 (describing Clinton's change from an opponent of the death
penalty to a supporter).
67

Frady, supra note 63, at 105, 115.

68

Id. at 105.

69

Todd S. Purdum, Clinton Gets Early Start on Ad Campaign
Trail, N.Y. Times , June 27, 1995, at A12 (describing $2.4 million
worth of television advertising by the Clinton campaign to be run
in two dozen markets nationwide in July 1995). In one
advertisement, a police officer says, "It's not about politics.
It's about a ban on deadly assault weapons. It's about a tough
new death penalty law. President Clinton is helping us make this
a safer nation." Id. In another advertisement, Clinton says,
Page 18

By 1994, crime had so eclipsed other issues that an official
of the National Governor's Association commented that the "top
three issues in gubernatorial campaigns this year are crime,
crime, and crime."70 Stark images of violence, flashing police
lights, and shackled prisoners dominated the campaign, and
candidates went to considerable lengths to emphasize their
enthusiasm for the death penalty and attack their opponents for
any perceived hesitancy to carry out executions swiftly.71 Even
after Texas carried out forty-five executions during Democrat Ann
Richards's four years as governor, George W. Bush attacked
Governor Richards during his successful 1994 campaign against her,
complaining that Texas should execute even more people, even more
quickly.72
Bush's
younger
brother
Jeb
ran
a
television
advertisement in his 1994 campaign for governor of Florida in
which the mother of a murder victim blamed incumbent Governor
Lawton Chiles for allowing the convicted killer to remain on death
"Deadly assault weapons off our streets. 100,000 more police on
the streets. Expand the death penalty. That's how we'll protect
America." Todd S. Purdum, The Ad Campaign, N.Y. Times , June 27,
1995, at A12; see also Elizabeth Kolbert, Clinton, Playing the
Early Bird, Is Lining Up Campaign-Style Ads, N.Y. Times , June 24,
1995, at 1 (describing as unprecedented Clinton's broadcasting of
the advertisements a year and half before the election).
70

Leslie Phillips, Crime Pays as a Political Issue, USA Today
, Oct. 10, 1994, at 11A; see also Mark Horvit & Ken Herman,
Politicians on Anti-Crime Bandwagon, Houston Post , Jan. 9, 1994,
at A-27 (reporting that candidates in the primary elections for
state and national office in Texas were "waging a sound-bite war
over who is the toughest crime-fighter among them"); Howard Kurtz,
In Political Ads Across the U.S., Crime Is the Weapon of Choice,
Wash. Post , Sept. 9, 1994, at A1, A4 (reporting that "[s]ix years
after George Bush's presidential campaign turned furloughed
murderer Willie Horton into a national symbol of Democratic
softheadedness, the spirit of Hortonism is thriving" in television
commercial wars with "crime ... the 30 -second weapon of choice").
71

See, e.g., Bob Minzesheimer, Executioner's Song Heard in
Governor Races, USA Today, Oct. 27, 1994, at 9A (reporting that
"[f]rom California to Texas to Florida, candidates for governor
sound as if they're running to be executioner"); Phillips, supra
note 68, at 9A (describing various campaign appeals based on crime
and quoting one Democratic media consultant as saying, "No matter
how far to the right we get, Republicans get righter. We say
'Hang 'em.' They say, 'Gas 'em.'").
72

Bush Brothers Cast Foes as "Soft" for Not Killing Enough,
Ariz. Republic , Nov. 3, 1994, at B5 ("That's one a month and sets
a standard for the 50 states. But it's not good enough for George
W., who apparently thinks the governor ought to administer the
coup de grace herself.").
Page 19

row for thirteen years.73 Jeb Bush knew, and acknowledged when
asked, that there was nothing Chiles could have done to speed up
the execution because the case was pending in federal court.74 Jeb
Bush also argued that Florida's eight executions since Chiles's
election in 1990 were not enough.75
In her quest to win the 1994 California gubernatorial race,
Kathleen Brown found that her personal opposition to the death
penalty was widely viewed as a major liability76 even though she
promised to carry out executions as governor. She had to defend
herself against Governor Pete Wilson's charges that, because of
her personal moral convictions, she would appoint judges like Rose
Bird. Governor Wilson, whose approval ratings had been "abysmal,"
recovered by following the advice of the old master, Richard
Nixon, who told him to hit his opponent hard on crime.77 Candidate
Brown responded to the charges by producing an advertisement
proclaiming her willingness to enforce the death penalty.78
Nevertheless, she lost to Wilson.
Both Illinois Governor Jim
Edgar and Iowa Governor Terry E. Branstad similarly attacked their
opponents' personal opposition to the death penalty.79 Both were
reelected. New York Governor Mario Cuomo faced heated attacks for
73

Id.

74

Id. ("[T]he ad is dishonest and exploitative, but Bush
insists it's a good way to elevate the public discussion of crime
....").
75

Id.

76

See, e.g. Dan Walters, Odd Segments of "60 Minutes",
Sacramento Bee, Jan. 26, 1994, at A3.
77

Howard Fineman, Riding the Wave, Newsweek, May 22, 1995, at
19, 19 (describing how Wilson employed this strategy to win,
linking his foe to every "them" feared by California voters,
including "lenient judges" and "criminal-defense lawyers").
78

Susan Yoachum, Ad Wars Raise Politics of Blame, S.F. Chron.,
Sept. 29, 1994, at A6.
79

Vote '94: The Nation, Wash. Post, Oct. 21, 1994, at A6. In
Iowa, which does not have capital punishment, Governor Branstad,
in response to polls showing his challenger, Bonnie Campbell, was
in the lead, "turned to the crime issue, and specifically
Campbell's opposition to capital punishment." Id. He followed
the example of Governor Edgar, who had "built a huge lead over
Democratic challenger Dawn Clark Netsch thanks in part to a
barrage of television commercials stressing her opposition to the
death penalty." Id.; see also Minzesheimer, supra note 69, at 9A
(reporting that the issue of their opponents' personal opposition
to the death penalty had "clearly helped" both Edgar and Wilson in
their bids for reelection).
Page 20

his vetoes of death-penalty legislation during twelve years in
office and his refusal to return a New York prisoner to Oklahoma
for execution.80 Cuomo defended himself by proposing a referendum
on the death penalty,81 but still lost his office to a candidate
who promised to reinstate capital punishment and to send the
prisoner back to Oklahoma for execution.82
As the public debate on crime and its solutions has become
increasingly one-sided and vacuous, the death penalty has become
the ultimate litmus test for demonstrating that one is not "soft
on crime." The impact of this development has been felt not only
in the executive and legislative branches of government, where
popular sentiment is expected to play a major role in the
development of policy, but also in the judiciary, where judges are
expected to follow the law, not the election returns.
II. THE POLITICS OF BECOMING AND STAYING A JUDGE
Judges in most states that have capital punishment are
subject to election or retention. Although all judges take oaths
to uphold the Constitution,83 including its provisions guaranteeing
certain protections for persons accused of crimes, judges who must
stand for election or retention depend on the continued approval
of the voters for their jobs and concomitant salaries and
retirement benefits.
A common route to the bench is through a
prosecutor's office, where trying high-profile capital cases can
result in publicity and name recognition for a prosecutor with
judicial ambitions. A judge who has used capital cases to advance
to the bench finds that presiding over capital cases results in
80

See Ian Fisher, Clamor over Death Penalty Dominates Debate
on Crime, N.Y. Times , Oct. 9, 1994, at 45, 48 (reporting that
although Cuomo built more prisons than all New York governors
before him combined, "[a] central paradox of Mr. Cuomo's 12-year
tenure is that no matter what he has done on crime, he is judged
most often by his opposition to the death penalty, even though
crime rates are down, jail time is up and police forces have
grown"); see also Cuomo Takes Anti-Crime Stance, Wash. Post , Jan.
6, 1994, at A9.
81

James Dao, Cuomo Proposes a Referendum on Death Penalty,
N.Y. Times, July 8, 1994, at B5.
82

Pataki on the Record: Excerpts from a Talk on Campaign
Issues, N.Y. Times , Oct. 10, 1994, at B4. Upon assuming office,
Governor George Pataki carried out his promise and sent Grasso
back to Oklahoma, and that state executed Grasso on March 20,
1995. John Kifner, Inmate Is Executed in Oklahoma, Ending N.Y.
Death Penalty Fight, N.Y. Times , Mar. 20, 1995, at A1.
83

U.S. Const. art. VI, cl. 3 ("[A]ll executive and judicial
Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this
Constitution ....").
Page 21

continued public attention.
Regardless of how one becomes a
judge, rulings in capital cases may significantly affect whether a
judge remains in office or moves to a higher court.
A. Judges Face Election in Most States That Employ the Death
Penalty
Almost all judicial selection systems fall into one of four
categories.84 First, judges in eleven states and the District of
Columbia are never subjected to election at any time in their
judicial careers.85 Second, the judges of three states are elected
by vote of the state legislature.86 Third, the judges of
84

Because some states employ different methods of judicial
selection for different courts, the number of states in the four
categories described exceeds 50.
85

See Conn. Const. art 5, s 2 (governor nominates judges from
a list that a judicial selection commission submits, for
eight-year terms); Del. Const. art. IV, s 3 (governor appoints
judges and justices, with advice and consent of the senate, for
12-year terms); Haw. Const. art. VI, s 3 (governor appoints
judges, from a judicial selection commission's list of nominees
and with consent of the senate, for 10 -year terms; judicial
selection commission determines retention); Me. Const. art. 5, pt.
1, s 8 (governor nominates judicial officers, with confirmation by
a committee from both houses of the legislature), art. 6, s 4
(judges hold office for seven-year terms); Mass. Const. ch. 2, s
1, art. 9 (governor appoints all judicial officers, with advice
and consent of the governor's council), pt. 2, ch. 3, art. I
(judicial officers hold office during good behavior); Md. Const.
art. 41D (governor appoints district court judges, with advice and
consent of the senate, for 10 -year terms); N.H. Const. pt. 2,
art. 46 (governor and council appoint judicial officers), art. 73
(judges hold office during good behavior); N.J. Const. art. 6, s
6, paras. 1, 3 (governor appoints judges and justices, with
confirmation by the senate, for initial seven-year terms; upon
reappointment judges and justices serve during good behavior);
N.Y. Const. art. 6, s 2 (governor appoints court of appeals
judges, with advice and consent of the senate, for 14 -year
terms); R.I. Gen. Laws ss 8 -2-1, 8 - 8 -7 (1985) (governor
appoints superior court and district court justices, with
confirmation by the senate; justices hold office during good
behavior); Vt. Const. ch. II, ss 32, 34 (governor appoints judges
from a judicial nominating body's list of candidates, with advice
and consent of the senate, for six-year terms; general assembly
votes for retention; general assembly can vote by simple majority
to remove); D.C. Code Ann. s 11-1501 (1995) (President selects
judges from names that a commission recommends, with advice and
consent of the Senate, for 15 -year terms; judicial qualification
commission reviews performance).
86

R.I. Const. art. 10, §4 (vote of two houses of the
legislature to select or remove supreme court judges; judges hold
Page 22

twenty-nine states are subjected to contested elections, either
partisan or nonpartisan, at some point in their careers,87 whether
office until death, resignation, or removal by a vote of both
houses); S.C. Const. art. V, §3 (general assembly elects supreme
court justices for 10-year terms), §8 (general assembly elects
court of appeals judges for six-year terms), §13 (general assembly
elects circuit judges for six-year terms); Va. Const. art. VI, §7
(vote of both houses of the general assembly elects all judges and
justices; supreme court justices serve 12-year terms, all other
judges serve eight-year terms).
87

See Ala. Const. amend. 328, §6.13 (all judges elected); Ala.
Code §§12-2-1, 12-3-3, 12-3-4 (1986) (supreme court justices,
court of criminal appeals judges, and court of civil appeals
judges all elected for six-year terms); Ark. Const. art. 7, §§6,
17, 29 (supreme court justices elected for eight-year terms;
circuit court judges elected for four-year terms; county court
judges elected for two-year terms); Fla. Const. art. V, §11
(circuit judges and county court judges elected in competitive
elections; governor fills all vacancies from a judicial nominating
commission's list); Ga. Const. art. 6, §7, para. 1 (superior and
state court judges elected in nonpartisan elections for four-year
terms; supreme court justices and court of appeals judges elected
in nonpartisan elections for six-year terms); Idaho Const. art.
VI, §7 (supreme court justices and district judges selected in
nonpartisan elections); Ill. Const. art. 6, §12 (judges initially
selected in partisan elections; thereafter judges subject to
nonpartisan retention elections); Kan. Const. art. 3, §6 (district
court judges selected in elections); Ky. Const. §117 (all judicial
officers elected in nonpartisan elections); La. Const. art. 5, §22
(judges and justices elected in regular elections); Md. Const.
art. IV, §3 (all trial judges except for district judges elected
for 15-year terms), §5 (governor appoints circuit court judges to
fill unexpired terms or for one year, whichever is less;
thereafter judges subject to election); Mich. Const. art. VI, §§2,
8, 9, 12 (supreme court justices elected at nonpartisan elections
for eight-year terms; court of appeals judges elected by district
in nonpartisan elections for six-year terms; circuit judges
elected at nonpartisan elections for six-year terms); Minn. Const.
art. 6, §7 (all judges elected for six-year terms); Miss. Const.
art. 6, §§145, 145A, 145B, 149, 153 (supreme court justices
elected by district for eight-year terms; circuit and chancery
court judges elected for four-year terms); Mont. Const. art. 3,
ch. 2, §§202, ch.2, §§201, 203 (supreme court justices elected at
general elections for eight-year terms; district court judges
elected by district for six-year terms); Nev. Const. art. 6, §§3,
5 (supreme court justices elected in general elections for
six-year terms; district court judges elected by district for
six-year terms); N.M. Const. art. VI, §33 (justices and judges
initially selected in partisan elections; thereafter subject to
nonpartisan retention elections; supreme court justices and court
of appeals judges serve eight-year terms, district judges serve
Page 23

during initial selection for the bench or after appointment by the
governor.88 The fourth category of judicial selection systems
includes those systems in which the judge or justice is at some
time subjected to a retention election but never faces an
opponent. Thirteen states employ such a system.89
six-year terms, and metropolitan court judges serve four-year
terms); N.Y. Const. art. 6, §6, 10 (supreme court justices elected
for 14 -year terms; county court judges elected for 10-year
terms); N.C. Const. art. IV, §16 (judges and justices elected for
eight-year terms); N.D. Const. art. VI, §6, 9 (supreme court
justices elected for 10-year terms; district court judges elected
for six-year terms); Ohio Const. art. IV, §6 (judges and justices
elected for six-year terms); Okla. Const. art. 7, §§2-3 (justices
and judges elected in nonpartisan elections; supreme court
justices serve six-year terms); Or. Const. art VII, §1 (judges and
justices elected for six-year terms); Pa. Const. art. 5, §13
(governor appoints judges and justices with advice and consent of
the senate if senate is in session; after an initial 10-month term
of office, judges and justices subject to election); S.D. Const.
art. V, §7 (judges elected in nonpolitical elections for
eight-year terms; governor appoints supreme court justices for a
three-year term, then justices subject to nonpolitical ballot;
thereafter justices serve eight-year terms with retention
elections); Tenn. Const. art. VI, §§3 - 4 (supreme court justices
elected in statewide races for eight-year terms; lower court
judges elected by district for eight-year terms); Tex. Const. art.
V, §§2, 4, 6 -7 (supreme court justices elected for six-year
terms; court of criminal appeals judges elected for six-year
terms; court of appeals justices elected for six-year terms;
district judges elected for four-year terms); Wash. Const. art.
IV, §§3, 5 (supreme court judges elected statewide for six-year
terms; superior court judges elected by county for four-year
terms); W. Va. Const. art. VIII, §§2, 5 (supreme court of appeals
justices elected statewide for 12-year terms; circuit court judges
elected by circuit for eight-year terms); Wis. Const. art. VII,
§§4-5, 7 (supreme court justices elected for 10-year terms; court
of appeals judges elected for six-year terms; circuit court judges
elected for six-year terms).
88

For the purposes of this Article, "contested election" means
an election in which the candidate runs against another candidate
or candidates.
89

See Alaska Const. art. IV, §§5 - 6 (governor appoints
supreme court justices and superior court judges, upon nomination
by a judicial council; judges subject to nonpartisan retention
elections); Ariz. Const. art. 6, §§37- 38 (governor appoints
judges and justices; judges subject to nonpartisan retention
elections); Cal. Const. art. 6, §16 (governor appoints judges or
appoints candidates for judgeships to run in unopposed elections;
judges subject to retention elections; supreme court justices
serve for 12-year terms; superior court judges serve for six-year
Page 24

There are currently thirty-eight states that have capital
punishment statutes.90 Thirty-two states both elect their judges
terms); Colo. Const. art. 6, §§20, 25 (governor appoints judges
and justices from a judicial nominating commission's list;
thereafter judges and justices subject to retention elections);
Fla. Const. art. 5, §10 (appeals court judges and supreme court
justices subject to retention elections after six-year terms;
governor fills all vacancies from a judicial nominating
commission's list); Ind. Const. art. 7, §§10-11 (governor appoints
judges and justices; thereafter judges and justices subject to
retention elections); Iowa Const. art. 5, §§16 -17 (governor
appoints judges and justices from a judicial nominating
commission's list; thereafter judges and justices subject to
retention elections); Kan. Const. art 3., §5 (governor appoints
supreme court justices from a nominating commission's list;
thereafter justices subject to retention elections); Md. Const.
art. IV, §5A (governor appoints appellate court judges with advice
and consent of the senate; judges subject to approval or rejection
vote at polls after one year in office; thereafter judges serve
10-year terms); Mo. Const. art. 5, §29(a), (c)(1) (governor
initially appoints judges for a one-year term from a nonpartisan
judicial commission's list; at end of that term and longer terms
thereafter, judges subject to retention election); Neb. Const.
art. V, §21 (governor appoints judges and justices from a judicial
nominating commission's list; after three years in office, and at
the expiration of six-year terms thereafter, judges and justices
subject to retention elections); Utah Const. art. VIII, §§8-9
(governor appoints all judges and justices, subject to approval of
senate, from a judicial nominating commission's list; at first
general election after three years of service all judges subject
to retention elections; thereafter supreme court justices have
10-year terms, other judges have six-year terms, all with
retention elections); Wyo. Const. art. 5, §4 (governor appoints
all justices and district court judges from a judicial nominating
commission's list; at first general election after one year of
service all judges subject to retention elections; thereafter
supreme court justices have eight-years terms, district court
judges have six-year terms, all subject to retention elections).
90

Death Row, U.S.A., supra note 2, at 1; see also James Dao,
Death Penalty in New York Reinstated After 18 Years; Pataki Sees
Justice Served, N.Y. Times , Mar. 8, 1995, at A1 (noting that New
York Governor George E. Pataki's signing of a death penalty bill
into law made New York the 38th state to have capital punishment).
The states with capital punishment statutes are Alabama,
Arizona, Arkansas, California, Colorado, Connecticut, Delaware,
Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky,
Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina,
South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and
Wyoming.
Page 25

and sentence people to death.91
In nine states -- including Alabama and Texas -- judges run
under party affiliations.92 The success of the party in national or
state elections may have a significant impact on the judiciary.
For example, Texas Republicans swept into state judicial offices
as part of the party's general success in the 1994 elections.
Republicans won every elected position they sought on the Texas
Court of Criminal Appeals and the Texas Supreme Court.93 Republican
straight-ticket voting contributed to the defeat of nineteen
Democratic judges and a Republican sweep of all but one of the
forty- two contested races for countywide judgeships in Harris
County, Texas, which includes Houston.94 The dean of one Texas law
school observed that "[i]f Bozo the Clown had been running as a
Republican against any Democrat, he would have had a chance."95
Such straight-ticket voting, which comprised one- quarter of all
votes cast in Harris County, also resulted in the removal of the
only three black judges and left only one Hispanic on the bench.96
The lack of racial diversity now found in Houston is
consistent with the exclusion of minorities from the bench
91

All of the states with death penalties except Connecticut,
Delaware, New Hampshire, New Jersey, South Carolina, and Virginia
employ elections at some stage in judicial selection or retention.
92

Those states are Alabama, Arkansas, Illinois, Mississippi,
North Carolina, Pennsylvania, Tennessee, Texas, and West Virginia.
John Cornyn, Ruminations on the Nature of Texas Judging, 25 St.
Mary's L. Rev. 367, 380 n.40 (1993) (citing Orrin W. Johnson &
Laura J. Urbis, Judicial Selection in Texas: A Gathering Storm?,
23 Tex. Tech L. Rev. 525, 526, n.6 (1992)).
93

Williams, supra note 12, at A29 (describing the Republican
sweep in the Texas elections for the state's highest civil and
criminal courts).
94

Alan Bernstein, Judge Elections Debated Anew;
Straight-Ticket Voting Helped Topple 19 Democrat Jurists, Houston
Chron., Nov. 10, 1994, at A1 (arguing that the explosion of
Republican straight-ticket voting for Harris County judges
indicates a need to elect judges in a nonpartisan manner). The
one Republican judicial candidate who lost had been denounced by
some conservative activists for accepting the endorsement of the
Houston Gay and Lesbian Caucus. Id.
95

Williams, supra note 12, at A29.

96

Bernstein, supra note 92, at A1. One of the winning
judicial candidates observed, "There were Republicans who spent a
fortune and those of us who didn't spend a dime, and we are all in
office today ... because of the landslide." Id.
Page 26

throughout the country.97 One reason for the lack of minority
judges is that in many states -- particularly those in the "death
belt" states such as Florida and Texas -- judges have long been
elected from judicial districts in which the voting strength of
racial minorities is diluted.98
B. Prosecuting Capital Cases as a Stepping Stone to the Bench
One of the most frequently traveled routes to the state trial
bench is through prosecutors' offices. A capital case provides a
prosecutor with a particularly rich opportunity for media exposure
and name recognition that can later be helpful in a judicial
campaign. Calling a press conference to announce that the police
have captured a suspect and the prosecutor will seek the death
penalty provides an opportunity for a prosecutor to obtain news
coverage and ride popular sentiments that almost any politician
would welcome. The prosecutor can then sustain prominent media
coverage by announcing various developments in the case as they
occur. A capital trial provides one of the greatest opportunities
for sustained coverage on the nightly newscasts and in the
newspapers. A noncapital trial or resolution with a guilty plea
does not produce such coverage.99
97

Mark Curriden, Racism Mars Justice in U.S., Panel Reports,
Atlanta J. & Const. , Aug. 11, 1991, at D1, D3 (observing that
only six of Georgia's 134 superior court judges were
African-American, and those six were in three judicial circuits);
Second Black Alabama Supreme Court Justice Sworn In, Columbus
Ledger-Enquirer (Ga.), Nov. 2, 1993, at B-2 (noting that there was
only one African-American among Alabama's 17 appellate court
judges, and only 12 blacks among the state's 255 circuit and
district court judges); see also Rorie Sherman, Is Mississippi
Turning?, Nat'l L.J. , Feb. 20, 1989, at 1 (reporting that only
2.6% of all state court judges in the United States were black).
98

See Nipper v. Smith, 39 F.3d 1494, 1499 -1509 (11th Cir.
1994) (describing dilution of the black vote in Duval County,
Florida), cert. denied, 115 S. Ct. 1795 (1995); League of United
Latin Am. Citizens v. Clements, 999 F.2d 831, 912 (5th Cir. 1993)
(King, J., dissenting) (agreeing with the district court's
findings that countywide elections of judges in Texas have
resulted in dilution of the voting power of African-Americans and
Hispanics), cert. denied, 114 S. Ct. 878 (1994).
99

See, e.g., Don Plummer, Decision on Rower Costly for
Taxpayers, Atlanta J. & Const. , Feb. 16, 1995, at E1 (noting that
the political benefits of a capital trial are certainly not lost
on Cobb County (Ga.) District Attorney Tom Charron, who, despite
public pressure from the presiding judge, rejected a defendant's
offer to plead guilty and waive his right to parole even though a
trial would likely force the victim's young children to testify
and would cost the county up to $1,000,000); see also Chris
Burritt, Smith's Lawyers Pushing Hard for Plea Bargain Despite
Refusal, Atlanta Const. , June 24, 1995, at C5 (describing the
Page 27

The relationship between prosecuting capital cases and moving
to the bench is evident in Georgia's Chattahoochee Judicial
Circuit, which sends more people to death row than any other
judicial circuit in the state.
Two of the four superior court
judges in the circuit obtained their seats on the bench after
trying high-profile capital cases.
Mullins Whisnant, who now
serves as chief superior court judge in the circuit, became a
judge in 1978 after serving as the elected district attorney.100 He
personally tried many of the ten capital cases the office
prosecuted
in
1976
and
1977,
five
of
which
involved
African-Americans tried before all-white juries for homicides of
white victims.101 His last capital trial as prosecutor involved a
highly publicized rape, robbery, kidnapping, and murder of a white
Methodist Church organist by an African-American.102 The extensive
news coverage of the case included electronic and photographic
coverage of the trial. Whisnant made a highly emotional plea to
jurors to join a "war on crime" and "send a message" by sentencing
the defendant to death.103
Once Whisnant became a judge, his chief assistant, William
Smith, took over as the district attorney. Smith personally tried
many of the fourteen capital cases that took place during his
refusal of South Carolina prosecutor Tommy Pope to spare the death
penalty for defendant Susan Smith, charged with the murder of her
two children, in exchange for a guilty plea and defense assertion
that the refusal was based on the prosecutor's "once-in-a-lifetime
opportunity for celebrity and national exposure").
100

Transcript of Hearing of Sept. 11-14, 1991, at 123, 124,
165, Brooks v. State, 415 S.E.2d 903 (Ga. 1992) (No. S92A0062) (on
file with the Boston University Law Review).
101

Defense Exhibits 1A, 2A (admitted at Hearing of Sept.
11-14, 1991), Brooks (No. S92A0062) (on file with the Boston
Univeristy Law Review).
102

Brooks v. Kemp, 762 F.2d 1383, 1387 (11th Cir. 1985) (en
banc), vacated and remanded, 478 U.S. 1016 (1986), decision
adhered to on remand , 809 F.2d 700 (11th Cir.) (en banc), cert.
denied , 483 U.S. 1010 (1987).
103

Id. at 1394 - 98, 1408 -16 (holding that the prosecutor's
improp er expressions of personal belief in capital punishment,
discussion of his policy of rarely seeking the death penalty, and
his general "war on crime" speech did not render the defendant's
sentencing hearing fundamentally unfair). The prosecutor's
closing argument is set out in full in the appendix to the opinion
of Circuit Judge Clark. Id. at 1443 - 48 (opinion concurring in
part and dissenting in part).
Page 28

tenure before he joined his former boss on the bench in 1988.104
One of those cases involved the highly publicized trial of an
African-American accused of being the "Silk Stocking Strangler"
responsible for the murders of several elderly white women in the
community.105
And benefits other than publicity came to Smith's eventual
campaign for judge as a result of his use of the death penalty as
a district attorney. In a case involving the murder of the
daughter of a local contractor, Smith contacted the victim's
father and asked him if he wanted the death penalty.106 When he
replied in the affirmative, Smith said that was all he needed to
know,107 and subsequently obtained the death penalty at trial.108 The
victim's father rewarded Smith with a contribution of $5000 during
Smith's successful run for judge in the next election.109 The
contribution was the largest Smith received.110 Smith's chief
assistant
succeeded
him
as
district
attorney
and,
after
prosecuting eight capital cases, has announced an interest in the
next opening on the Superior Court bench.111 So close is the
relationship between the judiciary and the prosecutor's office in
the circuit that the prosecutor's office has made the assignments
of criminal cases to judges for the last six years, assigning the
more serious drug and homicide cases to former prosecutors
Whisnant and Smith.112
104

Transcript of Hearing of Sept. 11-14, 1991, at 137-48,
Brooks (No. S92A0062).
105

Id. at 139-40.

106

Transcript of Hearing of Oct. 21, 1988, at 38, Davis v.
Kemp, No. 86 -V- 865 (Ga. Super. Ct. Butts County 1988) (on file
with the Boston University Law Review) (testimony of James Isham,
father of the victim).
107

Id.

108

1538 (11th Cir. 1994).

109

Clint Claybrook, Slain Girl's Father Top Campaign
Contributor, Columbus Ledger-Enquirer (Ga.), Aug. 7, 1988, at B-1.
110

Id.

111

Jim Houston, Ruling on Judgeship Opens the Door for New
Faces, Columbus Ledger-Enquirer (Ga.), Feb. 7, 1995, at A-1, A- 8
(quoting prosecutor Doug Pullen as saying that he is "definitely
interested" in a judgeship).
112

Trisha Renaud, DA's Office Assigned Cases to Judges, Fulton
County Daily Rep. (Ga.), Apr. 26, 1995, at 1, 2 (reporting the
discovery of the assignment system by defense lawyers who noticed
a pattern of assignments; prosecutor Doug Pullen, while
acknowledging his office's involvement, dismissed it as "a wad of
Page 29

These prosecutors in the Chattahoochee Judicial Circuit have
demonstrated that capital cases produce good publicity even when a
guilty verdict is reversed for prosecutorial misconduct.
After
the United States Court of Appeals set aside a death sentence
because of a lynch-mob-type appeal for the death penalty by
then-District Attorney Smith, which the court characterized as a
"dramatic appeal to gut emotion" that "has no place in a
courtroom,"113 Smith called a press conference, insisted he had
done nothing wrong, and announced that he would seek the death
penalty again in the case.114 When a federal court set aside a
second death sentence due to similar misconduct,115 Smith called
another press conference and expressed his "anger" at the
decision, accused the reviewing court of "sensationalism" and
"emotionalism," suggested that the "judges of this court have
personal feelings against the death penalty," and vowed to seek
the death penalty again.116
Attempts to exploit capital cases for political purposes may
backfire, however, particularly if the prosecution is not
ultimately successful in obtaining the death penalty.
For
example, a verdict of voluntary manslaughter instead of first
degree murder transformed the case of Bruce R. Morris in St.
Charles County, Missouri, from one in which a defendant's life was
at stake to one in which a political career was at stake.
"[C]ourthouse observers, including [the prosecutor's] former
employees" criticized the prosecutor, who was a candidate for
chewing gum on the legal shoe of life").
113

Hance v. Zant, 696 F.2d 940, 952-53 (11th Cir.) (finding
that the prosecutor's inflammatory remarks in the sentencing phase
of the murder prosecution, which appealed to the jury's fears and
emotions and were highly prejudicial to the defendant, rendered
the sentencing hearing fundamentally unfair and unconstitutional),
cert. denied, 463 U.S. 1210 (1983).
114

Transcript of Hearing of Sept. 11 -14, 1991, at 144-46,
Brooks v. State, 415 S.E.2d 903 (Ga. 1992) (No. S92A0062) (on file
with the Boston University Law Review); Defendant's Exhibit 40
(press release introduced at Hearing of Sept. 11-14, 1991), Brooks
(No. S92A0062) (on file with the Boston University Law Review).
115

In 1983, a panel of the United States Court of Appeals for
the Eleventh Circuit set aside the death sentence due to the
prosecutor's argument during the sentencing phase. Brooks v.
Francis, 716 F.2d 780 (11th Cir. 1983). A petition for rehearing
en banc was granted, Brooks v. Francis, 728 F.2d 1358 (11th Cir.
1984), although the en banc court ultimately set aside the
conviction and sentence on other grounds, Brooks v. Kemp, 809 F.2d
700 (11th Cir.), cert. denied, 483 U.S. 1010 (1987).
116

Phil Gast, District Attorney Criticizes Court for Rejecting
Sentence, Columbus Enquirer (Ga.), Sept. 17, 1983, at A-1, A-2.
Page 30

circuit court judge, and stated that the trial was the
prosecutor's first jury trial in memory.117 They also accused him
of taking the case to trial just because he was running for
judge.118
Prosecutors may be criticized for failure to seek the death
penalty, even when the law does not permit it.
For example, a
California prosecutor criticized a Colorado prosecutor for not
seeking the death penalty against a defendant who had committed
crimes in both states even though the Colorado prosecutor
explained that there were no statutory aggravating circumstances
that would permit him to seek the death penalty.119
Although it may be unethical and improper for prosecutors to
campaign on promises to seek the death penalty or on their success
in obtaining it,120 there is no effective remedy to prevent the
practice.121 Moreover, capital cases produce so much publicity and
name recognition that explicit promises to seek death are hardly
necessary. As a result, prosecuting capital cases remains a way
of obtaining a judgeship.
As will be discussed later, some
persons who reach the bench in this manner have difficulty
relinquishing the prosecutorial role. But even when a prosecutor
is not seeking a judicial post, or is unsuccessful in obtaining
one, the political use of the death penalty in the discharge of
prosecutorial responsibilities may spill over into elections for
judicial office and influence the exercise of judicial discretion.
The political consequences of decisions by both prosecutor and
judge become apparent for all to see.
117

Marianna Riley, Morris Verdict of Manslaughter Draws
Criticism, St. Louis Post-Dispatch , Mar. 25, 1988, at 1.
118

Id. He lost the election. Marianna Riley, Democratic
Judges Rush, Dalton Buck GOP Trend to Retain Seats, St. Louis
Post-Dispatch , Nov. 11, 1988, at 1.
119

Ann Carnahan, DA Under Fire on Death Penalty; Critics Say
Ritter Should Have Made Capital Case in 3 Slayings, Rocky Mtn.
News , Sept. 26, 1994, at 11A (describing how Denver District
Attorney Bill Ritter was under fire for not having sought the
death penalty against a triple-homicide suspect).
120

Kenneth Bresley, Seeking Justice, Seeking Election, and
Seeking the Death Penalty: The Ethics of Prosecutorial Candidates'
Campaigning on Capital Convictions, 7 Geo. J. Legal Ethics 941,
946 -52 (1994) (arguing that seeking the death penalty for
political reasons and campaigning on obtaining the death penalty
violates a prosecutor's responsibility to see that justice is
done, Berger v. United States, 295 U.S. 78, 88 (1935), as well as
the Model Code of Professional Responsibility (1986), American Bar
Ass'n, Standards for Criminal Justice, The Prosecutor's Standards
(3d ed. 1993), and the National Prosecution Standards (2d ed.
1991)).
121

Id. at 952-58.
Page 31

C. The Death Penalty's Prominence in the Election, Retention, and
Promotion of Judges
With campaigning for the death penalty and against judges who
overturn capital cases an effective tactic in the quest for other
offices, it is not surprising that the death penalty has become
increasingly prominent in contested and retention elections for
judges. Not only the judge, but her political supporters as well,
may suffer the consequences of an unpopular ruling in a capital
case.
Judicial campaigns in which the death penalty is an issue can
degenerate to almost Orwellian levels of absurdity, raising
serious questions about the ability of judges to remain fair and
impartial.
An opponent can seize upon a judge's ruling in one
case and, by focusing on the facts of the crime and completely
ignoring the legal issue, make even the toughest judge appear
"soft on crime." As one commentator has noted:
When the mother of a young daughter, who was brutally
murdered and mutilated, complains in a television commercial about
a judge vacating the killer's death sentence, the judge has little
recourse.
A judge can explain that a defendant's right was
violated, which warrants a new trial, but the public, unfamiliar
with constitutional law, sees only the grieving mother and a
picture of the innocent victim.122
Opponents criticize judges for a lack of cruelty.123 Judges
seek public approval by announcing their delight in helping to
extinguish human life.124 Constitutional rights are dismissed as
mere "technicalities." A few rulings in highly publicized cases
may become more important to a judge's survival on the bench than
qualifications, judicial temperament, management of the docket, or
commitment to the Constitution and the rule of law.125
122

Thomas M. Ross, Rights at the Ballot Box: The Effect of
Judicial Elections on Judges' Ability to Protect Criminal
Defendants' Rights, 7 Law & Inequality 111, 127 (1988).
123

See Gerald F. Uelman, Commentary: Are We Reprising a Finale
or an Overture?, 61 S. Cal. L. Rev. 2069, 2072 (1988) ("The
questions [debated in state judicial elections] are ... simple:
Should a judge who votes to reverse the conviction of a heinous
killer be kept on the bench?" (citing John Dixon Doesn't Think 20
Stab Wounds Are Enough, Shreveport Times , Sept. 18, 1988 (full
page advertisement))).
124

See Jerry Hicks, O.C. Judge Decries Delay in Executing the
'Deserving', L.A. Times , June 9, 1991, at A1 (relating one
judge's dismay that the six death sentences he imposed would not
be carried out soon because of appellate review).
125

Ross, supra note 120, at 111-12 (noting that elections can
hamper a judge's ability to be an impartial, unbiased adjudicator
in that there is a negative public reaction to what some see as
the expansion of defendants' constitutional rights); see also Kurt
Page 32

In the 1994 primary election for the Texas Court of Criminal
Appeals, the incumbent presiding judge accused another member of
the court of voting to grant relief for convicted defendants more
often than other judges.126 Although a Republican candidate for the
second seat on the court lamented what he called the "lynch
mentality" of the campaign,127 two other candidates for the
Republican nomination, both former prosecutors, indicated their
willingness to treat defendants severely.128 One stated that the
role of the court is to ensure justice, not to reverse convictions
because of "technicalities" or "honest mistakes,"129 while the
other called the Court of Criminal Appeals a "citadel of
technicality" that neglected the interests of crime victims and
citizens at large.130 Two candidates for the third position on the
court criticized the incumbent for granting a new trial to a man
convicted of homicide.131 One challenger promised to bring a
"common sense" approach to such cases.132
An Alabama Court of Criminal Appeals judge, who was also a
candidate for the state's supreme court, accused the Alabama
Supreme Court of being "too left and too liberal" in capital cases
and challenged the court to set execution dates in twenty-seven
cases that were pending in the federal courts on habeas corpus
review.133 Similarly, Sacramento Municipal Court Judge Gary Mullen,
E. Scheuerman, Note, Rethinking Judicial Elections, 72 Or. L. Rev.
459, 481 (1993) (noting that an Oregon Supreme Court justice's
defeat demonstrated how judicial elections can turn, not on
qualifications, or even jurisprudence, but on political issues and
results of individual cases).
126

Gardner Selby, 3 Positions Open on State's Top Criminal
Appeals Court, Houston Post , Feb. 13, 1994, at A-29 (describing
the political jousting for three seats on the Texas Court of
Criminal Appeals in the 1994 elections).
127

Id. That candidate, Norman Lanford, who had previously
been voted off the trial court bench in Houston after unpopular
rulings in criminal cases, see supra note 19-23 and accompanying
text, was defeated in the Republican primary. See Results of
Statewide Race, Houston Post, Apr. 13, 1994, at A-20.
128

Selby, supra note 124, at A-29.

129

Id.

130

Id.

131

Id. The court "ordered a new trial because the names of
potential jurors had been shuffled one too many times at the
original trial." Id.
132

133

Id.

Tom Hughes, Montiel Challenges Court to Schedule
Page 33

a candidate for superior court in California in 1992, ran a
television commercial that criticized the judicial system for
taking too long to execute Robert Alton Harris, the first person
executed under California's current death penalty law.134 A former
governor of Colorado announced a campaign to remove one of his own
appointees from the state supreme court because of the appointee's
votes in capital cases.135 He also indicated he might oppose
another of his appointees, warning that "[h]e's got four years
[before his retention election]. Maybe he'll change his mind."136
Chief Justice James Exum survived an effort to remove him
from the North Carolina Supreme Court, but only with considerable
financial cost and loss to the standing of the court.137 The person
spearheading the campaign against Exum stated that the defeat of
Chief Justice Rose Bird in California had demonstrated that "you
can mount a significant race against a chief justice on the basis
of the death penalty."138 Exum's critics noted that he had voted
against the death penalty while a member of the North Carolina
Executions, Montgomery Advertiser (Ala.), May 19, 1994, at 3B.
134

Dan Bernstein, Race for Superior Court Seat Getting
Political, Sacramento Bee , May 31, 1992, at B1 (describing the
"political" campaigning tactics two candidates used for the 1992
judicial elections to California's superior court). Despite these
tactics, the candidate lost the election. See Capitol Digest,
Sacramento Bee , July 21, 1992, at A4 (noting that Lloyd Connelly
would take office as a Sacramento County superior court judge in
January 1993).
135

Burt Hubbard & Ann Carnahan, Angered Over Death Penalty,
Lamm Assails Two Judges: Colorado High Court Justices' 'Disregard
Vote of People,' Former Governor Charges, Rocky Mtn. News , Mar.
12, 1994, at 5A.
136

Id.

137

See Maura Dolan & Don Irwin, Anti-Bird Drive Inspires Moves
in Other States, L.A. Times , Oct. 25, 1986, pt. 1, at 1, 18
(estimating that campaign costs would reach between $500,000 and
$1,000,000 for a job that pays $75,000 per year, and reporting
that well-financed conservative forces had also targeted leading
jurists in North Carolina and Ohio as well, emphasizing their
judicial records on the death penalty and drugs, among other
issues). See generally Politics and the Death Penalty: Can
Rational Discourse and Due Process Survive the Perceived Political
Pressure, 21 Fordham Urb. L.J. 239, 271-73 (1994) (reprinting
Chief Justice Exum's remarks made as part of an ABA Section of
Individual Rights and Responsibilities program) (noting that even
a recent unanimous decision reversing a death sentence was
prominently criticized in the newspaper).
138

Dolan & Irwin, supra note 135, at 18.

Page 34

legislature and dissented from eighteen of the supreme court's
twenty-four rulings upholding a death sentence.139
Challengers are not the only ones to use the death penalty.
Incumbent judges have used capital cases to advance their chances
of reelection or retention.
A Florida Supreme Court justice
recalled that when he was responsible for assignments as a trial
court judge, judges facing reelection asked him for assignments to
criminal cases because it would help get their names in the
press.140 In Louisville, Kentucky, a judge sought to have a
colleague who was four days away from an election preside over the
arraignment of an African- American defendant accused of the
highly publicized murder of a white deputy sheriff.141 Local
television stations set up numerous cameras in the courtroom.142
The judge on whose docket the case appeared summoned defense
counsel to chambers and explained that Judge Jim Shake would
preside at the arraignment because "Jim's on the ballot
Tuesday."143
In another example of judicial exploitation of capital cases,
Bob Austin, a lower court judge who was a candidate for circuit
court in Alabama, was appointed to preside at a capital trial that
began just two weeks before he stood for election.144 Austin
139

Id.

140

Electing Judges Is Poor Policy, Overton Tells Panel, Fla.
B. News , May 1, 1989, at 4.
141

Motion to Disqualify Present and Former Members of
Jefferson Circuit Court and Jefferson District Court and to Obtain
Appointment of a Special Judge from Outside Jefferson County 3 4, Commonwealth v. Bard, No. 93CR2373 (Ky. Cir. Ct. Jefferson
County Nov. 9, 1993) (on file with the Boston University Law
Review).
142

Id. at 5.

143

Id. at 3. Defense counsel responded by filing a motion to
recuse all members of the court. As a result of defense counsel's
opposition, the judge who was on the impending ballot did not
preside at the arraignment. Id. at 6.
144

Record at 159 - 69, Adkins v. State, No. CC 88 -22 (Ala.
Cir. Ct. St. Clair County 1988) (on file with the Boston
University Law Review), aff 'd, 600 So. 2d 1054 (Ala. Crim. App.
1990), aff 'd in part and remanded, 600 So. 2d 1068 (Ala. 1992).
The trial began on October 24, 1988; the election was held on
November 8. Austin, who was a district court judge, sought to
move up to the circuit court, the highest trial-level court in
Alabama. Id. at 1061- 62. Austin was the Democratic nominee for
the circuit court position. His Republican opponent was a former
FBI agent who had served eight years as the U.S. Attorney for the
Northern District of Alabama and eight years as county solicitor.
Tuesday Means the End of Politicking, St. Clair News-Aegis
Page 35

refused to continue the case even though the defense lawyer sought
a continuance because he was suffering from a serious infection
that was a complication of polio.145 In addition, the defense
sought to disqualify Austin because he was running a "law and
order" campaign for judge and would appear on the ballot in just
two weeks.146 Austin denied both motions.147 The denial of the
continuance was front-page news in the two local newspapers the
weekend before trial began.148 The denial of a motion to recuse
Austin and the denial of a change of venue were front- page news
the following week as jury selection began.149 Austin presided over
the trial, and the jury convicted and recommended the death
penalty before the election. Austin won the election, and, after
being
sworn
in
as
circuit
judge,
followed
the
jury's
(Ala.), Nov. 6, 1988, at 1A, 5A.
145

Adkins v. State, 600 So. 2d 1054, 1060 (Ala. Crim. App.
1990), aff 'd in part and remanded, 600 So. 2d 1068 (Ala. 1992).
146

Id. at 1061- 62; see also Record at 161- 62, Adkins (No. CC
88 -22). One of Austin's newspaper advertisements quoted Alabama
Governor Guy Hunt as saying, "Elect judges on their qualifications
... It makes no difference whether a judge called upon to hand
down a death sentence to a murderer is a Republican or a
Democrat." How Do You Elect Good Judges?, S. Democrat (Oneonta,
Ala.), Nov. 2, 1988, at B- 6 (advertisement for Bob Austin for
Circuit Judge) (omission in original).
147

See Adkins, 600 So. 2d at 1060 - 63 (affirming the denial
of the motions). During jury selection, defense counsel pointed
out to Judge Austin that he had excused jurors who had less
serious health problems than defense counsel. Id.; see also
Record at 163, Adkins (No. CC 88-22).
148

Kelly Bryan, Adkins' Trial Will Start on Schedule, St.
Clair News-Aegis (Ala.), Oct. 23, 1988, at 1A (reporting that
District Judge Bob Austin, who was presiding over the case by
special appointment, had denied the motion for a continuance);
Carol Pappas, Ricky Adkins to Go on Trial Monday; Continuance
Denied, Daily Home (Talladega, Ala.), Oct. 22, 1988, at 1
(reporting that Austin denied the continuance and a motion to
suppress statements).
149

Carol Pappas, Jury Selection to Begin Today in Adkins
Capital Murder Trial, Daily Home (Talladega, Ala.), Oct. 25, 1988,
at 1 (reporting that defense counsel cited Judge Austin's "current
political campaign for circuit judge" and "speculated that the
judge may not be able to give the case a fair and impartial
hearing"); Scottie Vickery, Murder Trial Won't Be Moved,
Birmingham News , Oct. 25, 1988, at 1E (reporting the denial of
change of venue and that Judge Austin was running for circuit
judge in the November election).
Page 36

recommendation and imposed the death penalty.150
A judge's votes in capital cases can threaten his or her
elevation to a higher court. No matter how well qualified a judge
may be, perceived "softness" on crime or on the death penalty may
have consequences not only for the judge, but also for those who
would nominate or vote to confirm the judge for another court.
For example, in 1992 groups campaigned against the retention of
Florida Chief Justice Rosemary Barkett for the Florida Supreme
Court because of her votes in capital cases.151 Then in 1994
Barkett's nomination to the U.S. Court of Appeals for the Eleventh
Circuit came under fire because of her record on capital
punishment during nine years on the Florida Supreme Court.152 After
a long delay, the Senate finally confirmed Barkett by a vote of
sixty-one to thirty-seven.153
Despite Barkett's confirmation to the Eleventh Circuit,
campaigns against her and other judges tagged as "soft on crime"
continued.
Bill Frist, in his successful campaign to unseat
Tennessee Senator Jim Sasser, attacked Sasser for voting for
Barkett and for having recommended the nomination of a federal
district judge who, two months before the election, granted habeas
corpus relief to a death-sentenced man.154 Frist appeared at a news
conference with the sister of the victim in the case in which
habeas relief had been granted.155 After the victim's sister
criticized Sasser for recommending U.S. District Judge John Nixon
for the federal bench, Frist said that Sasser's vote to confirm
150

Marie West Cromer, Newly Sworn Judge Metes Death to Adkins,
Birmingham Post-Herald , Nov. 22, 1988, at 1D.
151

Lucy Morgan, Persistence Marks Barkett Fray, St. Petersburg
Times , Oct. 21, 1992, at 1B (describing how the National Rifle
Association and other groups vigorously lobbied against Barkett in
her retention election because of her alleged softness on crime,
despite the fact that she voted with the court's majority 91% of
the time).
152

See, e.g., Jeanne Cummings, Republicans Grill Clinton
Nominee; Senators Hone In on Death Penalty Views, Atlanta J. &
Const. , Feb. 4, 1994, at A10 (noting how conservatives accused
the judge of being too "soft on crime," and criticized her
opinions on the death penalty, among other issues).
153

Craig Crawford, Senate Confirms Florida Chief Justice
Barkett for Federal Judgeship, Orlando Sentinel , Apr. 15, 1994,
at A1 (noting that the Florida Chief Justice's Senate confirmation
for the federal judgeship sparked the most heated debate so far
over President Clinton's bench nominees).
154

Political Notebook, Com. Appeal (Memphis), Oct. 8, 1994, at

3B.
155

Id.
Page 37

Judge Barkett showed that he "still hasn't learned his lesson."156
In Virginia, challenger Oliver North attacked Senator Charles
Robb for voting to confirm the nomination of Judge Barkett, and of
Judge H. Lee Sarokin's elevation to the Third Circuit.157 Senator
Edward M. Kennedy's opponent attacked him in an advertisement for
voting to confirm Barkett; the advertisement described Barkett as
a judge who tried "to block the death penalty for a man convicted
of murdering two policemen" because of her vote in a case while a
justice on the Florida Supreme Court.158 Senator Diane Feinstein
was also attacked for voting for Barkett: Challenger Michael
Huffington's advertisements described Judge Barkett as having
overturned the death penalty "even more than Rose Bird."159 A
Huffington television commercial concluded by stating, "Feinstein
judges let killers live after victims died."160 In full-page
newspaper advertisements, the Huffington campaign described the
grisly facts of three capital cases in which Barkett had voted to
reverse.161 None of the advertisements attacking Barkett mentioned
the legal basis for her decision or that she had voted to uphold
more death sentences than she voted to reverse.162
Although
pro-death-penalty
campaigns
are
not
always
successful in defeating judges, even the threat of such a campaign
may intimidate a judge.
Challenges also make retaining a
judgeship more expensive than it would otherwise be,163 thereby
156

Id.

157

On the Trail, Houston Post , Oct. 27, 1994, at A-9.

158

Scott Lehigh & Frank Phillips, Romney, Kennedy Air Another
Round of Attack Ads, Boston Globe , Oct. 31, 1994, at 21.
159

David Lesher, Huffington Attacks Rival on Judges, L.A.
Times , Sept. 30, 1994, at A3. Huffington also criticized
Feinstein for voting to confirm Judge Sarokin's elevation,
charging that Sarokin once voted to free a "cop killer" without
noting that the defendant's conviction was overturned because the
prosecution withheld evidence. Id. at A23; see also William
Endicott, 'Feinstein's Judges': A False Link, L.A. Daily J. , Oct.
19, 1994, at 6 (commenting that Huffington's advertisements
regarding Feinstein's votes for Barkett and Sarokin were both
"irresponsible and untruthful").
160

Lesher, supra note 157.

161

Here Are the Facts in a REAL Murder Case. See if You Agree
with the Judge's Decision, L.A. Times , Sept. 22, 1994, at 17A
(advertisement).
162

163

Lesher, supra note 157; see also Endicott, supra note 157.

See, e.g., Mark A. Grannis, Note, Safeguarding the
Litigant's Constitutional Right to a Fair and Impartial Forum: A
Due Process Approach to Improprieties Arising from Judicial
Page 38

forcing a candidate to raise more money and contributing to the
perception that those who contribute to judicial campaigns can get
more justice than others.164 One of the saddest and most recent
examples is the bitter campaign waged for chief justice of
Alabama's supreme court in 1994.
The challenger accused the
incumbent of shaking down attorneys who had cases before the court
for contributions, while the incumbent ran advertisements in which
the father of a murder victim accused the challenger of being an
accomplice to the murder.165
Whether the "hydraulic pressure" of public opinion that
Campaign Contributions from Lawyers, 86 Mich. L. Rev. 382 (1987)
(noting that regardless of which electoral system a state uses to
select judges, the candidate will always have to raise money); see
also Robert F. Utter, Selection and Retention -- A Judge's
Perspective, 48 Wash. L. Rev. 839, 845 (1973) (noting that in
recent Washington Supreme Court elections, the campaign forced
some judges to use most of the proceeds from the sale of their
homes to pay for the extraordinary campaign costs).
164

See, e.g., Cornyn, supra note 90, at 378 (Cornyn, a justice
of the Texas Supreme Court, stating that "[t]he gravest concern
that inheres in the elective system ... is that judicial
candidates are compelled to raise campaign funds: money and judges
simply do not mix."); Orrin W. Johnson & Laura J. Urbis, Judicial
Selection in Texas: A Gathering Storm?, 23 Tex. Tech L. Rev. 525,
545 -52 (1992) (discussing the rising campaign costs in Texas
judicial elections); Utter, supra note 161, at 843 - 44 (noting
that lawyers who support the victors or the losers in a political
campaign subsequently have reason to question the legitimacy of
judgments made by judges). A related problem is the efforts of
interest groups -- such as personal-injury lawyers as well as
insurance and business concerns -- to fund the campaigns of
preferred candidates who will support their interests on the
bench. The perceived results of such interest-group domination in
Texas judicial elections was described by one commentator as
follows:
The Texas Supreme Court in a virtuoso performance of judicial
activism has, in recent years, ignored precedent, invalidated on
Texas constitutional grounds long-accepted legislative enactments,
interpreted Texas statutes so as to render them meaningless, and
glossed over and misinterpreted the fact findings of trial judges,
all in the pursuit of desired results.... Case by case
results-oriented decisions have replaced the rule of law. Robert
D'Agostino, The Decline of the Law in the Texas Supreme Court, 2
Benchmark 171, 171 (1986). See generally Stephen J. Adler, The
Texas Bench: Anything Goes, Am. Law. , Apr. 1986, at 11.
165

Bill Poovey, Hooper Criticizes Chief Justice for Soliciting
from Lawyers, Tuscaloosa News , July 20, 1994, at 8B; Phillip
Rawls, Justice Race Another Political Brawl, Columbus
Ledger-Enquirer (Ga.), Dec. 10, 1994, at B-2.
Page 39

Justice Holmes once described166 and the political incentives
accompanying it are appropriate considerations for publicly
elected prosecutors is doubtful,167 but clearly such considerations
have no place in the exercise of the judicial function.168 Yet in
jurisdictions where judges stand for election -- often with the
prosecution in a position tantamount to that of a running mate -judges are subject to the same pressures.
As a result of the
increasing prominence of the death penalty in judicial elections
as well as other campaigns for public office, judges are well
aware of the consequences to their careers of unpopular decisions
in capital cases.
III. THE IMPACT ON THE IMPARTIALITY OF JUDGES
The political liability facing judges who enforce the Bill of
Rights in capital cases undermines the independence, integrity,
and impartiality of the state judiciary. Judicial candidates who
promise to base their rulings on "common sense,"169 unencumbered by
technicalities,170 essentially promise to ignore constitutional
166

Northern Sec. Co. v. United States, 193 U.S. 197, 400 - 01
(1904) (Holmes, J., dissenting) (noting that the judiciary must
construe a statute that has generated immediate and overwhelming
public interest with a sense of natural interpretation that one
would use if the same question arose in a similar act that had not
elicited any public attention).
167

See supra note 118.

168

The judge's responsibility is to "hold the balance nice,
clear and true between the State and the accused." Tumey v. Ohio,
273 U.S. 510, 532 (1927); see discussion of this case infra text
accompanying notes 318 -22; see also Model Code of Judicial
Conduct Canon 3B(2) (1990) (stating that a judge "should not be
swayed by partisan interests, public clamor or fear of
criticism").
169

See, e.g., George Skelton, Governor Pledges Common-Sense
Court, L.A. Times , Jan. 6, 1987, at 13, 16 (quoting California
Governor George Deukmejian's inaugural promise that "all of my
appointees to our courts will be common-sense judges who embody
the qualities of experience, fairness, integrity and
intelligence.") Alluding to the Bird Court's overturning of death
penalty sentences, Deukmejian also asserted that the voters "told
us again ... that life is sacred and that we must do everything we
can to protect the lives of innocent citizens." Id.; see also
supra text accompanying note 130.
170

There appear to be few candidates for judicial office who
share the courage of former Nebraska Supreme Court Justice Norman
Krivosha, who once said that he was "eager to respond when the
public complained about judges 'getting crooks off on
technicalities.' I studied those technicalities in school ...
they were (portions of) the Constitution of the United States."
Page 40

limits on the process by which society may extinguish the life of
one of its members. Justice Byron White once observed, "If [for
example,] a judge's ruling for the defendant . . . may determine
his fate at the next election, even though his ruling was affirmed
and is unquestionably right, constitutional protections would be
subject to serious erosion."171 Justice William Brennan noted that
the risk of a biased judge is "particularly acute"172 in capital
cases:
Passions, as we all know, can run to the extreme when the
State tries one accused of a barbaric act against society, or one
accused of a crime that -- for whatever reason -- inflames the
community. Pressures on the government to secure a conviction, to
"do something," can overwhelm even those of good conscience. When
prosecutors and judges are elected, or when they harbor political
ambitions, such pressures are particularly dangerous.173
Rulings in a publicized case can have major political
effects, such as loss of one's position or any hope of promotion,
and judges are aware of this as they make controversial decisions,
particularly in capital cases.
The American Bar Association's Commission on Professionalism
found that "judges are far less likely to . . . take . . . tough
action if they must run for reelection or retention every few
years."174 In no other area of American law are so many tough
decisions presented as in a capital case.
And no other cases
demonstrate so clearly the validity of the ABA Commission's
finding.
A judge who faces election is more likely to sentence a
defendant to death than a jury that heard the same evidence. In
some instances, political considerations make it virtually
impossible for judges to enforce the constitutional protections to
a fair trial for the accused, such as granting a change of venue
or continuance, or suppressing evidence.
Judges have failed
miserably to enforce the most fundamental right of all, the Sixth
Amendment right to counsel, in capital cases.
And many judges
routinely abdicate their judicial responsibility and allow the
Sheila Macmanus, Changes in Code of Judicial Conduct, Judicial
Campaigns and Alcohol Abuse Among Topics Debated at 11th National
Conference, 72 Judicature 185, 185 (1988) (quoting Justice Norman
Krivosha, Address Opening the 11th National Conference for
Judicial Conduct Organizations (Sept. 1988)).
171

Ruth Marcus, Justice White Criticizes Judicial Elections,
Wash. Post , Aug. 11, 1987, at A5.
172

Wainwright v. Witt, 469 U.S. 412, 459 (1985) (Brennan, J.,
dissenting).
173

Id. (citations omitted).

174

American Bar Ass'n, Report of Commission on
Professionalism, 112 F.R.D. 243, 293 (1986).
Page 41

lawyers for the state to write their orders resolving disputed
factual and legal issues in capital cases.
A. Overrides of Jury Sentences
Four states -- Alabama, Florida, Indiana, and Delaware -permit a judge to override a jury's sentence of life imprisonment
and impose the death penalty.175 Alabama judges, who face partisan
elections every six years,176 have overridden jury sentences of
life without parole and imposed the death penalty forty-seven
times, but have vetoed only five jury recommendations of death.177
Between 1972 and early 1992, Florida trial judges, who face
contested elections every six years, imposed death sentences over
134 jury recommendations of life imprisonment, but overrode only
fifty-one death recommendations.178 Between 1980 and early 1994,
Indiana judges, who face retention elections every six years,
imposed death sentences over eight jury recommendations of life
imprisonment, but overrode only four death recommendations to
impose sentences of life imprisonment.179 Delaware did not adopt
the override until 1991,180 and that state's judges do not stand
for election;181 the first seven times judges used it, they
overrode
jury
recommendations
of
death
and
imposed
life
sentences.182
Indeed, the sentencing decisions of some judges are a
foregone conclusion. Members of the U.S. Supreme Court have
175

Ala. Code §13A-5-47(e) (1994); Fla. Stat. Ann. §921.141(3)
(West 1985); Ind. Code Ann. §35-50-2-9(e) (West Supp. 1994); Del.
Code Ann. tit. 11, §4209(d) (Supp. 1994); see also Spaziano v.
Florida, 468 U.S. 447 (1984) (upholding the constitutionality of
judicial overrides).
176

Ala. Code §17-2-7 (1987).

177

Harris v. Alabama, 115 S. Ct. 1031, 1040 (1995) (Stevens,
J., dissenting) (recounting Alabama override statistics compiled
by the Alabama Prison Project).
178

Id. at 1040 n.8 (citing Michael L. Radelet & Michael Mello,
Death-to-Life Overrides: Saving the Resources of the Florida
Supreme Court, 20 Fla. St. U. L. Rev. 195, 196, 210 -11 (1992)).
179

Id. at 1040 n.8 (citing Memorandum from Paula Sites, Legal
Director, Indiana Public Defender Council, to Supreme Court
Library (Feb. 8, 1994) (on file with the Clerk of the Supreme
Court)).
180

Del. Code Ann. tit. 11, §4209 (Supp. 1994).

181

See supra note 83.

182

Katheryn K. Russell, The Constitutionality of Jury Override
in Alabama Death Penalty Cases, 46 Ala. L. Rev. 5, 11 n.52 (1994).
Page 42

noticed the tendency of Jacksonville, Florida judge Hudson Olliff
to override jury sentences of life imprisonment and impose
death.183 An override could also be anticipated from another
Florida circuit judge, William Lamar Rose, who protested the U.S.
Supreme Court's decision in 1972 finding the death penalty
unconstitutional184 by slinging a noose over a tree limb on the
courthouse lawn.185 In Alabama, three judges account for fifteen of
the forty-seven instances in which jury sentences of life
imprisonment were overridden and death imposed.186
Commenting on judicial overrides of jury decisions, Justice
Stevens has observed:
[E]lected judges too often appear to listen [to] the
many voters who generally favor capital punishment but
who have far less information about a particular trial
than the jurors who have sifted patiently through the
details of the relevant and admissible evidence.
How
else do we account for the disturbing propensity of
elected judges to impose the death sentence time after
time notwithstanding a jury's recommendation of life?187
183

Barclary v. Florida, 463 U.S. 939, 980-81 & 981 n.12 (1983)
(Marshall, J., dissenting) (observing Judge Olliff's use of the
same boilerplate language in three different cases in overriding
jury sentences and imposing the death penalty).
184

Furman v. Georgia, 408 U.S. 238 (1972).

185

Von Drehle, supra note 48, at 414-18 (describing Judge
Rose's override in favor of the death sentence in the case of Doug
McCray, and the eventual reversal of that conviction after 17
years in the Florida state courts).
186

Statistics compiled by the Alabama Prison Project (Nov. 29,
1994) (lodged with the clerk of the U.S. Supreme Court in Harris
v. Alabama, 115 S. Ct. 1031 (1995)) (showing that six of the
overrides were by Judge Ferrill McRae; five were by Judge Randall
Thomas, who overrode the jury and imposed death on Louise Harris,
the petitioner in Harris v. Alabama, and four were by Judge
Braxtron L. Kittrell, Jr.; see also Amended Motion for Recusal
7-8, Whisenhant v. State, No. CC 77-697 (Ala. Cir. Ct. Mobile
County Feb. 7, 1991) (on file with the Boston University Law
Review) (showing that although there are nine circuit court judges
in Mobile, Judge McRae had presided over 30% of the capital cases
because he assigned a large number of such cases to himself).
187

Walton v. Arizona, 497 U.S. 639, 713 n.4 (1990) (Stevens,
J., dissenting); see also Spaziano v. Florida, 468 U.S. 447,
486-87 (1984) (Stevens, J., concurring in part and dissenting in
part) (arguing that juries make decisions based on community
values more reliably than do judges because juries more accurately
reflect the composition and experiences of a community as a
whole).
Page 43

Justice Stevens has also noted that jurors, even those who
support candidates who are "tough on crime," are not subject to
the same political pressures as judges:
I am convinced that our jury system provides reliable
insulation against the passions of the polity.
Voting for a
political candidate who vows to be "tough on crime" differs vastly
from voting at the conclusion of an actual trial to condemn a
specific individual to death. Jurors' responsibilities terminate
when their case ends; they answer only to their own consciences;
they rarely have any concern about possible reprisals after their
work is done. More importantly, they focus their attention on a
particular case involving the fate of one fellow citizen, rather
than on a generalized remedy for a global category of faceless
violent criminals who, in the abstract, may appear unworthy of
life.188
Justice Stevens was a single voice. The other eight members
of the Supreme Court, without even addressing his concern about
the political influences on jury overrides, held in Harris v.
Alabama that Alabama judges could continue to override jury
sentences in capital cases, simply relying on the Court's earlier
decision allowing judicial overrides by judges in Florida.189
B. Failure to Protect the Constitutional Rights of the Accused
The Bill of Rights guarantees an accused certain procedural
safeguards, regardless of whether those safeguards are supported
by popular sentiment at the time of the trial, in order to protect
the accused from the passions of the moment. But nothing protects
an elected judge who enforces the Constitution from an angry
constituency that is concerned only about the end result of a
ruling and may have little understanding of what the law requires.
Judges who must keep one eye on the next election often cannot
resist the temptation to wink at the Constitution.
As previously discussed, some judges have scheduled capital
cases for before an election or have refused to continue a case
until after an election in order to gain the publicity and other
political benefits that accompany presiding over such a trial.190
In these situations, the judge is under immense pressure to make
rulings that favor the prosecution because an unpopular decision
will quickly turn the anticipated benefits of association with the
case into a major liability that could result in defeat in the
election.
But even in less politically charged circumstances, judges
188

Harris v. Alabama, 115 S. Ct. 1031, 1039 (1995) (dissenting
opinion).
189

Id. at 1034-36 (O'Connor, J.) (relying on Spaziano v.
Florida). Justice Stevens also pointed out the political pressures
on Florida's elected trial judges in his dissent in Spaziano, 468
U.S. at 486-87.
190

See supra parts II.B-C.

Page 44

face conflicts between personal political considerations and their
duty to enforce the law in making decisions on a wide range of
issues. For example, among the many decisions by trial judges to
which reviewing courts defer are determinations under Batson v.
Kentucky191 of whether the use of peremptory jury strikes was
racially motivated.192 As previously discussed, many judges are
former prosecutors. Before going to the bench, a judge may have
hired the prosecutor appearing before him as an assistant. Even
if the judge is not personally close to the prosecutor, she may be
dependent upon the prosecutor's support in the next election to
remain in office.193 Therefore, it may be personally difficult or
politically impossible for a judge to reject a the prosecutor's
proffered reason for striking a minority juror.194
Judges may find it difficult to make other decisions required
by law and remain popular with the voters.
The Mississippi
Supreme Court has acknowledged that the discretion to grant a
change of venue places a "burden" on the trial judge because "the
judge serves at the will of the citizenry of the district . . .
[and] might be perceived as implying that a fair trial cannot be
had among his or her constituents and neighbors."195
Even when a judge grants a change of venue, the objective may
not be to protect the right of the accused to a fair trial. The
clerk of a circuit court in Florida revealed several years after
191

476 U.S. 79 (1986).

192

Id. at 98; Purkett v. Elem, 115 S. Ct. 1769 (1995) (holding
that a prosecutor's explanation that a black juror was stricken
because he had long, unkempt hair, a moustache, and a beard was a
"race-neutral" reason, and deferring to the state court's finding
that the prosecutor did not have a discriminatory intent).
193

See supra notes 19-23 and accompanying text (describing how
Houston District Attorney Johnny B. Holmes, dissatisfied with a
judge's rulings in two cases, helped cause the judge's defeat by
causing congestion of the judge's docket).
194

For a discussion of the types of reasons that trial courts
often accept when ruling on Batson claims, see United States v.
Clemmons, 892 F.2d 1153, 1159-63 (3d Cir. 1989) (Higginbotham, J.,
concurring) (citing cases and articles to demonstrate that in
cases since Batson "superficial or almost frivolous excuses for
peremptory challenges with racial overtones have been proffered
and accepted," including "reasons that are clearly, but subtly,
racial in nature"), cert. denied, 496 U.S. 927 (1990); Kenneth B.
Nunn, Rights Held Hostage: Race, Ideology and the Peremptory
Challenge, 28 Harv. C.R.-C.L. L. Rev. 63 (1993) ; Michael J.
Raphael & Edward J. Ungvarsky, Excuses, Excuses: Neutral
Explanations Under Batson v. Kentucky, 27 U. Mich. J.L. Ref. 229
(1993).
195

Johnson v. State, 476 So. 2d 1195, 1209 (Miss. 1985).

Page 45

the death sentence was entered against Raleigh Porter that the
presiding judge, Richard M. Stanley, had told the clerk that he
was changing the venue to another county that had "good, fair
minded people here who would listen and consider the evidence and
then convict the son-of-a-bitch.
Then, Judge Stanley said, he
would send Porter to the chair."196 The jury returned the expected
verdict and Judge Stanley, wearing brass knuckles and a gun at the
sentencing hearing, sentenced Porter to death.197
In Coleman v. Kemp,198 a Georgia trial judge denied a change
of venue from a small rural community inundated with media
coverage of six murders committed by Maryland prison escapees.
The media coverage included strong anti-defendant sentiments, such
as those of the local sheriff, who publicly expressed his desire
to "pre-cook [the defendants] several days, just keep them alive
and let them punish," and of an editorial writer who compared the
defendants to rattlesnakes and rabid dogs.199 A local citizen who
served as a juror in one of the cases testified that news of the
murders spread in the small community "like fire in a broom sage,"
that "everybody was so excited and upset over it," and that the
sentiment of "everybody" prior to trial was "fry ' em, electrocute
'em."200 The elected trial judge, faced with a choice between his
community's urge for a quick and violent response to the crime and
the defendants' constitutional rights, refused to grant a change
of venue. The local jury convicted the defendants and the elected
Georgia Supreme Court upheld the convictions.201
The difficult job of setting aside the convictions obtained
at three trials that lacked any semblance of fairness was left to
the judges serving life tenure on the United States Court of
196

Porter v. Singletary, 49 F.3d 1483, 1487 (11th Cir. 1995)
(remanding for a hearing on whether the petitioner could establish
"cause" for failing to present previously his claim that he was
denied a fair and impartial judge).
197

Id. at 1488.

198

778 F.2d 1487 (11th Cir. 1985), cert. denied, 476 U.S. 1164
(1986).
199

Id. at 1493, 1518. For a detailed account of the massive
pretrial publicity and community attitudes, see id. at 1491-1537.
200

Id. at 1533-34.

201

See Dungee v. State, 227 S.E.2d 746 (Ga.) (per curiam)
(affirming George Dungee's death sentence), cert. denied, 429 U.S.
986 (1976); Isaacs v. State, 226 S.E.2d 922 (Ga.) (per curiam)
(affirming Carl Isaacs's death sentence), cert. denied, 429 U.S.
986 (1976); Coleman v. State, 226 S.E.2d 911 (Ga. 1976) (affirming
Wayne Coleman's death sentence), cert. denied, 431 U.S. 909
(1977).
Page 46

Appeals for the Eleventh Circuit.202 The political consequences of
protecting the rights of the accused became even more apparent
after the grant of habeas corpus relief.
Citizens throughout
Georgia presented petitions containing over 100,000 signatures to
the
U.S.
House
of
Representatives
Judiciary
Committee's
Subcommittee on Courts, urging it to impeach the three members of
the Court of Appeals panel who voted unanimously for the new
trials.203
A judge's decision to allow electronic and photographic
coverage of court proceedings may also be influenced by political
considerations at the expense of the constitutional rights of the
defendant. In Estes v. Texas,204 the Supreme Court described the
potential for abuse of televising judicial proceedings:
Judges are human beings also and are subject to the same
psychological reactions as laymen.
Telecasting is particularly
bad where the judge is elected . . . . The telecasting of a trial
becomes a political weapon, which, along with other distractions
inherent in broadcasting, diverts his attention from the task at
hand -- the fair trial of the accused.205
The Court later noted that if one judge in a district allows
telecasting, then other judges in that district are almost obliged
to do the same -- "[e] specially . . . where the judge is selected
at the ballot box."206 As a result of the greater allowance of
cameras in court, a judge or prosecutor can film his or her
campaign commercials using real defendants.
Judges elected at the ballot box are under even greater
political pressure in some of the other decisions that they make.
A good example is Georgia's postconviction relief system. Voters
elect two superior court judges in Georgia's Flint Judicial
Circuit, comprising four rural counties. The Georgia Diagnostic
and Classification Center, the prison that houses Georgia's death
row, is a major employer in the circuit.
Because state
postconviction actions must be brought in the county of the prison
in which the inmate is incarcerated, local judges preside over a
large number of those actions.
In the last ten years, the two
local judges -- two former prosecutors -- have never once granted
202

Coleman, 778 F.2d at 1543 (granting habeas relief to Wayne
Coleman); Isaacs v. Kemp, 778 F.2d 1482, 1487 (11th Cir. 1985)
(granting habeas relief to Carl Isaacs and George Dungee), cert.
denied, 476 U.S. 1164 (1986).
203

Robert Doherty, House Panel Says Impeachment of Judges Not
Appropriate in Alday Case, UPI, Oct. 16, 1986, available in LEXIS,
News Library, UPI File.
204

381 U.S. 532 (1965).

205

Id. at 548.

206

Id. at 549.

Page 47

habeas corpus relief to an inmate sentenced to death.207 In
reviewing these cases, however, the federal courts have found
constitutional violations requiring that either the convictions or
sentences be vacated in almost two-thirds of the cases.208
Political considerations are also inescapable for appellate
judges who must stand for election or retention.
Former
California Supreme Court Justice Joseph R. Grodin described the
tension that he felt when deciding cases. He admitted that it was
difficult to assure himself that his vote had been entirely on the
merits of the case and in no way related to the case's possible
electoral
implications.209
A
Georgia
Supreme
Court
justice
acknowledged that the elected justices of that court may have
overlooked errors, leaving federal courts to remedy them via
habeas
corpus,
because
"[federal
judges]
have
lifetime
appointments. Let them make the hard decisions."210
207

In a few cases judges visiting from other parts of the
state have granted relief.
208

The authors reviewed the cases of 75 individuals sentenced
to death in Georgia in which the federal courts reviewed petitions
for habeas corpus relief after the Flint Judicial Circuit Superior
Court denied relief. In 57 of those cases, the federal court
ordered either a new trial or a new sentencing proceeding. In the
remaining 18 cases, the federal court denied all relief.
209

Joseph R. Grodin, Developing a Consensus of Constraint: A
Judge's Perspective on Judicial Retention Elections, 61 S. Cal. L.
Rev. 1969, 1980 (1988) (echoing the admission of Justice Grodin's
former colleague on the California Supreme Court, Justice Otto
Kaus, that his votes in critical cases may have been
subconsciously influenced by his awareness that the outcomes could
affect upcoming judicial elections).
210

Katie Wood, Not Just a Rubber Stamp Anymore, Fulton County
Daily Rep. (Ga.), Jan. 25, 1993, at 1, 5. Although the justice
maintained that the Georgia Supreme Court is now more willing to
enforce the Constitution than it had been previously, the state's
attorney general has made it clear that some of the members of the
court may pay at the polls as a result. Attorney General Michael
Bowers has called the court "the most liberal in the country" and
asserted that the court, led by Justice Robert Benham, an
African-American, is on a path to abolish the death penalty. Bill
Shipp, The State Scene: Benham and the Rare High Court Fuss,
Monroe County Rec. (Ga.), Apr. 5, 1995, at 4 (opinion column
circulated in many Georgia newspapers). Although no objective
observer would share Bowers' characterization of the Georgia
Supreme Court or its purpose with regard to the death penalty, the
comments by Bowers, who recently changed party affiliation from
Democrat to Republican, served notice that Benham may be
challenged in 1996 by a Republican candidate. Peter Mantius,
Speaking His Mind: A Decision that Robert Benham Wrote Last Year
Could Bring Conservative Opposition at the Polls, Atlanta Const.,
Page 48

The ouster of Justice Grodin and two other justices for their
alleged softness on the death penalty has produced a California
Supreme Court that is markedly more likely to affirm the
convictions and sentences of capital defendants. In the last five
years, the Court's affirmance rate in capital cases has climbed to
almost 97%, one of the highest rates in the country.211 A group of
professors at California law schools criticized the court for its
sometimes sloppy and unclear opinions and its willingness to allow
errors in the trial court to go uncorrected in capital cases. In
the words of one professor,
"I think they're doing the job
they're supposed to do. The people wanted death. They got some
justices who read the election returns and the law is certainly
indeterminate enough in many cases that it can be read the way the
California Supreme Court is reading it."212
The price paid for an elected judiciary in Alabama,
California, Georgia, Texas, and other states has been the
corruption of the judges and the courts of those states. Once a
judge makes a decision influenced by political considerations, in
violation of the oath he or she has taken to uphold the law, both
the judge and the judicial system are diminished, not only in that
case, but in all cases. The realization that a ruling in a case
was made with more of an eye toward the next election than the
requirements of the law can irreparably damage a judge's
self-perception and commitment to justice. After the first such
breach of one's judicial responsibility, it is more easily
repeated in future cases. Once the public understands that courts
are basing their rulings on political considerations -- even when
the courts are giving the voters the results they want, as the
California Supreme Court is now doing -- it undermines the
legitimacy and the moral authority of courts as enforcers of the
Constitution and law.
C. Appointment and Tolerance of Incompetent Counsel for Indigent
Persons
Judges often fail to enforce the most fundamental protection
of an accused, the Sixth Amendment right to counsel, by assigning
an inexperienced or incompetent lawyer to represent the accused.
As a result of appointments by state court judges, defendants in
capital cases have been represented by lawyers -- and in at least
July 3, 1995, at 2B.
211

Dolan, State High Court Is Strong Enforcer of Death
Penalty, supra note 7, at A1; see also Gerald F. Uelmen, How the
Justices Stack Up, L.A. Daily J. , June 4, 1993, Report at 7, 10
(observing only five reversals out of 89 cases decided between
1990 and 1993).
212

Claire Cooper, Experts Rap Court on Death Penalty Rulings,
Sacramento Bee, Sept. 20, 1988, at A1 (quoting Professor Gary
Goodpaster).
Page 49

one instance a third-year law student213 -- trying their first
cases214 or with little or no experience in trying serious cases,215
lawyers who were senile or intoxicated216 or under the influence of
drugs217 while trying the cases, lawyers who were completely
ignorant of the law and procedures governing a capital trial,218
213

See Bright, supra note 39, at 1845 n.56 (1994) (describing
a Mississippi case in which a third-year law student and an
attorney represented a capital defendant).
214

See, e.g., Paradis v. Arave, 954 F.2d 1483, 1490-91 (9th
Cir. 1992) (reviewing the adequacy of a capital defendant's
represenation when the attorney had passed the bar exam just six
months prior to his appointment as defendant's counsel, had not
taken any classes in criminal law, criminal procedure, or trial
advocacy during law school, and had never tried a jury or felony
trial), vacated and remanded, 113 S. Ct. 1837 (1993); see also
Bright, supra note 39, at 1845 n.56 (listing numerous other
examples of the inexperience of court-appointed counsel in capital
cases).
215

See, e.g., Parker v. State, 587 So. 2d 1072, 1100-03 (Ala.
Crim. App. 1991) (upholding the trial court's refusal to allow an
appointed lawyer to withdraw from a capital case despite the
lawyer's asserted inexperience in defense of criminal cases);
State v. Wigley, 624 So. 2d 425, 427 (La. 1993) (reporting that
three of the four attorneys appointed to defend two defendants
were "civil practitioners with little criminal law experience");
Johnson v. State, 476 So. 2d 1195, 1204 (Miss. 1985) (finding no
error when the accused was represented by one attorney with only
one prior criminal case and another who was a recent graduate from
law school with no criminal or civil trial experience, and the
trial court denied their motion to withdraw based upon complexity
of the case).
216

See People v. Garrison, 765 P.2d 419, 440-41 (Cal. 1989)
(describing how counsel, an alcoholic, was arrested en route to
court one morning and found to have a blood-alcohol level of 0.27
mg/l; nevertheless, the court was unwilling to create a rebuttable
presumption against the competence of attorneys under the
influence of alcohol).
217

See Bright, supra note 39, at 1859 (recounting the case of
John Young, who was executed in Georgia after being represented by
an attorney whose dependence on amphetamines and other drugs
affected his ability to concentrate and who pleaded guilty to
state and federal drug charges a few weeks after his client had
been sentenced to death).
218

See, e.g., Douglas v. Wainwright, 714 F.2d 1532, 1555 -56
(11th Cir. 1983) (describing a Florida capital case during which
the trial judge had to explain to defendant's attorney in a
conference in the judge's chambers that the attorney should
Page 50

lawyers who used racial slurs to refer to their clients,219 lawyers
who handled cases without any investigative or expert assistance,
lawyers who slept220 or were absent during crucial parts of the
trial,221 lawyers who lacked even the most minimal skills, lawyers
who filed one- page to ten-page briefs on direct appeal,222 and
other equally incompetent lawyers who were deficient in a number
of other respects.223
present mitigating evidence, not argument, during the penalty
phase of the trial, to which the attorney replied, "Judge, I'm at
a loss. I really don't know what to do in this type of
proceeding. If I'd been through one, I would, but I've never
handled one except this time."), vacated and remanded, 468 U.S.
1206 (1984); see also Bright, supra note 39, at 1842 n.49 (listing
numerous other examples of the defense counsel's lack of
familiarity with law and procedure).
219

See, e.g., Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.
1982) (reporting that during the sentencing phase of Terry
Goodwin's capital trial, his attorney described Goodwin to the
jury as "a little old nigger boy"), cert. denied, 460 U.S. 1098
(1983); see also Bright, supra note 39, at 1843 n.51 (citing other
uses of racial slurs).
220

Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises
Doubts About System, Wall Street J. , Sept. 7, 1994, at 1
(describing several reports of lawyers sleeping during trials);
John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said,
Houston Chron. , Aug. 14, 1992, at A35 (describing a defendant's
complaint that his lawyer slept during the trial).
221

See House v. Balkcom, 725 F.2d 608, 612 (11th Cir.), cert.
denied, 469 U.S. 870 (1984) ("During the state's direct
examination of Sgt. Fitzgerald, Ben Atkins, then lead counsel, was
not in the courtroom, but outside parking his automobile. Despite
this absence, Ben Atkins conducted the cross-examination of Sgt.
Fitzgerald, having never heard his direct testimony.").
222

See, e.g., Morgan v. Zant, 743 F.2d 775, 780 (11th Cir.
1984) (reviewing a claim of ineffective assitance when defense
counsel's filed brief containing only five pages of argument,
counsel filed it only in response to threat of sanctions against
him, and counsel failed to file a requested supplemental brief);
Banda v. State, 768 S.W.2d 294, 297 (Tex. Crim. App.), cert.
denied, 493 U.S. 923 (1989) (reporting that a court-appointed
counsel only raised a single point of error in a brief whose
substantive portion contained only 150 words); see also Bright,
supra note 39, at 1843 n.55 (citing numerous other examples of
grossly inadequate briefs).
223

For numerous other examples of instances of inadequate
representation by court-appointed lawyers and the tolerance of
such shameful representation by presiding judges and state
Page 51

When the community that elects the judge is demanding an
execution, the judge has no political incentive to appoint an
experienced lawyer who will devote large amounts of time to the
case
and
file
applications
for
expert
and
investigative
assistance, all of which will only increase the cost of the case
for the community. As a result, judges frequently assign lawyers
who are not willing or able to provide a vigorous defense.
For example, judges in Houston, Texas have repeatedly
appointed an attorney who occasionally falls asleep in court, and
is known primarily for hurrying through capital trials like
"greased
lightning"
without
much
questioning
or
making
objections.224 Ten of his clients have received death sentences.225
Similarly, judges in Long Beach, California, assigned the
representation of numerous indigent defendants to a lawyer who
tried cases in very little time, not even obtaining discovery in
some of them.226 The attorney has the distinction of having more of
his clients sentenced to death, eight, than any other attorney in
California.227
Local elected judges in Georgia have repeatedly refused to
appoint for retrials of capital cases the lawyers who had
successfully
represented
the
defendants
in
postconviction
proceedings,228 even after the Georgia Supreme Court made it
abundantly clear that counsel familiar with the case should be
appointed.229
appellate courts, see Bright, supra note 39, at 1835 - 43, 1846 49, 1855 - 66; Marcia Coyle et al., Fatal Defense: Trial and Error
in the Nation's Death Belt, Nat'l L.J. , June 11, 1990, at 30, 30
- 44 (examining the quality of representation in six states).
224

Barrett, supra note 218, at A1. One judge in Harris
County, responding to a capital defendant's complaints about his
lawyer sleeping during the trial at which death was imposed,
stated, "The Constitution doesn't say the lawyer has to be awake."
Makeig, supra note 218, at A35.
225

Barrett, supra note 218, at A1.

226

Ted Rohrlick, The Case of the Speedy Attorney, L.A. Times ,
Sept. 26, 1991, at A1. According to a local public defender,
judges liked the lawyer, Ron Slick, "because he was always ready
to go to trial, even when it seemed he had inadequate time to
prepare." Id. A substantial number of his clients asked judges
to appoint someone else to defend them, but their motions were
denied. Id.
227

Id.

228

Roberts v. State, 438 S.E.2d 905, 906 (Ga. 1994); Davis v.
State, 403 S.E.2d 800 (Ga. 1991); Birt v. State, 387 S.E.2d 879,
879-80 (Ga. 1990).
229

Amadeo v. State, 384 S.E.2d 181, 181 (Ga. 1989) (reversing
Page 52

Local elected judges may base their assignment of counsel to
indigent defendants on political ties or other considerations than
the ability of the lawyer to provide competent representation. A
defense attorney in Cleveland contributes thousands of dollars
toward the reelection campaigns of judges and is "notorious for
picking up the judges' dinner and drink tabs. They, in turn, send
[the attorney] as much business as he can handle in the form of
case assignments."230 A study of capital cases in Philadelphia
found that "Philadelphia's poor defendants often find themselves
being represented by ward leaders, ward committeemen, failed
politicians, the sons of judges and party leaders, and
contributors to the judge's election campaign."231 The lawyer who
received the most appointments one year to homicide cases in
Philadelphia was a former judge whom the state's supreme court
removed from the bench for receiving union money.232 He handled
thirty-four murder cases in that year and submitted bills for
$84,650 for fees and expenses.233
As might be expected, treating the assignment of criminal
cases as part of a judicial patronage system does not always
result in the best legal representation.
The study of capital
cases in Philadelphia found that "even officials in charge of the
system say they wouldn't want to be represented in Traffic Court
by some of the people appointed to defend poor people accused of
murder."234
Regardless of the basis for selection, assignment of cases to
lawyers by judges undermines the fairness and integrity of the
adversary system in other ways. Lawyers who owe their livelihood
to judicial appointments may be unwilling to provide zealous
representation out of fear that it will cost them future
appointments.
So long as this system continues, neither the
a trial court's appointment of two lawyers with no experience in
capital punishment litigation; the lawyers and defendant objected
after the trial court refused to appoint previous counsel with
death-penalty experience who had won a new trial for the defendant
in the U.S. Supreme Court).
230

James F. McCarty, Law and Disorder with Rumpled Suits and
Befuddled Ways, Thomas Shaughnessy Has Managed to Become the
Matlock of Cuyahoga County, Plain Dealer (Cleveland), Oct. 23,
1994, at 8, 13.
231

See Fredric N. Tulsky, Big-time Trials; Small Time
Defenses, Phila. Inquirer , Sept. 14, 1992, at A1, A8.
232

Roxanne Patel & Fredric N. Tulsky, The Former City Judge
Who Defended 34 Murder Suspects in a Year, Phila. Inquirer , Sept.
14, 1992, at A8.
233

Id.

234

Tulsky, supra note 229, at A8.

Page 53

judges nor the lawyers are truly independent and able to play
their proper role in the adversary system.
D. Delegating the Judicial Function to the Prosecutor
Many state trial judges engage in the routine practice of
adopting, usually verbatim, judicial orders that prosecutors or
attorneys general have actually written.
These orders are not
short, routine form orders regarding minor procedural or
management matters such as scheduling, but long and detailed
opinions, often over forty pages in length, containing extensive
factual characterizations and legal analysis.
Such ghostwritten
orders are not the impartial findings of disinterested judges, but
rather the briefs of advocates, containing one-sided, exaggerated
"findings" that prosecutors have tailored for strategic advantage
on appeal and in postconviction review. Besides representing the
nadir of judicial independence, this practice is a blatant
abdication of the judiciary's duty to safeguard a defendant's
constitutional right to a fair and impartial trial. It shows an
unwillingness of many state court judges to wrestle with the
difficult issues presented and to come to their own determination
of the issues.
A Georgia Superior Court judge denied postconviction relief
in a capital case in 1992 in an order that named a witness who had
never testified in the proceeding or had any relation to the
case.235 This error and the marked similarity of the order to the
Attorney General's brief in the case led to the discovery that the
judge's law clerk had called the assistant attorney general
handling the case and asked for an order denying the habeas corpus
petition.236 The order had been "spit out by the word processors at
the state attorney general's office without even correcting
spelling errors and other mistakes that originally appeared in the
state's . . . reply brief."237 The judge signed the order without
modification, not even noticing that he found "irrelevant" the
testimony of a witness who never appeared. Nevertheless, the
Georgia Supreme Court, in upholding the denial of relief, accorded
the order no less deference than usual, despite the state's
concession that it had written the order, and found immaterial the
order's mistake concerning the witness who never testified.238
235

Katie Wood, Challenging Ghost-Written Habeas Orders, Fulton
County Daily Rep. (Ga.), Nov. 25, 1992, at 1.
236

Id. at 2.

237

Order, Lewis v. State, No. W86 -73713 -H(A) (Tex. Dist. Ct.
Dallas County Feb. 10, 1993) (on file with the Boston University
Law Review), aff 'd, Ex parte Lewis, No. 24,429 - 01 (Tex. Crim.
App. Feb. 16, 1993) (per curiam) (on file with the Boston
University Law Review). A claim of ineffectiveness could not have
been raised previously because the trial lawyer could not assert
his own ineffectiveness.
238

Jefferson v. Zant, 431 S.E.2d 110, 112 (Ga. 1993), cert.
Page 54

In 1993, a district court judge in Dallas, Texas, entered a
one-page order adopting the state's response as the court's
findings and conclusions, even though the response took the
unprecedented position that procedural default barred a claim of
ineffective assistance of counsel.239 Six days later, the Texas
Court of Criminal Appeals approved the district court judge's
handling of the case in a standard one-page order.240 A circuit
judge in Florida recently acknowledged that the "customary
practice" in capital cases before him was for the prosecutor's
office, acting as "the 'eyes and ears' of the Court," to prepare
sentencing orders in capital cases for him.241 The Alabama courts
recently upheld on appeal a thirty-four-page order drafted by the
assistant attorney general, with the trial court merely correcting
one typographical error and replacing of the words "dismissed and
denied" on the last page with a single "DENIED."242
Such routine approval of the prosecution's ghostwritten
orders has become the standard practice in Alabama. Trial court
judges throughout Alabama enter orders denying postconviction
denied, 114 S. Ct. 1577 (1994).
239

Order, Lewis v. State, No. W86 -73713 -H(A) (Tex. Dist. Ct.
Dallas County Feb. 10, 1993) (on file with the Boston University
Law Review), aff 'd, Ex parte Lewis, No. 24,429 - 01 (Tex. Crim.
App. Feb. 16, 1993) (per curiam) (on file with the Boston
University Law Review). A claim of ineffectiveness could not have
been raised previously because the trial lawyer could not assert
his own ineffectiveness.
240

Ex parte Lewis, No. 24,429 - 01 (Tex. Crim. App. Feb. 16,
1993) (on file with the Boston University Law Review); see also,
e.g., Nichols v. Collins, 802 F. Supp. 66, 79 (S.D. Tex. 1992)
(finding that in a capital case a Houston judge resolved the
merits of a state habeas corpus petition by signing 35 pages of
findings of fact and conclusions of law that were "a verbatim
adoption of the State's proposed findings and reflect no
independent input from the state district judge").
241

Card v. State, 652 So. 2d 344, 345 (Fla. 1995) (remanding
for an evidentiary hearing on whether the defendant was denied an
independent weighing of aggravating and mitigating circumstances;
the judge stated that he did not dictate findings to the
prosecutors before the sentencing orders were prepared).
242

Compare Opinion and Order (Draft), Grayson v. State, No. CV
86 -193 (Ala. Cir. Ct. Shelby County Jan. 19, 1993) (on file with
the Boston University Law Review) (proposed opinion and order
rejecting Grayson's coram nobis petition) with Opinion and Order,
Grayson (No. CV 86-193) (on file with the Boston University Law
Review) [hereinafter Grayson Order] (same order, with the noted
alterations), aff'd, No. CR-92-0875, 1995 Ala. Crim. App. LEXIS 16
(Jan. 13, 1995).
Page 55

relief in capital cases that are virtually identical in structure,
language, organization, findings, syntax, and overreaching. These
ghostwritten orders are highly argumentative and notably selective
in overemphasizing the state's evidence while discounting or
entirely ignoring the defendant's evidence. For example, defense
counsel's acts and omissions are universally deemed "strategic" -no matter how preposterous such an assertion may be -- so as to
defeat a potential claim of ineffective assistance of counsel
under Strickland v. Washington.243 In addition, the ghostwriting
assistant attorneys general also repeatedly "find" that even if
defense counsel had presented certain evidence, it would have made
no difference so as to defeat the prejudice prong of Strickland.244
In one case, when an appointed lawyer who defended a capital case
for only $1000 admitted that it was "malpractice" not to consult
with an expert about some of the issues in the case, the order
ghostwritten by the assistant attorney general and signed by the
judge never mentioned that testimony or any of the other
deficiencies in counsel's representation.245
Indeed, Alabama prosecutors apparently now feel uncomfortable
when a judge undertakes to decide the case on his own.
In one
Alabama case in which the trial judge denied postconviction relief
in his own order before the state submitted one, the state made a
motion for additional findings and submitted findings denying
relief on procedural grounds.246 The assistant attorney general
even asked the state appellate court to delay the briefing
schedule on the appeal to give the trial judge time to sign the
243

466 U.S. 668 (1984) (establishing the legal standards for
evaluating a defendant's Sixth Amendment claim that his attorney
did not render effective assistance). The Strickland Court held
that "strategic choices made after thorough investigation ... are
virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitation on
investigation." Id. at 690-91.
244

The Supreme Court held in Strickland that even if a
lawyer's performance was deficient at trial, relief on
ineffectiveness ground was not to be granted unless the defendant
established "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would be
different." Id. at 694. The Court added that "[a] reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id.
245

Grayson Order, supra note 240, passim.

246

See Luke v. State, 484 So. 2d 531, 535 (Ala. Crim. App.
1985) (recounting the state's filing of a motion for clarification
of the trial court's November 30, 1984 order denying Luke's coram
nobis petition).
Page 56

The
trial
judge
overruled
the
state's
proposed
order.247
defendant's objections and entered an order adopting the proposed
findings.248
In the case of Cornelius Singleton, a mentally retarded black
man who was executed after being sentenced to death by an
all-white jury, a state court judge in Mobile signed off on at
least four ghostwritten orders.249 In Singleton's 1983 state
247

Motion to Suspend Rules and Change Time Within Which
Appellee's Brief Must Be Filed, Luke v. State, 484 So. 2d 531
(Ala. Crim. App. 1985) (No. 4 - Div. 417) (on file with the Boston
University Law Review).
248

See Order, Luke v. State, No. CC 82-320 (Ala. Cir. Ct.
Russell County June 10, 1985) (on file with the Boston University
Law Review) [hereinafter Luke Order] (order amending trial court's
November 30, 1984 order, which denied Luke's coram nobis petition,
by adding findings of fact regarding that petition), ignored, 484
So. 2d 531, 536 (Ala. Crim. App. 1985) (affirming the denial of
Luke's coram nobis petition, but refusing to consider the trial
court's June 10, 1985 order in doing so), cert. denied 484 So. 2d
538 (Ala. 1986).
249

Second Amended Sentence Order, Singleton v. State, No. 1
Div. 361, slip op. app. (Ala. Crim. App. Apr. 24, 1984), available
in LEXIS, Ala Library, Alcts File), aff 'd, Ex parte Singleton,
465 So. 2d 443 (Ala. 1985); Memorandum Opinion, Singleton (No.
CC-78 -117) (Ala. Cir. Ct. Mobile County Dec. 26, 1986) (on file
with the Boston University Law Review), appeal dismissed, 492 So.
2d 675 (Ala. Crim. App. 1986); Memorandum Opinion, Singleton (No.
CC-78 -117) (Ala. Cir. Ct. Mobile County July 1, 1988) (on file
with the Boston University Law Review) [hereinafter Third
Singleton Order], aff 'd, 541 So. 2d 87 (Ala. Crim. App. 1988),
aff 'd sub nom. Ex parte Singleton, 548 So. 2d 167 (Ala. 1989);
Order and Opinion, Singleton (No. CC- 78 -117) (Ala. Cir. Ct.
Mobile County Nov. 27, 1990) (on file with the Boston University
Law Review) [hereinafter Fourth Singleton Order], aff 'd, 587 So.
2d 1117 (Ala. Crim. App. 1991). The same judge, Ferrill McRae,
has signed off on at least five other orders that the Alabama
Attorney General's office submitted in other capital cases.
The order sentencing Phillip Tomlin to death, which is
appended to the opinion of the Court of Criminal Appeals in Tomlin
v. State, 516 So. 2d 790 app. (Ala. Crim. App. 1986), aff'd sub
nom. Ex parte Tomlin, 516 So. 2d 797 (Ala. 1987), is identical to
the order drafted by the assistant attorney general and submitted
to Judge McRae. Apparently not aware that the order was prepared
by one side, the Court of Criminal Appeals wrote in its decision
that "the very able trial judge [had] prepared and issued" the
order. 516 So. 2d at 791. Subsequently the Alabama Supreme Court
reversed the conviction because of the prosecutor's improper
closing arguments. At the new trial a jury unanimously
recommended that the defendant be sentenced to life imprisonment.
Judge McRae then solicited another order from the Alabama
Page 57

postconviction proceeding, the judge signed a ghostwritten order
that went beyond the record to defeat Singleton's claim of racial
discrimination based on the prosecution's striking nine black
jurors to obtain an all-white jury. In applying the standard of
Swain v. Alabama,250 the order stated that "[the] Court knows from
having presided over dozens of cases tried by the two prosecutors
who tried the present case that they did not remove all black
veniremen from the juries in all or even a majority of the cases
they tried."251 This finding was made without evidence. A federal
court evaluating the same claim of a Swain violation in another
case involving the same prosecutors based on evidence found a
systematic practice of racial discrimination.252
attorney general's office, overriding the jury's verdict and
imposing the death penalty; the judge signed that order.
Sentencing Order, State v. Tomlin, No. 89-481 (Ala. Cir. Ct.
Mobile County Apr. 19, 1990) (on file with the Boston University
Law Review).
The Alabama Attorney General's office also wrote the order
used by Judge McRae to sentence Thomas Warren Whisenhant to death
in 1987. Compare the Letter from Ed Carnes, Assistant Attorney
General, Alabama, to Ferrill McRae, Judge of the Alabama Circuit
Court for Moblie County (Apr. 14, 1987) (on file with the Boston
University Law Review) (containing, as an enclosure, proposed
"Sentence Findings and Order") with the virtually identical
Sentence Findings and Order, State v. Whisenhant, No. CC-77-697
(Ala. Cir. Ct. Mobile County Apr. 23, 1987) (on file with the
Boston University Law Review), aff'd, 555 So. 2d 219 (Ala. Crim.
App. 1988).
250

380 U.S. 202, 223 (1965) (holding that the defendant must
show that a prosecutor made race-based peremptory challenges "in
case after case, whatever the circumstances, whatever the crime
and whoever the defendant or the victim" in order to establish a
prima facie case of purposeful discrimination), overruled in part,
Batson v. Kentucky, 476 U.S. 79, 94 (1986) (holding that defendant
must only show that he is a member of a cognizable racial group
and that the prosecutor used race-based peremptory challenges to
exclude veniremen from the defendant's petit jury to establish a
prima facie case of purposeful discrimination).
Although the Supreme Court decided Batson before this court
rejected Singleton's purposeful discrimination claim, the court
applied the Swain standard because Batson does not apply
retroactively to appellate review of convictions that became final
before the Supreme Court handed down Batson. See Allen v. Hardy,
478 U.S. 255, 258 (1986) (holding Batson nonretroactive).
251

See Memorandum Opinion at 4 -5, Singleton (No. CC-78 -117)
(Ala. Cir. Ct. Mobile County Dec. 26, 1986) (on file with the
Boston University Law Review) (denying Singleton's coram nobis
petition).
252

Jones v. Davis, 906 F.2d 552 (11th Cir. 1990), cert.
Page 58

In 1988, the same state trial judge signed another order and
memorandum opinion in Singleton's case, the day after receiving
that order from the state.253 And then, in November 1990, the judge
adopted another ghostwritten order, forty-seven pages long,
without modification.254 Much of the language in this order is
identical to the language of an order signed by a different judge,
in another case, in another part of the state, Holladay v.
State.255 Both cases involved questions of whether the defendants'
rights were violated because of their trial counsel's failure to
present
mitigating
evidence
of
the
defendants'
mental
retardation.256
During postconviction proceedings in each case, the lawyers
for the condemned defendants presented two mental health experts
who testified about the defendants' mental retardation.257 In both
cases, the state relied on Dr. Joe Dixon, a psychologist who does
mental examinations on behalf of the state.258 The portions of the
orders discussing the mental health evidence closely resemble each
other.
The courts accepted Dr. Dixon's testimony in full, yet
found the testimony of each of Singleton and Holladay's mental
health experts -- one psychiatrist and three psychologists -- to
be completely lacking credibility.259 The order in Singleton,
denied, 498 U.S. 1109 (1991).
253

Third Singleton Order, supra note 247.

254

Fourth Singleton Order, supra note 247.

255

Order, Holladay v. State, No. CC-86-1057.60ST, (Ala. Cir.
Ct. Etowah County Dec. 5, 1991) (on file with the Boston
University Law Review) (denying and dismissing coram nobis
petition) [hereinafter Holladay Order], aff'd, 629 So. 2d 673
(Ala. Crim. App. 1992), cert. denied, 114 S. Ct. 1208 (1994).
Interestingly, the order is stamped "filed" on two different
dates: once when the Capital Litigation Division of the Attorney
General's office filed it as a proposed order, and again when the
judge signed it as the order in the case.
256

Compare Fourth Singleton Order, supra note 247, at 35-37
(discussing Singleton's mitigating circumstances claim) with
Holladay Order, supra note 253, at 28-36 (discussing Holladay's
mitigating circumstances claim).
257

Compare Fourth Singleton Order, supra note 247, at 10 -19,
36 (testimony of Drs. Albrecht and Baroff) with Holladay Order,
supra note 253, at 29-35 (testimony of Drs. Fisher and Norko).
258

Compare Fourth Singleton Order, supra note 247, at 9-19, 36
(testimony of Dr. Dixon) with Holladay Order, supra note 253, at
29 (same).
259

Fourth Singleton Order, supra note 247, at 11-19, 36;
Holladay Order, supra note 253, at 30.
Page 59

signed on November 27, 1990, stated:
This Court credits the testimony of Dr. Dixon and does not
credit the testimony of Dr. Albrecht and Dr. Baroff for a number
of reasons.260
The order in Holladay, entered in that case on December 5,
1991, stated:
This Court credits the testimony of Dr. Dixon and does not
credit the testimony of Dr. Fisher and Dr. Norko for a number of
reasons.261
The orders then related the reasons for not crediting the
defendants' experts in highly argumentative "findings" regarding
the four defense witnesses.262 Although such arguments may have
been suitable for an advocate's brief, they certainly had no place
in a judicial order.
In Holladay, for example, the "findings"
were so audacious as to describe testimony by the defense
witnesses
with
the
following
phrases:
"no
credibility,"
"outrageous," and "without credibility and without merit."263
Such similarities appear in other cases.
Courts deny
ineffective assistance of counsel claims in orders that clearly
came off the same word processor that produced the attorney
general's brief.
These orders invariably begin with the same
summary of the legal standard and end with similar refrains. For
example, compare the following:
These cases provide the framework for analyzing petitioner's
ineffective assistance of counsel claim.
John Gruenewald [sic]
representation of petitioner was not deficient and petitioner was
not prejudiced by his actions at trial.264
These cases provide the framework for analyzing petitioner's
ineffective assistance of counsel claim.
Jock Michael Smith's
260

Fourth Singleton Order, supra note 247, at 11.

261

Holladay Order, supra note 253, at 30.

262

See Fourth Singleton Order, supra note 247, at 11-13, 16,
36-37 (criticizing Drs. Albrecht and Baroff); Holladay Order,
supra note 253, at 30-35 (criticizing Drs. Fisher and Norko).
263

Holladay Order, supra note 253, at 31, 35. In another
case, the court used the identical boilerplate but gave no reason
for crediting the state's experts and discrediting the defendant's
experts. See Grayson Order, supra note 240, at 30 ("Further, this
Court credits the testimony of Dr. Harry McClaren, and does not
credit the testimony of Drs. Phillips and Zimmerman. Grayson is
not entitled to relief.").
264

Proposed Findings of Fact and Conclusions of Law 6
[hereinafter Magwood Order], incorporated in Court's Order Denying
Petition for Writ of Error Coram Nobis, State v. Magwood, No.
CC-81-303 (Ala. Cir. Ct. Houston County June 27, 1987), aff'd, 553
So. 2d 635 (Ala. Crim. App. 1989), cert. denied, 1989 Ala. LEXIS
966 (Dec. 1, 1989), cert. denied, 495 U.S. 923 (1990).
Page 60

representation of petitioner was not deficient and petitioner was
not prejudiced by his actions at trial.265
These cases provide the framework for analyzing petitioner's
ineffective assistance of counsel claims.
Hank Fannin and R.D.
Pitt's representation of petitioner was not deficient and
petitioner was not prejudiced by his [sic] actions at trial.266
In each order a description of the court-appointed lawyer
followed, with the court finding him "experienced and capable."
The orders also included the percentage of the court-appointed
lawyer's work devoted to criminal defense cases and a finding that
the lawyer "investigated" the case by at least talking to the
defendant and perhaps some witnesses.267
The "findings" then address specific issues regarding
counsel's performance, almost always concluding that whatever
counsel did was "reasonable and strategic" in order to insulate
him from a finding of ineffectiveness. For example, in the case
of Arthur Lee Jones, whom Alabama executed in 1986, the state
court's ineffective assistance order contained a finding that
counsel's failure to give an opening statement, put on any
evidence about the defendant's life, and even to give a closing
265

Weeks v. State, 568 So. 2d 864 app. at 868 (Ala. Crim. App.
1989) (reprinting the Aug. 12, 1988 order of the Circuit Court of
Macon County, denying Weeks's petition for a writ of error coram
nobis), cert. denied, 1990 Ala. LEXIS 132 (Feb. 23, 1990), cert.
denied, 498 U.S. 882 (1990).
The Weeks court did nothing to hide the ghostwritten nature
of the order, merely signing the document that the prosecutor
submitted. The reprinted version appearing in West Publishing's
Southern Reporter begins with the heading "Respondent's Proposed
Findings of Fact and Conclusions of Law." Id. app. at 866.
266

Waldrop v. State, 523 So. 2d 475 app. at 481 (Ala. Crim.
App. 1987) (reprinting the July 28, 1986 order of the Circuit
Court of Talladega County, denying Waldrop's petition for a writ
of error coram nobis), cert. denied, 488 U.S. 871 (1988).
267

For examples of this oft-repeated litany, see Jones v.
Smith, 599 F. Supp. 1292 app. at 1307-08 (S.D. Ala. 1984)
(reprinting the December 12, 1984 order of the Circuit Court of
Mobile County), aff'd, 772 F.2d 668 (11th Cir. 1985), cert.
denied, 474 U.S. 1073 (1986); Weeks, 568 So. 2d 864 app. at 868
(reprinting the Aug. 12, 1988 order of Circuit Court of Macon
County); Harrell v. State, 526 So. 2d 646 app. at 652 (Ala. Crim.
App. 1988) (reprinting the January 23, 1987 order of the Circuit
Court of Jefferson County, Besemer Division), cert. denied, 488
U.S. 934 (1988); Bell v. State, 518 So. 2d 840, 844 (Ala. Crim.
App. 1987), cert. denied, 486 U.S. 1036 (1988); Thomas v. State,
511 So. 2d 248, 251-52 (Ala. Crim. App. 1987); Magwood Order,
supra note 262, at 6-7; Luke Order, supra note 246, at 1-3. This
list is by no means exhaustive.
Page 61

argument on the issue of penalty were all "strategic" decisions.268
In another case in which prosecutors used their jury strikes to
eliminate
all
African-Americans
from
the
jury
pool,
the
ghostwritten order found the defense lawyers' failure to object to
be
"reasonable"
and
"strategic."269
In
defending
an
African-American facing the death penalty for a crime against a
white person, it is difficult to imagine a reasonable strategy in
allowing the prosecutor to obtain an all- white jury.
This is
simply fiction packaged by the state's advocate in the guise of a
judicial finding.
In these and many other cases, state court judges repeatedly
gave prosecutors a blank check to say anything they wanted in
proposed orders, and then signed on the bottom line, converting
advocate's briefs into judicial orders. Regardless of what any
court has said to the contrary,270 the adoption of such orders has
268

See Jones, 599 F. Supp. 1292 app. at 1310 (citing Dec. 12,
1984 order of Circuit Court of Mobile County); see also Baldwin v.
State, 539 So. 2d 1103, 1106 (Ala. Crim. App. 1988) (finding that
counsel's "decision not to request a psychiatric examination was a
reasonable strategic decision which is not subject to second
guessing"), cert. denied, 493 U.S. 874 (1989); Horsley v. State,
527 So. 2d 1355, 1362 (Ala. Crim. App. 1988) (stating that
counsels' "strategic decision not to pursue a psychiatric
examination was made after an extensive investigation and is not
to be second-guessed"), cert. denied, 489 U.S. 1059 (1989);
Waldrop, 523 So. 2d 475 app. at 486 (citing July 28, 1986 order of
the Circuit Court of Talladega County) ("Trial counsel's strategic
decision not to call witnesses is not subject to second
guessing."); Bell, 518 So. 2d at 845 ("Trial counsel's strategic
decision not to call witnesses is not subject to second
guessing."); Jackson v. State, 501 So. 2d 542, 550 (Ala. Crim.
App. 1986) ("Trial counsel's strategic decision not to call
witnesses is not subject to second-guessing."), cert. denied, 483
U.S. 1010 (1987); Coulter v. State, 494 So. 2d 895 app. at 903 04 (Ala. Crim. App. 1986) (reprinting the July 16, 1985 memorandum
opinion of the Circuit Court of Colbert County) (labeling the
petitioner's trial attorney's decision not to present mitigating
evidence as "strategic").
269

See Magwood Order, supra note 262, at 9 (trial counsel's
failure to challenge prosecutor's peremptory strike of all black
jurors to get an all-white jury was a "reasonable, strategic
decision").
270

While courts have disapproved the practice of trial judges
signing off on ghost-written orders, see, e.g. , United States v.
Marine Bancorporation, Inc., 418 U.S. 602, 615 n.13 (1974); United
States v. El Paso Natural Gas Co., 376 U.S. 651, 656 n.4 (1964)
(quoting J. Skelly Wright, The Nonjury Trial -- Preparing Findings
of Facts, Conclusions of Law and Opinions, Seminars for Newly
Appointed United States District Judges 159, 166 (1963)), they
have nevertheless allowed the practice, even deferring to findings
Page 62

the appearance of impropriety and shows, at the very least, not
only lack of independence, but also complete indifference on the
part of many judges to what should be the most important work of
the judiciary.
E. Judges Acting as Prosecutors
The prosecution of high-profile capital cases is often a
stepping stone to a judgeship, as has been described.
Unfortunately, more than a few prosecutors who become judges
continue to prosecute from the bench.
Although they fail to
discharge their responsibility to be neutral, disinterested
judges, they may continue to reap the same political benefits from
capital cases that they received as prosecutors.
In a recent Georgia capital trial, a sitting superior court
judge took the witness stand to tell the jury why, while serving
as district attorney, he had sought the death penalty and had
refused to agree to a plea disposition in the case.271 After
testifying that the governor appointed him to the bench after
having "serve[d] the citizens of Hall and Dawson count[ies] as
their district attorney" for six years,272 the judge summarized the
factors he had considered in making the decision as prosecutor to
seek the death penalty for Stephen Anthony Mobley:
[The defendant's] lack of remorse and a personality of "pure
unadulterated meanness";
The financial cost of death cases to taxpayers;
Discussion with the victim's family and their support for a
death sentence as the appropriate penalty;
Consideration of whether the "last minutes of [the victims']
lives were more horrible to them than in other cases";
[The judge's] feeling that Mobley's description of the murder
to [one victim] was "unmerciful";
The strength of the State's evidence.273
The judge summarized his decision by stating that "I've
handled many cases with heinous facts of a killing, but I have
never, never seen a defendant like Mr. Mobley."274 Remarkably, the
of fact made in one-sided orders prepared by advocates for one
party, see, e.g., Anderson v. Bessemer City, 470 U.S. 564, 572
(1985) (refusing to reverse such findings unless shown to be
clearly erroneous); Hubbard v. State, 584 So. 2d 895, 900 (Ala.
Crim. App.), cert. denied, 584 So. 2d 895 (Ala. 1991), cert.
denied, 502 U.S. 1041 (1992); Morrison v. State, 551 So. 2d 435,
436 -37 (Ala. Crim. App.), cert. denied, 551 So. 2d 435 (Ala.
1989), cert. denied, 495 U.S. 911 (1990).
271

Mobley v. State, 455 S.E.2d 61, 69-70 (Ga. 1995).

272

Id. at 71 n.1 (Hunstein, J., dissenting in part).

273

Id. at 71-72.

274

Id. at 72.

Page 63

Georgia Supreme Court upheld Mobley's death sentence over the
dissent of only a single member.275
Edward D. Webster, a former prosecutor in Riverside,
California, publicly criticized a federal court of appeals for its
decision in a capital case, even though he is now the presiding
superior court judge in Riverside. Judge Webster, speaking "as a
former prosecutor," expressed his "outrage" at a decision by the
United States Court of Appeals for the Ninth Circuit remanding a
capital habeas corpus case on grounds that the federal district
court had failed to provide funds for expert assistance in support
of the habeas petition.276 Judge Webster accused the federal court
of anti-death- penalty bias and called upon Congress to prevent
all federal courts except the Supreme Court from reviewing
death-penalty cases.277
A former prosecutor who now presides as a judge over capital
cases in Houston, Texas, William Harmon, stated to a defendant
during a 1991 capital trial that he was doing "God's work" to see
that the defendant was executed.278 In the same case, Judge Harmon
taped a photograph of the "hanging saloon" of Texas Judge Roy Bean
on the front of the bench with his own name superimposed over
Judge Bean's, and referred to the judges of the Texas Court of
Criminal Appeals as "liberal bastards" and "idiots."279 In another
275

Id. at 70. The Georgia Supreme Court had previously held
in a pretrial appeal in the case that the defendant could present
evidence that he had offered to plead guilty in mitigation of
punishment. Mobley v. State, 426 S.E.2d 150 (Ga.) (appeal after
mistrial and before retrial), cert. denied, 114 S. Ct. 198 (1993).
The judge testified at the subsequent trial in response to
evidence of Mobley's offer to plead guilty. Upon review of the
defendant's conviction and death sentence, and the consequences of
its earlier ruling, the court overruled its earlier decision and
disapproved the admission of plea offers and the testimony
regarding the rejection of such offers by counsel in future cases.
Mobley , 455 S.E.2d at 69 -70. Nevertheless, a majority of the
court held that the judge's testimony in Mobley's case was not
"inflammatory or highly prejudicial," thereby allowing it to
affirm the death sentence. Id. at 70; cf. Brown v. Lynaugh, 843
F.2d 849 (5th Cir. 1988) (granting habeas corpus relief from a
conviction at a trial in which a Texas judge who was presiding
over the case testified as the prosecution's first witness).
276

Matthew Heffer, Judge Criticizes 9th Circuit for Death
Penalty Decision, L.A. Daily J., July 31, 1995, at 1, 30.
277

Id. at 30.

278

Brent E. Newton, A Case Study in Systematic Unfairness: The
Texas Death Penalty, 1973-1994, Tex. F. Civ. Lib. & Civ. Rts.,
Spring 1994, at 1, 24.
279

Id. Judge Harmon was reprimanded for his conduct. Clay
Robison, State Panel Reprimands District Judge Harmon, Houston
Page 64

capital case, Judge Harmon, upon a witness's suggestion that some
death row inmates should be transported to court, stated, "Could
we arrange for a van to blow up the bus on the way down here?"280
In another capital trial in 1994, Judge Harmon allowed the
victim's father to yell obscenities at the defendant in the
presence of jurors and the press.281
These are among the more pronounced examples of judges who
have continued the prosecutorial role upon assuming the bench.
Other judges may be more sophisticated in understanding their role
and more subtle in their approach to capital cases.282 A judge does
far more to undermine the fairness of a trial and hasten the
imposition of a death sentence by appointing deficient counsel and
in making discretionary rulings, as previously described, than by
engaging in conduct such as Judge Harmon's.
It is not surprising that such judges are produced by a
system that rewards prosecutors for obtaining the death penalty by
giving them the public recognition and support needed to be
elected judges. But this system often does not produce judges who
will be fair and impartial in capital cases. It is most difficult
for a prosecutor who has made his name prosecuting capital cases
to refrain as a judge from further exploitation of capital cases
upon assuming the bench.
IV. REMEDIES FOR THE RESULTING LACK OF IMPARTIALITY
Elected judges are expected to "remain faithful to the values
and sentiments of the people who elected them, and to render
decisions using common sense rather than newfangled legalisms."283
But remaining faithful to popular sentiment is sometimes
Chron. , Apr. 1, 1993, at A29.
280

Nichols v. Collins, 802 F. Supp. 66, 78-79 (S.D. Tex. 1992)
(granting writ of habeas corpus).
281

Newton, supra note 276, at 24.

282

A description of how a judge can influence the course of a
case by his tone, body language, relations with counsel, and
rulings on evidentiary points is provided in the account of Judge
William Callahan's handling of the trial of the "Scottsboro Boys"
in Carter, supra note 32, at 274-302.
283

Cornyn, supra note 90, at 374. Justice Cornyn describes
the forces that resulted in an elected judiciary in that state.
Id. (citing T.R. Fehrenbach, Lone Star: A History of Texas and the
Texans 435 (1983) ("No judge who had to run for reelection
regularly was expected to decide cases against the popular
feeling, on some new fangled point of law.")). Similar populist
sentiments led to systems of elected judges in other states.
Larry Berkson et al., Judicial Selection in the United States: A
Compendium of Provisions 3 (1980) (discussing the forces of change
at work in the 1830s and 1840s).
Page 65

inconsistent with a judge's duty to mete out equal justice and to
enforce the Bill of Rights. As Justice Jackson wrote:
The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections.284
Florida Supreme Court Justice Ben Overton has observed that
it was "never contemplated that the individual who has to protect
our individual rights would have to consider what decision would
produce the most votes."285 The more a judge sees his or her fate
as tied to community sentiment, the greater temptation there is to
"allocate justice in a manner which conforms to community values
and prejudices"286 and forget that "[a]ll of our people are
entitled to equal justice under law."287 The difficulty of ensuring
both equal justice under law and the public perception of a fair
and independent judiciary when judges must stand for election was
described by Justice Cornyn of the Texas Supreme Court:
Implicit in our national creed of "equal justice under law,"
and in the public acceptance of the judicial function generally,
is the idea that judges are not respecters of differences of
persons.
But when judges are required to be political animals,
the hard decisions that they are frequently called upon to make
can too readily be cast as essentially corrupt, and excoriated as
payoffs to political constituencies, instead of appearing to be
the products of serious reflection and lofty principle. If true,
such conduct should be condemned in the harshest terms.
But if
charges of political judging are false, our elective system can be
viewed only as giving tacit credence to such an accusation.288
In contrast, federal judges have life tenure289 and are
284

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
638 (1943).
285

Electing Judges Is Poor Policy, Overton Tells Panel, supra
note 138, at 4.
286

George F. Cole, Politics and the Administration of Justice
188-91 (1973).
287

Tom C. Clark, The Need for Judicial Reform, 48 Wash. L.
Rev. 806, 810 (1973). Justice Clark wrote further: "We hear much
about maintaining order, but before we can attain it we must
listen and respond to pleas for justice. History teaches us that
we will have neither order nor justice until we can attain both."
Id.
288

289

Cornyn, supra note 90, at 380.

U.S. Const. art. III, §1.
Page 66

appointed by the President with the advice and consent of the
Senate290 in order to ensure the independence of the judiciary and
to guarantee that the courts will perform their roles as
protectors of "the rights of individuals."291 Recognizing that "a
steady, upright, and impartial administration of the laws" was
essential because "no man can be sure that he may not be tomorrow
the victim of a spirit of injustice, by which he may be the gainer
today,"292 Alexander Hamilton wrote in the The Federalist No. 78:
"That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by temporary
commission."293
The state bench also differs from the federal bench in that
it is more likely to be a stepping stone to a higher political
office.294 In comparing the state and federal judiciary, Chief
290

U.S. Const. art. II, §2, cl. 2.

291

The Federalist No. 78, at 469 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
292

Id. at 470.

293

Id. at 466 (stating also that "the complete independence of
the courts of justice is peculiarly essential in a limited
constitution"); see also The Federalist No. 81, at 483 (Alexander
Hamilton) (Clinton Rossiter ed. 1961) ("Every reason which
recommends the tenure of good behavior for judicial office
militates against placing the judiciary power, in the last resort,
in 'a body composed of men chosen for a limited period.'").
294

For example, early in his career as a circuit judge in
Alabama, George C. Wallace, upon learning that federal officials
were investigating underrepresentation of African-Americans in
jury pools in a Georgia county, proclaimed to an all-white grand
jury Bullock County, Alabama, that he would not allow the federal
law-enforcement officials to inspect his records. Wallace then
called the Associated Press to report this "news." Bass, supra
note 33, at 185. Wallace later defied an order by U.S. District
Court Judge Frank Johnson to produce voting records and sought to
be held in contempt in order to benefit politically from a
confrontation with the federal court. Id. at 187-92.
In a more recent example, a state district judge in Texas
announced her campaign for attorney general by issuing a press
release that said "a Valentine's Day capital murder, which landed
in her courtroom, compelled her to run for the office of attorney
general." Mark Horvit & Ken Herman, Politicians on Anti-Crime
Bandwagon, Houston Post , Jan. 9, 1994, at A-25, A-27. Some
politicians also move from other state elective offices to the
judiciary. For example, John Patterson, who defeated George
Wallace in the 1958 Alabama governor's race, and who defended
segregation as attorney general and governor, Bass, supra note 33,
Page 67

Justice William Rehnquist has pointed out that the life tenure of
federal judges makes for a "different kind of judge" than someone
"looking out of one corner of his eye for the next political
opportunity that comes along."295 However, the politics of crime
have increasingly had an impact on nominations to the federal
judiciary296 and even the Supreme Court has seemed responsive to
the political potency of the crime issue.297
Nevertheless, although some appointees may take a political
agenda with them to the federal bench, life tenure still insulates
judges from the threat of being voted out of office for an
unpopular decision.
Every new election reminds state judges of
their vulnerability to popular sentiment. Such constant reminders
make it politically and practically impossible for many judges to
enforce the Constitution when doing so would be unpopular.
If courts are to have integrity and credibility, judges must
be selected, evaluated, and assigned cases in a way that makes it
possible for them to uphold the law without imperiling their jobs.
Political considerations will always be a factor in the selection
and promotion of judges in both the state and federal courts, and
some who become judges will allow their personal prejudices to
interfere with the faithful discharge of their duties, regardless
of how they are selected. But the selection and promotion process
should not allow a judge's ruling in a particular case to dominate
his or her prospects for remaining on the bench. If this is not
the case, judges will continue to work under unreasonable
pressures and the public will not view their decisions as fair,
impartial, and legitimate. The judiciary and bar should exercise
leadership in bringing about the replacement of judicial elections
at 159, 185-86, is now a judge on the Alabama Court of Criminal
Appeals.
295

Chief Justice William Rehnquist, Press Conference 5 (Mar.
15, 1989) (unofficial transcript, on file with Boston University
Law Review).
296

Lewis, supra note 31, at A26. Other political issues have
also come into play, particularly with regard to nominations for
the Supreme Court. See Cornyn, supra note 90, at 367, 381- 83
(observing how the "crusade between contending ideological
factions" on the issue of abortion has become a factor in
nominations to the Supreme Court).
297

See, e.g., Payne v. Tennessee, 501 U.S. 808, 834 (1991)
(Scalia, J., concurring) (noting the "nationwide 'victim's rights'
movement" in voting, after the retirement of Justice Brennan, to
overrule two recent 5-4 decisions, thus allowing victim-impact
evidence at the penalty phase of capital trials); id. at 867
(Stevens, J., dissenting) (expressing that it was a "tragedy" that
such political pressures influenced the Court's decision to take
the case and to reach unnecessarily the constitutional question,
and even its substantive resolution of the constitutional issue).
Page 68

-- both retention and contested -- with merit selection and
periodic performance review. Although such systems are desirable
and may be more likely after elections that have significantly
diminished the standing of the courts in Alabama, California,
Mississippi, Texas, and other states,298 one can expect that
elections will remain in many jurisdictions.
As long as judges are selected at the ballot box, several
less effective measures, small and large, should be taken to
reduce the influence of political considerations on judicial
rulings. Judges must recognize their constitutional and ethical
responsibility to disqualify themselves in cases in which one
might reasonably question their impartiality due to political
pressures. Capital cases should be assigned to judges who do not
face the voters from the locality of the crime. The discretion of
trial judges in areas where they are under political pressures
should be limited and reviewing courts should give more careful
scrutiny to rulings that are susceptible to influence by political
considerations.
Regardless of how judges are selected, they
should not appoint counsel for indigent defendants.
Removal of
appointment responsibility from judges is necessary to ensure the
independence of the judiciary and the zealous defense of the
298

Calls for new methods of judicial selection frequently come
after elections or other events that diminish the standing of the
courts. See, e.g., Johnson & Urbis, supra note 162, at 563-67
(calling for merit selection of judges in Texas to remedy the
problems caused by expensive judicial campaigns there); Norman
Krivosha, Acquiring Judges by the Merit Selection Method: The Case
for Adopting Such a Method, 40 S.W. L.J. Special Issue May 1986,
at 15, 20-21 (noting such a public call for "fundamental change in
the way judges are selected in Illinois" after a Chicago scandal,
because of the lack of judicial independence and public perception
that judges are not impartial as a result of fundraising needed
for campaigns); Do It Now, supra note 14, at 32 (calling for
reform of judicial selection system in Texas after the election of
Stephen Mansfield to the Texas Court of Criminal Appeals in 1994);
Election Is a Lousy Way to Chose State's Judges, Greenwood
Commonwealth (Miss.), Feb. 27, 1992, at 4 (criticizing the
election of judges in Mississippi); Judicial Elections,
Clarion-Ledger (Jackson, Miss.), June 7, 1990, at 14A (expressing
the view that "electing judges is a screwy way to decide who shall
mete out justice" because "[i]t invites -- requires to some extent
-- partisan activity while it officially prohibits it"); Re-elect
Robertson; Stop Electing Judges, N.E. Miss. Daily J. , Mar. 6,
1992, at 8A (observing that "men and women expected to impartially
interpret the law sometimes become embroiled in campaigns based on
emotions and feelings that have nothing to do with what the law
clearly requires"); Supreme Court: State District Dispute Settled
Now?, Clarion- Ledger (Jackson, Miss.), July 19, 1992, at 4G
(expressing the view that "Mississippi Supreme Court justices
should not be selected on the whim of popular politics, but on the
basis of competence, demeanor and experience").
Page 69

accused.
A. Using Diffuse and Indirect Citizen Input in Appointment and
Evaluation Systems
The elimination of direct and retention elections is a
necessary step to improve the fairness and impartiality of the
judiciary.
Eleven states and the District of Columbia already
employ systems in which judges never face election.299 The systems
in those states provide for removal of judges only for misbehavior
or other ethical improprieties,300 avoiding the opportunity to turn
a judicial election into a popular referendum on a judge's rulings
in controversial cases.
Although judicial elections appear to be immensely popular in
the United States, judges were not always selected and retained
this way.
The American colonial governments utilized executive
selection of judges and service during good behavior in an effort
to depoliticize the judiciary. Resentment toward the Crown's
control of the judiciary resulted in a shift from judges serving
at the pleasure of the executive301 to judges serving during good
behavior.302
Dissatisfaction with the appointed judiciary during the
period of populist Jacksonian democracy led to the election of
judges.303 The public viewed judges as too protective of the
interests of property owners.
States began to adopt systems of
electing judges in an effort to divorce the judiciary from
property owners.304 However, it became apparent that popular
election resulted in a highly politicized judiciary, with
299

See supra note 83.

300

See provisions collected supra note 83.

301

Joseph H. Smith, An Independent Judiciary: The Colonial
Background, 124 U. Pa. L. Rev. 1104, 1112 (1976) ("[I]t appears
that by 1700 judges in the royal colonies were commissioned
uniformly during pleasure by the Governor on his own initiative or
upon warrant from the Crown.").
302

Id. at 1153-55 (cataloging the constitutional provisions of
all original 13 states, which provided for judicial tenure during
good behavior, with some removal power in the executive with
consent of the legislature, and noting that all plans for a
national judiciary submitted at the Constitutional Convention in
1787 contained good-behavior provisions).
303

Berkson et al., supra note 281, at 3.

304

Id. at 4 (noting that by the time of the Civil War, 24 of
34 states had established elected judiciaries and that as new
states joined the Union, all adopted popular elections for some or
all judges until the admission of Alaska in 1959).
Page 70

political machines often controlling judges.305 States again began
to tinker with judicial selection methods, with some eventually
adopting a selection plan that included gubernatorial appointment
from a list compiled by a judicial selection committee, with a
subsequent retention election after a certain period of time.306
This reform sought to depoliticize the judiciary and allow judges
to make decisions unswayed by political considerations while still
allowing for some form of input from citizens.307 But, as has been
the case in California, Florida, and other places, even a
retention election can degenerate into a referendum on a judge's
rulings in capital or other controversial cases.308 Indeed, a
strong argument can be made that retention elections are even
worse than direct elections where the incumbent is challenged. In
retention elections, there is no comparison to be made among
candidates. The judge standing for retention may be a target for
negative votes from various groups dissatisfied with decisions on
issues ranging from crime to abortion. Voters may want to express
their disapproval of the judge with no consideration of whether
the replacement judge will be any better.
The independence of the judiciary can be best preserved by a
merit
selection
system
in
which
a
bipartisan
judicial
qualifications
commission
nominates
a
slate
of
qualified
candidates to the executive, who then nominates a judge subject to
confirmation by at least one branch of the state legislature.309
Meaningful citizen input can come by ensuring that a substantial
number of persons on the judicial qualifications commission are
not lawyers, but people who represent various segments of the
public.
Such a system should provide for terms for judges of
substantial length, such as ten to fifteen years.
Retention in
office for additional terms should depend upon an evaluation of
the judge's performance by the commission, not a retention
election.
One state that employs such a system is Hawaii, where the
305

Id. (discussing the perception of judges as corrupt).

306

Id. at 5-6 (discussing the advent of judicial selection
commissions).
307

See Susan B. Carbon & Larry C. Berkson , Judicial Retention
Elections in the United States 1 (1980) (discussing the dual
desire for judicial accountability and independence from public
emotion).
308

For a review of this phenomenon in the 1986 California
judicial elections, see John T. Wold & John H. Culver, The Defeat
of the California Justices: The Campaign, the Electorate, and the
Issue of Judicial Accountability, 70 Judicature 348 (1987).
309

For arguments supporting merit selection and criticizing
the popular election of judges as inconsistent with the duties and
functions of a judge, see generally Krivosha, supra note 296.
Page 71

governor selects judges with the consent of the senate, from a
list of nominees that a judicial selection commission compiles.310
The judicial selection commission's list must contain not less
than six nominees.311 If a judge indicates at least six months
before the end of his term that he wishes reappointment, the
commission determines whether the judge should be retained.312 The
primary purpose of the retention process is to "exclude or, at
least, reduce partisan political action."313
There are many positive aspects to Hawaii's selection and
retention process. First, it provides for diffuse and indirect
input in the judicial selection and retention process by allowing
the governor, the president of the senate, and the speaker of the
house of representatives, all of whom are elected, to appoint a
total of five members of the commission.314 Thus, there is public
accountability in a selection process that provides a layer of
protection for judges who may make unpopular decisions.
Second, a judge serves a term of ten years, after which time
the judicial selection commission again evaluates and either
retains or rejects the judge.315 Commission review allows an
informed body to evaluate a judge's entire ten-year record. The
commission sees any unpopular or controversial decisions in the
context of a broader record.
In addition, the commission can
review the legal reasons for the judge's decision, not just the
result.
Third, commission review avoids judicial electoral campaigns,
some of which can be demagogic, undignified, and unsophisticated.
Judges create complicated records of rulings on a variety of
issues, and an informed body representing the public can examine a
judge's entire record rather than merely focus on a judge's
rulings in the most notorious or highly publicized cases. Because
a judge knows that an informed body will review her performance,
she will be less susceptible to community pressures and will be
310

Haw. Const. art. VI, §3.

311

Id.

312

Id.

313

William S. Richardson, Judicial Independence: The Hawaii
Experience, 2 Haw. L. Rev. 1, 47 (1979). Richardson was the Chief
Justice of the Hawaii Supreme Court when he wrote this article.
314

Haw. Const. art. VI, §4. The judicial commission consists
of nine members in all. Id. The chief justice of the supreme
court and members in good standing of the Hawaii bar each choose
two of the remaining four members. Id.
315

Haw. Const. art. VI, §3; see also D.C. Code §§11-1501 to
11-1530 (1995) (providing 15-year terms for judges in the District
of Columbia with an independent commission empowered to remove
judges for cause).
Page 72

more likely to enforce constitutional and statutory law. Such a
method of selection would also result in better judges.
Many
capable and highly qualified individuals are unwilling to seek
judgeships where they must stand for election, knowing that the
responsible discharge of their duties in a controversial case
could cost them their positions.
Such individuals may also be
unwilling to solicit campaign contributions to finance a judicial
campaign, knowing that it creates an appearance of impropriety,316
engage in campaign tactics that are inconsistent with the Model
Code of Judicial Conduct but may be necessary to obtain office,317
or assume the bench knowing that they will be unable to defend
themselves when attacked politically for a single ruling or
decision.
Fourth, the public may have more confidence in and respect
for the judiciary because it knows that judges who do not have to
worry about offending a particular segment of the population in
order to raise campaign funds or stay in office are more likely to
be impartial.
At the same time, periodic review of judicial
behavior protects the public from those who are unfit for judicial
service.
Finally, and most importantly, such a system ensures that
when an individual takes the bench, he or she is independent in
316

Norman Krivosha, as Chief Justice of Nebraska, observed:
One may be the most ethical individual in the world and, yet,
if one must seek funds as the other two branches of government do
when running for office, one inevitably creates the appearance of
impropriety.... How does a judge maintain his or her appearance
of impartiality and propriety if he or she is identified as a
"labor judge" or as a "management judge" or as a "plaintiff 's
judge" or as a "defendant's judge?"
Another serious question is from whom are the funds to be
solicited? Obviously, one must solicit from all lawyers practicing
before the court. All lawyers, obviously, want to contribute to
the campaign of a sitting judge! Krivosha, supra note 296, at 19
-20; see also American Bar Ass'n, Report of Commission on
Professionalism, 112 F.R.D. 243, 293 (1986) (finding that "many of
the best potential candidates [for a judgeship] never apply" in
part because "[n]o matter how hard a judge may try to be fair to
contributors and non-contributors alike, the necessity and the
practicalities of campaign fundraising can only create the public
expectation that judges will not be impartial"); Johnson & Urbis,
supra note 162, at 540 - 42 (describing how fundraising has
"seriously tarnished" the Texas judiciary's image because the cost
of a successful judicial campaign has "skyrocketed," potential
candidates have refused to seek judicial office, and the chief
justice of the Texas Supreme Court resigned in a show of support
for a judicial selection system that would "'take the money out of
judicial politics'").
317

See supra notes 138-48 and accompanying text; infra notes
327-28, 331, and accompanying text.
Page 73

the sense that former United States Supreme Court Justice Owen
Roberts described:
When a man goes on the Court he ought not to have to depend
upon the strength . . . of his own character to resist the
temptation to shade a sentence in an opinion or shade a view. [He
should not have] to put an umbrella up in case it should rain. He
ought to be free to say his say, knowing as the founding fathers
meant he should know, that nothing could reach him and his
conscience was as free as could be.318
To be independent, a judge must be free to disregard public
sentiment when required by the law, and to take unpopular, but
constitutionally mandated, action.
Until recently judicial elections, whether direct or
retention, attracted little public attention.
Judges seldom
encountered opposition either from opponents or from interest
groups opposing their retention.319 However, this is no longer the
case. The judiciary in states all across the nation is becoming
increasingly politicized.
The success in defeating incumbent
judges in some states is leading to new efforts in others.
No
judge can risk alienating a powerful special interest group or
being viewed as "soft on crime." The elimination of both direct
and retention elections is essential if courts are to be
responsive to the commands of the law and Constitution instead of
the will of the majority.
B. Judicial Disqualification When Rulings Could Imperil Election
In jurisdictions in which judges stand for election or
retention, judges should be disqualified from presiding over cases
in which there is the appearance that political considerations
could tempt judges in their rulings. The law of judicial
disqualification and due process currently provides for this, but
courts fail to apply this law properly, relying on fictions of
impartiality while ignoring political realities.
In Tumey v. Ohio,320 the Supreme Court held as violative of
318

Robert W. Raven, Does the Bar Have an Obligation to Help
Ensure the Independence of the Judiciary?, 69 Judicature 66, 67
(1985) (quoting Justice Roberts).
319

Arthur Vanderbilt, Judges and Jurors: Their Functions,
Qualification and Selection, 36 B.U. L. Rev. 1, 37 (1956)
(observing that the only thing that had saved the popular election
of judges was the fact that most often judges were initially
appointed to fill a vacancy and then ran unopposed in subsequent
elections); see also Jerome R. Corsi, Judicial Politics: An
Introduction 112 (1984) (noting that "in the forty-five-year
history of retention elections [through 1980], ... only 1.6
percent of all judges in retention elections were defeated");
Ross, supra note 120, at 166 (noting that before 1986 appellate
judges "had generally not been challenged and had enjoyed job
security because of public indifference to judicial elections").
320

273 U.S. 510 (1927).
Page 74

due process a judicial system in which a mayor sat in judgment of
alleged violators of a Prohibition ordinance, and was not paid
unless he convicted and fined at least some of those brought
before him.
The Court concluded such a system deprives the
accused of due process in several ways.
First, it "subjects [a
defendant's] liberty or property to the judgment of a court the
judge of which has a direct, personal, substantial, pecuniary
interest in reaching a conclusion against him in his case."321
Second, "It is certainly not fair to each defendant, brought
before the Mayor for the careful and judicial consideration of his
guilt or innocence, that the prospect of such a loss by the Mayor
should weigh against his acquittal."322 Third, any system that
"offer[s] a possible temptation to the average man as a judge to
forget the burden of proof required to convict the defendant, or
[that] might lead him not to hold the balance nice, clear and true
between the State and the accused, denies the latter due
process."323 Fourth, given the mayor's position, "might not a
defendant with reason say that he feared he could not get a fair
trial or a fair sentence from one who would have so strong a
motive to help his village by conviction and a heavy fine?"324
In Ward v. Village of Monroeville,325 the Court extended the
Tumey principle to prohibit a mayor from acting as a judge in a
case in which his financial interest was not personal, but in
which his general mayoral responsibilities included revenue
production.326 The Court rejected the village's argument that this
system does not deprive defendants of due process because the
mayor's decisions were correctable on appeal and trial de novo in
the County Court of Common Pleas.327 Justice Brennan wrote that
"there is nothing to suggest that the incentive to convict would
be diminished by the possibility of reversal on appeal . . . .
[The defendant] is entitled to a neutral and detached judge in the
first instance."328
321

Id. at 523.

322

Id. at 532.

323

Id.

324

Id. at 533.

325

409 U.S. 57 (1972).

326

Id. at 60.

327

Id. at 61.

328

Id. at 61-62; see also Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813 (1986) (holding that an Alabama Supreme Court justice
with a direct, personal, substantial, and pecuniary interest in
the outcome of a case was barred from hearing the case); Dugan v.
Ohio, 277 U.S. 61 (1928) (holding that a mayor acting as the judge
Page 75

The impartiality of judges who promise to be "tough on crime"
is also called into question by the Model Code of Judicial
Conduct. Canon 3 provides that a judge "should not be swayed by
partisan interests, public clamor or fear of criticism."329 Canon 5
provides that a judge "shall not (i) make pledges or promises of
conduct in office other than the faithful and impartial
performance of the duties of the office; [or] (ii) make statements
that commit or appear to commit the candidate with respect to
cases, controversies, or issues that are likely to come before the
court."330
The Tumey situation is analogous to a typical capital case
tried, appealed, or brought for postconviction review before an
elected judge. The justices of the Supreme Courts of California
and Mississippi, the judges of the Texas Court of Criminal
Appeals, and trial judges in Houston and other jurisdictions
certainly know that their future on the courts and their judicial
salaries and pensions are closely related to their decisions in
capital cases.
At the very least, these pressures create the
appearance of partiality:
A fair trial in a fair tribunal is a basic requirement of due
process. Fairness of course requires an absence of actual bias in
the trial of cases. But our system of law has always endeavored to
prevent even the probability of unfairness . . . . [T]o perform
its high function in the best way "justice must satisfy the
appearance of justice."331
To take one example, a reasonable person has a basis for
questioning Alabama Circuit Judge Mike McCormick's impartiality in
criminal cases after he ran advertisements proclaiming: "Some
complain that he's too tough on criminals, AND HE IS . . . We need
him now more than ever."332 Proclaiming that one is "too tough" on
did not deprive a defendant of due process when the mayor received
his salary regardless of whether he convicted or acquitted the
defendant, and when the mayor's connection to the general fund
from which he was paid was remote enough to preclude a presumption
of bias).
329

Model Code of Judicial Conduct Canon 3B(2) (1990). For
further discussion of the Model Code of Judicial Conduct and
elected judges, see Ross, supra note 120, at 128-30 (applying the
1972 Model Code to the problem of elected judiciaries).
330

Model Code of Judicial Conduct Canon 5A(3)(d)(i), (ii)
(1990).
331

In re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt
v. United States, 348 U.S. 11, 14 (1954)).
332

Committee to Re-elect Judge Mike McCormick, Birmingham News
, Nov. 4, 1994, at 4C (advertisement); Committee to Re-elect Judge
Mike McCormick, Birmingham News , Nov. 6, 1994, at 21P
(advertisement).
Page 76

crime is incompatible with holding "the balance nice, clear and
Similarly, a
true between the State and the accused."333
reasonable person has a basis for doubting the impartiality of
elected judges in Georgia's Flint Judicial Circuit,334 where the
prison where executions take place is a primary employer of
voters, especially when federal courts find the decisions of those
judges to be in error in three out of every four capital cases.335
The legitimacy of judicial decisions depends on the
appearance of fairness, and elected judges hearing capital cases
too often make rulings that appear to be patently unfair. It is
apparent not only to Justice Stevens336 but also to those who
observe the courts that judges are frequently responding to a
"higher authority" than the Constitution. In some instances, that
voice sounds too much like the cries of a lynch mob.
Tumey
commands judges not have an improper temptation to rule in one way
or the other.337 A judge who will lose his position by ruling
against the prosecution in a single case is under far greater
pressure not to "hold the balance nice, clear and true between the
state and the accused"338 than is a judge whose salary comes from
fines that may be imposed in some of the many cases that come
before him. It is possible to construct fictions of impartiality
and impute them to every judge, but the reality is that capital
punishment is popular339 and judicial elections can become
333

Tumey v. Ohio, 273 U.S. 510, 532 (1927). Not only did
Judge McCormick's proclamation suggest partiality, but it may in
fact have been a violation of the Model Code of Judicial Conduct,
which prohibits judicial candidates, including incumbent judges,
from making "pledges or promises of conduct in office other than
the faithful and impartial performance of the duties of the
office." Model Code of Judicial Conduct Canon 3B(2) (1990); see
In re Kaiser, 759 P.2d 392 (Wash. 1988) (censuring a district
judge for his campaign statements that he was "toughest on drunk
driving," and "tough on drunk driving," because they singled out a
special class of defendants and suggest that the judge would
subject those cases to a higher standard); ABA Comm. on Ethics &
Professional Responsibility, Informal Op. 1444 (1980) (promise to
have a "strict sentencing philosophy" violates the Canon).
334

See supra notes 205-06 and accompanying text.

335

See supra note 206.

336

See supra text accompanying note 1.

337

See supra text accompanying notes 318-22.

338

Tumey v. Ohio, 273 U.S. 510, 532 (1927).

339

See, e.g., Lynne Duke, In Arkansas, a Death Row Struggle
and Doubt, Wash. Post , Jan. 9, 1994, at A1, A8 (noting a recent
Gallup Poll showing that 76% of Americans support the death
penalty); Linda Greenhouse, The Nation: A Capacity to Change as
Page 77

referenda on the death penalty.
One step in the right direction would be to permit
disqualification of at least one judge without attempting to
assess the question of impartiality. For example, in Maryland, a
party who believes that a fair and impartial trial cannot be had
before the assigned judge may file a suggestion that the judge is
incapable of affording him or her an impartial trial and the case
must be removed to another court.340 A judge in a capital case may
not refuse to grant the motion.
This at least allows the
defendant to decide if the judge originally assigned to his case
may not be in a position to put aside political considerations,
such as a judge facing a tough election.
This system is
attractive because it does not operate on the presumption that
judges become somehow immune to influences that would weigh
strongly on non-judges. This system does not attempt to discern a
judge's actual biases, but recognizes that the appearance of bias
may make it appropriate for another judge to hear the case. On
the other hand, when there is no concern about improper
influences, the judge will remain on the case.
There is no
assurance, however, that the new judge assigned to a case will not
also be facing a tough reelection campaign and be subject to the
same pressures.
It may be that practical considerations prevent courts from
acknowledging the appearance of partiality of elected judges due
to political pressures.
If an entire state supreme court is
disqualified, how is the case decided? If a judge is disqualified
from all criminal cases because he promised to be "too tough on
criminals,"341 how is the criminal docket to be managed?
The
answer to these practical problems, however, is not to substitute
legal fictions for political reality.
The popular frustration regarding crime is making it
increasingly
difficult
for
courts
to
discharge
their
constitutional obligation of fairness.
Judges who realize they
cannot hold the balance nice, clear, and true between the state
and the accused in particular cases because of political
considerations have a duty to recuse themselves. Lawyers have a
duty to move for the disqualification of judges who are subject to
the temptation to give in to political pressures in the cases
before them.
In reviewing disqualification issues, trial and
appellate courts should face the reality of the political
pressures that are present instead of hiding behind legal
fictions.
If disqualification in cases in which one might
reasonably question judges' partiality due to political pressures
begins to burden dockets, the legislature and the bar will be
Well as to Challenge, N.Y. Times , Feb. 27, 1994, s 4, at 4
(noting polls showing over 75% of people support the death
penalty).
340

Md. Rules 4-254.

341

See supra note 330 and accompanying text.

Page 78

forced to devise different selection systems that will minimize
the influence of political pressures on judges.
C. Altering Judicial Assignment Systems
One way to reduce the political pressures on elected judges
is to prohibit those judges from presiding over capital cases in
the districts that elect them. This could be accomplished through
the judicial assignment system.
For example, in both North342 and South Carolina,343 judges
rotate among judicial districts within the state. When out of his
county of residence, the judge is relieved from the political
pressure of having to portray himself as the protector of his
community; a judge would not necessarily stand for election in the
very place in which he had made controversial rulings.
This system would help to diminish the role of political
pressure on judicial decisionmaking, but would not eliminate it.
A judge could still seek to impress the voters at home with his
toughness in the case before him in another district. In a highly
publicized case, a controversial ruling would still be well known
and, even if it were not, an opponent could still seize upon an
unpopular but correct ruling and use it in opposing the judge.
Additionally, in any system a judge who intends to run for higher
office may want to use his or her position for visibility.
D. Limiting the Deference Reviewing Courts Give to Judges
Influenced by Political Pressures
So long as judges are subject to election or retention, the
discretion of trial judges on crucial matters should be limited by
objective standards that are carefully reviewed on appeal and in
postconviction proceedings.
Reviewing courts should acknowledge
the reality of the political pressures on trial judges, and, where
the potential for such influence is present, they should carefully
scrutinize rulings without the normal deference accorded to trial
judges.
Appellate courts routinely defer to findings of fact of state
trial judges, and review decisions of trial judges under the
highly deferential abuse-of- discretion and clearly-erroneous
standards on critical issues such as granting of a change of
venue,344 allowing a continuance,345 the extent and scope of voir
342

N.C. Const. art. IV, §11 (mandating the rotation of
superior court judges among various districts within a judicial
division); N.C. Gen. Stat. §7A- 41 (1989) (organizing the state
into judicial divisions and superior court districts); id. §7A47.3 (1989) (implementing the constitutionally mandated rotation
of superior court judges).
343

S.C. Const. art. V, §10 (mandating the rotation throughout
the state of all circuit court judges); S.C. Code Ann. §14-3-390
(Law. Co-op. 1977) (implementing the constitutionally mandated
rotation of circuit court judges).
344

See, e.g., Parker v. State, 587 So. 2d 1072, 1080-81 (Ala.
Page 79

dire,346 whether there has been racial discrimination in the
exercise of jury strikes,347 the impartiality of prospective
Crim. App. 1991) (finding that a trial court's refusal to grant
change of venue was not an abuse of discretion even though 65 out
of 93 members of the jury venire had prior knowledge of the
crime); People v. Cooper, 809 P.2d 865, 882 (Cal.) (declaring that
in order to overrule a trial court's decision not to change venue,
"the defendant must show both that the court erred in denying the
change of venue motion, i.e., that at the time of the motion it
was reasonably likely that a fair trial could not be had in the
current county, and that the error was prejudicial, i.e., that a
fair trial was not in fact had"), cert. denied, 502 U.S. 1016
(1991); Welch v. State, 229 S.E.2d 390, 395 (Ga. 1976) (holding
that the decision whether to grant a change of venue is within
discretion of the trial court and will not be reversed absent an
abuse of discretion).
345

See, e.g., Adkins v. State, 600 So. 2d 1054 (Ala. Crim.
App. 1990) ("The decision to grant or deny a motion for
continuance will not be reversed unless the trial judge has abused
his discretion."), aff'd in part and remanded, 600 So. 2d 1068
(Ala. 1992); People v. Mickey, 818 P.2d 84, 106 (Cal. 1991)
(decision whether to grant continuance within discretion of trial
court), cert. denied, 113 S. Ct. 65 (1992); see also Ga. Code Ann.
§17-8-22 (1990) (prescribing that all applications for
continuances are addressed to "sound legal discretion of the
court"); Anderson v. State, 365 S.E.2d 421, 424 (Ga. 1988)
(holding that a refusal to grant a continuance will be disturbed
only if "it clearly appears that the judge abused his
discretion").
346

In most jurisdictions, the trial court determines whether
jurors may be questioned individually or in a group and what
questions may be asked. See, e.g., Mu'Min v. Virginia, 500 U.S.
415, 427-32 (1991) (upholding, as within discretion of the trial
judge, the conduct of mere limited, conclusory questioning
regarding pretrial publicity); Turner v. Murray, 476 U.S. 28, 37
(1986) (leaving within the discretion of the trial court the form
and number of questions regarding racial prejudices to be asked of
prospective jurors, including whether the venire is questioned
individually or collectively); Kuenzel v. State, 577 So. 2d 474,
484 (Ala. Crim. App. 1990) (stating that the decision whether to
grant voir dire individually or collectively is within discretion
of trial court), aff 'd sub nom. Ex parte Kuenzel, 577 So. 2d 531
(Ala.), cert. denied, 502 U.S. 886 (1991); see also Hill v. State,
427 S.E.2d 770, 773 (Ga.) (finding no abuse of discretion when a
trial court remained in session until 11:00 p.m. on the first day
of voir dire but adjourned between 6:00 and 8:00 p.m. on the
remaining days), cert. denied, 114 S. Ct. 396 (1993).
347

Batson v. Kentucky, 476 U.S. 79, 98 n.21 (1986) (concluding
that the trial judge's findings regarding a prosecutor's reasons
Page 80

jurors,348 and the admission of certain types of evidence.349 Federal
for striking jurors who are members of cognizable class are
subject to "great deference"); Daniel v. State, 623 So. 2d 438,
442 (Ala. Crim. App. 1993) (repeating that a trial court is
entitled to "great deference" in ruling on Batson claims; reversal
was required only if a trial court's determination is clearly
erroneous); Lingo v. State, 437 S.E.2d 463 (Ga. 1993) (applying
Batson's requirement of "great deference" to uphold the trial
court's findings that a prosecutor had racially neutral reasons
for exercise of all 11 peremptory strikes against the first 11
African-American venire members called).
348

A trial court finding of juror impartiality may be
overturned only for "manifest error." Mu'Min, 500 U.S. at 428;
Patton v. Yount, 467 U.S. 1025, 1031 (1984); see also Harris v.
State, 632 So. 2d 503, 521 (Ala. Crim. App. 1992) (stating that
the trial court's ruling on challenges for cause based on pretrial
knowledge of the case will not be disturbed on appeal unless
clearly shown to be an abuse of discretion), aff 'd, Ex parte
Harris, 632 So. 2d 543 (Ala. 1993), aff 'd, Harris v. Alabama, 115
S. Ct. 1031 (1995); Sheperd v. State, 325 So. 2d 551, 555 -56
(Ala. Crim. App. 1975) (finding that the decision of whether a
juror could be impartial despite a friendship with an assistant
district attorney is within discretion of the trial court), cert.
denied, 325 So. 2d 557 (Ala. 1976); Hittson v. State, 449 S.E.2d
586, 594 (Ga. 1994) (stating that the trial court's findings
regarding venire members' capability to serve as impartial jurors
are entitled to deference on appeal), cert. denied, 115 S. Ct.
2005 (1995); Ledford v. State, 439 S.E.2d 917, 922 (Ga. 1994)
(stating that an appellate court defers to trial court's findings
that jurors could be impartial despite equivocation on question of
whether they would automatically impose death penalty), cert.
denied, 115 S. Ct. 740 (1995); Adanandus v. State, 866 S.W.2d 210,
222 (Tex. Crim. App. 1993) (repeating that whether a juror should
be stricken for cause is within discretion of the trial court),
cert. denied, 114 S. Ct. 1338 (1994); Cantu v. State, 842 S.W.2d
667, 681- 82 (Tex. Crim. App. 1992) (discussing the need for
deference to trial court's rulings with respect to juror
impartiality), cert. denied, 113 S. Ct. 3046 (1993).
349

See, e.g., Hart v. State, 612 So. 2d 520, 528 (Ala. Crim.
App.) ("The decision to receive photographs into evidence is
within the discretion of the trial court."), aff 'd, 612 So. 2d
536 (Ala. 1992), cert. denied, 113 S. Ct. 2450 (1993); Haney v.
State, 603 So. 2d 368, 396 (Ala. Crim. App. 1991) (concluding that
the admission of "gruesome and ghastly" photos is within
discretion of trial court); People v. Cox, 809 P.2d 351, 377 (Cal.
1991) (upholding the admission of autopsy photographs in the
absence of "manifest abuse of discretion"), cert. denied, 502
U.S. 1062 (1992); Capehart v. State, 583 So. 2d 1009, 1012-13
(Fla. 1991) (stating that the decision whether to qualify expert
and permit expert testimony is within the discretion of trial
Page 81

courts, when reviewing state court judgments in habeas corpus
proceedings, are required to give a presumption of correctness to
findings of fact by the state courts.350 The notion that the trial
judge, having observed the demeanor of the witnesses and heard all
of the evidence first hand, is in a better position to make
determination of credibility forms much of the basis for the
deference accorded the trial judge.351 This deference also rests
upon the prevailing legal fiction that assumes the impartiality of
judges.
In reality, however, political considerations may be more
important than legal principles or the demeanor of witnesses. As
previously discussed, judges are under immense political pressure
in making discretionary rulings in high- profile capital cases. A
classic example is the case of Sheppard v. Maxwell.352 The murder
trial of Dr. Samuel H. Sheppard started, after extensive pretrial
publicity, just two weeks before a November election in which the
chief prosecutor was a candidate for judge and the trial judge was
a candidate for reelection.353 The Supreme Court held that Sheppard
was entitled to habeas corpus relief because the trial court had
failed to protect his right to a fair trial by taking measures
such as continuing the case until after the election, changing
venue, and controlling the trial participants' release of
prejudicial information to the press.354
Unfortunately, since Sheppard, the Supreme Court has not
court), cert. denied, 502 U.S. 1065 (1992); Taylor v. State, 640
So. 2d 1127, 1133 (Fla. Dist. Ct. App.) ("A trial court's rulings
with regard to the relevancy and admissibility of evidence ... are
subject to an abuse of discretion standard of review."), review
denied, 649 So. 2d 235 (Fla. 1994).
350

28 U.S.C. §2254(d); see, e.g., Wainwright v. Witt, 469 U.S.
412, 426-35 (1985) (holding that a trial court's finding that a
venireperson is disqualified due to views on the death penalty are
subject to presumption of correctness); Patton v. Yount, 467 U.S.
1025, 1038 (1984) (holding that a trial judge's finding that
jurors were impartial despite pretrial publicity is entitled to a
presumption of correctness).
351

See, e.g., Batson, 476 U.S. at 98 n.21 (holding great
deference to the trial judge appropriate because the decision
regarding exclusion of jurors "largely will turn on evaluation of
credibility").
352

384 U.S. 333 (1966).

353

Id. at 342.

354

Id. at 358-63; see also Delaney v. United States, 199 F.2d
107, 115 (1st Cir. 1952) (holding that a trial court erred when it
refused to continue a case that had become a hot political issue
until after an election).
Page 82

mandated procedures to minimize the risk of prejudice in such
volatile situations or required careful scrutiny based on
objective standards of similar discretionary decisions by trial
judges.355 The Court has also retreated from its earlier
pronouncements that because of the exceptional and irrevocable
nature of the death penalty, capital cases require a heightened
degree of procedural protection.356
A few state supreme courts have recognized the political
355

See, e.g., Mu'Min v. Virginia, 500 U.S. 415 (1991)
(upholding the denial of individual voir dire in a capital case
even when pretrial publicity was pervasive and contained
prejudicial details about the crime and the defendant's criminal
history); Patton v. Yount, 467 U.S. 1025 (1984) (holding that a
trial court did not commit "manifest error" in finding the jury as
a whole impartial despite pretrial publicity and in denying
challenges for cause of jurors who had been exposed to pretrial
publicity).
356

For examples of the earlier pronouncements, see Eddings v.
Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring)
(noting that the Court has required "extraordinary measures" to
ensure the reliability of decisions regarding both guilt and
punishment in a capital trial); Beck v. Alabama, 447 U.S. 625,
637-38 (1980) (prohibiting the state from withdrawing from the
jury the option to hear a lesser-included-offense instruction in
capital cases because to do so "introduces a level of uncertainty
and unreliability into the factfinding process that cannot be
tolerated in a capital case"); Lockett v. Ohio, 438 U.S. 586, 604
(1978) (recognizing that the "qualitative difference between death
and other penalties calls for a greater degree of reliability when
the death sentence is imposed" and holding that a capital
defendant has a constitutional right to offer any aspect of his or
her "character or record and any of the circumstances of the
offense" as a mitigating factor warranting a sentence less than
death); Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (holding
that it is of "vital importance to the defendant and to the
community that any decision to impose death be, and appear to be,
based on reason rather that caprice or emotion"); Woodson v. North
Carolina, 428 U.S. 280, 305 (1976) (observing that death "is
qualitatively different from a sentence of imprisonment" and that
"[b]ecause of that qualitative difference, there is a
corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a
specific case"). Justice Blackmun observed the Court's retreat
from this approach in his dissenting opinion in McCleskey v. Kemp,
481 U.S. 279 (1987): "The Court today seems to give a new meaning
to our recognition that death is different.... [and] relies on the
very fact that this is a case involving capital punishment to
apply a lesser standard of scrutiny under the Equal Protection
Clause." Id. at 347- 48 (dissenting opinion).
Page 83

pressures on trial judges and have fashioned more objective
standards and mandatory procedures to reduce the discretion of
trial judges in making rulings that may be politically unpopular.
For example, the Mississippi Supreme Court, after acknowledging
the political pressures that may influence a judge's decision on
whether to grant a change of venue, decided that "some objective
standards should be available to shield the [trial] court from
even the appearance of such subtle coercion."357
The Mississippi Supreme Court described the political reality
for elected trial judges in considering a motion to change venue:
[B]y perennially holding that a change of venue is granted
solely at the discretion of the court, we perpetuate a burden on
the trial judge.
On the one hand, the judge is to act
impartially, dispassionately and with scrupulous objectivity. On
the other hand, in reality, the judge serves at the will of the
citizenry of the district; the judge is, after all, a public
official who must occasionally, perhaps even subconsciously,
respond to public sentiment when making the decision to refuse a
change of venue. It must be observed that, in granting a change,
the trial judge might be perceived as implying that a fair trial
cannot be had among his or her constituents and neighbors.358
To keep such sentiment from influencing the judge, the court
held that
the accused has a right to a change of venue when it is
doubtful that an impartial jury can be obtained; such
doubt is implicit when there is present strong public
sentiment
against
the
defendant;
upon
proper
application, there arises a presumption that such
sentiment exists; and, the state then bears the burden
of rebutting that presumption.359
The court also emphasized the importance of fairness in
capital cases:
A heightened standard of review is employed on appeal where
the defendant's life is at stake. . . . It follows then that the
trial court should, likewise, be particularly sensitive to the
need for a change of venue in capital cases.360
357

Johnson v. State, 476 So. 2d 1195, 1209 (Miss. 1985).

358

Id.

359

Id. 1210-11. In applying the standard in the case before
it, the court found that the state could not rebut the presumption
of community prejudice in light of the testimony of 15 witnesses
regarding specific reasons that the defendant could not receive a
fair trial in the community. Id. at 1213.
360

Id. at 1214; see also Fisher v. State, 481 So. 2d 203, 220
-23 (Miss. 1985) (applying the Johnson presumption and holding
that the trial judge abused his discretion by not granting a
change of venue in a case in which every juror had been exposed to
extensive negative pretrial publicity).
Page 84

The Georgia Supreme Court also modified its standard of
review of denials of motions for a change to venue and directed
trial judges in Georgia to grant changes of venue when a capital
defendant makes "a substantive showing of the likelihood of
prejudice by reason of publicity."361 The Court rejected the
argument of the dissent that the determination of the trial judge
was subject to "special deference" and should not be overturned
unless it was "manifestly erroneous."362
Venue decisions are but one example of potential for the
influence of improper political considerations on judicial rulings
and the need for reviewing courts to remedy politically influenced
decisions by adopting and applying objective standards. Where a
particularly notorious crime produces volumes of publicity, that
publicity often creates pressure on the judge to score political
points. The more objective standards that the Supreme Courts of
Mississippi and Georgia have adopted lessen the discretion allowed
the trial judge, and allow courts a greater distance from the
political influences to review trial decisions.363 A reviewing
court can examine the testimony, the newspaper articles, and the
tapes of broadcasts and make its own determination of whether
there is a "likelihood of prejudice"364 or the prosecution has
rebutted a defendant's showing that public sentiment makes the
likelihood of an impartial jury doubtful.365
Although these decisions of the Supreme Courts of Georgia and
Mississippi providing for greater protection of the rights of the
accused than the decisions of the U.S. Supreme Court may appear
encouraging, they say more about the retreat of the U.S. Supreme
361

Jones v. State, 409 S.E.2d 642, 643 (Ga. 1991).

362

Id. at 644 (Hunt, J., dissenting). This had been the
court's approach in previous cases. See, e.g., Isaacs v. State,
386 S.E.2d 316 (Ga. 1989), cert. denied, 497 U.S. 1032 (1990);
Devier v. State, 323 S.E.2d 150 (Ga. 1984), cert. denied, 471 U.S.
1009 (1985).
363

Of course, where a case has generated statewide publicity
and community sentiment, see, e.g., supra notes 78 - 80 and
accompanying text, or when the state supreme court's handling of
all capital cases has become a political issue, as in California,
the greater distance will still not free the state appellate
courts from political influences. Moreover, because of the
political consequences of an unpopular decision at either level,
elected judges on both the trial and appellate benches may not
fairly and consistently apply any objective standard that is
established. Therefore, more objective standards are only a small
interim step until judicial selection systems can be reformed
along the lines discussed supra part IV.A.
364

Jones, 409 S.E.2d at 643.

365

Johnson v. State, 476 So. 2d 1195, 1210-11 (Miss. 1985).

Page 85

Court from protecting the rights of the accused than it does about
the willingness -- or political practicality -- of the state
courts upholding the Constitution in these situations.366 Most
courts have shown little inclination to face reality with regard
to many other discretionary decisions of trial judges that
political considerations may influence. Decisions recognizing the
political pressures on elected judges and adopting and applying
more objective standards to limit discretion are the rare
exceptions to thousands of decisions routinely deferring to
decisions by trial judges on a wide range of issues.
The
deference in federal habeas corpus actions to state court
factfinding,367 as well as other increasingly severe restrictions
on habeas review,368 insulate many decisions by state courts from
federal review.
Nevertheless, a reexamination of the deference given to
elected judges on discretionary matters is urgently needed. The
outcomes of the judicial elections in California, Texas,
Mississippi, and other states discussed in this Article are
exposing for all to see the political pressures that influence the
decisions of judges who face election or retention.
It is of
course impossible to know the number of judges who simply give in,
either consciously or subconsciously, to their political pressures
or the number of judicial rulings and opinions that political
considerations influence.
But the political realities are
apparent to anyone who practices in the courts and observes these
pressures at work. In many of the jurisdictions where the death
penalty is frequently imposed, the political reality is that the
elected state court judge cannot even consider granting relief to
one facing the death penalty.
If judges continue to be voted off trial and appellate courts
for their decisions in capital cases and are replaced with judges
who are little more that conductors on railroads to the execution
chambers, it will be impossible for courts to maintain the fiction
that judges who face election are impartial without risking public
ridicule and immense damage to the perception of the legitimacy
and credibility of the courts. Until more fundamental reform of
judicial selection is feasible, courts must acknowledge and deal
with the political pressures on judges. In addition, full federal
366

The two decisions discussed are quite fragile. The
composition of the Mississippi Supreme Court has changed because
of the opposition of prosecutors to such modest steps toward
fairness. See supra notes 24 -29 and accompanying text. The
Georgia Supreme Court's decision in Jones was by a 4 -3 vote over
a vigorous dissent by Chief Justice Hunt. 409 S.E.2d at 644. The
Georgia Attorney General has already accused one of the court's
justices, who faces election in 1996, of leading an effort to
abolish the state's death penalty. See supra note 208.
367

See authority collected supra note 348.

368

See cases collected supra note 44.

Page 86

habeas corpus review of state court convictions should be
restored.
The once Great Writ of habeas corpus barely survives
the blows that have rained upon it from the efforts of the Supreme
Court and the Congress to expedite executions, achieve finality,
and reduce friction between the state and federal courts.369 Yet as
numerous examples set out in this Article make clear,370 only
federal judges have the independence and job security that enable
them to enforce the protections of the Constitution when doing so
would be vastly unpopular.
If the Constitution is to serve its
purpose as fundamental law that protects us from "our baser
selves" when there is "a demand for vengeance on the part of many
persons in the community against one who is convicted of a
particularly offensive act,"371 its enforcers must be judges who
cannot be swept from office for making a controversial decision.
E. Appointment of Counsel Independent of Judges
Regardless of how judges are selected, they should not be
responsible for the appointment of counsel for poor persons
accused of crimes. An independent judiciary should be independent
not only of political influences and the prosecution, but also of
369

See supra note 44; see also Galtieri v. Wainwright, 582
F.2d 348, 375 (5th Cir. 1978) (en banc) (Goldberg, J., dissenting)
(decrying "the allure of faddish modernity, of a stop-watch style
of jurisprudence" and the trading away of the "most precious
legacy of Lord Coke, the power to discharge from custody even one
imprisoned by order of the King" for "a mess of pottage, a gruel
composed of questionable notions of efficiency and vague notions
of federalism"); Bass v. Estelle, 696 F.2d 1154, 1160 - 62 (5th
Cir.) (Goldberg, J., specially concurring) (expressing the view
that the "plethora of statutory and judicial procedural barriers"
that have obstructed access to federal habeas corpus review
"profoundly regrettable"), cert. denied, 464 U.S. 865 (1983).
370

See especially supra notes 196-201, 205-06, 208 and
accompanying text. Even with the development of many procedural
barriers to federal habeas corpus review, federal courts found
constitutional error in 40% of the first 361 capital judgements
reviewed in habeas corpus proceedings between the restoration of
the death penalty in 1976 and mid-1991. Liebman, supra note 44,
at 541 n.15. In some states, such as Georgia, the percentage has
been much higher. See supra note 206. Thus, state court judges
-- at both the trial and appellate level -- failed to correct
constitutional error in at least 40% of the capital cases. It is
impossible to know how many other constitutional errors were
barred from federal review. It is remarkable that with such a
dismal track record, it would be seriously contended that the
elected state court judges will enforce the Constitution in such
controversial cases.
371

Furman v. Georgia, 408 U.S. 238, 344-45 (1972) (Marshall,
J., concurring).
Page 87

the defense.
Judges have a different role to play in the
adversary system than the management of the defense. In addition,
defense counsel should be independent of the judge in order to
fulfill the obligation of providing zealous representation to the
accused.
The American Bar Association recommends that there be a
defender office or a special appointments committee to select
counsel for indigent defendants.372 Removing the responsibility for
the representation of defendants from judges and placing it with a
program charged with protecting only the best interests of the
defendants373 will not completely depoliticize the process or
always ensure adequate counsel, but it would be an important step
toward a properly working adversary system and effective
representation of indigent defendants.
CONCLUSION
Justice
Hugo
Black
once
observed
that
"[u]nder
our
constitutional system, courts stand against any winds that blow as
havens of refuge for those who might otherwise suffer because they
are helpless, weak, outnumbered, or because they are . . . victims
of prejudice and public excitement."374 This role is of particular
importance in capital cases, where the winds of public excitement
blow especially hard against the poor, members of racial
minorities, and the despised who stand accused of heinous crimes.
Judges are not legislators; they have a different role than
simply carrying out the wishes of their constituents to impose the
death penalty.
Capital cases put extraordinary pressures on all participants
in the legal system. Even the most conscientious and independent
judge faces an enormous challenge of reining in the emotions that
accompany a brutal crime and the loss of innocent life.
If
decisions about guilt and punishment are to be made fairly,
objectively, and reliably,375 it is critical that judges be guided
372

American Bar Ass'n, Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases Guideline 3.1
(1989); see also American Bar Ass'n, supra note 42, at 19, 254.
373

Such programs must not only be charged with responsibility
for providing zealous representation to the accused; the governing
boards and staffs must be made up of people who understand and are
committed to the defense function in the adversary system. Cf.
Charles J. Ogletree, Jr., From Mandela to Mthwana: Providing
Counsel to the Unrepresented Accused in South Africa, 75 B.U. L.
Rev. 1, 43-44 (1995) (suggesting the same as a partial remedy for
the lack of adequate representation in post-Apartheid South
Africa).
374

375

Chambers v. Florida, 309 U.S. 227, 241 (1940).

A "fundamental idea" of due process is that life is not to
be "forfeited as capital punishment" unless the case is "fairly
tried in a public tribunal free from prejudice, passion,
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by the Constitution, not personal political considerations.
Yet in high-visibility capital cases in which public opinion
is overwhelmingly one-sided though often ill-informed, the
political pressures may be so great that a judge who has an
interest in remaining on the bench cannot ignore them. In today's
political climate, a commitment to fairness is too often perceived
as "softness" on crime -- a political liability for a judge who
must run for office. The lack of electorial clout of those facing
the death penalty makes the political equation easy; however, the
cost to justice and the rule of law is significant.
Nevertheless, it appears unlikely that even the most modest
proposals discussed in this Article will be implemented in many
jurisdictions -- particularly those where they are most urgently
needed -- in the near future. In part, this is because there are
many people who prefer judges who follow the election returns to
judges who follow the law.
It is also partly because the
judiciary and the bar persist in hiding behind the legal fiction
that judges are impartial instead of acknowledging the reality
that in many instances they are not.
The U.S. Supreme Court
indulges in wishful thinking about what the state courts should
be, instead of facing what they are, including the political
pressures on those judges.
It is, however, time for open and honest discussion of the
political pressures on judges who must stand for election and
retention.
The integrity, credibility, and legitimacy of the
courts are at stake. Judges themselves should lead the discussion
by disqualifying themselves sua sponte from cases in which they
recognize that political considerations may keep them from holding
the balance "nice, clear and true."376 But it may be necessary for
lawyers to prompt the discussion by filing motions for recusal in
cases in which such pressures are present. The judiciary and the
bar have a duty to explain to the public the difference between
the representative function of legislative bodies and the
adjudicatory function of courts. These steps are urgently needed
to bring about reforms that will increase the likelihood that the
only "higher authority" to which judges are responsive is the
Constitution and laws of the United States.

excitement, and tyrannical power."
376

Id. at 236-37.

Tumey v. Ohio, 273 U.S. 510, 532 (1927).

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