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Election Of Judges in Johnson County
Posted by: Trey Pettlon
July 11, 2008
Topic: Election of Judges

Introducing Money and Popular Elections to the Courtroom

As an attorney, you can't give a judge money. That seems obvious enough. At worst, giving a judge money gifts can be viewed as an effort to bribe the court and at best, it has the appearance of impropriety. If you are a judge who takes gifts from attorneys, including money, you might end up in federal prison. Even lending a judge money may violate the rules of ethics for an attorney. For example, if an attorney lends money to a judge that he or she regularly appears before, it has the appearance of trying to sway the judge or buy the judge's favor and would violate the rules of ethics for the attorney and result in disciplinary action.

Even if the case ultimately is going to be decided by a jury, such as in a criminal case or a personal injury or wrongful death case, judges inevitably make decisions that are critical to the outcome of the case before it is over....ruling on evidence and ruling on motions that may limit one side's case or even dismiss it. In some cases, such as a divorce case, you wouldn't even have the protection of a the right to request a jury. Judges have broad discretion.

So when it comes to your case, for many the question comes down to whether you want to appear before an elected judge who must periodically run for election to keep his or her position , who must raise money from the attorneys and litigants who will appear before them...someone who must consider what decision would be popular or unpopular with the voting public...someone who may not necessarily be a respected member of the bar, but who is able to get popular support, or whether you would prefer to have your case decided by a judge who is not subject to political process.

If you don't think it matters that judges will periodically have to raise money for the political campaigns, consider this: let's assume you have a case before a particular judge. Would you would want to know if the attorney for the other party in your case had given the judge money? Would want to know if your attorney had ever given money to the judge? Would you worry about who gave more? What if you found out that the attorney for the other side had given considerable sums of money to the judge over the years? Or what if you found out that your attorney had spent considerable sums of money to actually try to keep the judge from becoming a judge? Do you think you would get a fair trial? Would you be worried about the possibility that the judge might be inclined to give favorable rulings to the attorney who has given him or her money? Should you have to worry about these things? Of course not. In a court of law, only the laws should guide the judge, without consideration for what is popular...or appealing to the voters. Unfortunately, if judges are elected, and if your case is important to you, you would have to be concerned.

This year Wisconsin Supreme Court Justice Louis B. Butler, Jr. was up for re-election and his challenger was a small-town trial judge with virtually no appellate court experience, Michael J. Gableman.¹ In fact, Judge Gableman's experience included arguing one zoning case before the state Supreme Court.²

The election included "a bitter $5 million campaign" in which both sides launched "caustic advertisements...many from independent groups."³ The worst came when Judge Gableman ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court [Justice Butler] had helped free a black rapist."⁴ The television ad juxtaposed "the images of his opponent, Justice Louis B. Butler, Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year old girl."⁵

"'Butler found a loophole,' the advertisement said. 'Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?'"⁶ As it turns out, Gableman's ad was accurate only in that Justice Butler had represented Mitchell in his criminal case 20 years earlier.⁷ In April 2008 Michael Gableman won 51% of the vote and will join the Supreme Court of Wisconsin in August.⁸

"There is reason to think, though, that the idea of popular control of the government...is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements."⁹

"'You don't get popular control out of this,' said Steven E. Schier, a professor of political science at Carleton College in Minnesota. 'When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.'"¹⁰

The election of judges will have undoubtedly a chilling effect on brave decisions by judges. No judge wants to be considered "soft" on crime for example. It's not uncommon for a criminal court judge to see a case where on the surface the defendant has committed a serious crime but once all the facts are carefully considered, prison is not the answer for this particular defendant. For the judge hearing that case, the just decision is to give the defendant a second chance...possibly with "shock time" in jail, or house arrest, community service, counseling, fines, probation and/or other sanctions.

To some extent, the judge might be taking a chance on a person that they will rehabilitate themselves. Criminal court judges take that chance every day. They can't lock up everyone and in a sense, the sentencing judge has taken that chance with every person that stands before them that they grant probation. The decision is to some extent a leap of faith...an act of bravery. Many times the decision or the reasons for the decision are complicated and they cannot be encapsulated in a "sound bite" or a headline. The much easier spin the next day is that the Judge is soft on crime. If the judge is free to make his decisions without fear that the decision will be unpopular with a voting electorate, he is more likely to make that brave decision.

One example might be the periodic criminal case that comes before the court involving a man charged with a very serious sex crime, and a prosecutor who has reviewed all the evidence but knows that it is likely that the Government will lose their case if they go to trial.  Instead of losing the conviction and any consequences for the person who committed the crime, the Government agrees to allow a plea to a lesser charge and to recommend a relatively minor punishment, possibly probation with counseling and other requirements like sex offender registration.  Plea negotiations play a vital role in making the system work.  For the judge that is worried about a headline the next day that reads, "Sex Offender Gets Probation", and the effect that such a headline will have on their upcoming election, there will be considerable pressure to ignore the plea negotiations of the party...to make the "easy" decision and put the defendant behind bars. As a result, plea negotiations won't mean anything in that court and the next 5 or 10 defendants charged with serious sex offenses won't take the plea, will have their trial and, if the prosecutor's worry comes to fruition, will likely avoid all consequences for the crime.

When discussing the election of judges at a conference on judicial independence at Fordham Law School, former Supreme Court Justice Sandra Day O'Conner said of the election of judges: "No other nation in the world does that because they realize you're not going to get fair and impartial judges that way."¹¹

"To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system," Hans A. Linde, a retired justice of the Oregon Supreme Court, at a 1988 symposium on judicial selection.¹² Under the rules of ethics, lawyers are not only not supposed to engage in 'improprieties', but they are supposed to avoid activities that have the 'appearance of impropriety'. The distinction between giving a judge money and donating money to his or her campaign probably is not so vast that the client who appears before the court is going to appreciate it if it turns out his lawyer did not give money and the other party's lawyer did.

"In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals."¹³

"A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality."¹⁴  "'A simple explanation for our results,' wrote the paper's authors - Stephen J. Choi, G. Mitu Gulati and Eric A. Posner - 'is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants - adequate rather than great opinions, in greater quantity.'"¹⁵

As an attorney, I see terrific attorneys and very bad attorneys every day...attorneys that I would seek out if I ever needed an attorney, and others that I would never have represent me. I marvel at the poor client who faces the challenge of finding a good attorney for an important case. One irony in the industry is that many of the best attorneys are not very good at marketing themselves. Either they come from the old school where they simply don't believe in attorney advertising or they are simply reluctant to ever say anything remotely braggadocios about themselves while others will not be so reluctant. On the other hand, some of the less capable attorneys are very good at marketing themselves. For these reasons and undoubtedly others, in some cases there is almost an inverse relationship between how big a lawyer's ad is in the yellow pages and how good they are. I worry about the client who finds their attorney in the yellow pages and am always a little surprised when a new client calls me and tells me they found my name in the phone book.¹⁶

When we elect judges, we undoubtedly lose some of the best candidates...the ones that are quite capable at everything concerning the law but don't market themselves or are not political.

To be candid, a system where judges are elected would be bad for my practice in part because of the expense of continually paying judicial candidates.  I would be one of the attorneys that donated substantial sums of money to candidates that I support.  I would be one of the attorneys that would not be disadvantaged in most courtrooms because of the money that I would spend supporting judges, but certainly there would be judges I didn't support that would win election and bear some grudge against me.  In those courts, if or when I lost cases, you would have a difficult time convincing my clients that my political contributions to the judge's political opponents did not affect the judge's decision in their case...whether that is true or not.  The election of judges would quickly become a high stakes popularity contest that would inevitably yield some disastrous results.

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A Juvenile's Right to a Jury Trial
Posted by: Trey Pettlon
July 07, 2008
Topic: A Juvenile's Right to a Jury Trial in Kansas

Cheers to the Kansas Supreme Court!

"What happens in Juvenile Court does not always stay in Juvenile Court."

I have lectured about juvenile law dozens of times to whoever will listen and until recently, I have said that juveniles charged with "crimes" in Kansas have all the same rights that adults do, with two notable exceptions: they cannot represent themselves in court, and they do not have a right to a jury trial. In other words, if a juvenile pleads "not guilty", the State will have to convince a judge they are guilty beyond a reasonable doubt.

Until June of this year¹, a juvenile could ask for a jury trial, but the Judge could decide whether to grant the jury trial or not. K.S.A. 38-2357. The result of this was that over the years someone like me would periodically request a jury trial, but the Court would deny the request. The Court didn't have the time or the resources to conduct many jury trials.  As a result, until 2007 there had never been a single juvenile jury trial in the history of Johnson County.

For years I have thought it was a tremendous injustice that the juvenile laws in Kansas would not grant a juvenile² an absolute right to a jury trial. I have represented hundreds of juveniles who were charged with serious offenses. I can assure you that when a child of yours is charged with a serious felony, it doesn't feel like the system is set up for rehabilitation. For the juvenile, and many times the parents, the process seems punitive.

I understand the theory for allowing the juvenile courts discretion to deny a request for a jury trial. Traditionally the purpose of the juvenile laws was to rehabilitate, not to punish, and the consequences of being 'convicted' were not believed to be long-term. That is, juveniles had numerous statutory protections under the juvenile code that would ensure that the juvenile conviction would not affect the juveniles in the future.

There were laws that draped juvenile court with confidentiality so that juveniles who were charged would not be embarrassed by the allegations, something that was thought to be especially important because of the damage that the allegations can do to a person during their formative years. For example, people who were not related to the juvenile or an attorney in the proceeding or court staff or a witness there to testify could not be in the courtroom during the hearing if the child was under 16. K.S.A. 1982 Supp. 38-1652. Even the terminology used in juvenile cases is different than the terminology used in adult criminal court. Juveniles charged are called 'respondents' instead of 'defendants.' Juvenile convictions are called "adjudications". Juvenile crimes are called juvenile "offenses".³ The idea was that a juvenile who did something stupid would not have to answer 'yes' on a job application or a school application several years later when asked if they ever committed a crime.⁴

But these protections have never, in my view, justified denying a juvenile a right to a jury trial. The impact on a juvenile of an adjudication for rape or indecent liberties, just as an example, has always been important enough to justify a jury trial.

For those who say the juvenile code is still primarily concerned with what is best for the juveniles, I would say that is not true.⁵ I think most people who have a child in juvenile court charged with a serious crime, whether the charge is true or not, will not appreciate the differences between the juvenile code and the adult criminal code. Juvenile offenses sometimes result in loss of liberty for months or years. In many cases these offenses can never be expunged and are on the juveniles record forever. They have to be revealed on job applications or school applications or licensing applications. They may require registration which in turn requires placement of an sex offender website with adult offenders and even having the word "offender" prominently marked across the juvenile's drivers license like adult offenders.⁶ Juveniles must submit DNA like adult offenders.

The degree of confidentiality associated with juvenile cases has been reduced substantially. Under the KJJC, all juvenile hearings are open to the public unless the Judge specifically orders otherwise. K.S.A. 2006 Supp. 38-2353. Cases involving juveniles 16 years and older are even posted on the courthouse website that broadcast the charges and the history of the case. Up until 2006, the official court file and law enforcement records regarding juveniles under the age of 16 were protected from disclosure to the public. K.S.A. 1982 Supp. 38-1607 and 38-1608. Now those same records are accessible unless the child is under 14.

In 2001 Kansas adopted sentencing guidelines for adults charged with felonies to determine the sentence that they will receive if they are convicted. K.S.A. 21-4701 et seq. The Kansas legislature decided that a defendant's criminal history should include their juvenile record in many cases.

The jury trial is an important protection against false allegations and some of the most serious allegations, allegations regarding sex crimes, are frequently false compared to other crimes. I would point to the cases of two juveniles who were charged with sex crimes to make the point about the importance of jury trials. In one case, there is no question in my mind no jury would have convicted my client, but the judge was a judge who thought that "what happens in juvenile court, stays in juvenile court, so let's just convict him and get him some services."⁷ You might think, like the judge did, why have a trial then if "what happens in juvenile court stays in juvenile court?" Aren't there protections in the juvenile system to protect the young offender. First off, what happened in juvenile court never stayed in juvenile court. But the real answer kind of got lost in that particular court...sometimes the accused is innocent. My client was likely innocent. I wouldn't recommend that a client plead guilty to something he didn't do...ever, and the consequences for being convicted of something can be devastating when you are innocent.⁸

In the second case, a judge who had been on the juvenile bench for twenty years in an unprecedented move granted my request for a jury trial on behalf of a young man charged with a sex crime. At the time, there had never been a juvenile jury trial in Johnson County and mine was to be the first. The State's evidence was extremely flimsy. It was the kind of case that a prosecutor might cavalierly present to a judge in a two hour trial to the court, but would not want to present in two days to a panel of twelve jurors. Before the jury trial began, the prosecutor reconsidered the strength of their case, and asked me what, if anything, my client would plead guilty to. I said, "he admitted to using marijuana." We agreed and the prosecutor amended the charge from rape to misdemeanor marijuana. This would have never happened if I hadn't been granted a jury trial. Is it possible the Judge would have made the right decision at the close of the evidence and dismissed the case without the aid of a jury. Of course. But that is not the point. Whether you believe in harsher punishment for juvenile offenders or not, the point is that juveniles ought to have the same right as adults charged with the same offense ...the right to make the State prove their case beyond a reasonable doubt to a jury.

The Kansas Supreme Court made the right decision. Until last month, a juvenile would not have the right to a jury even though the consequences of a 'conviction' might be as severe or worse than they would be for an adult charged with the same offense. Undoubtedly it will be difficult for courts to adjust. Jury trials take more resources. More time. A simple trial will take a full day instead of an hour or less. Not all court rooms are equipped with a jury box or a jury room. But if a young person can't get a jury trial when they are faced with losing their liberty and their reputation, and when they face other life-long consequences like having a criminal record, not being eligible for certain careers, losing jobs or not being admitted to colleges, the cost is acceptable.

_______________________________________

1 In the Matter of L.M., No. 96,197

2 In Kansas a person is a juvenile for purposes of criminal law if their offense was committed when they were under eighteen. In Missouri they are a juvenile if the offense occurred when they were under 17.

3 These terms were changed so that juveniles would not have to admit on a job application, for example, that they had ever been charged with a 'crime'. This terminology has not provided any real protection for years though. Job, school and other applications have become more and more sophisticated and routinely ask whether the applicant has ever been charged with a juvenile offense.

4 Juveniles in Kansas can be charged for offenses that occur when they are as young as ten years old.

5 Certainly Judges and Court staff make every effort to consider what is best for every child that appears in their court, but many of the consequences, such as expunge ability of the offense, are not within the judge's discretion.

6 Teenagers can be cruel and this can completely change a teenager's high school experience and as a result cause a great deal of psychological damage during these important growing years.

7 I was told by attorneys who practiced regularly in that jurisdiction that they never asked for trials and it was widely believed that the consequences of the adjudications were nominal. Whether the child did the crime or not, the idea was to 'just get the kid some services' (probation, counseling...everyone can benefit from that.) The impact of this historical way of handling juvenile cases, now that the legislature has made juvenile adjudications part of an adult's criminal history for determining sentences for adults is that there are a lot of people that are adults now that have adjudications on their criminal histories for offenses that should have been dismissed at the very least as a part of plea negotiations if not trial but were not because they pled guilty because they were advised it would never matter. In other words, countless adults are now faced with significantly inflated "criminal histories" because of the misconception that their juvenile offenses would never be used against them or otherwise harm them once they completed their probation. Then the laws changed with the adoption of the Revised Kansas Juvenile Justice Code, K.S.A. 2006 Supp. 38-2301 et seq. and the adult sentencing guidelines. K.S.A. 21-4704 et seq.

8 I don't know if my client ever recovered from that decision which is part of the reason that I say "what happens in juvenile court doesn't stay in juvenile court." The results impact the juvenile for years to come in some cases...in a good way and sometimes in a bad way. He got into drugs after that, and a few years later he was on the front page of the Kansas City Star. He was a key witness in federal court in a big drug conspiracy case. He was murdered while the case was pending.

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End of 2007 - State of the Office
Posted by: Trey Pettlon
January 16, 2008
Topic: C- End of 2007 Report

We had a terrific year! We won several criminal cases, getting DUI's, felony and misdemeanor charges against our clients dismissed, and had one of the largest jury verdicts in Kansas City this year. We met a lot of terrific people going through tough times in their lives and helped them rebuild. For us, this is the reason we practice law. For those moments when you can get justice for your client, those moments when you can help a person when they are at their lowest point...to help them get back on their feet. Although we primarily work in the Kansas City area, this year our work has taken us to Augusta, Maine, Boston, Massachusetts, New York, New York, Oakland, California, Fort Worth, Texas and St. Louis, Missouri.

Trey finished a wrongful death jury trial in July. It was a case that was very difficult against a premier defense team. On July 20, 2007 a Jackson County Jury came back with a verdict in favor of Trey's client for almost a million dollars. In the days preceding the trial, the Defendant had offered $65,000 to settle the case. A number of attorneys said it was a case that could not be won. It was a close case, but with a lot of hard work and preparation, Trey got a verdict his client was very happy about.

Ryan tried a felony criminal jury trial in August, and the jury found his client "Not Guilty by Reason of Mental Defect"...one of the few times that defense has won in the last 20 years in Johnson County.

In addition to these jury trials, Trey and Ryan have had several victories (cases dismissed after a motion, a trial decided by a judge or a preliminary hearing) in recent months including cases where clients were charged with DUI's, felony DUI, Battery, Aggravated Battery and Possession of Cocaine.

Trey is currently serving on the Advisory Board for Kansas City's "Guns and Hoses". It is a charity boxing event that matches police officers against firefighters and raises money for families of police officers and firefighters who die in the line of duty. This is Trey's third year on the Board. The boxers train with Ringside. The event was at Memorial Auditorium in Kansas City, Kansas in November and was an unmitigated success once again. From an amazing rendition of the National Anthem sung by a Detective with the Kansas City, Kansas Police Department that brought the house down to Paul Morrison, the number one law enforcement officer in Kansas, winning his fight, it was an unbelievable night! Check out the website: http://www.kcgunsandhoses.com/Home.html.

On a personal note, Ryan just had his second baby girl. Elena Ginie was born October 22, 2007. She should be eligible to take the bar exam in 2032. Until then, Ryan and Trey have you covered.

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Paul Morrison
Posted by: Trey Pettlon
January 16, 2008
Topic: Paul Morrison

In the wake of Paul Morrison's resignation, I wanted to say a few things about the man that I think have been lost in the revelations about an affair and the sordid details of the affair that have somehow been "leaked" to the press. Let me start by saying I wouldn't wish what he and his family have gone through on anyone.

Paul J. Morrison, Johnson County's former District Attorney and the short-term Attorney General for the State of Kansas, is a man that I have known for about 16 years. To be candid, he hired me straight out of law school as an Assistant District Attorney in 1991. I'll never forget the phone call he made to me. His first words were, "well, you want to come to work?" Those are magical words when you are still waiting for the results of the bar exam and working at a pet store for a little under $6.00 an hour. Over the years I have learned a great deal from him.

On a personal level, Paul is a funny, intelligent but humble man. He is easily embarrassed when others offer praise. He smiles and laughs easily. He cares about others. He is a good man who chose to prosecute for all the right reasons. The District Attorneys Office was not a stepping stone to some other loftier position. Politics never entered into the equation. Paul had to be cajoled into putting his name in the Attorney General's race.

There are a lot of prosecutors and former prosecutors in the Kansas City area will tell you that Paul Morrison was not only the most trusted and competent court room prosecutor they have worked with and a law enforcement officer with no agenda other than to protect victims of crimes, but he was a mentor to them personally as well. On a professional level, Paul Morrison was the model for prosecutors to emulate. He didn't back down from the tough cases...he got convictions in the tough cases, even when other prosecutors couldn't. As a result, he got defendants to plead when they otherwise might have gone to trial. I know from personal experience that his work ethic was second to none when it came to trial preparation. If you had a case against Paul, you knew you were not going to win by "out-working" him.

At the time, the Johnson County District Attorneys Office was possibly the most coveted prosecutors job for any attorney who wanted to prosecute. The reputation of the office was that it was hard-working...ADA's were not expected to work on Saturdays, but they did. The ADA's saw Paul working 6 and 7 days a week and wanted to work as hard as the boss which is to say, among others things, working Saturdays and oftentimes into the evening. Paul gave the people of Johnson County 50 to 60 hours a week every week for 26 years. Most defense attorneys who have worked in this area will describe Paul with admiration... a formidable adversary in court and a man that they could trust.

Paul didn't ask his prosecutors to do anything he hadn't done or wouldn't do himself. He tried the difficult cases. He tried and won these cases. He tried ground-breaking cases like State v. RichardGrissom which was based solely on circumstantial evidence....the victims' bodies were never recovered. He tried difficult cases like the 23 year-old murder of a man in State v. Melinda Raisch...no new DNA evidence was recovered...and most prosecutors wouldn't even have charged it let alone won a conviction. He did both. I was one of the attorneys that told him he couldn't win it. Shortly thereafter her accomplice pled guilty. If not for Paul's tireless work, unwillingness to give up, his courage to do what was right, and his trial skills, no one would have been held accountable for this brutal killing.

Paul tried cases that involved hours and hours of work like the trial of John Robinson the notorious serial killer. His work resulted in convictions for multiple capital murders resulting in a death sentence. After his election as Kansas Attorney General, when others might have finished the term delegating work to others, Morrison finished his job as Johnson County District Attorney by convicting at jury trial Benjamin Appleby of the capital murder of Ali Kemp. These are a small sampling of what Paul did for the Johnson County District Attorneys Office.

Paul is a man who ran the District Attorneys Office with grace and dignity for many years. He ran for Johnson County DA unopposed his last four elections and was widely praised for his work. In 2001, the KCDAA voted Paul the "Prosecutor of the Year" and by 2007, he was given the lifetime achievement award for his 27 years as a prosecutor. It is no stretch to say that Paul Morrison has probably put more violent offenders behind bars than any prosecutor in Johnson County's history. Over the years, he and his wife, Joyce, gave their time to numerous charities including the Sunflower House, a child abuse prevention center serving Johnson and Wyandotte County. Paul recently even spent hours and hours training so he could fight in the Guns 'N Hoses charity fundraiser which raises money for the families of law enforcement officers and firefighters that are killed in the line of duty.

It is well-publicized that he had an affair with another employee of the Johnson County District Attorneys Office the last year of his tenure as District Attorney. When the affair was over, she filed a complaint against him. In any event, the affair has cost him his career and a great deal of trust and respect from his family and friends. But those who know him best will always remember the wonderful man that he is. The sad fact is that family has always been the most important part of Paul's life. To understand how this moved Paul as a prosecutor you would just have to watch Paul discuss a case with a family that has been ripped apart by some violent crime.

Paul Morrison would be the first to say that his infidelity in the last two years is the single biggest mistake of his life. Even if the most important people in his life forgive him, I am not sure Paul will ever forgive himself for what he has put his family through. He handled his resignation swiftly and with dignity. It was undoubtedly the most difficult thing he has had to do in his professional life. It cost him a career he loves and a great deal of respect he spent years earning. Sadly on December 14, 2007 Kansas lost a great prosecutor. My thoughts are with a good man and his wife and children during these tough times and I would wish them some serenity and peace over the holiday.

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Judge James Horton
Posted by: Trey Pettlon
December 12, 2007
Topic: Judge James Horton

At her swearing in ceremony as District Court Judge for the 10^th Judicial District of Johnson County, Kansas, my close friend Sara Welch told an inspirational story about the short career of the best judge you've never heard of.

In 1931, nine young black men were accused of raping two young white women on a freight train in Northeast Alabama. Just twelve days after the alleged rape, all 9 men were convicted in a court in Scottsboro, Alabama. Eight of the men were sentenced to death and a mistrial was declared in the case of the ninth man. He was a 13 year old boy and despite the fact that the prosecutor had asked for life in prison, a majority of the jury insisted on the death penalty.

The convictions were upheld by the Alabama Supreme Court, but later reversed by the U.S. Supreme Court on the ground that the defendants were denied their right to counsel. The press and public sentiment was so inflammatory that the case was moved to Decatur, Alabama for this new trial and reassigned to Judge James E. Horton.

One of the defendants was a young man named Haywood Patterson. He was ordered to stand trial first. Haywood's re-trial began in March of 1933. Judge Horton had just been re-elected to the bench without opposition in 1928.  The proceedings in Haywood Patterson's re-trial were reported daily throughout the country and even reported internationally. The trial was tense and at times disorderly. Of course, the mere fact that a white woman would have her credibility challenged by a black defendant in court would by itself enrage a great segment of the population at the time. The Sheriff and the National Guard were summoned to protect the defendants. Public hostility and threats of violence against the defendants and their attorney became so intense that Judge Horton had to address the crowd outside the hearing of the jury. The all-white jury convicted Haywood and sentenced him to death. However, in a move that predictably caused public outroar and ultimately was a career-ending decision, Judge Horton set aside the conviction because the State's evidence was uncorroborated, contradictory and created a great deal of doubt.

Judge Horton was vilified in the state press for his decision. In the next election, two opponents ran against Judge Horton and he was soundly defeated. Thus ended the short judicial career of Judge James E. Horton. Judge Horton quietly lived out the rest of his life with a general law practice and farming.

In some ways, Judge Horton's selfless decision may seem to have been a fruitless effort. Eventually the Scottboro Boys were re-tried and convicted. But I don't think Judge Horton's efforts were fruitless. Haywood's life was spared. He received a life sentence. The Alabama legal system's jury selection system was reformed, and there are judges even today that are inspired by his difficult decision and his self-sacrifice.

The election of judges is a popular cause at the time of this writing. It is oftentimes advocated by religious right groups that claim that they want more accountability from the judiciary... meaning they want to be able to remove a judge from the bench who is making bad decisions. Cynics argue that the real basis for support for a system of electing judges is not to oust incompetent judges, but to find judges who share the same political ideology as the electorate. For example, questionnaires are being sent to State Court Judges in this area that inquire as to whether the Judge believes that abortion should be legal or illegal.

Would you feel comfortable having your case decided by a judge who received financial contributions from the other attorney, but not yours? What if you found out that your attorney actually supported the judge's opponent in the judicial election? Would you want to know that before you hired your attorney?

As someone who is in court all over Kansas City about five days a week, I have certainly seen a lot of decisions by judges with which I have agreed and disagreed. We all read in the paper about a particular case where a judge gave probation to someone who, at least from the information published in the article, did not seem to deserve probation. Oftentimes I see cases where I believe the sentence is way too harsh...particularly in cases involving illegal drugs. Disagreement is inevitable no matter what the manner is of selecting judges. Still I can honestly say that the judges that I see regularly in Clay, Platte, Jackson, Wyandotte, Johnson and Miami Counties with very few exceptions are caring, intelligent, thoughtful judges who listen to the evidence and do the right thing in accordance with the law...they really are the best of the bar.

Judges in Wyandotte County are elected, and in fairness, they have an excellent bench. Part of that may be due to the efforts of all the Wyandotte County bar, which may be the closest bar association in Kansas City. The attorneys who are in court actively get the word out about the best judicial candidates. Still, I worry about the judges in Wyandotte County because they are as good as there are anywhere...but they have to run for election. They have pressures that I don't think judges should face. In the wake of one unpopular, but just decision, an excellent public servant could lose his or her judgeship.

In an interview in 1966, Judge Horton said he had no regrets about the decision that cost him his career on the bench. He said, "fiat justitia ruat coelum" which translates "Let justice be done, though the heavens may fall."

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