The best justice money can buy

The Scotsman and The New Zealand Dominion, May 2 1988

The judge wears red cowboy boots. At exactly nine o’clock, he
settles down in his high-backed burgundy leather chair, glares at
the court room over the top of his half-moon glasses, lights up a
six-inch cigar and calls the first defendant.

A young Mexican walks into the shadow of the judge’s dais, head
bowed. Up close like that, he can see the gold ring the size of a
golf ball studded with tiny diamonds and modeled in the shape of
Texas which covers two knuckles of the judge’s right hand. He
can’t quite see the gold bracelet on his right wrist with the
word Judge spelled out in diamonds, or the same word in big white
letters embossed down the side of the red boots. The judge does
not look at him.

Cigar in his left hand, pen in the right, he scribbles while he
snarls. “You bin charged with theft. You guilty or not guilty?”
The Mexican whispers his guilt. “Whazzer recommendation?” barks
the judge, still scribbling. A young prosecutor in a sharp suit
jumps up. “Thirty days,” he says.

Without raising his face from his paperwork, the judge speaks
again. “You pleadin’ guilty because you are guilty – for no other
reason?” The Mexican whispers Yes. “On your plea of guilty, I
find you guilty, sentence you to 30 days.” The Mexican is led
away. His trial has lasted a little less than 90 seconds. The
judge never saw his face.

This is the court of Judge Jimmie Duncan in Houston, Texas. Along
the benches, sheriffs lounge with their bellies peering over
their belts and their pistols poking out from their hips. A
steady stream of defendants pass before them. Some say they are
guilty and are whipped word for word through the same routine as
the first defendant. Some say they are not guilty and are given a
trial date before being hussled out. None gets more than 90
seconds of the judge’s time.

Most of them have been approached by prosecutors before they
appear and offered a deal: they can plead guilty and take a light
sentence or plead innocent, go to trial and risk a far more
severe punishment. Most of them make the deal. One young black
man who has accepted a deal, changes his mind. He not only thinks
he is innocent, but also knows that if his family can find $500,
he will be released on bail until his trial.

When his turn comes, he tells the judge:”I want to change my
plea.” “What’s he mumbling about?” snaps the judge. The man
repeats himself. The judge sits back and, for once, looks at the
defendant. “Well, that suits me just fine,” he drawls. “What’s
this man’s bond?”

“Five hundred dollars,” says the prosecutor.

“Well, now it’s five thousand.”

“He has a previous conviction,” adds the prosecutor.

“Ten thousand,” says the judge and jams his cigar between his
teeth. The dazed young man is led away to gaol. Next time he’ll
stick with the deal. The judge goes back to his business, smoking
and scribbling through a dozen more defendants. By 9.35, he has
finished his whole day’s case load.

Judge Duncan’s shotgun justice has earned him the scorn of many
of his colleagues. The Texan legal profession has voted him the
worst judge on their bench. Houston newspapers have attacked him.
But the critics can’t touch Jimmie Duncan because the people of
Texas love him.

He is the most popular judge in the state’s history – re-elected
more often than any other and always with a thumping majority. He
has run his court the same way for 30 years, processing, on his
estimate, something like 150,000 cases. The electoral success of
such a maverick is one of the reasons why the whole idea of
electing judges is being vigorously debated in Texas and the 38
other states where members of the bench at one level or another
are chosen through the ballot box.

Another reason is last year’s marathon legal battle between two
oil companies, Texaco and Pennzoil, in which Pennzoil gave
$10,000 in campaign contributions to the Texas judge who was
hearing the case. Texaco said this was outrageous; they demanded
an appeal, a retrial and a new judge; then they themselves gave
$72,700 to five judges on the Texas Supreme Court which was to
consider the case. Pennzoil didn’t say much; they just slipped a
mighty $315,000 in campaign contributions to the Supreme Court
judges – including three who were not even running for election
that year. The Texas Supreme Court duly backed Pennzoil, who
finally walked away with $3 billion of Texaco’s money.

In Texas, they say, you get the best justice that money can buy.
But it is the same in Ohio, where the last election for the job
of chief justice of the state supreme court attracted $2.7
million in campaign contributions including payments which were
traced directly to organised crime syndicates. And in California,
where business interests put up more than $350,000 to unseat
three liberal judges, while lawyers who liked the judges invested
nearly $650,000 to defend them.

The fear that American justice is up for grabs was given an
unwelcome boost last week by the highest court in the land, the
Supreme Court in Washington DC. Here the judges are not directly
elected and do not deal in the sticky business of campaign
contributions, but they are nevertheless tainted by politics
because they are appointed by the president and, in this case, by
a president who has openly avowed his intention of creating a
conservative majority on the court.

Last week saw the first serious move by that new conservative
majority when the Supreme Court decided to review a 1976 case,
known as Runyon v McCrary, which has become one of the foundation
stones of black civil rights. The ruling in the case said
effectively that private schools had no right to exclude black
pupils and could be sued if they tried to.

What was worrying about the court’s decision was not merely that
they wanted to review the case but that no-one had ever asked
them to do so. Not even the Reagan Justice Department, which is
notoriously keen on limiting civil rights laws, had questioned
the 1976 ruling. The decision provoked an outcry from Congress
and the press, who warned that the court was jeopardising public
confidence in its reputation for fairness.

All of this has added weight to the argument of those who oppose
the election of judges and any kind of political involvement in
their appointment. However, there is another side to the story,
which I found just down the corridor from Judge Jimmie Duncan’s
antics in Houston, in the court of Joe Kegans, the first woman
judge in Texas. She is rough and tough but soft in the centre,
and a powerful defender of the people’s right to vote for their
bench.

For a start she is not personally afraid to face the voters. “It
don’t bother me,” she said. “I can whip my weight in wild cats.”
Nor is she alarmed by the voters’ propensity to choose judges who
may be incompetent or eccentric. “I believe in the right of
people to elect a damn fool if they want to. It’s their courts.
It’s up to them.”

And she is unmoved by fears about campaign contributions. “All
this bullshit about not accepting contributions is exactly that –
bullshit,” she said. “Are you telling me that if you were sitting
on the bench, you’re going to start counting up which attorney
has given you $50 and which one hasn’t? No, sir.” But what about
Pennzoil? “That’s nothing but sour grapes. Pennzoil won that case
because Texaco made errors in their defence. Nothing to do with
contributions. It all depends whose ox is in the ditch, you see.”

Her actions are even tougher than her words. She was at the
centre of a legal hurricane recently in the case of a man called
Johnnie Binder who had been jailed in her court for 18 years for
robbery with violence. After he had served four years of his
sentence, new evidence emerged which persuaded not only Judge
Kegans but also the prosecutor that Binder was innocent. They
agreed to rush the case up to the Texas Court of Criminal Appeals
to secure Binder’s release.

At the higher court, the defence presented the new evidence, and
the prosecution and Judge Kegans explained that they had jailed
the wrong man and asked for him to be released. To their horror,
the court turned them down on technical grounds. Judge Kegans
decided to take the law into her own hands. The next day in her
court, she announced that she was releasing Binder.

“But you don’t have the authority,” squeaked the prosecutor. “You
can’t do that.”

“Watch me,” said the judge. By noon that day, Johnnie Binder was
home free.

The point is that if Judge Kegans had been appointed by some
panel of judicial experts, she would at that stage almost
certainly have been kicked off her bench, but since she was
elected by a community which supported her, she was able to use
the power of her popularity to defy her superiors. Her action set
off a storm of comment, almost all of it in her favour, and
within three days, the Texas governor had been compelled to
support her by formally pardoning Binder.

The Supreme court may err; Jimmy Duncan may be an outrage. But at
least they are open to public scrutiny. And, in particular, the
conservatives who now run the Supreme Court may yet discover that
their outburst over civil rights last week invites a backlash at
the polls and helps to elect a Democratic president who will take
the first opportunity to restore the court’s former balance.