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It's open season on the judiciary

Published June 29, 1997

By Tim Wood

Judges seem to be a favorite target of the public these days.

As I listened to Tennessee Supreme Court Justice Lyle Reid speak about the judicial system recently, I became concerned about the public's attitudes toward the judiciary.

It's open season on the judiciary. But unlike a hunting season, this season has no end in sight and you don't need a license to participate.

Judges are coming under fire for making unpopular decisions. There are special interest groups and others who are targeting judges for those decisions.

While most of a judge's rulings do not draw much attention from the general public, a few do. Hot issues can range from a local judge interpreting the law to allow a liquor store to locate close to a day care center. Or, the issue can be as divisive as an abortion case heard by the United States Supreme Court.

In Tennessee, controversy over death penalty decisions has resulted in one judge losing her job and another one coming under fire.

As Justice Reid pointed out in his speech, there is a need to balance judicial accountability with independence. There is a legitimate fear that judges may not make objective decisions because they fear losing their job.

Are the criticisms justified? For example, there is concern that some judges are "soft" on the death penalty and thus are overturning capital convictions on the basis of personal beliefs rather than the law.

If true, this would be a legitimate concern. The key issue is the reasoning of the judges in overturning these cases. Some have complained about judges throwing out cases on "technicalities."

But what is a technicality for one person may be the only thing that keeps an innocent person from going to the penitentiary - or suffering a worse fate.

Likewise, many legitimate convictions have been overturned or crucial evidence thrown out of trials because a police officer made an honest mistake - not because the evidence was faulty.

Our system of justice is heavily weighted against the punishment of the innocent. The system would rather see some guilty people go free rather than even one person be falsely convicted.

Trial judges ensure that the rights of all parties are protected in criminal and civil proceedings.The O.J. Simpson trial was mishandled by Judge Lance Ito, who gave trial judges a bad name. But the federal trial of Timothy McVeigh helped restore some confidence in the justice system. The confidence should not be based on the fact that McVeigh was convicted, but on the fact that the judge controlled the proceedings and had an orderly trial. The McVeigh judge is not a household name like Judge Ito. But I'm sure he prefers it that way.

The rulings of trial judges may be appealed to higher courts, thus helping ensure objective decisions.But what about the highest courts? What does one do about the Supreme Court of the United States? These judges are on the bench for life, unless they commit some form of grievous misconduct.

This brings us back to the issue of independence versus accountability. The lifetime appointments enable judges to make decisions without fear of losing their jobs. In theory, this enables them to make impartial decisions based on the law and sound legal scholarship. A judge who does not have this protection may shy away from a potentially unpopular ruling because he fears losing his job.

Justice Reid feels so strongly about accountability that he believes the public should have the right to remove a judge - even for the wrong reasons.

This is a surprising statement, considering that it comes from a judge. But to Justice Reid's credit, it shows a healthy respect for the public's opinion.

What could those wrong reasons be? There is legitimate concern that any judge who overturns a death penalty conviction in Tennessee will automatically come under fire, regardless of the facts and law of the case. Law is a complicated subject. That's why lawyers have at least seven years of schooling, must pass the bar exam and then have continuing education. We can't expect the public to understand all of the complicated issues in these cases. Unfortunately, some segments of the public only see the result.