As the storm around John Ashcroft's nomination for attorney general continues to grow, Republicans are falling back on a familiar position -- making another attempt at political assassination on Missouri Supreme Court Justice Ronnie White to further their political goals.
While a broad coalition of liberal activists tries to kill Ashcroft's bid, the former Missouri senator's allies are busy trying to discredit White, the black justice whose nomination for the federal district court Ashcroft scuttled last year, when, according to critics, he grossly distorted the judge's record.
White is likely to appear before the Senate Judiciary Committee during Ashcroft's confirmation hearings, where he will be given a chance to publicly respond to inflammatory charges the Missouri senator made last year that White was "pro-criminal." As a preemptive measure, Ashcroft's allies are trying to create enough doubt about White's record so that any suggestion that White was treated unfairly by the Missouri senator will not torpedo the Ashcroft confirmation.
How? By simply replaying Ashcroft's 1999 tactics: misrepresenting White's judicial record and basing their opposition almost entirely on a single opinion written by White.
That opinion came in State vs. Johnson, a grisly quadruple murder case that the Missouri Supreme Court ruled on in April 1998. Writing the lone dissent, White voted to reverse cop killer James Johnson's death sentence because of seriously inadequate legal counsel. With better defense, White argued, a "reasonable likelihood" existed that the penalty phase of his trial would have turned out differently.
What rings hollow about the Republican strategy is that there was another State vs. Johnson death penalty case decided by the Missouri Supreme Court in the spring of '98. In that case, involving triple murderer Ernest Johnson, White also voted to reverse the death sentence because of seriously inadequate legal counsel. He argued the exact same thing: that with better defense a "reasonable likelihood" existed that the penalty phase of his trial would have turned out differently.
So why hasn't there been a drum beat of criticism about that "pro-criminal" decision and how it ignored victims' rights? Probably because three other Missouri Supreme Court justices agreed with White's majority opinion. Even more telling, all three concurring justices were appointed by then-Gov. John Ashcroft.
With problematic facts like this, it's no surprise Ashcroft's supporters are emphasizing the James Johnson case exclusively. Appearing on "Fox News Sunday" recently, Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, stressed that White's dissent in the James Johnson case really turned the tide against him.
That's a good piece of revisionist history. If the Johnson opinion was so central to White's confirmation, why didn't Hatch, Ashcroft or anyone else on the Judiciary Committee grill him about it when White appeared before them in May of 1998, just one month after he wrote the "shocking" dissent? Neither Ashcroft nor any other senator brought it up as an issue until 1999, and then never offered White a chance to respond publicly.
With the Johnson dissent already in the public record, Hatch, along with four other Republicans, approved White's nomination out of committee in May of 1998 on a 15-3 vote, only to reverse course when the nomination came up for a full vote on the Senate floor in '99. They did so at the personal request of Ashcroft, who was in the early stages of a tough reelection campaign and was trying to turn White into a soft-on-crime campaign issue against his opponent, Gov. Mel Carnahan, the man who appointed White to the Missouri Supreme Court. In the end, White became the first district court nominee in nearly half a century to be voted down by the Senate.
In another example of disingenuous spin, Ted Lapkin, former communications director for former Rep. Rick Lazio, R-N.Y., writing an opinion piece in the Los Angeles Times, stressed that sheriffs in Missouri began a letter-writing campaign to block White's nomination the moment Clinton first entered White's name. Lapkin's piece made it seem as if the officers were enraged at White's reversal of the death penalty for James Johnson, who gunned down three sheriffs and the wife of another.
One small problem: White didn't issue the Johnson dissent until April 1998, 10 months after Clinton nominated him. So how could Missouri sheriffs oppose his stance on the case before the opinion was even written? Also, the sheriff who initiated the Missouri Sheriff's Association drive against White told the St. Louis Post-Dispatch that he didn't even know the judge was nominated to the federal bench until August 1999 -- 16 months after the Johnson dissent -- when he read about the press conference Ashcroft held to criticize White.
Two of the state's largest law enforcement organizations, the Missouri Police Chiefs Association and the Missouri Fraternal Order of Police, declined to oppose White's nomination, even after being lobbied directly by Ashcroft's office. In fact, following White's confirmation defeat, the head of the state's Missouri Fraternal Order of Police, which represents 45,000 rank-and-file officers statewide, wrote, "Our nation has been deprived of an individual who surely would have proven to be an asset to the Federal Judiciary." Meanwhile, the Missouri Sheriffs Association did take a stand against White, but nearly one-third of its members refused to sign the petition to block his nomination.
Perhaps they understood that White's judicial record could not be fairly summed up by a single death penalty dissent. Or perhaps they knew it was not that uncommon for the Missouri Supreme Court to overturn death sentences, no matter how heinous the crime.
On February 12, 1994, cocaine addict Ernest Johnson, wielding a hammer and a screwdriver, murdered three Columbia, Mo., convenience store employees during a robbery that netted him roughly $600. Two victims were found locked in the store's bathroom, dead from hammer blows to the head, while another employee was discovered in the walk-in cooler, the victim of 10 stab wounds in her side from a screwdriver. The physical evidence collected against Ernest Johnson was overwhelming and he was convicted of three counts of murder in the first degree and sentenced to death.
In his appeal to the Missouri Supreme Court, Johnson argued that his lawyers failed to provide adequate counsel when, during the penalty phase of the trial, they failed to present testimony from Dr. Sam Parwatikar, who had personally examined Johnson.
According to court documents, the doctor was prepared to testify "that at the time of crime Johnson did not suffer mental disease or defect, but did suffer from 'cocaine intoxication delirium,' a mental disorder precipitated by excessive cocaine intake." Johnson's attorney scheduled Dr. Parwatikar as a defense witness.
But due to botched communication and some missed phone messages, Johnson's lawyer never secured arrangements for Dr. Parwatikar to testify. Instead, pressed for time, the lawyer tried to convey what the licensed psychiatrist would have told the jury about the killer's mental state at the time of the murders. In retrospect, the lawyer conceded on the record she could not "imagine why I didn't just ask for a brief continuance or a recess or something to try and get ahold of the man, but I didn't." That type of conduct, wrote White, "does not measure up to an objective standard of reasonableness."
Missouri Supreme Court Justices Duane Benton, Ray Price and Chip Robertson, all appointed by Gov. Ashcroft, agreed: "After review of the findings and conclusions of the motion court, we find that it was clear error to deny postconviction relief as to the penalty phase. We remand the cause for new penalty phase proceedings."
Is Ronnie White a "pro-criminal" jurist? Maybe his Republican-appointed colleagues on the Missouri Supreme Court should answer that question.