This is long--but I had to post it for Classless. These are the facts and opinions/dissents behind why Ronnie White should NEVER be a federal judge.
Read it and weep.
An analysis of key opinions by Judge Ronnie White.
The Landmark Legal Foundation
n 1997, Missouri Supreme Court Judge Ronnie White was nominated by President Bill Clinton to become a federal district court judge. Senator John Ashcroft (R-MO), now President-elect George W. Bush?s attorney general-designate, opposed Judge White?s nomination to the federal bench. Senator Ashcroft believed that Judge White?s judicial temperament, legal philosophy and approach to the law were not consistent with the requirements of a federal judgeship. The Senate rejected Judge White?s nomination in 1999.
Landmark Legal Foundation, founded in 1976 is a conservative public interest law firm based in Kansas City, MO. Landmark has conducted a thorough legal analysis of dissenting opinions issued by Judge White. In each of the five highlighted cases the facts are enumerated, followed by excerpts of the majority opinion and then relevant aspects of the dissenting opinion issued by Judge White.
State of Missouri v. Richard J Damask, 936 S.W.2d 565, Supreme Court of Missouri, December 17, 1996
Facts:
This Case arose out of two different traffic checkpoints. These cases were consolidated in Damask.
On November 22, 1994 Franklin County Sheriff?s Department set up a drug checkpoint at eastbound I-44 exit 242. I-44 was a known drug running corridor and Franklin County Officials had been operating such checkpoints since June, 1994. The particular checkpoint in question operated from 4:00 a.m. until noon.
The Sheriff?s Department placed signs on both sides of the eastbound lanes of I-44, stating that a drug checkpoint was one mile ahead. Sheriff?s deputies set up the drug checkpoint at the top of eastbound Exit 242 (the exit right before the purported checkpoint). Non-local motorists have little reason to exit I-44 on 242 because there is little in the way of food or lodging off this exit.
Motorists were stopped and informed that the sheriff?s department was conducting a drug enforcement checkpoint. Present at the checkpoint were clearly marked police vehicles and uniformed police officers. Sheriff?s officers requested a valid license and registration. Further, Sheriff?s officers inquired as to why that particular motorist had exited at 242. If the circumstances aroused reasonable suspicion, the officer asked for permission to search the vehicle. If the motorist refused, a drug sniffing dog was used to conduct an olfactory examination of the outside of the automobile. These procedures were conducted according to guidelines prepared by Corporal Michael Schatz of the Sheriff?s Department.
Richard Damask exited at 242 at 4:20 a.m. on November 22, 1994. When stopped by the police, Damask produced a valid driver?s license. However, Damask?s conduct aroused reasonable suspicion (he hesitated when asked why he stopped, he stated that he was turning around to purchase food when remnants of a meal were in the car, he appeared nervous). Police officers requested permission to search the car, Damask refused. A drug-sniffing dog alerted police to the trunk. Inside the trunk, officers found a several packages of marijuana. The stop and search lasted five minutes.
The police stopped 66 cars and searched 10. Damask was the only person arrested.
The second case involves a drug checkpoint located on U.S. 60 in Texas County. Texas County officials used procedures developed in Phelps County that had successfully interdicted thirty loads of contraband.
Officials waited at a stop sign at the bottom of the first exit ramp after a placed sign on U.S. 60. As was the case in Franklin County, no travel facilities were located off the exit ramp. Officials stopped cars that had exited, asked for a license and registration, and questioned the driver as to his/her destination. Officials allowed any motorist who did not want to talk to proceed. If the officials developed a reasonable suspicion during the course of the stop, those officials were to ask permission to search the vehicle. If the motorist refused, a drug-sniffing dog was utilized.
Garcia and Alverez arrived at the checkpoint. Police developed a reasonable suspicion (Alverez could not produce a valid driver?s license, Alverez appeared nervous, they gave conflicting stories, there was a strong smell of perfume). Dogs alerted police to the spare tire of the car whereupon 37 pounds of marijuana were recovered.
Majority Ruling:
The lower court determined that the checkpoints in question constituted an unreasonable seizure and were thus, unconstitutional.
The Majority held that the checkpoints were operated in a nondiscriminatory fashion and the checkpoints serve a legitimate government interest. These checkpoints did not rise to the level of unreasonable seizure. Consequently, the checkpoints were constitutional and the lower court was reversed.
The Missouri Supreme Court noted that properly operated checkpoints are constitutional under the Fourth Amendment. The test for whether a stop of a motorist on a public highway is whether the stop is reasonable. A court must weigh three elements in order to determine whether a checkpoint stop is reasonable; (1) the gravity of the State?s interest served by the checkpoint; (2) the checkpoint?s effectiveness in advancing the public interest and (3) the degree to which the checkpoint interferes with or intrudes upon the motorists, citing Brown v. Texas, 443 U.S. 47, 50 (1979).
To further meet the demands of the Fourth Amendment, the stop must be carried out according to a plan that provides ?explicit neutral limitations? on the police.
The Court determined that there was a significant state interest in interdicting drugs. With regards to the second prong, the Court noted that the checkpoints at issue were modeled after successful drug checkpoint program in Phelps County (that resulted in the seizure of 30 loads of contraband). Additionally, these checkpoints were designed to increase the likelihood of capturing drug traffickers and they were set up at ?known? drug running highways. The second prong of the test for reasonableness was satisfied.
With regard to the final prong (the degree to which the checkpoint interferes upon motorists), a critical element is whether the checkpoint is planned and operated according to a neutral plan, prepared in advance, with the input of field and supervisory personnel. The nature of the checkpoint and the presence of law enforcement personnel should be ?readily ascertainable.? The ?location and layout of the checkpoint should be safe for drivers to stop.?
The checkpoints in question were operated according to prior existing plans. These plans set forth specific guidelines that ?limited officer?s discretion regarding the operation of the checkpoint (what questions were asked, what circumstances would dictate a search.)? The checkpoints were located in a safe location; the police did not have any discretion as to which cars were stopped.
The third prong of the test for reasonableness was satisfied. Thus, the checkpoints were deemed constitutional.
White?s Dissent:
White believed that the checkpoint stops did not meet the standard for reasonableness:
...Ad hoc attempts by local sheriffs to trick highway travelers into leaving the highway in the middle of the night, so that they can be interrogated in remote areas by armed, camouflage-clad men with dogs, do not meet the test of reasonableness...
White also stated that the plan utilized by Sheriff?s Deputies was not properly conceived. ?A more balanced look at the evidence would suggest that the plan was not formalized or approved by high-ranking personnel until after the seizure, that officials may have deviated from the plan.?
White did not adopt the majority?s facts. White believed that the evidence showed that the Franklin County Checkpoint was conceived by ?two low-level officers (a deputy and a corporal).? The evidence presented describing Interstate 44 as a drug corridor does not, ?amount to empirical evidence to support an abridgment of fundamental rights.?
White characterized the checkpoint stops as intrusive. ?At 4 a.m., following the appearance of an obviously temporary, poorly illuminated sign warning of a checkpoint in a totally isolated area, an exiting motorist finds himself accosted, in a different location by two armed men in camouflage fatigues, one with a dog.? White also noted that the checkpoints interfered with freedom of movement, were inconvenient and consumed time. Such checkpoints, he noted might have created ?substantial anxiety? for drivers.
White felt that the checkpoints in question, ?are designed in such a way as to engender fright and concern in law-abiding motorists.?
Based on these reasons, White would have upheld the lower court?s decision and held that the above-mentioned drug checkpoints were unconstitutional.
Missouri v. Hendricks, 944 S.W.2d 208 Supreme Court of Missouri, April 29, 1997)
Facts:
On 14 April 1994, an undercover detective with the Northeast Missouri Narcotics Task Force met with a confidential informant in Shelby County, Missouri. The detective spoke to the informant about purchasing drugs from Ms. Connie Wood, and the two set out to find her. They met Ms. Wood on the road while on the way to her house and discussed purchasing some drugs from her. She told them to follow her to her house, where they would complete the transaction.
Once at Wood?s house, she introduced both the detective and the informant to her brother, Danny Hendricks. As the three men sat down at the kitchen table, Ms. Wood went into another room and returned with two packets, each containing roughly ½ gram of cocaine. The detective paid her $100.00 for both packets and Wood left the room. Mr. Hendricks then began talking to the detective, telling him that if he liked the cocaine Wood had just sold him, he could sell him an ?eight-ball? (1/8 oz. or 3.5 grams) the next day. The detective told Mr. Hendricks that if he did like the cocaine, he would contact him and they would ?do the deal.? The conversation lasted for approximately 20 minutes. The detective never returned to the house, however Mr. Hendricks was later arrested, charged and convicted of selling a controlled substance.
Hendricks was charged with this crime because the Missouri Legislature had previously made it illegal to both sell, and to offer to sell a controlled substance.
Majority Ruling: (all other Justices concurring):
The appellant submitted two general arguments for the Court?s consideration. First, while not disputing that he uttered an ?offer? to sell drugs, he contended that mere words cannot constitute a ?sale.? Second, he asserted that allowing a conviction to stand for selling a controlled substance without proof that the substance was controlled would render the Imitation Controlled Substances Act superfluous, since a defendant could be subject to multiple charges stemming from a single sale.
The majority looked to Missouri Statute 195.211 which provided that: ?It is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver or manufacture or produce a controlled substance or to possess with intent to distribute, deliver manufacture or produce a controlled substance. In the statutory definitions at 195.010(10), ?sale? is defined as ?barter, exchange, or gift, or offer therefore...? The precise definition of ?offer? as used in the definition of ?sale? was not provided, nor had it been decided previously by the Court.
The appellant failed to state why there must be evidence that he had access to the substance. Though he cited cases that he contended proved the need for the presence of a controlled substance, he did not connect them to the facts of his own case. As a result, the court majority, citing Missouri Supreme Court precedent, finds that ?The appellants submission of error, without reasoned argument with respect to why there must be evidence that appellant had access to the substance does not require, or even allow, a decision.?
In his second subpoint, the appellant attempted to build on his first, asserting that to allow a conviction for the sale of a controlled substance without proof that the substance was controlled, would render the imitation controlled substance act superfluous. His argument was that proof that the substance was controlled must be required or the legislature would not have passed the Imitation Controlled Substances Act. The Court rejected this argument, noting plainly that the legislature passed both. When a person commits a single crime that violates more than one statute, it is up to the prosecutor to determine which statute, or statutes, will be used. The appellant cited a single case in support of his point, however the court, noting that the case required only that when a substance is presented, the defendant know what it is. Appellant again failed to make any application to his own case. The court again concluded that ?It is not within this Court?s province, however, to speculate about, then decide, arguments that are not asserted or that are merely asserted but not developed.?
Dissent: (Justice White alone):
?The Majority refuses to address this important question. I would answer it, and I would reverse.?
White ignored longstanding Supreme Court precedent and accused the majority of an uncharitably narrow reading of appellant?s brief. He believed that ?the majority is alone in being unable to discern the issue.? Justice White stated that he would not hold the deficiencies of Mr. Hendricks? appellants briefs against him, and that, if the Court is to ?condemn him to serve out his seven year sentence, [they] ought to at least address the substance of his appeal.?
Justice White argued that the plain meaning of ?offer? requires that something be presented for acceptance or rejection. To hold otherwise, he argued, would be to ?criminalize the act of declaring one?s readiness to commit a crime.? What the legislature intended to criminalize, he argued, is the actual presentment of drugs for sale. While he paid lip-service to the obvious ?totality of the circumstances? view that seemed tacitly implied by the majority, he believed that the legislature must more clearly state their intention to criminalize the defendant?s conduct based on ?evidence of words and not of deeds.?
White believed that the majority ought to not be so rigid in following its jurisdictional limitations. He argued that the majority expanded the legislature?s intended definition ?offer.? Accordingly, Justice White would accept the appellant?s defective brief, insert the appropriate arguments sua sponte (on his own), and reverse the conviction.
Missouri v. Johnson 968 S.W. 2d 123 Supreme Court of Missouri, April 21, 1998
Facts:
Deputy Les Roark of the Moniteau County sheriff's department went to James Johnson's house to investigate a domestic dispute between James R. Johnson, his wife, and his wife's daughter. After Roark talked briefly with members of the family, and was returning to his car, Johnson shot Roark twice, including in the back of the head. When Johnson heard Roark moaning, he shot Roark in the forehead, killing him.
Johnson then loaded his car with guns and ammunition and drove to Sheriff Kenny Jones's house, where the Jones family was celebrating Christmas. Johnson fired a semiautomatic rifle through a window, hitting Jones's wife five times, including in the face, neck, and the back of the head. She died in front of her family.
Next Johnson arrived at the home of Moniteau County Deputy Sheriff Russell Borts. He shot Borts multiple times through a window, hitting him in the chest and the face as Borts was on the telephone. Borts survived. Johnson then went to the sheriff's office. As Cooper County Sheriff Charles Smith was leaving the office, Johnson shot him four times, including in the face and head, killing Smith. And as Miller County Deputy Sandra Wilson arrived later at the sheriff's office, Johnson shot her through the heart as she was climbing out of her car. She died on the pavement.
Johnson was eventually apprehended. He was later convicted of four counts of first-degree murder and sentenced to death. Johnson's central defense was that he suffered from posttraumatic stress disorder (PTSD) resulting from his service in Vietnam.
Johnson appealed his convictions to the Missouri Supreme Court claiming a myriad of constitutional violations, including ineffective assistance of counsel. Among other things, Johnson alleged that his counsel mistakenly used certain evidence at trial that undermined his PTSD defense. For instance, Johnson's counsel asserted that Johnson had setup a military-like perimeter around his home, including a rope near his garage with tin cans attached to it to alert him to enemy intruders. Also, he supposedly flattened his vehicle's tires to prevent the enemy from using it.
Majority Ruling:
The Court ruled that the prosecution demonstrated that a highway patrolman had setup the rope with tin cans and another officer had actually let the air out of the tires on Johnson's vehicle. Johnson claimed that had his counsel investigated further, he would not have mistakenly used the "perimeter evidence" in support of his PTSD defense. But the Missouri Supreme Court concluded that this "did not give rise to manifest injustice or a reasonable probability that the outcome of the trial would have been different." The Court noted, in part, that Johnson called experts to support his PTSD defense, and that these experts did not rely on the perimeter evidence. Johnson also testified he never told his counsel he was responsible for the perimeter evidence; and that, most likely, the PTSD defense failed because of the weakness of the theory, i.e., that Johnson was suffering from Vietnam-related flashbacks.
The Missouri Supreme Court also wrote: "One particularly persuasive point focused on the confession of Johnson made to the authorities shortly after his arrest, a confession in which Johnson recalled in much detail that his targets were the sheriff and his deputies, not the Viet Cong...?
The Court wrote further: "...Johnson's detailed and intimate recitation of...events, together with his stated reasons for his conduct, seems wholly inconsistent with the defense of mental disease or defect. In effect, Johnson admitted that he had known what he was doing and why, and consequently, he was hard pressed at trial to fit the facts to the theory. In the end, this was the likely reason why the defense failed."
White?s Dissent:
In his dissent, White wrote, in part: "This is a very hard case. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. But the question of what Mr. Johnson's mental status was on that night is not susceptible to easy answers. While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness. I am not convinced that the performance of his counsel did not rob Mr. Johnson of any opportunity he might have had to convince the jury that he was not responsible for his actions. This is an excellent example of why hard cases make bad law. While I share the majority's horror at this carnage, I cannot uphold this as an acceptable standard of representation for a defendant accused of capital murder. I would hold that Mr. Johnson received ineffective assistance of counsel, was prejudiced thereby, and is entitled to a retrial."
White's rejection by Senate Republicans had nothing to do with race and civil rights, and everything to do with law and order and victims' rights. He was willing to reject the legal standard of insanity and interpose his own opinion of Johnson?s state of mind in order to invent grounds for setting aside Johnson?s conviction. He also rejected clear evidence presented at trial that demonstrated that any failure on the part of Johnson?s counsel was not responsible for Johnson?s conviction - his own actions and his own words in form of a confession - were.
Missouri v. Neff, 978 S.W.2d 341 Missouri Supreme Court, November 3, 1998
Facts:
Ronald Lee Neff was charged and convicted of four counts of assault after improperly entering an intersection while intoxicated, causing injury to four people in another vehicle properly crossing the intersection. He was sentenced to six months and fined $1,000 for each count. He appealed the trial court?s refusal to grant a motion for mistrial after the prosecutor, objecting to an improper closing argument by defendant?s counsel, remarked on the defendant?s failure to testify. The trial court ultimately made a curative instruction to disregard the prosecutor?s comments.
Majority: (all other Justices)
The majority acknowledged that it was clearly improper for the prosecutor or anyone else to comment on an accused?s failure to testify on his own behalf. The issue is the nature of the remedy required where comment is made. The majority noted that neither the statute nor precedent required that a direct reference result in mistrial. The court cited numerous cases supporting the proposition that mistrial is NOT always required and that depending on the circumstances (as determined by the trial court), a curative instruction may suffice. Mistrial is an extreme remedy to be used only where no other remedy is sufficient. Decisions of a trial court making such a decision are reviewed for abuse of discretion.
Dissent: (By White alone)
White began with a conjectural look at the impact of the statements on the case. He determined that the case was ?close,? and therefore warranted reversal due to the prosecutor?s improper comment. He then discussed the cases proposed by the majority and attempted to illustrate why they didn?t apply. White was only concerned with what the jury heard. He then argued that, since the last actual comment by the prosecutor on the record was ?there is no evidence of that?? the jury would be confused about what they were not to consider when the judge told them to disregard the prosecutor?s last remark. Ultimately, his conclusion was that in almost every case where a reference is made of the accused?s failure to testify, the only remedy available is a mistrial.
Clay v. Dormire, 2000 Mo. LEXIS 70 December. 5, 2000 (Not final until re-hearing period expires)
Facts:
The defendant in this case was convicted of forcible rape in 1989 and sentenced to 20 years in prison. In 1974, the defendant was convicted of distributing hashish and was placed on probation. Years later, having successfully completed his probation, the defendant filed a motion with the sentencing judge (under a Missouri statute that has since been repealed) to have the conviction expunged from his record. In July 1980, the sentencing judge entered an order expunging the defendant?s record.
In 1989, the defendant was convicted of the forcible sodomy. At sentencing, the prosecutor introduced a copy of the 1974 drug conviction. Based on this prior conviction, the judge sentenced him, rather than the jury, because he was considered to be a prior offender. Although the prosecutor provided a copy of the drug conviction to the judge at trial, a copy of the expungement order was obtained only after Defendant?s direct appeal and post-conviction motion had been denied. Now, a decade later, the Defendant petitioned for a writ of habeas corpus and a writ of mandamus directing that his prior conviction be expunged as previously ordered.
Majority: (5-2)
The Court determined that habeas corpus relief is unwarranted and the Defendant was ordered back into the custody of the Dept. of Corrections. The writ of mandamus was granted expunging the prior conviction.
The majority determined that a writ of habeas may not be used to raise issues that could or should have been raised on direct appeal or in post-conviction proceedings. Exceptions to this rule may be granted where the person seeks to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice has occurred. Following U.S. Supreme Court cases, the Missouri Court defined manifest injustice as a showing that ?a constitutional violation has probably resulted in the conviction of someone who is innocent.? The Defendant presented no such evidence. Errors in sentencing may only be considered under habeas corpus if they raise jurisdictional issues or the use of a repealed or inapplicable statue. Again, Defendant raised no such issues. The sentence was within the proper scope for the offense committed. Errors made were mere errors of the trial court and were not related to his actual innocence.
The Writ of Mandamus was granted as to the records of the Dept. of Corrections.
Dissent:
White (Justice Wolf concurred in the opinion of White).
Justice White accepted the Defendant?s allegation that he was unaware that the prior conviction should not have been used in his sentencing on the forcible sodomy conviction, citing the Appeals court?s acceptance of that argument in granting the habeas corpus allegation. White argued for a more expansive interpretation of ?manifest injustice,? citing federal court opinions and a Missouri Court of Appeals case. His treatment of the majority?s use of the actual innocence standard and the application of habeas to sentencing phase errors was mystifying. Not only would Justice White require a new sentencing proceeding, he would fully reverse and remand the case for a new trial. White preferred to utilize a broad standard that would allow a court to use ?manifest injustice? as a silver bullet to impose its will regardless of procedural requirements.
Conclusion:
Landmark Legal Foundation concludes that Judge Ronnie White?s judicial temperament and legal philosophy are well outside the judicial mainstream.
White personifies the kind of judicial activism and legislating from the bench that the American people reject. White?s record does not reflect a sensitivity for the victims of heinous crimes and for the risks and responsibilities of law enforcement officers. White?s record demonstrates further that he has an aggressively activist approach to the role of a judge. On one occasion he even went well beyond the authority of an appellate judge to consider facts not in evidence before the Missouri Supreme Court in rendering a decision.
Senator Ashcroft was correct in opposing White?s nomination to a lifetime appointment on the federal bench.
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