With a few exceptions, judicial races in Arkansas have been historically dull, the candidates refraining from criticizing each other or from saying much of anything except monotonous boasting about their own qualifications. But a couple of Supreme Court races this year seem on the verge of becoming interesting. In one, a former prosecutor in a sensational murder case is targeted by people who say that his misconduct helped convict three innocent defendants. In the other, supporters of a circuit judge who invalidated an anti-gay regulation believe that his opponent is quietly and wrongfully maligning their candidate because of that ruling. Retaliation is not out of the question.
The possibility of noisier-than-usual judicial races is further enhanced by the Arkansas Supreme Court's relaxation of its restrictions on what judicial candidates can say. This year's elections are the first since that change was made a year ago.
Residents of a certain white, middle-class Little Rock neighborhood recently found in their mailboxes or on their windshields a small card that said on one side “Defeat the PROSECUTOR to the WM3. Vote ‘no' to John Fogleman May 18.” The reverse side bore the logo of The Center for Public Integrity, and quoted from an article the Center published in 2003 about alleged prosecutorial misconduct around the country. Fogleman's actions in the West Memphis Three case were mentioned in the article. He's now a circuit judge and a candidate for the Arkansas Supreme Court.
The Center for Public Integrity is a nonprofit, nonpartisan institution that does investigative journalism. It's headquartered in Washington. The Center's logo on the card gave the impression that the Center had printed it, but the organization's media relations manager, Steve Carpinelli, said, “It's not from us. We don't do anything political. Sometimes people take data from our website, but we'd have nothing to do with it.”
Brent Peterson of Little Rock is chairman of Arkansas Take Action, a group supportive of the West Memphis Three (Jason Baldwin, Damien Echols and Jessie Misskelley). Indeed, a book, a documentary, news stories and web sites have produced many supporters who hope to have the Three's convictions overturned. Peterson said he knew nothing about the card. If someone in his group was responsible, “They didn't discuss it with me,” he said. But Peterson is planning to run anti-Fogleman ads in Arkansas newspapers the week of the election. He said many people were just finding out about the case, and were outraged by new evidence that had been presented. “I'm getting three or four e-mails a day.”
Another person who says she had nothing to do with the anti-Fogleman card is Fogleman's opponent, Judge Courtney Henry of Fayetteville, a member of the Arkansas Court of Appeals. “I have not mentioned the West Memphis Three case at all,” she said. “I don't plan to. I'm going around the state shaking as many hands as I can.”
Fogleman didn't know who was behind the card either, and hadn't seen it until a reporter faxed him a copy. He said that when he's out campaigning, he occasionally hears about the West Memphis Three case, “but not much.” Henry hasn't mentioned the case in his presence, he said.
Fogleman said he had little reaction to the card. “I know there's a small group in Central Arkansas that's very vocal [about the West Memphis Three] and some from out of state,” he said. “The folks in Australia seem particularly interested.” As for his prosecutorial conduct, “I completely stand by every step I took in that case.” The Arkansas Supreme Court upheld the convictions of the three.
While the rules on judicial campaigning may have been relaxed slightly, Fogleman said, “I'm not sure that judges should be expressing opinions, especially on things that might come before them.” He said that he was running the same type of campaign as when he first ran for circuit judge, 16 years ago. “I don't have anything bad to say about my opponents.”
Henry would be a formidable opponent even if the West Memphis Three weren't mentioned. She's raised $317,000 in contributions, according to her latest financial report, considerably more than any other Supreme Court candidate. Fogleman has raised $203,000. Judicial races in Arkansas are nonpartisan, and Henry likes to point out that she's been endorsed by both former President Bill Clinton, a Democrat, and former Congressman John Paul Hammerschmidt, a Republican. (Her in-laws, Ann and Morriss Henry of Fayetteville, are prominent Democrats, he a former member of the state legislature, she a former candidate for Congress.)
On the other hand, she has no trial experience to speak of (her background is all in appellate law) and some lawyers consider that a serious deficiency. Some of the best-known lawyers in her hometown signed a public letter endorsing Fogleman. Judicial candidates need the support of lawyers, who have a greater interest in who's on the bench than do laymen. The lawyers know the candidates better too; many laymen will ask a lawyer friend for advice on judicial candidates.
And some people find Henry presumptuous and over-ambitious. She was elected to the Court of Appeals, her first elective office, just two years ago. One lawyer said privately, “She was on the Appeals Court about 15 minutes before she started running for the Supreme Court.” Henry's mother-in-law was highly regarded by liberals when she ran for Congress, but Henry does not enjoy that same high standing in the liberal community, perhaps because her contributors list includes so many Waltons and Tysons and other corporate types who generally prefer conservative candidates, and who always want a return on their investment.
Henry's colleague on the Court of Appeals, Judge Karen Baker of Clinton, is running for the Supreme Court also. Her opponent is Circuit Judge Tim Fox of Little Rock. Fox made news in 2005 when he struck down a state Department of Human Services regulation banning homosexuals from being foster parents. The Arkansas Supreme Court upheld Fox's decision, but in 2008, voters approved an initiated act that prohibits unmarried couples, gay or straight, from adopting or fostering children. Some of Fox's supporters claim that in appearances before certain groups — conservative Republicans, say — Baker has criticized Fox's decision and said that she would have ruled otherwise. Fox himself, asked about these allegations, said only, “I have no comment on that at this time.”
Baker said that in her campaign appearances, “I talk a little about general judicial philosophy, not any particular issues. As part of my campaign, I haven't mentioned it [Fox's ruling in the gay-foster-parents case]. I haven't brought it up myself. If somebody asks me privately about issues, I may talk about them.”
Baker has borrowed $245,000 for her campaign, but she's raised only $20,000 in contributions, compared to Fox's $154,000. Cox has borrowed $100,000 also. But one would expect a Little Rock judge to raise more money than a judge from Clinton. Court of Appeals judges are elected from designated geographic districts. They don't run statewide, as Supreme Court candidates do. There's a third candidate in the race with Fox and Baker, Evelyn Moorehead of Little Rock.
The Arkansas Supreme Court changed the rules governing what judges and judicial candidates can say largely because Wendell Griffen challenged the old rules, and won. Griffen was a Court of Appeals judge from Little Rock when the state Judicial Discipline and Disability Commission threatened to punish him for various public statements he'd made, such as criticizing then-President George W. Bush and accusing the University of Arkansas at Fayetteville of practicing racial discrimination. Griffen replied that judges had a right of free speech under the First Amendment, like other Americans, and that the federal courts had so ruled. The commission eventually agreed, and Griffen went unpunished. At least until the 2008 election, when he ran for the Supreme Court and lost.
In one of the biggest rules changes, the commission simply deleted the prohibition against judges speaking out on political issues. That was one Griffen was accused of breaking. But the new rules continue to violate the Constitution in places, according to Griffen, including prohibitions against publicly endorsing or opposing candidates, and against making speeches on behalf of a political organization. Such speech is still protected by the First Amendment, Griffen said.
Griffen's running again this year, for a circuit judgeship in a predominantly black subdistrict in Little Rock. He and two other candidates, Causley Edwards and Judge Rita Bailey, are seeking the judgeship formerly held by Willard Proctor Jr. The Arkansas Supreme Court removed Proctor in January for ethical violations, and said that he couldn't run for the judgeship again.
Though still unimpressed with the rules on judicial speech, Griffen's not pressing the point. He said he's conducting a quiet, old-fashioned judicial campaign, running on his record. But Proctor wants his judgeship back, and has filed suit to be allowed to run. It's hard to believe that a race with both Griffen and Proctor in it could stay quiet.
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