Selection, naturally

to vote or not to vote

What has always struck me as rather curious about the various jurisdictions in the US is their disparate ways of employing judges and state’s attorneys and public defenders. Some states elect their officials, some states select them.

In Connectictut, I guess one could say that the state’s attorneys, public defenders and judges are akin to civil servants. It is, fundamentally, a merit-based system, where you are appointed and then promoted based on your abilites and performance. Not all states do it this way and I wonder why. Two recent stories would highlight my query:

First, in Texas, where Houston Criminal Defense Lawyer, aka Mark Bennett is covering the election of Pat Lykos as DA, and the impact it has had on attorneys in the prosecutor’s office (for a first hand take, see AHCL’s posts here and here). After promising not to fire anyone who worked hard and was competent, she promptly fired everyone (or close to it).

The other cautionary tale is from Florida, which I mentioned in the Jumpstart on Monday. This one is a little more puzzling. Bill White, a public defender for 34 years was defeated in the election by Matt Shirk, an attorney who spent 5 years in the public defender’s office and 4 years in private practice. He was endorsed by the Fraternal Order of the Police and, by some accounts, promised not to raise questions about the integrity of the police and their work. He also stated:

he has no intentions of making sweeping personnel changes to the office of 140 employees, but plans to put his own management team in place.

And then he promptly fired the 10 most experienced attorneys in that office. Two of those 10 are Pat McGuiness and Ann Finnel, both of whom represented Brenton Butler in an infamous murder case in 2000, that resulted in Butler’s acquittal. Both McGuiness and Finnel were simultaneously featured in an Oscar winning documentary about Butler’s case. [CT pd, you should remember this documentary and remember McGuiness. He spoke at a seminar once and the documentary was screened at the Mystic annual meeting. If you, like me, slept through it, then go rent it and watch it now.]

McGuiness believes the firings are payback:

“There are very few people who would have acted as divisively as Mr. Shirk in term of ridding the office of skill and experience without interviewing a single attorney or looking at a single personnel file,” McGuiness said.

The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff’s department bungled the case.

McGuiness said the firings are payback.

McGuiness, Finnel and others fired are considering legal action. I know nothing about employment law, so maybe someone who does can chime in.

Given all of this (and this surely isn’t the first time something of this nature has occured), I wonder why states continue to elect their judges and other officials, who really should be civil servants. It creates an odd power game, where being a judge isn’t in the highest strata – it is being a public defender. Whether it is in Texas or FL or on Raising the Bar, you routinely read the resumes of district attorneys and see “former Judge” in them. We have this system backwards, don’t we? Do judges aspire to be prosecutors? I thought it was the other way round.

As Bobby G put it:

given the public’s abhorrence for and general misunderstanding of criminal defense and why we need it, public elections could be a recipe for disaster. Imagine if a candidate for office runs on a campaign of being tough on crime, easy on cops, and easy on the public dime (what the public wants to hear) and then they are elected?

That’s exactly what happened. Judges and public defenders should be beholden to no one except the law and their clients, respectively. Prosecutors, I think, should also be free from the encumberances of public pressure. Because almost always, public pressure veers prosecutors away from discretion and toward draconian and harsh punishments. In the very few cases that the public feels prosecutors are being unjust and unfair, they have the opportunity to rectify that: the jury.

Can anyone make a convincing argument for election?

*Image taken shamelessly from this year’s Senate race in MN between Al Franken and Norm Coleman. Via MPR.