Justitia fiat coelum ("Let justice be done though the Heavens may fall.")

-- Edwin Horton's grandfather's motto

In 1933, Judge James Edwin Horton, Jr. supervised the second trial, conviction, and sentencing to death of Heywood Patterson, one of the Scottsboro Boys, for the rape of Victoria Price and Ruby Bates. In spite of evidence from the doctor who examined the two women which undercut Price's story, and Bates's testimony on the stand (admittedly, the subject of speculation that it had been bought) that there had been no rape, that the women had been with their boyfriends and had made up the story of the rape to escape being hauled in on morals charges, the all white jury took five minutes to find Patterson guilty. The trial had also been marred by racism and anti-Semitism on the part of the prosecution (the anti-Semitism aimed at Patterson's lawyer, Samuel Leibowitz).

Judge Horton, troubled by the evidence, and having been pulled aside by another doctor who had been present at the examination of the girls and who was sure they were lying, but who was too afraid to testify, did the unthinkable. He ordered a new trial for Patterson.

Clearly, this was not acceptable. The Alabama Supreme Court removed the case from Horton's control, giving it to a Judge William Callahan, who among other things, instructed the jury that it was to be presumed that no white woman would every voluntarily consent to sex with a black man. Horton also paid a personal price: he was defeated for reelection when he ran for the bench again.

Judge Horton's action was a stirring example of judicial independence in the face of mob mentality. It demonstrates why the judiciary is independent, needs to be independent -- so that they can seek justice without regard to whether it is popular. Sometimes popular notions of justice and common sense are wrong, because of prejudice or reluctance to change, and there is a long litany of cases -- Brown v. Board of Education, Loving v. Virginia, Griswold v. Connecticut, to name just three now widely accepted examples from the Supreme Court -- which testify to this.

All of which might seem obvious -- except that there are some people in South Dakota who feel otherwise. There is a ballot initiative which would effectively establish popular oversight over judicial decision-making, by creating a standing Special Grand Jury allowing anyone to bring complaints against judges. The presumption of probable cause would be against the judge, and, unless the case were completely spurious -- difficult, since the allegations of the complaint are to be liberally construed in favor of the complainant -- a special jury would be empanelled, which would act as both trier of fact and as trier of law (i.e., both jury and judge) . Three sustained complaints and a judge would be off the bench -- and there is no judicial immunity, and judges are responsible for providing for their own defense. Terry Karney has the text of the initiative and an analysis, .

Fortunately, there are many sane and responsible people in South Dakota, at least on this issue: both houses of the South Dakota legislature unanimously passed a resolution urging voters to reject the measure. The description of the motives and intentions of J.A.I.L. (the national organization behind this insanity) contained in the resolution is chilling, especially

"the author of Amendment E has publicly stated that with the passage of Amendment E, Judicial Accountability Initiated Law members from across the country will 'purposely drive to South Dakota...just for the privilege of getting a traffic ticket so you can demand a jury trial. I anticipate traffic courts to be among the first courts to all but totally close...,' thus depriving South Dakota citizens of their constitutional right of access to our courts and making it clear that Amendment E is not intended to help cure any alleged problems with South Dakota courts."

Equally disturbing is the vision of the effects of the bill: "Amendment E would permit convicted felons, whose convictions have been affirmed by our Supreme Court, to sue the prosecutors who prosecuted the felons, the jurors who voted to convict the felons, and the judges who sentenced the felons," and "Amendment E would actually allow lawsuits against all South Dakota citizen boards, including county commissioners, school board members, city council members, planning and zoning board members, township board members, public utilities commissioners, professional licensing board members, jurors, judges, prosecutors, and all other citizen boards." By eliminating summary judgment, by which a great many cases are disposed of, it would bring the machinery of justice to a grinding, messy, halt. By allowing suits against other public officials, it would destroy the integrity of government at the local and county level, since it would open up the possibility for local govermental agencies to be held hostage by potential litigants.

This is anarchy. It is the state constitutional enshrinement of jury nullification -- the concept that a jury can legally do whatever it damn well pleases -- with the added threat of dire consequences to a judge or public official who doesn't play along. No doubt Alabamians in 1933 would have welcomed this, and no doubt Judge Horton would have quickly found himself in front of a jury charged with the "blocking of a lawful conclusion of a case."

No one is safe -- not judges, not jurors, not public officials, and certainly not the public. And the ballot initiative may be coming to your state soon: JAIL is aiming at passing laws like this in all fifty states. The scary part is -- what if they succeed, even in one state?

All of this is based on a notion that "the people know best." No, they don't, not always. There is a reason the Bill of Rights exists protecting individual rights against the power of the state. Enstablishing what is essentially justice by popular opinion makes all of us unsafe -- for who is to say when any of us might need the services of an impartial and independent decisionmaker, bound by law instead of the popular emotion of the moment?