2016 Election, Fly Fishing, Higher Education, Idaho, Judicial Elections, O'Connor, Supreme Court, Tucson

My Lunch with the Justice

51917203MW106_Homeland_SecuSandra Day O’Connor’s remarkable career is a testament to many things: dogged persistence, boundless ambition (of the best type), talent, good judgment, a sense of the power of history and, of course, some luck; luck of the being in the right place at the right time variety.

I did not realize until recently, while researching more deeply O’Connor’s history-making 1981 appointment as the first woman nominated to the United States Supreme Court, how determined Ronald Reagan was to put a woman on the Court. Reagan, of course, had made a campaign pledge in 1980 that he wanted to put a “qualified” woman on the Court. When he had the chance just a few months into his term he kept his promise, plucking from relative obscurity the 51-year-old Arizona Court of Appeals Judge and former state senator. So sure was Reagan that he announced O’Connor’s appointment before the FBI had completed its background check leaving then-Attorney General William French Smith to field questions from the White House press corps about whether that was a sound approach.

After a flurry of criticism and concern, most from the far right, O’Connor – imagine this – was confirmed unanimously by the United States Senate just three month after Reagan told her he wanted to put her on the Court.

“Called Judge O’Connor and told her she was my nominee for supreme court,” Reagan wrote in his diary on July 6, 1981. “Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”

[Idaho’s then-Sen. Steve Symms was one who voiced early skepticism about O’Connor, but eventually supported her appointment. Symms’ call to the White House expressing disapproval of O’Connor’s nomination is detailed in Jan Crawford Greenburg’s 2007 book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.]

O’Connor’s place in history is secure and not only as the first woman on the Court, but for her historic sense of moderation and pragmatism. She has become a remarkable role model and one hopes her careful, centrist, blocking and tackling approach to the law will one day soon serve as a model for a Supreme Court that seems determined to embrace the type of judicial activism that O’Connor so smartly rejected.

I would have liked to discuss any or all of this with what one lawyer friend called the “smart and tart” justice when I had the rare opportunity to sit next to her at lunch recently during an Andrus Center conference on women and leadership at Boise State University. But I left politics and the law aside after reading how reluctant she can be to offer up any comment, let alone criticism, of the judging of the current justices. [O’Connor did make news a while back with comments about the controversial Bush v. Gore decision, but even then her comments were very measured essentially saying the Court might have been well-advised to refuse to take the case that settled the 2000 presidential election but did little for the Court’s reputation.]

O’Connor’s latest book Out of Order, a history of sorts of the Supreme Court, has been rapped by some reviewers for not dishing  inside dope about the Court. The typically acerbic New York Times critic Michiko Kakutani, for example, said: “There are no big revelations in this volume about Bush v. Gore or the author’s thoughts on Roe v. Wade; nor are there momentous insights into the dynamics between Justice O’Connor and her colleagues on the bench, or how she felt about being the crucial swing justice, whom the legal writer Jeffrey Rosen once called ‘the most powerful woman in America.'”

While one would undoubtedly enjoy O’Connor’s unvarnished assessments of all those issues and more, I also admire her restraint, a very O’Connor-like characteristic.

Given the chance to talk with the once “most powerful woman in America” I asked her about her love of fly fishing. O’Connor is a dedicated fly caster. In fact, when then-President George W. Bush tried to reach retiring Justice O’Connor to tell her he had selected John Roberts, a judge as conservative and activist as O’Connor is moderate and careful, to replace her on the Court she was fly fishing in northern Idaho. O’Connor told me that she had little time to fish during her more than 25 years on the Court, but she is clearly making up for lost time. If you are a devotee of the fly rod then you know how easy it can be to form an immediate bond with a stranger – even a very famous stranger – when you share a passion for the pursuit of the wily cutthroat or the gorgeous rainbow.

After fishing in Idaho this month O’Connor was headed for southern Montana to float the Yellowstone with a guide she described as “on a first name basis with every trout in Montana.” To go along with the Andrus Center’s leadership award that former Gov. Cecil D. Andrus presented to the Justice in Boise on September 4, O’Connor also received an honorary doctorate from the University of Montana Law School. She indicated that she very much appreciated the awards, but the chance to fish for a few days was also a big attraction.

She said she has fished in east some, even on the Potomac, and even in Patagonia. While in Montana a couple of years ago hearing cases for the Ninth Circuit Court of Appeals, O’Connor was asked about her favorite Montana river. “Oh, this is a setup!” she replied. “Let’s start with the Big Horn.”

I take real comfort in knowing that the first woman on the Supreme Court knows about the Big Horn and the St. Joe. Who knows, perhaps knowing how to properly swing a fly helps inform the swing vote on the Supreme Court. O’Connor’s other great passions are the importance of civic education and the non-partisan selection of judges and again she is right about both.

As with her long ago critics, O’Connor still gets flack from the far right for warning that money, partisan-style judicial elections and good judging just don’t fit together. O’Connor warned in 2009 that too many state judicial elections – and Idaho has had its share – have become “tawdry and embarrassing” producing judges that are merely “politicians in robes.”

As for civic education, O’Connor quotes truly alarming statistics about American’s lack of knowledge about our history and government. “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” O’Connor said in Boise. Fewer than a third of Americans can name even one current Supreme Court Justice and “less than one-third of eighth-graders can identify the historical purpose of the Declaration of Independence, and it’s right there in the name,” she said.

Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy
Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy

I’ve been fortunate to interview one president – Gerald Ford – and one future president – Jimmy Carter. I had orange juice and coffee in the Roosevelt Room and stood in the Oval Office for a Bill Clinton Saturday radio speech. George W. Bush invited us to the White House for dinner and I was as surprised as he should have been. I’ve worked for one great governor and interviewed a dozen others and had dinner with big time reporters like Tom Wicker, Dave Broder and Tim Egan. Each and every one a very pleasant memory. Lucky me that I can add Justice O’Connor to the list.

The country has produced few more impressive leaders than the woman from Arizona who started out her legal career volunteering her talents because she couldn’t get a law firm to hire her. Her’s is a uniquely American story and one for the history books. Ronald Reagan was right. She did make a good justice.


Law and Justice, Music, Tucson

Justice, Sort of, and Finally

A hamburger, a walk in the desert and a baseball game. Pretty mundane stuff for most of us, but not if you have spent the last 42 years in prison, as Louis Taylor has, for a crime he says he never committed.

Taylor walked out of jail in Arizona this week, a free man, but without the satisfaction of having his widely disputed conviction for the arson deaths of 28 people overturned by the state that locked him up all those long years ago.

Louis Taylor was 16 years old in 1970 when a downtown Tucson landmark, The Hotel Pioneer, caught fire just before Christmas. The old hotel was packed with out-of-town Christmas shoppers, many from Mexico, and with folks attending a party for Hughes Aircraft employees. Young Taylor was at the hotel, too, he said to cage a little food and maybe pick up a drink or two. As the fire raged through the multi-story hotel Louis, at the direction of a first responder, went door-to-door alerting people to the blaze. Some fire fighters later said they considered him a hero for helping get hotel guests out of the burning building, while tragically others died of carbon monoxide poisoning or from leaping to their deaths.

Later than night, after extensive questioning by police without a lawyer or other adults present, Louis Taylor was arrested and charged with the arson deaths of 28 victims – another person died later of injuries. Taylor’s story to police, it must be noted, was inconsistent and confused, but the police and arson investigation was, as well. No recording was made of the police interview and if officers made notes of the interview with the teenage Taylor those records never surfaced. An all-white jury convicted the young African-American boy and he was sentenced to consecutive life sentences for 28 arson related murders.

Decades later Louis Taylor’s cause was taken up by journalists – the CBS ’60 Minutes’ story by Steve Kroft is a classic piece of investigative television reporting – and by a group of volunteer lawyers, former judges and law students who staff the Arizona Justice Project.  One of Taylor’s pro bono lawyers, former Arizona Supreme Court Justice Stanley Feldman told a Tucson television station, “I can’t imagine a case where in which someone was convicted of a crime, a truly horrible crime on so little evidence.”

The collective work of the volunteer lawyers and the pushy journalists eventually succeeding in raising enough doubt about whether the Pioneer Hotel fire really was a case of arson that the Pima County, Arizona prosecutor Barbara LaWall finally agreed to petition the court, not for a new trial for Taylor, but for a convoluted and fundamentally unsettling deal whereby Taylor agreed to plead “no contest” to the 28 murders in exchange for his release for time served – 42 years. He also gave up all rights to seek compensation or to be considered not guilty in the eyes of the law.

Taylor is a free man this week and he spent his first hours of freedom visiting an In-and-Out Burger, taking a walk in beautiful Sabino Canyon in Tucson and watching the Arizona Diamondbacks play baseball in Phoenix. He says he’ll start over and devote his life to doing good works.

I’ve followed this case since ’60 Minutes’ broadcast its first story in 2002 and, while Taylor’s long story can properly be characterized as some sort of delayed justice, it is also a supreme example of how the American justices system, with its delicate balance of protections for society and the accused, can be twisted and abused. Any fair reading of the facts of the Taylor case makes it clear that evidence that may have been exculpatory was never presented to the defense or the jury. The Arizona Justice Project’s deposition of one of the original fire investigators – a portion is included in Steve Kroft’s piece – is shocking. The investigator calmly concludes, without a hint of evidence, that the hotel fire had to have been set by a “negro” who must have been about 18. Five other independent fire investigators sifted the evidence from 1970 and concluded that the fire was of “undetermined” origin. As another Taylor lawyer says – no arson, no crime. Even the judge in the Taylor trial now admits he wouldn’t have voted to convict the young man.

And there is, of course, the reality of what was at least a six hour police interrogation of a young man of color who was questioned without the benefit of counsel. Put yourself in those shoes.

After noting that the investigators who determined in 1970 that the Pioneer fire was arson stand by that judgment all these years later, the Pima County prosecutor made the obvious admission that a new trial for Taylor, based on modern standards of arson investigation, would likely not result in another conviction. Still, hanging on a thin procedural thread, the prosecutor would only agree to the convoluted plea bargain that, while not exonerating Taylor at least set him free.

Read for yourself the tortured reasoning of the state in this relevant paragraph from the prosecutor’s filing with the Tucson court:

“The legal question presented to the court today is whether a review of the original evidence using new advances and techniques in fire investigation is legally ‘newly discovered evidence.’ Although this question hasn’t been addressed in Arizona, and it appears no Arizona court has ruled on the legal question of new arson techniques being ‘newly discovered evidence,’ at least one jurisdiction has determined that such advances in fire investigation techniques would constitute ‘newly discovered evidence.’ If that were the result in the instant case, the state of the evidence is such that the State would be unable to proceed with a retrial, and the convictions would not stand.”

So, why not just admit, given all the “new evidence” that Taylor’s conviction did not meet the threshold test of “beyond a reasonable doubt?” Good question for a prosecutor who told the court that the deal she insisted upon will “maintain the integrity of the defendant’s conviction.” LaWall, by the way, won re-election last fall with 97% of the vote against a write-in candidate.

As for Louis Taylor, as CBS reported, he “faced a choice as new doubts emerged about his conviction: He could continue his fight, maybe for years more, to clear his name and potentially sue for a big settlement. Or he could enter a plea and get out of prison now, giving up any opportunity to file a lawsuit against the state.”

“You can’t make up for 42 years. You just gotta move forward,” Taylor said and then he went to a ball game.

There are no doubt many lessons from Louis Taylor’s case, but the first and last lesson is this: the justice system we have, as good as it is, is never perfect. Mistakes are made because people are human and bias and racism and assumptions creep into to conclusions that become facts.  It is equally true that future mistakes can only be avoided when good people, charged by us to do this essential and delicate work, admit when a mistake has been made. If you can’t be sure “beyond a reasonable doubt” then you can’t be sure at all.


Giffords, John V. Evans, Law and Justice, Tucson


Tucson…Two Months

On This city in the Sonoran Desert has been our adopted “second city” now for more than ten years. We have come to love the place, particularly this time of year.

The near arrival of spring brings a huge variety of life to the desert. The birds start talking at first light, the cool mornings give way to progressively warmer days until, as the incredible pink sunsets appear in the darkening, brilliant blue sky, the desert night cools again and one of the greatest star shows anywhere helps remind us how insignificant we are in the grand scheme.

The third annual Tucson Festival of Books has been dominating the city this weekend, particularly the campus of the University of Arizona. Thousands flocked to the campus yesterday to wander among booths, listen to music and celebrate books with a long list of good writers.

I listened to writer Jonathan Eig talk about his latest book on the Chicago mobster Al Capone. As a baseball fan, I’ve admired and enjoyed Eig’s books on Jackie Robinson and Lou Gehrig. He had a big crowd in a big tent laughing yesterday as he disposed of a few myths about Big Al. Capone didn’t order the St. Valentine’s Day massacre, for instance, and Eliot Ness had almost nothing to do with bringing Capone to justice. More plausibly, Capone got crosswise with a smart U.S. Attorney.

Frank DeFord held forth, as did J.A. Jance and Douglas Brinkley. I’m looking forward to seeing a talented historian Annette Gordon-Reed later today and one of my historian heroes, Robert Utley.

NPR’s Scott Simon moderated a fascinating panel with Luis Alberto Urrea – his book The Devil’s Highway is a chilling and exceeding well-crafted account of human trafficking along the U.S. – Mexican border – and T. Jefferson Parker, a novelist who writes about the drugs, money and guns that increasingly define our relationship with Mexico.

Simon seemed momentarily taken aback when a questioneer thanked him for his sensitive and knowing reporting in the aftermath of the shooting of Rep. Gabrielle Giffords and so many others on January 8. The big crowd in the UA Student Union applauded the remark and the conversation returned to the nature of the misunderstood story playing out daily in the borderlands.

Still, a little over two months on from the shootings, the healing here comes slowly and one gets the impression that a whole city is still processing, reflecting, mourning and trying to move ahead.

Six white crosses still sit on the ground across the street from the Safeway at Ina and Oracle where Gifford was meeting constituents on January 8. There was a big benefit concert this week to raise money to further the healing. A Gifford’s aide, Ron Barber, organized a fund for that purpose and a big car dealer and Republican businessman who had supported Gifford’s opponent last year made a large donation. The UA has launched an institute devoted to civility and a Gifford’s intern-turned-hero, Daniel Hernandez, announced this week that he’ll run for student body president at the University. And, of course, the updates on the Congressman’s condition dominated the news here and got big play everywhere. Life goes on.

The big book festival this weekend made me reflect anew on the power of stories in the hands of gifted storytellers to help us make sense of an often senseless world. Artists simply help us live and cope.

Luis Urrea, a great and gifted writer who straddles at least two cultures, gave me a new mantra while he was talking with Scott Simon. Urrea says he tells his writing students that every day is Christmas or their birthday, they just need to be open to the gifts – mostly little tiny gifts – that come their way every day.

Tucson is finding its way two months on by finding and enjoying the little gifts that come its way every day.