-Caveat Lector-
1/16/01
You Be the Judge
An analysis of key opinions by Judge Ronnie White.
The Landmark Legal Foundation
In 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.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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