ELECTION 2012 / Steve Russell : The Election Night Rhythm and Blues

The Obama Four celebrate victory in Chicago on election night. Photo by Jewel Samad / AFP / Getty Images.

From the POTUS to Sharon Keller:
The election night rhythm and blues

What got me off my leftist disgust with Obama high horse was the cold realization that we were about to lose victories won by our parents. We were in danger of dropping the baton.

By Steve Russell | The Rag Blog | November 8, 2012

AUSTIN — I offer some reflections on the Silly Season now ending.

Waking up the next day, I was pleased to learn I did not dream that the POTUS was reelected and that Gov. Romney actually made a gracious concession speech. This was looking unlikely when I went to bed with Romney refusing to concede Ohio in the face of overwhelming evidence that the counties still out would not help him.

It was difficult not to chuckle at a tweet let fly by The Donald Trump calling the election a sham and advocating, I kid you not, “revolution!”

Pampered wealthy people, arise! You have nothing to lose but your tax shelters!

GMO labeling failed in California, which was rendered a probable outcome not by the merits but by the sums of corporate money that went into defeating it.

Recreational weed won in Colorado and in Washington. It’s only a matter of time until we can get high without being terminal cancer patients or chronic pain sufferers needing a prescription. Bad news for the liquor business.

Marriage equality scored three popular vote wins, becoming law in Maryland and Maine and beating back a ban in Minnesota! I saw this coming from being a university teacher. The younger generation, liberal or conservative, simply does not care who somebody else marries.

The Congress is improved by Alan Grayson returning and Allen West and Joe Walsh leaving. On the downside, Michelle Bachmann won by the drag of a knuckle.

Tammy Baldwin becomes the first out lesbian in the U.S. Senate, in a Senate with the most women to serve in that body ever.

The Tea Party remains the gift that keeps on giving to the Democrats, having now denied the Republicans slam-dunk victories sufficient to have taken control of the Senate.

The latest Tea Party fiasco was led by the two guys who wanted to be kinder and gentler about rape in order to crack down on abortion. That turned over Indiana and saved a seat in Missouri. This adds to Tea Party debacles in Delaware, Colorado, Nevada, and Alaska.

In Alaska, the mainstream Republican defeated in the primary won election as a write-in and as a result readily departs party discipline with no fear of the Tea Party.

Linda McMahon has now burned almost $100 million in her own money trying to buy a Connecticut Senate seat. McMahon has beaten the record for cost-ineffectiveness held by Texan John Connally, who spent $11 million in the 1980 Republican primaries to buy one delegate. (Another Texan, Phil Gramm, made a spirited run at the record in 1996, when he spent $8 million to get run out of the race by Pat Buchanan.)

Texas is, to blend a metaphor, still sipping on the Tea Party Kool-Aid. Hell, they’re sucking on the ice. So Texas goes until the demographics catch up.

So, now, whither the national GOP?

Will they decide that they lost for excessive crazy or insufficient crazy?

So far, the crazy has cost them control of the Senate. Taking out Dick Lugar in Indiana was particularly stupid. They gave up slam-dunk wins to embrace the crazy.

On the downside, over 40% of the country is crazy.

To the extent the crazy is driven by racism — and it’s hard to ignore the margins in the Old South and the continual bitch slaps on Hispanics — that kind of crazy is doomed to demographics.

To the extent that crazy is driven my misogyny, the female body has a way to shut that thing down. The female body acquired that by the means shown in the pic that went around the web in the last week allegedly showing Susan B. Anthony being beaten down in the street for trying to vote. While the photo was of a different suffragist, the essential message is true.

Women vote. Get used to it. They are not going back.

The money for the crazy came from the 1%, but this election teaches they are going to have to fund a sellout from among the hoi polloi, because electing one of their own is not likely.

My favorite quote of this season is the metaphor mixed by San Antonio’s Julian Castro, when he said the American Dream “is not a sprint or a marathon — it’s a RELAY.”

What got me off my leftist disgust with Obama high horse was the cold realization that we were about to lose victories won by our parents. We were in danger of dropping the baton.

The Donald speaks. Screen grab off Twitter.

The worst realization of 2012 is the degree to which we’ve allowed voter suppression in the name of stamping out virtually nonexistent retail voter fraud while ignoring computer-driven wholesale voter fraud. This is going to bite unless we stop it.

The outcomes were the usual mixed bag in a divided country, but I generally like them in the high profile races.

The worst outcome is the justice system in Texas, still roiled by party sweeps. Austin’s Third Court of Appeals, which used to be my judicial career goal, has lurched to the right. A guy I once put in jail for obstructing access to an abortion clinic is now on the Texas Supreme Court, having defeated a more mainstream Republican who committed the sin of birth with an Hispanic surname.

But the very, very worst of the lot is the easy reelection of Sharon Keller as Presiding Judge of the Texas Court of Criminal Appeals.

Let me explain, so you can discount, if you choose, the views of a judge who was elected by the crazed voters of the People’s Republic of Austin, Babylon on the Colorado.

Suppose you have an ugly rape and murder of a teenage girl.

The only evidence is a statement by the defendant that required considerable bending to fit the facts: he bragged that he had consensual sex with a female hitchhiker, who was apparently an adult.

But the “scientific evidence” of a blood test “could not exclude” him.

The government was not proud enough of this case to seek the death penalty, which was probably a good thing for the defendant, as he was quickly convicted.

Many years of durance vile later, DNA testing becomes possible that DOES exclude the defendant and points to some unknown male as the perpetrator.

When these facts arrive in the Court of Criminal Appeals, Judge Keller deems them insufficient to require a new trial because of the possible presence of an unidentified co-ejaculator or prior consensual intercourse.

Never mind that the jury never heard this theory.

Never mind that the prior consensual intercourse theory required inventing a sexual history for a young girl that by all credible accounts did not exist.

In the service of what? The finality of judgments, the same argument against the DNA testing that kept Michael Morton in prison for an extra three years while the government fought the testing. Testing which in the Morton case not only exonerated an innocent man but also led to the arrest of another man, who had DNA in the system.

Now, if you believe the finality of judgments is not a value, you are an incompetent lawyer who ought not be put on the Bench.

But how heavily you weigh the value of finality is a matter of judicial philosophy. My own view is that finality is a much more weighty consideration in a civil case then in a criminal case, because in the latter case there might be a felon running loose, freed by the error.

That’s philosophy. If you agree, vote for me. If you don’t, vote against me. That’s fair and square if we choose to elect judges.

But that was not the main issue in Sharon Keller’s race.

She got a phone call from the defenders of a convicted murderer, pleading that they had a computer crash and were going to be later than five o’clock filing a petition for a stay of his execution scheduled for THAT NIGHT.

She would pretty much have to stay the execution, because the ground was that the U.S. Supreme Court has just agreed to hear another case containing the identical issue.

Her response? The courthouse closes at five. Be there or be square… or, more to the point, you have a dead client. Which is exactly what happened.

The “Honorable” Sharon Keller. Photo by Eric Gay / AP.

Now, let me expose my biases.

Go back to when I was a baby lawyer, newly licensed and just defeated in my run for Justice of the Peace. Persons in the system either did not know me or knew me as having just been rejected by the voters.

After 4 p.m. on a Friday, a woman came into my office with one eye swollen shut, busted lip, bruises all over her. She was afraid her husband would finish the job.

This was in the days before family violence protective orders, so the only remedy in court was a temporary restraining order in a divorce case.

This was also before computers, so I took a divorce petition and filled in her information and handed out pieces of it to both of our clerical persons and two other lawyers. They typed while I worked the phones.

I called the District Clerk’s office, because by this time it was past 4:30. I explained myself.

The clerk who answered the phone, who I assume did not know me from Adam, agreed to keep the office open until I could get the papers there and even went down the hall to count heads in the district judges’ offices. The clerk got back to me with the information that there were still three district judges working.

Within 45 minutes, I got the petition done and sworn to and filed. It was after six when a judge signed it and I hand carried it down to the Sheriff’s office, where the civil process unit was closed. The dispatcher called somebody in from dinner, and he promised me an attempt would be made that night.

I guess I was spoiled by learning my trade in Travis County.

After I lost that election, I had a couple of occasions to present bond applications to the man who defeated me at his home after hours.

Years later, after he had quit the Bench, he tracked me down where I was spending the night at my girlfriend’s house to present a bond. I signed it, but that’s not the point. The point is that I heard him speak for his client, regardless of the time on the clock.

I leaned my trade where there were district judges like Jim Meyers and Harley Clark and Jim Dear who you could roust out of their homes or away from the dinner table in the restaurant or out of the stands at a ball game.

There was no guarantee they would give you what you wanted, but the point was that they would hear you. At any time.

When I ran for judicial office again, because of the way I learned my trade, I knew both that I would make less money than most lawyers and that I would not get to work only eight to five, five days a week, and I would be giving up a certain amount of privacy.

Police need search or arrest warrants at all hours. Defense lawyers need consideration for bonds at all hours. Civil lawyers need temporary restraining orders at all hours. I believed, and still believe, that this is what a lawyer takes on by putting on the black nightgown and taking the oath.

You don’t promise any particular ruling, but you do promise to hear people who need to be heard.

Therefore, I’ve many times kept my office doors open past five for reasons a lot less weighty than considering whether the government will be allowed to kill a man that evening.

But maybe that’s just me, and maybe it’s just an artifact of where I learned my trade.

I hope it’s not just me, but I’m retired, and Sharon Keller cakewalked to reelection over a candidate with better paper qualifications who won the Bar poll and virtually every endorsement from all ends of the political spectrum.

I hope I’m not the only person who finds this outcome to be a very sad and even tragic counterweight to some generally good national election results.

[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. Steve, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today. He can be reached at swrussel@indiana.edu. Read more articles by Steve Russell on The Rag Blog.]

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One Response to ELECTION 2012 / Steve Russell : The Election Night Rhythm and Blues

  1. Anonymous says:

    You’re definitely not alone in your Keller-related feelings, beliefs, and thoughts.

    – Piltz

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