Should the court reflect the community it serves?

October 28, 1990|By M. Dion Thompson | M. Dion Thompson,M. Dion Thompson covers courts for The Sun.

In theory, justice is blind. In reality, it is buffeted by all the subtle and overt pressures and influences of daily life.

"No one at this juncture can say justice is colorblind and that the people who render it are colorblind," said Ron Walters, head of the political science department at Howard University.

In the courtroom, where justice is meted out, where legal disputes are settled and life-changing decisions are made, subtle racial, cultural, political and social identifications take place.

"From the defendant's point of view, I think the defendants empathize with people who appear to be from the same ethnic background," said Judge Paul A. Smith of the Baltimore Circuit Court. "Certain identifications take place that allow him or her to feel that they're heard, or 'I'm sure they understand.' "

On Tuesday, Judge Smith, who had campaigned all year for election to the Circuit Court, was formally sworn in as the court's newest member. When Gov. William Donald Schaefer named Judge Smith to the Circuit Court, he cut off an election campaign that pitted Judge Smith, who is an African American, against three white incumbent judges. The campaign became a referendum on the black community's desires to have a representative number of judges on Baltimore's highest court.

In a city whose general population is roughly 60 percent black, less than one-third of the Circuit Court's judges were black. Now eight of the court's 24 judges are black.

During the swearing-in ceremony, there was an unmistakable aura of victory and pride. Though Judge Smith touted his judicial experience during his campaign, his supporters brought another issue into play: Whether the Circuit Court should reflect the community it serves.

Though Baltimore's 13-member Judicial Nominating Commission, which is composed of six lawyers and seven gubernatorial appointees, recommended Judge Smith for appointment to the Circuit Court three times, he was passed over three times by Governor Schaefer. In Maryland, the governor appoints judges from a list submitted by the nominating commission.

Three times he chose a white judge, selecting Judge John C. Themelis in 1988 and Judges Richard T. Rombro and Ellen L. Hollander in 1989. Those three judges also were submitted by the nominating commission. They were running for election because state law requires appointed judges to do so in the first general election after their appointments.

Those three appointments resulted in frustration for the black community and were key to the groundswell of support Judge Smith enjoyed, support that carried him to a strong showing in September's Democratic primary.After that primary, Governor Schaefer appointed Judge Smith.

The black community saw that as a victory. It had raised a legitimate issue and it had been recognized.

Though observers say no studies show a difference in sentencing patterns based on a judge's race, there are disturbing indications that race still plays a role in judicial decisions. Judge Kenneth Lavon Johnson of the Baltimore Circuit Court cited a University of Iowa study of 2,500 homicide cases in Georgia. The study showed that anyone convicted of murdering a white person was 4.3 times more likely to be sentenced to death than if the murder victim was black.

"A judge brings onto the bench their own race, their own culture, and sometimes it influences them in a subconscious manner into a racist result," said Judge Johnson. "You might well have black judges who will be harsher on a black defendant than a white judge would be. That is just as bad as if a white judge was harsher. . . . Racism comes in all colors, and the trick is to eliminate that by having a representative number of African-American judges on the bench and to make all judges -- black judges, white judges, women judges -- aware of the potential bias."

But why were so many willing to reject the election of a competent white judge in favor of electing Judge Smith? Judge Johnson said the answer lies in the community's abiding need to feel comfortable with its institutions, to feel that fairness prevails.

"Each ethnic group should view the judiciary as being fair and equitable, and one of the best ways to communicate that it's not is to have one group excluded because of their ethnic background," he said. "This is why African-Americans have and continue to be suspect of the judiciary -- because they have been and are excluded because of race."

That history of exclusion is well known. What was evident during the campaign was a community's need for a say in the makeup of its judiciary. And in Baltimore, the black community made its needs known at the ballot box.

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