1/03/01 8:45 a.m.
Ashcroft Was Right
The case against White was black and white.

By Mark R. Levin, president, Landmark Legal Foundation

everal left-wing groups have announced their opposition to the nomination of ex-senator John Ashcroft for attorney general. They claim that Ashcroft's opposition to Ronnie White — a Missouri supreme-court justice nominated to the federal bench by President Bill Clinton — was based on White's race. White is an African-American. Indeed, when White was denied the federal judgeship, Clinton immediately alleged racism by the Republican Senate. Many Republican senators said at the time that they had no idea White was an African-American.

Let's hope White's failed nomination is, in fact, an issue at the Ashcroft confirmation hearing. Clinton and his Senate friends — not Ashcroft — have much to explain. White was rejected largely because of his dissent in the case of State of Missouri v. James R. Johnson, when White voted in 1998 to overturn the death-penalty convictions of a four-time murderer who killed in cold blood three law-enforcement officers and the wife of a sheriff.

Here are the pertinent facts. Deputy Les Roark of the Moniteau County sheriff's department went to James Johnson's house to investigate a domestic dispute between 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. 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; that Johnson 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 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 dissented. He 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. Republicans should insist that the murdered victims' families be allowed to testify at Ashcroft's hearing. White's Democratic supporters should be forced to face these families and explain why White was qualified for a lifetime promotion to the federal bench. And the police officers who recovered their brothers’ bodies and carried their coffins at their funerals should be heard from as well.

John Ashcroft was right to oppose White. He has nothing to apologize for. It's time to shine the light of truth on what's really going on here. On the campaign trail, Democrats claim to be tough on crime and advocates for victims' rights. Back in Washington, however, they fight for the appointment of liberal judges who coddle the worst kind of criminals.