Nowhere yesterday were the disadvantages of judge-made law more evident than in the actions concerning the corruption trial of Louisiana Agriculture Secretary Bob Odom, risking a just conclusion to the affair and complicating voters’ task in his upcoming reelection bid..
First, Judge Donald Johnson of the 19th state District threw out two of the six counts by substituting his own interpretation of the law. These regarded money laundering, over a technicality where state law appeared only to make illegal such schemes involving cash rather than checks.
Disregarding the fact that legally checks act as cash if they don’t overdraw and are signed by someone with the legal power to do so, and that it was extremely unlikely that the Legislature intended to make money laundering by cash illegal but not that by check, Johnson decided these charges had to be severed from the case. Properly, if he had any doubts at all, Johnson should have investigated legislative intent, which is appropriate for judges to use in gray areas such as this, rather than substitute his own opinion about what he thought the statute meant, which is inappropriate.
The severing of the two counts itself was controversial. Johnson had done the same in an earlier phase of the trial but was overruled by the Louisiana Supreme Court, saying the case had to go together as a package. Prosecutors argued Louisiana law permits only they to decide whether to sever so the entire case should be heard by a higher court. Because prosecutors did not want to go along with Johnson once again taking the law into his own hands, he dismissed the entire case. Fortunately, prosecutors will appeal the action.
Johnson (who has a history of playing fast and loose with judicial interpretation) based his usurpation on a belief that the case, after four years had to “move forward.” But in taking these actions, he actually is slowing down the process by forcing more appeals that, if previous rulings are a guide, will serve only to mandate restarting the process in the first place. (In fact, it has been going on so long that there was question whether Johnson had jurisdiction in the case any more.)
If Odom truly is innocent, he should welcome expeditious efforts to clear his name. Instead, his legal team has seemed to care more about filing motions and trying to stop the trial than to get it over with so he can show his innocence, if he is, to the world
And voters deserve this as well. Already Democrat Odom has drawn Republican state Rep. Mike Strain as an opponent. Dragging out the trial by questionable rulings from Johnson only serves to interject the case squarely into the election itself. Speedy completion of the entire trial, which is what the prosecutors argue will happen if, as they contend, their motion to appeal removes it from Johnson and send it to the First Circuit Court of Appeals, for these reasons is highly desirable.
1 comment:
This comment was misposted to another column. It also has been edited for profanity:
>First of all Sadow, you state in the second paragraph of your post in part "...threw out two of the six counts by substituting his own interpretation of the law." My question for you is if a judge is not suppose to "interpret" the law what is he suppose to be doing? And second there is a premise rooted in law that says you can not read anything in to the law that is not there. In other words if it says 'shall' you can not substiute the word 'may'.
And the last things is I see signs everywhere that say 'we take cash or check'. The idea that you 'interpret' that these two words mean one in the same in law is simply bull****.
You go on to say that "...legally checks act as cash..." That does not make them the same. If you want to blame somebody here, write about the legislature who wrote the law, not the judge who is upholding what they wrote!
No doubt the Legislature could have been clearer in its language -- look at the price being paid for the lack of that in ineffective legislative term limits and in allowing unpardoned federal felony offenders in serving in office. Still, that doesn't excuse the departure from common sense witnessed in this case.
Also, please reread the column more carefully. You will note that I argue judges are proper to use their own judgment when it comes to discerning legislative intent, but that it descends to judical fiat to substitute their own interpretation. As the prosecution argued, it would be folly to asusme the Legislature chose not to make money-laundering illegal if done by U.S. check, and then to divorce the legal monetary nature of checks from their cash equivalent (this I learned as a banker). Thus, proper understanding of Legislative intent shows it would have intended to equate the two. Note that judges properly may interpret the law only in the context of that "original intent." Sadly, the American judiciary has largely ridden off the rails in too many cases as judges have ignored this standard and instead make law on their own unconstrained by democratic institutions.
Note also the inconsistency in your argument. You state the judge is hamstrung by the exact, literal meaning of the law on the money-laundering issue, yet then you grant him great leeway in statutory interpretation of the severability issue -- even after higher courts have ruled explicitly he cannot do that. Reads like an argument of convenience rather than of principle.
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