Former Arizona Attorney General Terry Goddard at the Minority Bar Convention, April 15, 2011

“The death of a man was the birth of a movement.”

That was one of the sorrowful yet inspiring messages conveyed at this year’s Minority Bar Convention, sponsored by the State Bar of Arizona.

Held in Phoenix last week on Thursday and Friday, it featured a roundup of seminars, updates from sister bar associations, a free-wheeling assessment of Arizona’s immigration laws, and a re-enactment of a historic trial.

The opening quotation comes from that re-enactment. There, a wide variety of lawyers stood in for participants in the murder case of the victim Victor Chin (which I previewed here). The 1982 death and legal case that followed yielded little justice, according to the family of the dead man. But it did lead to an awakening among Asian Americans of the need to protect their civil liberties.

As a speaker introduced the case, “Though the case is no longer infamous, for Asian Americans it has never stopped being iconic.”

That case began in a Detroit strip club, and ended with a young Chinese American bridegroom bludgeoned with a baseball bat just blocks away. Chin died four days later.

Lisa Loo at the Minority Bar Convention, April 14, 2011

The seminar examined the tenor of the times, when American auto workers were losing a car-battle to the Japanese, and anyone of Asian descent was subject to ridicule—or worse.

The two men who killed Chin eventually were convicted of manslaughter and given three years’ probation, fined $3,000 and ordered to pay $780 in court costs.

As the trial judge had said in a quotation that infuriated the community, “These weren’t the kind of men you sent to jail.”

In a subsequent 1984 federal trial alleging civil rights violations, one of the men was found guilty of one count, whereas the second was acquitted. But the family’s pain was not complete. Due to problems at and before trial, the Sixth Circuit reversed and ordered a new trial. Upon retrial in Cincinnati rather than Detroit, a jury found the defendant not guilty.

Polled afterward last Friday, the room of lawyers at the Minority Bar Convention was split on whether they would have convicted. Even among those who found the behavior criminal, many lawyers hesitated as they examined the evidence. As one attendee noted, “Bad cases make bad law. This was a state court case that never should have been elevated to a federal case.”

Not all agreed with that, as became evident in a conversation among panelists moderated by Jose Cardenas, formerly of Lewis and Roca and now the General Counsel at ASU. On the panel were former Judge (now professor) Penny Willrich, Annie Lai of the ACLU, Melanie Pate of the Arizona Attorney General’s Civil Rights Division, and lawyer Margarita Silva.

As Professor Willrich said, “When will it ever end? If people’s hearts don’t change, the violence never will.”

Also featured that morning were clips from the 1987 documentary “Who Killed Vincent Chin?” which was nominated for an Academy Award.

The programming continued that morning with a panel of three prominent lawyers discussing Arizona’s immigration laws. Former Attorney General Terry Goddard, former state Representative David Lujan and state Senator Adam Driggs took on the most hot-button of topics.

More photos are at the Arizona Attorney Magazine Facebook page.

Grady Gammage Jr.

The way we pick judges has all the makings of a yawner, right up there with shareholder voting rules and ski-lift instructions. And yet in Arizona and across the country, the topic is red hot.

This year, as in the past, the Arizona Legislature is considering some bills that would alter what many argue is the flagship method for judicial selection in the nation. As Morrison Institute executive director Sue Clark-Johnson said, “Arizona has been considered a model in the United States.”

In response to the possibility of Legislative action, the Morrison Institute at Arizona State University hosted a panel presentation on the topic on Tuesday, Feb. 22. (I previously posted some event photos at the Arizona Attorney Magazine Facebook page.)

Held at the ASU downtown Phoenix campus, the roundtable included:

  • State Senator Adam Driggs (R-11), a member of the Senate Judiciary Committee
  • Hon. Ruth V. McGregor, former Chief Justice, Arizona Supreme Court
  • Hon. Mary M. Schroeder, Judge, U.S. Court of Appeals for the ninth Circuit
  • Hon. William J. “Bill” O’Neil, former judge, Arizona Superior Court for Pinal County (and now the state’s Presiding Disciplinary Judge; we wrote about him in the January issue of AzAt)

The moderator was lawyer Grady Gammage Jr.

Former Arizona Chief Justice Ruth V. McGregor

The roundtable was great, as far as it went. But events like this come perilously close to the scenario of heartfelt preachers assaulting the ears of the choir: They tend to be slated from a particular point of view, which the audience shares. The only mystery is will there be catering?

Given that, how do you achieve a vibrant evening, one where the assembled learn something new and important about the topic?

Have a great moderator.

Props to all the panelists, but Grady Gammage did his job with elán. He poked, prodded and incited the four panelists. And although he pretty much agreed with them about everything, he spent the evening playing the role not of the agreeable piece of furniture—the death knell for a roundtable—but of the mildly disagreeable event interloper.

Mind you, when I say disagreeable, I heap the greatest of praise. For the moderator who plays devil’s advocate is the audience’s surest friend. His insistence on hard answers from speakers sharpened their presentations and made their positions crystal clear. It made them and their presentation look even better.

The evening opened with remarks by Sue Clark-Johnson and Dr. David R. Berman, an Institute research fellow. Berman gave a historic overview of the state’s merit selection process.

And then Gammage explained the political landscape that faces that process. In the current Legislative session, he said, there are currently 10 House Concurrent Resolutions (HCRs) and one House Resolution (HR) that would alter that process in some way.

  • Most of the proposals would add Senate confirmation.
  • Two would remove the State Bar of Arizona from the process.
  • One would change the length of judges’ terms.
  • One would retain Pinal County as a judicial election county (its growing population would otherwise automatically make it a merit-selection county).
  • One would require the Commission on Judicial Court Appointments to rank the nominees whose names it forwards to the Governor.
  • One would allow the Governor to add names of her choosing.
  • One would require Senate reconfirmation of judges.

Chief Justice McGregor was especially concerned about the Senate confirmation idea: “It seems intended to make the process more political, and nothing else.”

Sandra Day O'Connor makes a point at the roundtable discussion.

She continued, “When people say, ‘Judges are nothing but politicians in robes,’ that is wrong, and not the case in Arizona.”

Senator Driggs tried to give some insight into the thinking of his colleagues, especially in regard to the Senate confirmation idea.

“I think some may have visions of C-SPAN in their heads, a big vetting process [like U.S. Senate confirmation]. It’s a little bit of a fantasy, like all of a sudden everyone will be down there and paying attention.”

McGregor added what became a recurring theme of the evening—what exactly is broke that requires fixing?

“Most who have studied the Arizona merit-selection system say that it is the best. Even the U.S. Chamber of Commerce has said [to other states], ‘We don’t take a position, but if you have merit selection, follow Arizona.’”

Gammage got some laughs and raised eyebrows when he asked Judge O’Neil if Pinal County was resisting “becoming a grown-up county” and adopting merit-selection. O’Neil took issue with the question—not the “grown-up” moniker, but with the inference that residents wanted to keep judicial elections. He said that the majority of the county would like to be a merit-selection jurisdiction.

O’Neil added that in preparation for the move to merit-selection, the court there began performing trial-run internal reviews, which would become the norm under the new process. And in a county where the judges have always been elected, he said that “not all did that well.”

Judge Mary Schroeder shared more background about merit selection. She reminded everyone that Judge Thomas Tang, a respected jurist, was thrown out of his elected judgeship because of a single criminal case.

In response, “The business community got merit-selection passed in a referendum.”

She also was troubled by the seeming hostility toward any organized bar association. She recalled a previous battle over splitting the Ninth Circuit Court of Appeals. In testimony to Congress, Microsoft General Counsel Bill Neukom spoke in favor of the current Circuit. Many advised him to “play up” his Microsoft connection, and to downplay the fact that he was the President-Elect of the American Bar Association.

Gammage did not let the group off that easy, though. He urged them to discuss the ballot that contains “all those names” of judges standing for retention election.

“No one knows what to do with all those names. What an insulting process. If we agree that it is meaningless, and that it is not likely to have much impact, what is it for?”

“What is the effect on civic expectations,” he continued, “in what amounts to an essentially meaningless exercise? If the result is that 1 out of 50 gets marginal ratings, why send the names to the ballot at all?

Of course, panelists did not agree with his premise. But they did acknowledge that it creates a challenge for voters.

McGregor, Schroeder and O’Neil agreed that merit-selection’s very existence may serve to persuade those with more meager skills from seeking a judgeship in the first place. And that would mean those seeking to be retained would likely have high ratings

And Senator Driggs also spoke in favor of merit selection.

“I don’t care if someone is charismatic and goes to neighborhood picnics. I want them to know the Rules of Evidence.”

Finally, in the audience Q&A portion, a slight woman raised her hand and patiently waited her turn. When Gammage called on her, Sandra Day O’Connor, former Associate Justice of the U.S. Supreme Court, spoke loudly enough for everyone in the room to hear.

“I grew up on a ranch, and we followed the motto of, If it ain’t broke, don’t fix it. Well, it ain’t broke, and I don’t know what changes they’re going to implement.”