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Separation of powers

For the last couple of weeks, I have been discussing in this column the separation of powers issues brewing between the U.S. Supreme Court and the U.S. Senate Judiciary Committee. Conservative Supreme Court Justices have been under a coordinated attack from left-wing political groups. First, Justice Clarence Thomas was the subject of a political hit piece in Propublica. This week, it was Justice Niel Gorsuch’s turn. He was the subject of a quickly debunked hit piece in Politico. The veracity of the publications, however, is not the point. The point has been to provide a platform from which the U.S. Senate Committee can feign cause to investigate. I noted last week that U.S. Senator Richard Durbin (D-IL) sent a request for Chief Justice John Roberts to testify before the committee regarding ethical concerns. The Chief Justice responded this week in a one-page letter politely declining the request to testify. In the letter, which you can read here, Roberts points out that testimony by Supreme Court Justices before the Senate Judiciary Committee has been “exceedingly rare, as one might expect in light of separation of powers concerns.” Supreme Court Justices have only ever testified before Congressional committees on matters of civil administration and salaries. Never regarding ethical concerns, and certainly never regarding public policy or legislative matters. It will be interesting to see where this goes next. Stay tuned.

Due Process

On July 25, 2020, Uber Driver, Daniel Perry, encountered a Black Lives Matter protest blocking the street in Austin, Texas. Perry honked at the protesters to clear the street, then drove his car slowly toward the crowd. Protesters surrounded the car, including Garrett Foster, an Air Force veteran, who was carrying a legal rifle. There is conflicting evidence about what occurred between Perry and Foster, but ultimately, Perry, who was also legally armed, shot and killed Foster.

Perry was tried for murder. He asserted a self-defense claim based on Texas’s stand your ground law. After a 17 hour deliberation, the jury convicted Perry of murder. Immediatly following conviction, prior even to sentencing, Texas Governor, Greg Abbott, expressed his desire to pardon Perry. In Texas, the Governor can issue a pardon only after a parole board recommends it. Governor Abbott has called on the parole board to make such a recommendation.

Following the Governor’s statements about a pardon, the trial judge authorized the release of previously sealed evidence in the form of social media posts where Perry made statements that he wanted to go to protests and shoot looters. Such evidence undermines his self-defense claim. It is unclear whether the social media evidence was admitted at trial.

In my opinion, the pardon power is a flaw in our criminal justice system. Placing so much power in the hands of one person is antithetical to the structure of our government and undermines due process. Here, a trial was held and jurors deliberated for 17 hours. The jurors had access to information and perspective available to no one else. Ultimately, the defendant will be sentenced, then he is entitled to appeal. All that process should work itself out before pardon is even considered.

Beyond that, pardons are too often used as political tools, issued most commonly by Governors and Presidents at the eleventh hour as they are leaving office. If used at all, pardons should be reserved for cases only where there has been a repeated failure of due process generating an unjust outcome. That would be exceedingly rare in our process heavy system.