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NC5 Investigates: The Politics of Justice

Former Justice Claims Opponents Want To 'Bully The Bench'

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by Phil Williams
Chief Investigative Reporter

NASHVILLE, Tenn. -- The battle for control of the Tennessee Supreme Court has officially begun.

The campaigns for three incumbent justices - who face a vote in August over whether they should be retained - began running their first television ad Thursday. That ad highlights the three justice's oath to carry out their duties "faithfully and impartially."

Meanwhile, a big national group appears to be preparing to begin a campaign to oust the three justices. The Republican State Leadership Committee (RSLC) registered Thursday to be able to spend campaign money in Tennessee.

"Tennesseans deserve to know the liberal record and ideology of Supreme Court Justices Connie Clark, Sharon Lee and Gary Wade," said RSLC communications director Jill Bader in an email to NewsChannel 5.

Earlier this year, that group helped to finance what many viewed as a misleading campaign against a North Carolina justice, with one commercial claiming that she had "sided with child predators."

For one former Tennessee Supreme Court justice, the current campaign brings back bitter memories.

In 1996, Penny White became the first justice ever voted out.

In an exclusive interview, White recalled an ugly campaign that led one voter to send her an even uglier letter.

"Perhaps, he would suggest that I be locked in a cage with a brutal rapist, raped repeatedly and torn limb from limb so that I could understand the definition of cruel," recalled White, now a University of Tennessee law professor.

It was a ferocity of public opinion barely reflected in the headlines that White still keeps -- headlines that prompted her own father to ask a question she never expected.

"I remember Fourth of July weekend of 1996, being at a family picnic like we always had and my father saying to me, 'Daughter, what did you do wrong?'" White said. She added, "It broke my heart."

White had been appointed to the Tennessee Supreme Court by Democratic Gov. Ned McWherter under what was a new retention system that meant - instead of facing a contested election - she would simply face a yes-no vote on whether she should keep her job.

But after Tennesseans elected a Republican governor who would get to fill any vacancies, the second woman to ever serve on the state's high court became a target.

"It took years to understand that this was not a grassroots movement against me -- literally it took years," White said.

What was it?

"Well, it was a Republican Party movement, clearly."

The issue used against her: the death penalty and the case of death row inmate Richard Odom, who had raped and murdered an elderly woman.

The Supreme Court sent Odom's case back to the trial court after finding serious procedural problems in how the trial had been handled.

A Republican mailer urged Tennesseans to "vote for capital punishment" by voting no on Penny White.

"Let's scare the public into thinking that they are not safe and they are not safe because the Supreme Court has this liberal policy against capital punishment, and that's how we get rid of this justice," White said.

At the time, Tennessee had not executed anyone in almost 40 years.

But what White's opponents did not tell voters was that the Odom case was the only death penalty appeal she had ever heard -- and that decision had actually upheld the constitutionality of Tennessee's death penalty statute.

"I tried to strike back in the way that I could, which is to say I took an oath to uphold the Constitution and that's what I will do. That does not communicate real well in sound bites," she added.

An editorial cartoon from The Tennessean, which now hangs in her office, captures how White said it felt. It shows the Supreme Court justice's opponents mocking her.

One of them says, "Just look at her deliberately ignoring us."

NewsChannel 5 Investigates noted, "And you did try to ignore the attack, didn't you?"

"As far as going out on the campaign trail and saying I support the death penalty, no, I did not," she acknowledged. "That would have been unethical and, in my opinion, it would have been a very bad standard to set as a member of the Supreme Court."

But Lt. Gov. Ron Ramsey, who drafted a plan suggesting the three incumbent justices be portrayed as soft on crime, has argued there's nothing wrong with using cases where the court has ruled that the constitutional rights of death row inmates were violated.

"If we think that somebody deserves the death penalty and they think they don't, then that's what campaigns are all about," Ramsey said.

"Should death penalty cases be up at the ballot box?" we asked.

"Why not?" the Blountville Republican responded.

White said, "You don't have to even dig deep to realize how often we've gotten it wrong in this country, how many people we've executed for crimes they never committed."

"So would I turn over the decision of whether the state kills somebody to the general public? No, I would not."

White argued that the real goal - then and now - is control.

"It's about a desire to intimidate and bully the bench. And they just unfortunately happen to be the three people in those chairs right now."

We don't know exactly the tone that will emerge in the current campaign against the three incumbent justices, although sources said that voters will likely see pamphlets in the mail, even a TV ad, in the next couple of days.

Still, Republicans are expected to argue that it's really liberals who are trying to keep control of the courts in a very conservative state.

STATEMENT: House Republicans respond to claims of politicizing courts

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