By Trent Seibert | for Tennessee Watchdog
The Tennessee Supreme Court may face its first major shakeup since Reconstruction with three of five sitting justices facing retention in an August vote.
Some controversial decisions made by the judges facing retention will be key, according to one pollster.
“Usually these races are very sleepy,” said Wes Anderson, a GOP pollster and partner with Washington, D.C.-based On Message Inc. “It all comes down to case history, and in my review, these are the kinds of cases that can blow up an election.”
The only time a judge facing retention for a Tennessee Supreme Court lost a seat since the initial plan to retain judges was implemented in 1971 was Penny White.
She faced a firestorm after she tipped the scales on a controversial death penalty case.
According to Great American Judges:
White became a subject of controversy in 1996 when she voted with the court majority in the 3-2 decision in the case of State v. Odom. That June 3, 1996, decision upheld a conviction for the rape and murder of an elderly woman, but overturned a death sentence in the case on the grounds that the combination of rape with murder did not meet the requirements for the death penalty because the rape did not cause the murder to be “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.”
It’s clear a fight is revving up this year over the future of the Tennessee judiciary.
Some political watchers point to one case signed off on by Clark, Wade and Lee that saved a man from death row after he was found guilty of killing an elderly woman who fought back as he tried to rob her.
In May 1984, Leonard Edward Smith and friend David Hartsock — they had been drinking and smoking pot, according to court records — were speeding away from another killing in another store on the Sullivan-Carter County line.
SMITH: A controversial Tennessee Supreme Court decision that vacated his death sentence may help recall efforts against judges on that panel.
In that killing, Smith was the wheelman, driving his black Ford Pinto, court records say. Hartstock told Smith he knew how to get some money, directed him to Malone’s Grocery and got out of the car.
“I parked on a little paved road beside the store. David had a .32 caliber chrome-plated pistol with him… I heard several shots fired and just a few seconds later David came running around the store,” Smith said in a statement after his arrest. “David jumped into the car and said, ‘Get the hell out of here, I had to shoot him.’ I figured it was Shorty because he ran the store.”
Indeed, the dead man was John “Shorty” Pierce, who ran the store.
Trying to speed down the mountain, they ended up at Webb’s Grocery, just outside Bluff City.
Running in, they saw an elderly couple behind the counter: Novella Webb and her husband.
“David ran and jumped on the counter, and knocked the old man over and yelled to me to, ‘get that bitch’ referring to an old woman at the end of the counter,” Smith said.
Smith did as ordered, according to testimony — but Webb put up a fight. She threw store items at Smith and finally grabbed a can of orange spray paint. She started spraying Smith, who was coming at her with the gun.
“I fired one shot just to scare people, but the old woman just kept spraying orange paint and came towards me,” Smith said. “I couldn’t see because of the paint and I held the gun up and apparently the old lady was trying to get the gun away from me and it went off. We ran from the store when I fired the second shot.
“When we were in Webb’s Store the old man was hollering, ‘help me, help me,’ and hollering for his wife. The old woman never did say anything that I remember.”
They duo sped away, but were caught and arrested the next day.
In 1985, Smith was sentenced to life in prison in connection with the killing of Pierce and received the death sentence for killing Webb.
That wasn’t the end, though. It was just the beginning of a long history of court appeals and rulings. Ultimately, in 2011, the Tennessee Supreme Court vacated the death sentence.
Smith had ineffective legal counsel and deprived of the right to a fair trial, the supreme court said. There was also a conflict with a judge in the case. He was the prosecuting attorney in an earlier case in which Smith was convicted of robbery and driving under the influence.
“The potential injury to the judicial process due to the appearance of impropriety and unfair lack of impartiality by a judge imposing a death sentence is too great to allow the sentence of death to stand,” the court found in its unanimous opinion.
Still, the case is controversial, since Smith admitted to the killing. In his 1985 trial he demanded his attorneys stop the trial and “that he wanted to waive the presentation of further mitigation proof, offer no final argument, and rest his case.”
“There’s no question that controversial cases will be a factor in this year’s judicial races,” Anderson said.
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