Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

A Conservative Judge Changes His Mind

A Conservative Judge Changes His Mind


Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

When John Roberts was nominated to the Supreme Court in 2005, he assured the nation that his decisions would be guided by something loftier than his own whims or predilections.  “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability,” he told the Senate. “And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It all sounded very reasonable, and it’s a fiction deeply embedded in our judicial system. Most legal opinions are written as if the conclusion is so apparent, so free of personal bias, so certain, as to be almost inevitable. You don’t often see an opinion that begins, “This one was a really close call; it could have gone either way!” Instead they read as if no reasonable person could have concluded anything else.

All of which makes this week’s opinion from Fifth Circuit Judge Don R. Willett a refreshing surprise. Willett changed his mind. And he reversed himself on one of the more troubling decisions we’ve seen recently, which is saying quite a bit.

The case, which The Daily Appeal discussed last week, was based on a lawsuit that a federal judge said bordered on the delusional. “A Louisiana police officer injured in a protest tried to sue the hashtag #BlackLivesMatter, which amounted, wrote Judge Brian A. Jackson of the Federal District Court in Baton Rouge, to picking a fight with an idea,” wrote Adam Liptak for the New York Times. “The officer also sued Black Lives Matter, which the judge said was also a nonstarter … A third part of the lawsuit—seeking to hold a leader of the movement [DeRay Mckesson] liable for the officer’s injuries—reached the Supreme Court on Friday. Judge Jackson had dismissed that part of the case on First Amendment grounds, but an appeals court revived it, alarming civil rights lawyers and experts on free speech.”

“The principles outlined in this decision put civil disobedience at risk,” Alanah Odoms Hebert, the head of the ACLU of Louisiana, told The Atlantic. “If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.” Others noted the irony that officers are allowed to commit acts of violence with near impunity because of qualified immunity, while protest organizers can be sued for the acts of others, if they injure police.

But Willett, a Trump appointee, changed his mind. “I have had a judicial change of heart,” Willett wrote in his new opinion. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

“In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson,” writes law professor Garrett Epps for The Atlantic. “Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson ‘incited’ the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how.”

Epps writes that even though the original opinion still stands, Willett’s change of heart is “a sign of life for old First Amendment precedents.” But it is also a sign of life for judicial humility, and the idea that our legal system ought to be guided by accuracy and justice, not expediency. When, recently, the issue of convictions by nonunanimous juries came before the Supreme Court, those arguing to preserve this practice posited that any ruling to the contrary would be too great an administrative burden on state courts. The same arguments were made when it came to reviewing life without parole sentences for those convicted as children. The Antiterrorism and Effective Death Penalty Act of 1966 might be the starkest example of how our system favors administrative ease over fairness. It was designed to limit the avenues for people on death row to challenge their convictions, and a study showed that it reduced the success rate for federal habeas petitions to levels about a fifth of what they previously were, and at the time of the study’s publication, those numbers were continuing to decline.

One case in Missouri exemplifies the dominance of administrative ease over serious concerns about fairness and justice. Lamar Johnson was convicted of killing Marcus Boyd in 1995. He was sentenced to life. But years after the killing, the state’s only witness recanted his identification of Johnson as the shooter, and two other men have confessed to Boyd’s killing and said Johnson was not involved. And Johnson has gained the support of the prosecutor, Kim Gardner, whose office was responsible for his conviction nearly 25 years ago. After looking into his case with lawyers at the Midwest Innocence Project, Gardner asked for a new trial in July saying she believes her office engaged in “serious misconduct,” including secret payments to the witness, falsified police reports, and perjured testimony.

Gardner believes that she is duty bound to correct past wrongs, but in a case that one commentator said showed “just how much the criminal justice system favors form and finality over substance,” a judge disagreed. Judge Elizabeth B. Hogan based her decision on a statute that requires the relevant motion be made within 15 days of the conviction. She told prosecutors they were late by “approximately 24 years.” But in so doing, the judge seems to have ignored case law that allows the motion to be heard beyond the 15-day deadline in “extraordinary circumstances” and “in the interests of justice.” A 1984 Missouri appeals court ruled that a “perversion of justice” would occur if “we were to close our eyes to the existence of the newly discovered evidence” solely because of a missed deadline. In her decision, Hogan seems eager to find reasons to reject Gardner’s attempt to right a possible wrong.

Advocates for Johnson, including professors from law schools across the country, have appealed to Missouri Attorney General Eric Schmitt to drop his opposition to Gardner’s efforts. “The circuit attorney needs to have a means to correct that injustice,” Gardner’s attorney, Daniel Harawa, told the appeals court. But Schmitt has steadfastly opposed. His office’s reasoning is not exactly lofty. Assistant Attorney General Shaun Mackelprang said in court that the court’s jurisdiction over Johnson’s case expired when he was convicted and sentenced in 1995. Why turn a blind eye to a possible wrongful conviction? “Our laws have meaning and our rules have meaning, and for people to operate within those boundaries,” Mackelprang said.