From Salem Business Journal, Editorial:
In politics, timing is everything. An “October Surprise” is a negative story which hits your opponent only days before the November election, with no real chance of rebuttal. The “hit” doesn’t show up in July, always October. Timing.
The Oregon Supreme Court just issued a “hit” opinion on Judge Vance Day. The high court’s Opinion excoriated Judge Day’s honesty and integrity – a scant thirty days before his criminal jury trial on two felony counts of aiding and abetting a felon in the possession of a firearm. Read that again and put your innocent self in a defendant’s shoes. A mere four weeks before your felony trial, the top court of this state announces that you are a liar and the witness against you is more believable. Good luck picking twelve people for your jury. They’ve all read the news!
Whatever you think about Judge Day, we should all be very concerned about the Rule of Law and the effect of the Court’s actions on the scales of justice.
The Fifth Amendment to the United States Constitution guarantees the right to Due Process. The Sixth Amendment guarantees a right to an impartial jury. How on God’s green earth is Judge Day supposed to find an impartial jury after what the Oregon Supreme Court just did?
The main issue the prosecutors must prove is “did Judge Day really allow a Navy SEAL, who was a felon, to handle a gun?” The state’s only eye-witness is Brian Shehan, deferentially referred to as “BAS” in the Opinion. Shehan is the Navy SEAL who was in Judge Day’s Vet Court for a DUII. The evidence from a previous ethics hearing indicates that there are three eye-witnesses who support Judge Day’s version of what happened. So, the central question in the criminal case is “who is the jury going to believe?”
Enter a booming voice from the ivory tower of justice on State Street: “Not Judge Day!! He is a liar!! We believe (and honor) the Navy SEAL.”
Innocent until proven guilty? Really? Now that the high court has so publicly entered the fray? Every paper of note carried the national story of the ‘Judge who wouldn’t marry same-sex couples gets suspended’ followed by a detailed account of how the Oregon Supreme Court decided that Judge Day lied.
Did the Justices consider how this Opinion could soil the jury pool? Of course they did! This was intentional. Part of the plan.
The Oregon Supreme Court heard oral arguments in Judge Day’s ethics case in June of 2017. No time limit exists on how long the Court can consider an ethics case or when it must issue an opinion. The Court has total discretion as to when their ethics Opinion would be issued. The Court waited nine months to consider the case, so most expected the Court to wait a few more weeks so Judge Day’s criminal case could be concluded. And why not? Waiting respected Judge Day’s constitutional rights and allowed the jury to consider the evidence without the prejudicial effect, either way, of the Court’s opinion.
If Judge Day were convicted by the jury, then the Court’s job was made easy – “he’s off the bench.” If acquitted, then Judge Day’s ethics team could gather up the evidence from the criminal case and submit it to the Oregon Supreme Court to supplement the biased record created at the 2015 ethics hearing (more like Kabuki Theater than a fair hearing). So why not wait?
The tragic news is that the Oregon Supreme Court made a conscious decision to place its heavy hand on the scales held by Lady Justice. This blatantly prejudicial intrusion demonstrates an underlying bias against Judge Vance Day.
This case is really about Judge Day not conforming to the new orthodoxy on same-sex marriage. And, Allah forbid, he fought back – standing on Liberty of Conscience – his First Amendment rights. No one has ever fought back before. As such, the Court voted Judge Day off the island. That may work on a “reality TV show” but in real life, it cannot happen if our society is to truly honor justice and fair dealing. That’s what those Constitutional Amendments are all about, but the Oregon Supreme Court just obliterated Judge Day’s rights.
The ninety-one-page Opinion is sanctimoniously self-serving. The Court’s credibility analysis totally ignores the fact that Judge Day’s judicial clerk was having sex with Brian Shehan while he was in the Vet Court. Prior testimony was they were just “friends.” Doesn’t that impeach Shehan’s credibility? Shouldn’t your jury hear all the evidence and not just what a prosecutor wants it to hear? Onesided presentations are what a prosecutor does with a Grand Jury. They have no place in a court of law.
What about the fact that Shehan, despite his denial, possessed his own handgun while he was a felon on probation? Shehan’s friend testified that he knew Shehan had a gun because the felon told him. That critical fact – and others – was ignored by the Justices in their Opinion.
The Oregon Supreme Court had to engineer the destruction of Judge Vance Day – they did not want to address the constitutionality of his First Amendment right to recuse himself from same-sex marriages. They dodged the issue so Judge Day could not appeal to the United States Supreme Court.
Those gentle souls who ease the pain of hospice patients will tell you that a distinct and eerie sound emanates from those standing at death’s door. It is called a “death rattle.”
Blindfolded, Lady Justice holds her scales even, allowing the evidence to be presented fairly and weighed impartially. It is a well-known axiom of truth that it is better that a thousand guilty persons be let free than one innocent person be convicted.
A republic can only exist when those adjudicating justice are themselves under the law – not above it. That is what we call “The Rule of Law.”
When those sitting on the Oregon Supreme Court purposely influenced the public’s perception of Judge Day, they subverted the Rule of Law and became an oligarchy in black robes – and Lady Justice emanated a loud and profound death rattle.
Salem Business Journal, April 2018