Nonetheless, Ocheltree said that her victory restored her ''sense of honor and dignity,'' even though the men at the plant ''are laughing to this day. Scollon Productions appealed the jury's verdict to the Fourth Circuit, contending that Ocheltree's description of the workplace environment was exaggerated and that the crude behavior wasn't directed at Ocheltree anyway. The three-judge panel assigned the case included Williams, Paul V. Niemeyer, appointed by Bush in , and M. Blane Michael, a bow-tie-wearing Clinton appointee from West Virginia. Williams and Niemeyer voted to reverse the jury's decision, and Michael was the dissenter.
It is a role that Michael, who keeps a large photograph of Clinton's inauguration on his chambers' walls, often exercises. There have been other instances in which it has pitted him against Williams too, although he told me that their personal relations are cordial. Still, Michael wrote the dissent in the Miranda case and in one in which Williams found that people with symptom-free H. Michael said that Williams and Niemeyer chose ''again and again'' to see the evidence in a light favorable to Ocheltree's employer rather than to Ocheltree.
They were ignoring the fact that the jury found Ocheltree to be the credible party, and they were ignoring their obligation to respect a jury's finding, he said.
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There is, he wrote, ''a profound difference in our respective approaches to reviewing a jury verdict. In a spirited opinion, Williams wrote that there was no reason to believe that the vulgar atmosphere in the workshop had anything to do with Ocheltree's presence or the fact that she was a woman. The incidents were isolated, and the rest was banter, she said. The courts shouldn't treat women preferentially by insulating them from everyday insults. And further, she added, there was some indication that Ocheltree herself was not a ''model of femininity.
In his dissent, Michael wrote that a reasonable jury would conclude that the men at Scollon Productions resented Ocheltree's intrusion into their workplace and had set out to make her unwelcome. He said that the ''overall tenor of the workplace banter conveyed the message that women exist primarily to gratify male desires for oral sex. Ocheltree was devastated that the Fourth Circuit decision was written by a woman. Franklin Delano Roosevelt famously set out to overhaul the federal judiciary ideologically.
Confronting courts that were thwarting his New Deal projects, he strove to create liberal ones that would grant the government more power to regulate the economy.
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Decades later, Reagan displayed a similar purposefulness, screening judicial candidates using ideological ''litmus tests'' in order to choose jurists who were strict constructionists, tough on crime, anti-abortion and pro-family. Between them, Reagan and the first President Bush named six judges to the Fourth Circuit; those six joined Nixon's appointee, Widener, to form a solid conservative core. On other courts, the transformation to conservative has been more startling.
The two Deep South appellate courts, for instance, used to be civil rights crusaders. But until the Carter judges retired, the Fourth Circuit was, if not liberal, at least more balanced. Clinton put a priority on diversifying the federal bench, picking up where Carter had left off. Despite an uncooperative Senate, he succeeded in getting a record 9 black, 7 Hispanic and 20 female judges confirmed.
Yet the Clinton administration never saw its role as reasserting ideological balance on the courts. When Clinton took office, the appeals courts were solidly Republican, but his administration did not feel compelled to find liberal powerhouses to counter the conservative heavyweights appointed by Reagan and Bush. Clinton was not a die-hard liberal himself, and he tended to nominate centrist legal professionals in tune with his more centrist politics.
Still, he faced intense partisan battles, particularly over his minority appointees, and the acrimony continued through Bush's first two years, affecting not just the political arena but also the courts themselves. Luttig told me that he thinks the politics surrounding judicial appointments makes judges hyperconscious of their political sponsors. And it has to be resisted, by the judiciary and by the politicians. Clinton named four white judges to the Fourth Circuit without much battle, including one, William B. Traxler Jr. Traxler votes so often with the conservative majority that court watchers forget he's a Democratic appointee.
The other three -- Blane Michael and Robert B. In contrast to his smooth experience with getting the white judges confirmed, Clinton tried at least four times to name an African-American to the Fourth Circuit. His nominees were blocked every time. Jesse Helms still bore a grudge from Clinton's failure to renominate his former aide Terrence Boyle, after Boyle's nomination by the first Bush had elapsed.
Helms then blocked, as is the home state senator's power, every Clinton nominee from North Carolina, including two African-American judges. As a result, there is no one from North Carolina on the Fourth Circuit now, although proving that even a retired Helms can get his way, President Bush has a pending nominee from North Carolina -- and that is Boyle. During his period of obstructionism, Helms insisted, and Thurmond publicly concurred, that the matter had nothing to do with race or politics. It would simply be a waste of taxpayer money, Helms said repeatedly, to fill vacancies on the Fourth Circuit when the chief judge, Wilkinson, thought the court would function less efficiently if it were bigger.
And clearly it would have if it became less ideologically homogeneous. Clinton finally tried an end run around Helms by nominating a Virginian, a soft-spoken African-American lawyer named Roger L. Gregory comes from a small town in rural Virginia where his parents worked in the local tobacco factory.
He grew up to found a Richmond law firm with L. Douglas Wilder, the former governor of Virginia. He gives inspirational speeches to black youths. His nomination had bipartisan support. But even Gregory couldn't get a hearing scheduled. So Clinton resorted to an extraordinary tactic. During his last days in office, after Congress had recessed, Clinton unilaterally appointed Gregory to the bench.
President Bush, eager to demonstrate bipartisanship and win support for his own candidates, eventually allowed Gregory's temporary appointment to become permanent. In July , the Senate confirmed him 93 to 1, with Trent Lott casting the dissenting vote.
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The Fourth Circuit Court of Appeals was officially integrated. In his ''baby judge'' speech at the Fourth Circuit judicial convention last summer, Gregory cited Frederick Douglass and Harriet Tubman, setting a new kind of precedent for the court. He also joked that he was welcomed to the Richmond courthouse by someone who pointed out that the Confederate President Jefferson Davis's office used to be right near his new chambers.
In a study of capital convictions and appeals between and , Prof. James S. Liebman of Columbia University Law School found that the Fourth Circuit granted relief to death-row inmates less frequently than any other appeals court in the country. Even at that point, and it has gotten more restrictive since, the Fourth Circuit was overturning 12 percent of the death sentences it reviewed: that compared with an average 40 percent reversal rate for federal appeals courts.
When Kevin Wiggins's case came up before the Fourth Circuit in January , he was on death row in Maryland, trying not to get his hopes up. A federal district chief judge had invalidated his death sentence and voided his conviction for murder. Theoretically, he should have gone free. But the state appealed.
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And Wiggins knew, because death-row prisoners know these things, that the odds of winning in the Fourth Circuit weren't good. When a guard unlocked the door to a narrow concrete visiting cell, Wiggins was already there, staring blankly through a scratched glass partition. Wearing a white undershirt, his face round with a wisp of a mustache, he was itching to get talking. And talk he did, like a balloon releasing air, his words a jumble as he dizzyingly flicked back and forth in time. Matter-of-factly, Wiggins described himself as ''a nobody with no family and no skills.
His mother was alcoholic, neglectful and abusive. When he was 6, Wiggins was removed from his mother's home after she burned him severely with a hot plate in punishment for playing with matches. He then endured a series of foster homes in which he was beaten, locked in closets and repeatedly raped.
He emerged into adulthood as a barely educated loner who lived in rented rooms and worked at minimum-wage jobs. He was of ''borderline intelligence,'' according to state social-service records. Wiggins had no criminal record when he was arrested at age 27 for the murder of an elderly woman. The State of Maryland maintained that Wiggins drowned Florence Lacs, 77, in her bathtub in he was working as a painter in her building, and he and his girlfriend were found in possession of Lacs's credit cards and car.
There was no forensic evidence linking Wiggins to the murder, though there was unidentified forensic evidence -- fingerprints, hair, fibers and a baseball cap left at the scene. Still, in a bench trial, a state judge convicted Wiggins of robbery and murder. During the subsequent sentencing trial, Wiggins's inexperienced public defenders decided to reargue his innocence instead of presenting a case for why he should get life not death.
They did not even bother to investigate his background to discover whether he possessed the kind of ''social history'' that is routinely used to humanize a defendant and mitigate against the imposition of the death penalty. Wiggins has now been on death row since In , a high-powered Washington lawyer, Donald B. Verrilli, Jr. Verrilli found the case against Wiggins to be weakly circumstantial at best, offering evidence only that Wiggins was a logical suspect. Verrilli said he came to believe that Wiggins did not commit the crime but rather served as the ''fall guy for people more clever than him.
All charges against her were dropped, and she testified against Wiggins; her brother, it seemed, lived in an apartment below the victim's. The case's first stop in federal court was at the bench of Maryland's United States chief district judge, J. Judge Frederick Motz is a former federal prosecutor appointed by Reagan; he is not, as he said in court one day, ''an anti-capital punishment person. I asked Wiggins whether he was happy when Motz took his side. Wiggins told me that he could remember only one joyful time in his life.
It was after his mother burned him. Six years old, he awoke in a hospital bed, surrounded by nurses who clucked over him, petting his hair and bringing him cookies. When Maryland prosecutors decided to appeal to the Fourth Circuit, Motz publicly questioned their desire to continue pursuing what he characterized as a flimsy case. In a hearing last winter, the judges appeared to be wrestling with the case; they doubled the time they usually allot attorneys to present their arguments.
Last May, however, in a decision written by the year-old Judge Widener, the panel ended up reinstating Wiggins's conviction and his death sentence. The panel gave the original trial judge the benefit of the doubt; it deferred to his assertion that he based his decision of Wiggins's guilt on a totality of evidence and that he did not infer Wiggins's guilt from his possession of the victim's property. And it ruled that the public defenders' failure to present Wiggins's background during the sentencing hearing was a trial tactic rather than negligence.
And yet the panel had some hesitations. Judge Wilkinson wrote that he couldn't ''say with certainty'' that Wiggins committed the murder. And Judge Niemeyer acknowledged that it was something of a close call to find that Wiggins had adequate counsel. In this case, they saw the tripwire and stepped right over it. Verrilli petitioned the Supreme Court, and in a hearing scheduled for March 24, the court will pick up Wiggins's case, continuing its dialogue with the Fourth Circuit's decision-making.
Since , the Supreme Court has reviewed far more death-penalty cases coming from the Fourth Circuit than from any other appeals court -- 9 from the Fourth Circuit alone and 12 from the other 11 appeals courts combined. The date is significant because in that year Congress passed the Antiterrorism and Effective Death Penalty Act, limiting federal courts' review of capital cases to those in which there's ''an unreasonable application of clearly established federal law.
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