A friend wondered last week whether former Michigan Supreme Court justice Diane Hathaway might be the first state Supreme Court justice to be indicted while sitting and subsequently convicted. Former Supreme Court Justice John Swainson came to mind immediately, but although Swainson was indicted for bribery while serving on the Supreme Court, he was not convicted of that crime.
Knowing off the top of my head that in many states it is possible to reach the state’s Supreme Court bench without serious vetting, that a Pennsylvania Supreme Court justice is currently being tried for public corruption, and that in my own lifetime a sitting U.S. Supreme Court justice has been forced to resign for ethical improprieties, I guessed that there were certainly several other examples. And I thought that a simple Google search would quickly prove my guess right. Wrong. It took quite a while before I found just one other example of a federal indictment and subsequent conviction of a sitting state Supreme Court justice. But I did find some fascinating stories along the way. Here they are, in chronological order, concluding with the apposite case:
- In 1859, the chief justice of the California Supreme Court, David Terry, an advocate of extending slavery into California, resigned to fight a duel with a sitting U.S. senator, whom he killed. In 1863, Terry joined the Confederate Army, and the man who succeeded him as Chief Justice of the California Supreme Court, Stephen Field, was appointed to the U.S. Supreme Court. Nearly thirty years later, Field presided on circuit on a panel judging a notorious case involving Terry's wife, whose claim to a silver fortune the panel rejected. When Terry subsequently encountered Field on a train and assaulted him, Terry was shot and killed by Field's bodyguard.
- In 1872, Justice Benjamin Cardozo's father Albert, a judge on the New York trial bench, was implicated in a Tammany Hall judicial corruption scandal and forced to resign.
- In 1975, David L. McCain, appointed to the Florida Supreme Court despite the Florida Bar's report that he was not qualified due to "legal improprieties" and "suspected criminal activities," resigned from the court as he was about to be impeached. He was subsequently disbarred, and died in 1986 while a fugitive from a major federal marijuana-smuggling indictment.
- In 1985, a sitting justice of the Arkansas Supreme Court, John Purtle, was charged with complicity in an arson-for-profit scheme allegedly masterminded by his legal secretary. He resigned, was subsequently acquitted, and returned to the bench, where, he said ''I was kind of like a bastard at a family reunion. To them, I had become just another miscreant who didn't get what he deserved.''
- In 1992, Sol Wachtler, the highly-respected chief justice of the highest appellate court of the state of New York, resigned after being arrested of threatening a former lover and her daughter. He served 11 months in prison after being convicted of extortion, racketeering, and blackmail. His license to practice law was reinstated in 2007 and he is now an adjunct professor at Touro Law School and chair of the Law and Psychiatry Institute of North Shore Long Island Jewish Hospital. He has established a reputation as an advocate for the mentally ill and received awards from the Mental Health Association of the State of New York and New York City.
