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Contested

How the campaign for Allen County Superior Court Judge became one of the biggest political races in town

By Michael Summers

michael_summers@fortwaynereader.com

Fort Wayne Reader

2010-09-17

“I don’t think running for judge is very sexy,” says attorney Lewis Griffin, one of three candidates on the ballot for Allen County Superior Court Criminal Division judge. “We can’t promise new jobs, can’t promise… I don’t know, health insurance, those kinds of things. So I think…”

Griffin pauses, and for just a moment the usually articulate lawyer appears at a loss for words. “Well, I was going to say ‘any publicity is good publicity’,” he continues, laughing. “But at least the publicity will draw people’s attention to the fact that there is a judicial race. It’s just unfortunate that it had to take the form it did, but indirectly, it’s helping.”

Well, Griffin is certainly right about one thing: the race for Allen County Superior Court judge has garnered a lot of attention this year, more so than any local judicial race in recent memory.

It would be nice to credit the interest in the three-way race between attorney Wendy Davis, Griffin, and incumbent Judge Kenneth Scheibenberger to a renewed sense of civic engagement. But of course, it’s because of controversy. In August, 12 people signed a petition to have Judge Scheibenberger removed from the ballot, claiming that the judge’s three day suspension in 2009 — stemming from a 2007 incident in which Scheibenberger berated an accused drug dealer in another judge’s court room — made him ineligible to stand for re-election this November.

The motion cited a section of statute 33-33-2-10, which says that a candidate for judge cannot have any disciplinary sanction imposed by the Supreme Court Disciplinary Commission. But Scheibenberger was disciplined by the Judicial Qualification Commission, an entirely different body. The petitioners argued that it didn’t matter. According to them, the Supreme Court Disciplinary Commission and the Judicial Qualification Commission both fall under the Indiana Supreme Court, which is the only body with the authority to impose judicial discipline…

We could go on about the legal fine points of the argument, but it would probably take you longer to read it than it did the Election Commission to come to its decision — it made pretty short work of the motion, unanimously declaring that Judge Scheibenberger was eligible to stay on the ballot.

Still, the lines seem to have had been drawn. Local political blogs and the mainstream media noticed that many of the petition signers had been vocal supporters of GOP mayoral candidate Matt Kelty back in 2007’s Summer of Political Rancor, and the petition was notarized by John Popp, another prominent Kelty supporter; Scheibenberger was the judge when Kelty was indicted for campaign finance issues.

Many involved with the petition had also lent their support to attorney Wendy Davis, who had declared her intention of running for the judge’s bench earlier this year.

So, even though in Allen County, judicial candidates are not supposed to run on a party ticket, the controversy certainly makes it seem like a partisan campaign, and cast a spotlight on a contest that many people typically don’t pay attention to.

Elections for Allen County Superior Court Criminal Division Judge come around every six years, and as political races go, they’re somewhat unusual. Like we said, it’s a non-partisan election; candidates for Allen County Superior Court Judge cannot claim any party affiliation, something that makes Allen County the exception to the rule in Indiana. Why? Well, we’re sure there’s an answer out there somewhere, and it’s probably a lengthy and complicated one. The brief answer: “It depends on what was happening in a community when that part of the judicial system was adopted,” says Andy Downs at the Mike Downs Center for Indiana Politics at IPFW. “And so, when your superior court was created, that’s the result of the ‘spirit of the day,’ so to speak.”

Since candidates are at the bottom of the ballot and aren’t able to claim party affiliation, voters who may not be aware of the candidate’s positions or philosophies have to choose (or not) without a “D” or an “R” to guide them — if they even get to the bottom of the ballot, that is. Also, candidates can only raise/spend $10,000, which might cover signs, a few print ads, stickers, buttons, and a civic-minded web site designer, but it’s certainly not enough to get any television or radio time. Candidates usually have to rely on local media and public events to get their message out.

Wendy Davis, a partner at Beckman Lawson who also works cases for the prosecutor’s office, says that when she first started campaigning for Allen County Superior Court judge many months ago, she used to get asked “well, who are you running against?”

She probably doesn’t get asked that much anymore. “This ‘firestorm’ that has happened, all it does is deflect from my message,” Davis says. “That’s not who I want to be, and that is not the reason why I’m running.”

While all three candidates have impressive resumes and superhuman work ethics, there’s something about Davis in particular that can make you feel like a complete slacker for, say, that 30 minutes you spent last weekend watching a re-run of “The Simpsons.” An Allen County native with 20 years of practicing law to her credit, Davis says she knew she wanted to be a prosecutor from her very first criminal law procedure class at Valparaiso University.

She got her opportunity in a big way. Davis’ husband was with the military, so after law school they headed down to Texas, where Davis became assistant criminal district attorney for Bexar County, which covers San Antonio. She had a talent for the courtroom, and was later appointed to a federally-funded drugs and violent crimes task force.

As you might imagine, this was pretty serious stuff — San Antonio is a huge city, located fairly close to the Mexican border, and many of the crimes Davis dealt with were drug and gang related. “Unfortunately, there were a lot of drugs in San Antonio, and a lot of underground organized crime, with a larger mafia sort of fuelling the street gangs,” says Davis, who also received extensive police and ballistics training as part of the task force. “I was trying so many homicides and shootings, I was busy constantly. I worked a lot with undercover guys who were involved in the organized crime.”

“The gangs there were very sophisticated,” she adds. “There were times we’d bust gang rats and we’d walk into their gang hangout and they’d have an armory of street ballistics.”

In fact, Davis has a lot of stories that would make your hair stand on end, included being threatened by a big-time gang member who approached her as she was filling her car up with gas. “He knew exactly who I was,” she says. “A lot of these gangs, they knew who the prosecutors were, especially the ones on the violent crimes task force.”

But there was one particularly brutal case that seems to have really started Davis thinking. One of the uglier tactics employed by gangs in San Antonio was to take hollow-tipped bullets, fill them with mercury, and shoot the victim in the limbs. “The mercury goes through your muscles, poisons you, and you die a slow death,” explains Davis. In this one particular case, the victim was a deputy officer who had been shot seven times with mercury filled bullets by a 19-year-old gang member.

The shooter eventually received 99 years. Davis stresses that the sentence was the correct one: even at 19, the shooter had a previous record of violent crimes, and in this situation had repeatedly and deliberately shot the deputy in the limbs as he was crawling for cover. But still, the case seems to have got Davis wondering if there was anything that could have been done five, six years ago — or earlier — that might have prevented this kid from growing up, joining a gang, and turning into the kind of criminal that shoots people in the limbs with mercury filled bullets.

Davis and her family moved back to Allen County 11 years ago. She started working for Beckman Lawson, mostly involved in federal cases dealing with labor laws. But she says it wasn’t long before she talked to the prosecutor’s office and was back in the court room, trying A, B, and C felonies. “My expertise is in violent crimes, shootings, homicides,” Davis says. “I do some drug abuse cases that are tied to it.”

Davis is often asked why she would want to go back to criminal law after establishing a thriving private practice, but to hear her speak, the more accurate question might be why she ever left it in the first place. “It’s my passion,” she says. “When I leave my house every morning, when I go to work, I want to make a difference. Not that I don’t do a good job for private clients and businesses here in Fort Wayne (in private practice), but my heart is in this field, especially as I see violent crime moving in to this city.”

Davis insists she doesn’t want to be an alarmist — Fort Wayne is a long way from being a hotbed of violent crime. “In Allen County, we’re so used to saying ‘it’s a great place to work and live,’ and it is,” she says. “We came back to Fort Wayne because I grew up here, my family is here, and yes, it’s a great place to work and live. My feeling is that I want to keep it that way.”

And in Allen County, judges have a pretty direct influence over keeping it that way; it’s the judges, not the juries, who hand down sentences. “In Allen County, judges make more of a difference,” says Davis. “Judges also have the ability to put certain programs into place, programs that can serve the community. I have a lot of ideas for new programs that I would love to implement to help the system deal with younger criminals now picking up guns. My passion is to bring integrity to the bench, and really be firm but fair.”

Davis works with many, many social service organizations and programs, and draws a lot of support from that sector. But she says the courts are not using those services to their fullest potential. There are a wealth of good people and organizations in Fort Wayne who could be an asset to the courts as far as early prevention, providing intermediary services, and alternative sentencing where appropriate. “What I would like to do is to try to bring many of these philanthropic agencies out there under the umbrella of the court ordered system, and to try to collaborate with them as the needs of our community change,” Davis says.

As regards the controversy, Davis says she’s concerned that there’s a misconception that she’s the “conservative” candidate, and it’s unfortunate. True enough, Davis does count conservatives among her supporters, but a look at the endorsement page on her campaign website shows a wealth of supporters from both sides of the political spectrum. And though Davis doesn’t come across as the type to get upset easily, she seems especially offended at suggestions or rumors she’s heard that she’s somehow “behind” the attacks on Judge Scheibenberger. “Yes, I get asked that, and I think ‘really? Really?’ I guess it’s part of being in a political campaign, but that’s not who I am.”

For his part, incumbent judge Ken Scheibenberger says he doesn’t understand the problem “the Kelty people” have with him; Matt Kelty eventually plead guilty to two felony charges of filing fraudulent campaign reports and a misdemeanor charge of false informing, and Judge Scheibenberger sentenced him — a year of probation, community service and a small fine. He plead guilty, Scheibenberger did his job, and, as he sees it, that should be that.

But he also doesn’t believe this year’s race has become partisan. “No, I don’t see those attacks on me as being partisan,” he says. “An argument can be made that the 12 people who signed that petition had a political agenda, but it seems those people represent a… fringe element of the Republican party.”

Those attacks usually mention a handful of incidents Scheibenberger has been involved in during his 18 years on the bench, especially the 2007 incident, where Scheibenberger was suspended for going into Judge Gull’s court room while wearing his judge’s robes and insulting a defendant, an accused drug dealer that Scheibenberger believed had sold drugs to his 27-year old son, who had died of an overdose three months previous. But in that case, the Indiana Supreme Court decided that Scheibenberger “reacted as a grieving parent” and suspended him for three days rather than taking him off the bench.

That’s one incident; there were a couple of others earlier, but in each case it was decided that these were lapses of judgment — foolish maybe, but hardly the egregious examples of judicial incompetence and corruption portrayed by his critics.

But Scheibenberger doesn’t seem all that interested in talking about the attacks. His manner suggests that he’s not necessarily afraid of responding to them, or talking about them. It’s more that he’s just tired of being asked to try to decipher the motivations of people he really doesn’t know. Or maybe another clue lies in a sign reading “thou shall not whine” which sits at the front of his desk. “It doesn’t work,” he laughs. “They still come in here and whine, both the defense bar and the prosecutor.”

More likely, Scheibenberger is just used to it. A lifelong resident of Fort Wayne, Scheibenberger was with the Lebamoff Law firm for 14 years becoming a judge in 1992, mostly practicing criminal law. “I became a lawyer because I wanted to help people,” he says. “In school, I was one of those guys who wanted to change the way the world thought, and I saw the law as the way to do that.”

One of Scheibenberger’s most prominent accomplishments as a judge was founding the Allen County drug court, which requires non-violent, controlled substance offenders to plead guilty before being accepted into a 12-18 month program of treatment and supervision. If they complete the program and fulfill the requirements — which include counseling and employment, among others — charges are dismissed.

“I’m willing to take a chance on non-violent crimes,” Judge Scheibenberger says. “These people are not the people we need to be scared of. Don’t we want the people we’re scared of in jail, instead of the addict who was caught with some paraphernalia? It’s critical to take someone with an addiction — which is a sickness — and give them the option to get help, rather than just throwing him in jail with worse offenders.”

Judge Scheibenberger points out the benefits of the successful program — it has helped cut down on recidivism, cuts down on overcrowding in jails, and saves money on incarceration costs. It seems pretty straight forward, and makes sense, but Scheibenberger went up against some serious opposition when he first introduced the idea. “It would have been the first drug court in Indiana, but by the time we got it through, I think it was the third or fourth,” he says. “It was criticized as being too soft on crime. ‘These people need to go to prison or probation.’ There were also a lot of people, a lot of politicians, who saw addiction as a moral failing.”

And Judge Scheibenberger has a lot of other accomplishments. “The Indiana Supreme Court says I do the work of 1.5 judges,” he says, referring to a recent document. “And my court is the only court in Allen County that disposes of more cases than are filed.”

“I hate to toot my own horn,” he adds, joking. “But no one else is doing it for me.” That’s not quite true. Judge Scheibenberger’s own supporters include a lengthy — and bipartisan— list of public figures and office holders, some of whom go back quite a few years in public life. He sees that as a testament to his 18 years on the bench. “I think anyone who knows me as a judge will tell you I’ve been fair, and I’ve been tough when I needed to be tough,” he says.

The focus on the controversy would seem to make Lewis Griffin the odd man out, and in many ways, he doesn’t come across like a typical candidate for any office. A highly-respected attorney involved in many civic organizations and programs, Griffin admits that he doesn’t really like talking about himself.

Which is not to say he doesn’t have the qualifications (he does), or definite opinions on a judge’s role. “The judge has to be the sanest person in the courtroom, because it gets testy in there,” he says. “He’s got to maintain order, the integrity of the court. A judge should never, ever have to raise their voice. They have the power. Just being a gentleman is one of the strong points of my upbringing. It’s very important to me, to treat people with respect.”

And when Griffin gets talking about his upbringing, it’s a pretty remarkable story. Griffin grew up in a working class family in Connecticut; his father started and ran a successful janitorial service, and Griffin started working with him at 12 years old. “When it came time for dinner, there was a clear connection between the work we did, and how it got that food on the table,” he says. “We all understood, you have to work, and be a part of that American dream.”

After college, Griffin taught 6th grade, and then became a high school counselor, jobs that often found Griffin becoming involved in his student’s lives outside class. Unfortunately, that sometimes meant the courtroom, and Griffin says those experiences awakened his interest in the law. “I knew in my heart that justice was always the goal in everything I did,” he says. “As the years went on, I started seeing the relevance of the law in people’s lives. It sounds kind of corny, but I knew getting that kind of legal knowledge made sense.”

So at 29, married and the father of two children, Griffin went to law school, working third shift as union machine worker at United Technologies, a factory of around 5,000 workers. Eventually, management heard about the former teacher on the floor who was also going to law school, and made Griffin an offer he couldn’t refuse. “They wanted me to come up front to do union relations, labor relations, human resource work,” Griffin says. “They thought I’d have a unique insight into the union matters because I was a member and worked out there.”

And they offered to finish paying for law school. “I said ‘where do I sign?’,” laughs Griffin.

One of the businesses United Technologies owned was Essex, and Griffin found himself in Allen County, while continuing to work with a number of manufacturing facilities in several states. He retired in 1992, and went into private practice, handling employment law, arbitration, and other civil matters, but soon, Griffin’s involvement with a number of community organizations led him another direction. “People would come to me for help,” Griffin says. “ ‘My son is in trouble, my brother is in trouble…’ I would say ‘Why are you coming to me? I don’t know anything about criminal law.’ But they trusted me, so I started working in criminal law.”

“I enjoyed criminal law, because there were so many constitutional safeguards as compared to a lot of the business law, civil law, which is based on contracts,” he says.

“But all along, everything I have done in my life has to do with people, and trying to make things better,” he adds. “It’s sort of the common thread. With those sort of passions and concerns for people. I think running for judge is a culmination of everything I’ve done.”

One issue that comes up constantly while talking to Griffin is the idea of community. Griffin firmly believes that in order to be an effective leader, you have to give your time to the community, and he thinks that that’s what people want to see from a judge. “You don’t want someone on the bench who can’t relate to people. When people see some of the decisions made by the judge, they have to have confidence that it was the right thing.”

But Griffin adds that his number one concern is public safety. “You don’t want those people we’re afraid of roaming the streets. You have to put some people away, as simple as that, so you have to always look for ways to lessen that recidivism.”

“I have no problem being tough,” he continues. “I found out I could be tough, first of all, while teaching — get that person suspended. No problem. Then, when I was working, coming out of the shop, up front, making decisions on hiring and firing people. I actually had to fire some of my buddies that I worked with, and I had no problem doing it. Not that I felt good, but I was at peace with making those decisions.”

But while he may be comfortable with being tough, Griffin, like Scheibenberger and Davis, doesn’t know quite what to make of the sort of the attention the judge’s race has received. “It’s drawn attention, that’s all I can say,” laughs Griffin, adding that he’s seen an upsurge of interest in his own campaign in the last month. “Usually, people don’t even know about the judge’s race — it’s on the last page of the ballot, and some people never get to the last page…”

“So maybe this will cause people to ask more questions. I’m just hoping that the voters at least understand that what happens in the court room can have a long lasting impact on their lives.”

wendydavisforjudge.com

lewisgriffin4judge.com

reelectjudgekens.com