How we make the call
Truth Squad assigns five ratings to the political statements we review, in descending levels of accuracy:
|Who:||Michigan Chamber of Commerce|
|What:||Radio ad for Michigan Supreme Court candidates Brian Zahra and David Viviano|
|The call:||Regular Foul|
Relevant text of the ad:
“Judges can't stop sexual predators before they strike. But they can make sure those that get caught pay a heavy price. That's why Supreme Court Justices Brian Zahra and David Viviano have upheld convictions for sexually abusive criminals. And Viviano and Zahra have made it illegal for sexual predators to use computers to help them commit sexual abuse. Justices Brian Zahra and David Viviano have consistently prioritized the rights of crime victims by upholding tough sentences for violent offenders and sexual abusers. Viviano and Zahra use common sense on Michigan's Supreme Court. They are rule-of-law judges that apply the law to the facts. They are not influenced by special interests. Supreme Court Justices Brian Zahra and David Viviano use common sense and protect our children and families.”
Eight candidates are competing for three open seats on the Michigan Supreme Court. Incumbent Justice David Viviano, named to the court by GOP Gov. Rick Snyder in February 2013, is running for a term that expires in 2016 against Wayne County Circuit Court Judge Deborah Thomas, nominated by the Democratic Party and Libertarian candidate Kerry Morgan. Brian Zahra, named to the court in 2011 by Snyder and elected in 2012 to complete the remainder of the term, is seeking one of two seats for a full eight-year term. He was nominated by the Republican Party, as was Kent County Circuit Court Judge James Robert Redford. The Democratic Party nominated Michigan Court of Appeals Chief Judge William Murphy and prominent Detroit area attorney Richard Bernstein. Livingston County lawyer Doug Dern, nominated by the Natural Law Party, is also running. Viviano, Zahra and Bernstein are considered the favorites.
The ad wars are just beginning in what promises to be an expensive close to the campaign: Candidates had already raised more than $2 million as of Sept. 12. By late September, nearly $700,000 in TV ads had been booked for October.
In what tends to be a familiar campaign theme in judicial races at all levels, this one-minute ad makes the case that Viviano and Zahra are tough on crime – especially sexual predators.
“Judges can't stop sexual predators before they strike. But they can make sure those that get caught pay a heavy price. That's why Supreme Court Justices Brian Zahra and David Viviano have upheld convictions for sexually abusive criminals.”
In April 2014, the state Supreme Court decided to not hear an appeal from a former Muskegon County resident convicted in 2011 of two counts of first-degree sexual conduct and three counts of second-degree sexual conduct with a victim younger than 13.
“And Viviano and Zahra have made it illegal for sexual predators to use computers to help them commit sexual abuse.”
In 2011, Zahra joined a state Supreme Court majority in upholding the conviction of a 51-year-old man convicted of using a computer to encourage a minor to commit an immoral act. In doing so, it reversed a state Court of Appeals decision vacating his conviction because of faulty jury instructions. According to the case background, the man engaged in sexually explicit Internet chat room conversation with a person he believed to be a 15-year-old girl. She was in fact an undercover police officer.
In 2009, then-Macomb County Circuit Judge Viviano sentenced a former Romeo Middle School teacher, Patrick O'Connor, to one to 15 years in prison for having sexual contact with a 12-year-old girl in the school. According to a report read in court by Viviano, O'Connor kissed, hugged and groped the girl in his classroom and other areas in the school over several weeks. He also sent messages via computer that implied potential future sex.
In 2010, Circuit Judge Viviano sentenced Craig Hamilton Gonser, 42, to 10 to 25 years in prison following Gonser’s 2009 conviction on charges of indecent exposure and attempted gross indecency. He was convicted of exposing himself to his young daughter while looking at Internet pornography. Viviano exceeded normal sentencing guidelines after Gonser pleaded no contest to being a sexually delinquent person. Prosecutors said DNA evidence linked Gonser to a 1994 Clinton Township rape.
At sentencing, Viviano said to Gonser: “I also believe you need to be punished for some of the mistakes that you have made and some of the terrible things that you have done and the impact they have had on people’s lives.”
The ad is incorrect in claiming Zahra and Viviano “made it illegal” to use a computer to commit a sexual crime. That is a matter of statute, not judicial decision.
“They are rule-of-law judges that apply the law to the facts.”
“Rule of law” is used by judges who assert that their role is to interpret the law as written and not as they feel it should be. (A judge who, say, “made it illegal” to use a computer to commit a sexual crime would not be a rule-of-law judge) The term is often used interchangeably with other generic, tough-judge phrases such as “no nonsense” and “law-and-order.”
In an interview with the Macomb Daily, Viviano said: “Our role as judges is to interpret the laws, not to make them. We are to fairly apply the words of the statutes or the Michigan Constitution, and leave policy making to other branches.”
Likewise, on his campaign site, Zahra states: “A rule of law judge believes that...interpreting the law must be more principled than what an individual judge feels is a good outcome. A rule of law judge believes that a judge's proper role is to determine what the law is, not what an all powerful judiciary believes the law ought to be.”
Truth Squad is confused. How can Zahra and Viviano claim to impartially follow the law as written, while simultaneously promising to give priority to crime victims in sexual assault cases? That sounds like judges who are more interested in upholding convictions than ensuring fairness in the justice system. Isn’t a prime duty of appellate judges to make sure the government follows the rules before sending someone off to prison?
“They are not influenced by special interests.”
Without looking inside the heart and mind of a judge, that's a tough assertion to evaluate. And debate never ends over whether campaign donations to politicians or judges corrupt the integrity of our judicial and political systems. We do know that Viviano and Zahra have taken sizeable donations from people with powerful business ties.
According to the Michigan Campaign Finance Network, as of Aug. 7, Viviano had donations of $61,200 from the Amway-connected DeVos family of West Michigan, $20,400 from the family of billionaire Ambassador Bridge owner Manuel Moroun, $20,475 from the Michigan Chamber of Commerce, $58,850 from Birmingham law firm Conway MacKenzie, $19,820 from Detroit law firm Dickinson Wright and $6,800 from shopping mall magnate Robert Taubman. Zahra had identical donations from the DeVos and Moroun families, Taubman, Conway Mackenzie and the Michigan Chamber. Dickinson Wright contributed $22,286.
A 2013 study of 2,345 state supreme court cases involving business across 50 states found a connection between donations and judicial opinions. According to the analysis, judges who accepted 1 percent of contributions from the business sector ruled in favor of business 46 percent of the time. Those who accepted a fourth of their contributions from business ruled in favor of business 62 percent of the time.
It’s also worth noting that this ad is sponsored by the Michigan Chamber of Commerce.
|The call:||Regular Foul|
The ad correctly notes that Viviano and Zahra have come down hard on those who commit sexual assault or violent crimes, at least in cases cited by their campaigns. As is common in judicial races, this ad gives a pinched portrait of a justice’s role in criminal appeals. The job of a Supreme Court justice is not to throw the book at every defendant whose conviction comes before them. A justice’s role, rather, is to ensure that prosecutors followed the law in securing that conviction, a notion that has become less theoretical in an era in which hundreds of sexual assault convictions have been reversed because of flaws in scientific evidence or some form of prosecutorial misconduct. But nuance makes for a squishy campaign ad.
This ad also gilds the lily by asserting that Zahra and Viviano “made it illegal” to use a computer to commit an illegal sexual act. They did not.