Daily Independent (Ashland, KY)

May 6, 2006

Democratic race pits David Justice versus incumbent Stewart Schneider

By KENNETH HART / The Independent

Catlettsburg — CATLETTSBURG Two men who are running for an office whose principal purpose is to uphold law and order have been waging the political equivalent of a bare-knuckled street brawl.

The Democratic race for Boyd County commonwealth’s attorney — which pits two-term incumbent J. Stewart Schneider against David Justice, a partner in a prominent Ashland law firm — has generated perhaps the most heat and the most interest of any primary contest in northeastern Kentucky.

One of the principal battlegrounds has been The Independent’s editorial pages, where dozens of letters to the editor supporting and criticizing the two candidates have been published over the past several months.

The race will determine who will serve as Boyd County’s chief prosecutor for the next six years. No Republicans filed for the office, meaning the primary winner will not face opposition this fall.

Justice, 57, who is making his first run for office, has made the death penalty — or, more specifically, Schneider’s decision to disqualify himself from prosecuting a capital case because of his religious beliefs and his position as a lay minister in his church — the centerpiece of his campaign. He and his supporters contend that since the law allows capital punishment in certain cases, Schneider shouldn’t be a prosecutor if he’s not going to exercise that option.

“My brother is a minister,” Justice said. “He’s a good person, but he would be a lousy prosecutor. He’s in the forgiveness business.”

Also, Justice said he believes that local residents ought to be able to depend on a local prosecutor, rather than an outsider appointed by the attorney general, to handle capital cases.

Schneider, not surprisingly, has an entirely different view. He maintains that recusing himself from a death penalty case is no different that disqualifying himself from prosecuting a case in which in which one of his family members, co-workers or someone he once represented in his private practice is involved.

Kentucky law, he said, requires him to step aside in any case in which he has a conflict of interest. Given the fact that he is minister, he said he believes that a potential death penalty case meets that standard where he is concerned.

Furthermore, Schneider said, his oath as a prosecutor mandates that he do nothing to “prevent Kentucky law from going forward.

“I must withdraw, and that’s what I did,” he said.

Schneider said he’s comfortable with his decision and that if it winds up costing him the election, he can live with that.

“I can only do what I understand God wishes for me to do, and I will never, ever ask anybody to take the life of one of God’s children,” he said.

Schneider — who has said his next term will be his last if he re-elected — said it’s his hope that voters will consider his entire record as a prosecutor and not base their decisions on a single issue. He also said there had been only two cases during his tenure in office where the death penalty would have been applicable.

The case that has been at issue in the campaign was the one involving the 2004 slayings of Phillip “Bo” Booth and his wife, Shonda. Jonathan Nolan and Patrick Campbell were charged with shooting and stabbing the couple, then setting their house on fire to cover up evidence.

David Flatt, commonwealth’s attorney for the 37th Judicial District — Carter, Elliott and Morgan counties — was appointed to prosecute Campbell and Nolan. Nolan was convicted in February and was spared the death penalty when he agreed to serve life in prison without possibility of parole for 25 years for the murders and 10 years for arson. Campbell pleaded guilty to two counts of manslaughter and was sentenced to 20 years in prison.

Justice also has accused Schneider of misusing his plea bargain authority. He maintains that Schneider has offered “too many sweetheart deals” to criminal defendants, including a number of Justice’s own clients. Those deals, he said, usually result in defendants being sentenced to probation rather than prison time.

“The job of a prosecutor is to put people in prison who need to be in prison,” he said. “My goal will be to put as many drug dealers as I can in prison.”

Schneider dismissed Justice’s allegations as campaign rhetoric.

“The accusation of ‘sweetheart deals’ ... I want him (Justice) to put up or shut up on that,” he said. “It smacks of corruption and it’s not worthy of a political race in Boyd County.”

The fact is, most criminal cases end in plea bargains rather than jury trials, Schneider said, and that won’t change no matter who is in the commonwealth’s attorney’s office. And, generally speaking, that is the preferred outcome because it saves taxpayers the expense of a trial and the victims the ordeal of testifying, he said.

“The best possible outcome for a criminal trial is for a defendant to stand up on his hind legs and admit in front of God and everybody that he’s wrong,” he said.

Schneider also said his office makes every effort to only offer plea deals “that are in accordance with what a jury would give.”

Schneider also has derided Justice’s campaign promise to get “tough on crime” as empty sloganeering.

“If there was some way that a county prosecutor could cut crime in half, I would have already done it,” he said. “The fact is, drugs are eating the heart out of our community and we’re not addressing the problem.”

Under the current system, prisons and county jails are simply “warehousing” drug-addicted criminals, and, by not addressing their addictions with drug treatment, “they’re turning them out just as addicted as when they went in,” he said.

Drugs, Schneider said, are the main reason that Boyd County’s criminal case load has tripled since he became an assistant commonwealth’s attorney in 1977.

Schneider and his supporters have maintained that Justice lacks the qualifications necessary to be an effective prosecutor because his practice has focused mainly on civil cases and he has limited experience in the courtroom as a litigator in criminal trials.

“It’s important to have someone in the office who knows all the intricacies” of the criminal justice system, he said. “Dave is a fine attorney, but he’s not a criminal attorney.”

Justice said he has tried criminal cases since graduating from law school in 1982. But, he acknowledges that his experience as a criminal defense lawyer has been somewhat limited. There are a couple of reasons for that, he said.

One, he said, is that he cannot take any case in which he would be in a position to cross-examine an Ashland police officer. The attorney general has ruled that because one of his law partners, Richard “Sonny” Martin, is Ashland city attorney, it would be a conflict of interest for him to do so, he said.

Also, Justice said he has a personal policy of not accepting any criminal cases involving rape, harm to children or other crimes that offend his sensibilities.

Justice said one of the reasons he decided to run for commonwealth’s attorney is that the office would provide him with the opportunity to try cases, which he said he seldom gets to do now.

“I’d rather try cases than eat,” he said.

Furthermore, Justice said he felt his knowledge and command of the criminal code was as solid as any other attorney’s.

While acknowledging that the campaign has at times been bruising, Justice said he had nothing personal against Schneider or anyone who works for him.

“Stewart has a fine staff, and Stewart is an honorable man and a friend of mine,” he said.

Justice said he would like to have both a victim’s advocate and an investigator in the commonwealth’s attorney’s office. However, Schneider said the office’s budget is so tight that there simply isn’t money for both, and there won’t be for the forseeable future.

Schneider said he made the decision to operate without an investigator because “we are blessed with very good police departments.” He also said his relationship with local law enforcement agencies is excellent because officers know he’s available at any time, night or day.

“We’ve worked very hard to let people know that I would much rather deal with a problem in the middle of the night than to try to spackle it up later in court,” he said.

Justice, though, said he had spoken to a number of law enforcement officers who have told him they believe that Schneider isn’t fully behind them.

“The officers tell me that there isn’t a good working relationship with the commonwealth’s attorney’s office,” he said.

Justice said he believes that a “new attitude” is needed in the commonwealth’s attorney’s office and promised to bring a fresh perspective the position if voters elect him.

But Schneider said his record speaks for itself. And, what it says is that there’s no need for a change, he said.

“Being a prosecutor isn’t just about winning and losing cases. It’s about doing justice,” he said. “We try to resolve cases inexpensively, judiciously and by doing justice. I think we’ve done a good job of it.”

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.