Judicial race repeats '04 match-up

By RUDI KELLER

Southeast Missourian

The outcome of most area elections wasn't in doubt after ballot counting began in 2004. One contest, however, wasn't over until the last votes were tallied.

Democratic incumbent Judge John Heisserer survived an avalanche of straight-party Republican votes in Cape Girardeau and Perry counties only to fall by 272 votes to Republican Ben Lewis on the strength of the GOP vote in Bollinger County.

This year the roles are reversed as Heisserer has become the challenger and Lewis the incumbent as the two seek a full six-year term as circuit judge. In 2004, the two Cape Girardeau natives competed to serve the final two years in the term won originally by John Grimm in 2000. Grimm resigned in 2003 to enter private practice.

Lewis and Heisserer began this election cycle stating their desire to avoid attacks in order to, in Lewis's words, maintain "respect for the courts."

But with eight days to go before the election, talk has turned to who is tougher on criminals and each candidate is dissecting the other's ads and finding implied attacks.

For example, in his print ads Lewis states that "some judges seem to believe that faith, patriotism and traditional family values are enemies of our Constitution." Lewis said he's not trying to pin those labels on Heisserer, but addressing the public's reaction to controversial rulings on issues such as flag burning or gay marriage.

"I have to deal with the public's general perceptions of judges," he said. "I am not those things that make people angry about judges."

But the comment has no place in the 32nd Judicial Circuit race, Heisserer said. There has never been a case during his or Lewis's tenure on the bench that concerned flag burning or gay marriage, he noted.

"I was frankly wondering who he was talking about," Heisserer said. "He couldn't be talking about me."

Heisserer's print ads proclaim: "It's about justice, not politics." He has repeatedly said he would prefer a system where judges do not run with party labels.

Lewis, however, sees the ad as an implication that he lets political views sway his court decisions. In every case there is a loser and a winner, Lewis notes. "It is outrageous to suggest that any judgement I have ever entered had something to do with politics."

Circuit judges hear felony cases and lawsuits where the stakes are more than $10,000. Every Monday, a circuit judge in Jackson sees a parade of defendants in felony cases, hearing pleas, setting sentences and deciding motions from prosecuting and defense attorneys.

In his broadcast ads, Lewis announced he doesn't take campaign contributions from attorneys. He is, however, using the endorsement of Cape Girardeau County Prosecuting Attorney Morley Swingle to promote his candidacy.

Swingle, a Republican, could be expected to endorse fellow party member Lewis. But he also gives reasons that he believes make Lewis a better choice -- citing a drug case where Heisserer threw out evidence seized during a raid.

Swingle appealed the ruling and lost, then withdrew the case and refiled it. He brought additional witnesses to court to bolster his case the second time around and kept the evidence in. Heisserer's original ruling is "not the kind of result you get from Judge Lewis," Swingle said.

Heisserer, however, points to the appeals court ruling upholding his decision and Swingle's use of additional witnesses as proof that Swingle's performance, not his ruling, needs scrutiny.

"It is a mystery to me why Mr. Swingle didn't produce all his evidence at the first hearing," Heisserer said."It would have saved the taxpayers, the police and the attorneys a whole lot of trouble if it had been done right the first time."

Heisserer's campaign treasurer, Al Spradling III, a Cape Girardeau attorney and former mayor, said he sees Heisserer as someone with the temperment to be a judge. "He is level headed, and he doesn't involve himself in an individual's lawsuit. He has an extensive amount of experience in handling an array of legal matters that will face him."

Raising the question of lawyer contributions -- there is no ethical rule against it -- leads to a public suspicious of a fair hearing, Spradling said. Using Swingle as a prominent spokesman could also lead to that conclusion, he added.

The race seems likely to go down to the wire again. Heisserer has a 2-to-1 advantage in fund-raising efforts.

Both candidates expressed confidence heading into the final week.

"We have redoubled our efforts to make up that amount of votes I was short of being successful in the last campaign," Heisserer said.

Through Sept. 30,Lewis has already raised more than in the entire 2004 campaign. That's a positive sign, he said. "We started earlier, we are working harder and we've got more people to help us," he said.

rkeller@semissourian.com

335-6611, extension 126

---

Ben Lewis

Party: Republican

Age: 51

Hometown: Cape Girardeau.

Education: B.A., Southeast Missouri State University; J.D., UMKC.

Family: Wife, Debra K. Scholl; children, Hannah and Ben.

Experience: Law clerk, 1980-1981; private practice, 1981-1990; associate circuit judge, 1991-1994; private practice, 1995-2004; circuit judge, 2005 to present

John Heisserer

Party: Democratic

Age: 51

Hometown: Cape Girardeau

Education: B.S., Southeast Missouri State University; J.D., Loyola University.

Family: Wife, Jerry Reed Heisserer; children, Merrill Gerlach, Jed Heisserer, Erin Gerlach, Tess Heisserer and Sam Gerlach.

Experience: Circuit judge, 2003-2004; private practice, 1981-2003, 2005 to present