ON AND ON GOES THE case of Marvin Mandel and his five associates -- now heading for the U.S. Supreme Court after yet another unusual legal turn. To recap this long and expensive series of maneuvers: a four-year saga has carried the former Maryland governer and each co-defendant through one mistrial, one conviction, one reversal, one reinstatement and, now, one refusal of the full federal appeals court in Richmond to rehear the case. The last two decisions -- and here's the heart of the defendants' next appeal -- were by tie votes.
One judge, a new member of the appeals court, is not sure this is any way to run a court case. Judge Francis D. Murnaghan Jr., who joined the court after the first tie vote that reinstated the convictions, believes the court should decide the case not by tie votes, but by a majority. "This is no ordinary case," the judge argues. "It consequences on the entire political system of the state of Maryland are enormous. It cries out for a proper resolution, where such a resolution is possible." Judge Marnaghan's unusual suggestion for ensuring a majority opinion is for him either to step aside or to participate in any review of the case, depending on how many other judges take part.
The process has been frustrating and the judge's desire for a decisive vote is understandable. But his proposition is troubling, too. For one thing, a tie vote reflects -- or at least is supposed to reflect -- the honest opinions of each judge; and traditionally when an appeals court vote is split, the lower court decision is affirmed. Each judge should decide either to participate or to be excused because of a conflict of interests -- not because of how the total vote might swing.
Granted, the case is not an ordinary one, in the sense that it has affected the political atmosphere of Maryland. But the finding of imperfections in an original trial, as well as other moves that lengthen the process, are not intended to favor either side in court. This has been a most elaborate proceeding, all right -- financially costly and personally painful for participants. Still, the quest for a complete resolution -- conviction or acquital -- should not involve shortcuts that would cast still more lingering doubts about the conduct of officials in high public office.