As Sen. Luther Strange (R-Ala.) and challenger Roy Moore make their closing arguments in a special election runoff, the incumbent is trying a new 11th-hour strategy of painting his opponent as soft on crime.
Law-and-order issues have not figured prominently in the race to succeed Jeff Sessions as Alabama's junior senator, but Strange is searching for an issue that can help him close the gap with the firebrand former state Supreme Court justice.
Strange, who served as the state attorney general before his appointment to the Senate in February, unveiled a new ad last week raising questions about a 2015 Supreme Court case in which Moore dissented from an opinion upholding the conviction of a teenager accused of molesting a young child at a day care center in Jefferson County.
"Unbelievably, Roy Moore was the only 'no' vote in the 8-to-1 decision favoring Big Luther's appeal ... Roy Moore -- too risky for us," a narrator in the ad ominously explains.
Voters will decide Tuesday who faces Democrat Doug Jones in the December special election.
The Alabama Court of Criminal Appeals had overturned the conviction of Eric Lemont Higdon on forcible compulsion, prompting an appeal by Strange's office. The high court reversed the appeals court and reinstated the conviction. Moore was the lone dissenter, writing that the court was usurping the role of legislators.
Moore wrote that sodomy is an "abhorrent crime" that should be severely punished. Higdon did not challenge his 23-year prison sentence on a sodomy charge. But Moore wrote that there was no evidence that Higdon used the threat of "imminent death or serious physical injury," a necessary element for a separate forcible compulsion count.
The court in a previous case had ruled that a threat of assault could be inferred when the defendant is in a relationship of trust with the victim. Moore wrote that the court in the Higdon case improperly extended the definition of "implied threat" to cases where both defendant and victim are minors.
"Although this may be a noble cause in certain situations, policymaking is beyond the role of this Court," Moore wrote.
Moore argued that the Alabama Legislature already had made the definition in the statute.
'Other Side is Desperate' Brett Doster, a spokesman for Moore, dismissed the attack ad as the last gasp of a losing campaign.
"The other side is desperate," he told LifeZette. "We knew it was coming. It is a last-ditch 'Hail Mary.'"
Doster said punishment for sodomy in the Higdon case was not at issue and that Moore was bound to rule based on legal and constitutional considerations, not his personal feelings about the alleged conduct of the defendant.
"To suggest that Judge Moore is anything but strong on crime or committed to the Constitution and rule of law is an absolute joke."
"The judge is very passionate about not ever stepping out of its constitutional bounds," he said. "You've got to be consistent about that."
President Donald Trump's tweets suggest that criminal justice considerations played a role in his decision to endorse Strange. Of 10 tweets about Strange through Sept. 20, four mentioned crime. He called Strange "tough on crime" on Sept. 20 and Aug. 15, "strong on wall & crime" on Aug. 16, and "strong on Border & Wall, the military, tax cuts & law enforcement" on Aug. 14.
It is not the first time Moore has come under criticism from an opponent for his judicial rulings on crime. During his first run for chief justice of the Supreme Court in 2000, Republican primary opponent Harold See plumbed Moore's tenure as a trial judge in Etowah County. Among the cases he highlighted were:
- Kevin Andrew Towles, whom Moore sentenced to probation on drug charges in 1996. He later went on to kill his his girlfriend's 5-year-old son, and a jury convicted him of capital murder.
- Veronica Macon, whom Moore sentenced in 1995 to life in prison without possibility of parole instead of the death penalty for the stabbing death of her 2-year-old step-daughter. In choosing for a sentence of life in prison, Moore accepted the recommendation of the jury. The judge's clerk at the time told The Anniston Star that Moore was influenced by the defendant's mental condition.
- Tempo Peraita, whom Moore sentenced in 1996 to life without parole for a deadly robbery. That also was the jury's recommendation, on an 11-1 vote. Peraita later fatally stabbed an inmate, according to AL.com.
- Joann Miller Black, whose probation for drug trafficking Moore twice declined to revoke despite requests from prosecutors following alleged violations. Kathleen Brown Strickland, whose seven-year sentence in 1994 for selling drugs near a school Moore converted from seven years in prison to probation. The judge later released her from probation early.
Attacks 'An Absolute Joke' Doster said attacks on Moore will not work because Alabama voters know him to be a man of integrity.
"To suggest that Judge Moore is anything but strong on crime or committed to the Constitution and rule of law is an absolute joke," he said.
Political experts in Alabama said Strange has narrowed what was a substantial deficit in the race but added they doubt the late hit on Moore's rulings in criminal cases will be effective.
"I'm a little bit surprised the issue didn't arise before now," said political scientist Jess Brown, noting that he fielded what turned out to be an obvious "push poll" testing the issue.
But Brown said he doubts it will change the dynamics. He said the issue -- and Trump's visit to Alabama on Friday to support Strange -- might energize the incumbent's supporters. But he added it likely will win few converts.
"I don't think they're changing minds," he said. "If he's behind now, he'll probably be behind on Election Day."
Brown, a retired Athens State University professor, said the huge amount of money Strange has raised should mean that he will have a first-rate get-out-the-vote operation that can be decisive in a low-turnout runoff. But he said the money cuts both ways.
"It reinforces the idea that Strange is the candidate with big campaign money behind him ... I think he comes across as the candidate of D.C. big dollars," he said.
For weeks before the last month, a super PAC closely aligned with Senate Majority Leader Mitch McConnell (R-Ky.) hammered Moore over a legal foundation he set up that paid him and his wife a more than $1 million plus travel expenses from 2005 to 2013. The attacks did not appear to hurt Moore a great deal, but one observer said it is a juicier target than cherry-picked criminal cases from Moore's judicial career.
"It's desperation," said Steve Flowers, a former state representative whose political column appears in 65 newspapers. "The best negative they had was the foundation ... This stuff about the sentencings just seems vague."