Many people fondly remember our late Senator S.I. Hayakawa, memories that do not concern any significant legislation. Some remember him as the courageous president who took on the rioting students at San Francisco State College in the tumultuous 60’s. I still remember that photo of him standing on the hood of a Chevy, or whatever, tam-o-shanter firmly in place on his head, bullhorn in hand, shouting down a throng, or a mob, of revolutionary spirits, or spoiled brats, depending on your point of view. Others remember him for his recreational tap dancing, his association with Duke Ellington, or his penchant for snoozing during Senate debates. I warmly remember Hayakawa for two things, his quotes: “If students are dirty and ragged it indicates they are not interested in tidying up their intellects either,” and my favorite, “I’m going to speak my mind because I have nothing to lose,” and his book, “Language in Thought and Action, ” or as I called it, “Semantics for Dummies.” Hayakawa was a lot easier to read than Korzbyski or Wittgenstein. As I recall, a pervading theme in Hayakawa’s book is that the word is not the thing. I agree with that notion which has become suspect in this day and age. Indeed, as I have urged on this page before, a word is only a sound or a squiggle on a page. Yet words are the products of pens, or word processors, and we all know how mighty they can be. Wittgenstein, you may recall, had a lot to say about a box of matches. This following anecdote may be apocryphal but it makes the point. He is reputed to have held up a box of matches in front of his class and asked the students what he was holding. They said “a box of matches.” He flung the matches at them and yelled, “No! A box of matches is a sound.”
But sounds or mere squiggles on a page can cause much havoc. Just ask Salmon Rushdie. Or for that matter ask any judge. We say and write things that have been known to create riots, anguish, elation, anger, and boredom. The simple word “reversed” has sent people over the edge.
We had better be careful not just in choosing our words, but in making sure the words we choose are our words. Take for example, the case of two distinguished Harvard law professors, Charles J. Ogletree, Jr., and Laurence Tribe. As reported in the New York Times a few weeks ago, six paragraphs in Ogletree’s recent book “All Deliberate Speed” were not written by Ogletree, but by a law professor from Yale. The six paragraphs lacked quotes and nary a footnote showing that they belonged to the Yale law professor. And portions of Tribe’s book “God Save This Honorable Court” published in 1985 borrowed from another professor’s work as revealed by identical and similar wording without attribution. Hurried and sloppy research, not malicious intent, contributed to these transgressions.
That these were accidents occurring through the carelessness of research assistants does not excuse the professors. Whether you agree or not with the philosophy of these two legal titans, they are first-rate scholars who face eviction from their airy quarters on Mount Olympus. I appeared once on a panel moderated by Professor Ogletree and was impressed by his brilliance and compelling personality. If this could happen to him, it could happen to me, and I don’t even live anywhere near Mount Olympus. I was once accused of trying to live there, but the agent refused to even show me a condo on the outskirts. I think the neighborhood petition opposing my setting foot anywhere in the district scared her off. I threatened to sue the agent for discrimination. She convinced me her demurrer would be sustained without leave to amend. But that is another story for another time.
I immediately called in my research attorneys to make sure we had not accidentally written something written by others for which we did not give proper attribution. After exhaustive investigation, we did come across something. In one of my early, very early opinions, I had written this concluding sentence: “Judgment is reversed and the matter remanded with directions to adopt procedures consistent with the views expressed herein in this opinion.” That was out and out plagiarism. I will never use it again. The author has not sued me. He didn’t want to be known.
Another factor crucial to any writer, whether he or she plagiarizes or not, is style. It has to be important because Strunk and White titled their book “The Elements of Style.” The final Chapter V is devoted to this most important element. Tone, an element if you will of style, is essential to any writer. For example, an officious or patronizing tone in an appellate opinion detracts rather than enhances.
In my October column I wrote about my cat’s misbehavior in the living room. At the end of the first paragraph I referred to a word in a familiar colloquial phrase with dashes. My editors at the Daily Journal saw it differently and decided not to bleep out the word. We didn’t have time to confer, and there it was. I thought the use of the word was jarring and not in keeping with the tone of the article. Some readers of the column voiced similar sentiments while others support the use of what I call the “offending” word. I will admit to a heightened aversion to scatology, but I am anything but a prude, much less a censor. It is simply not always appropriate to be blunt in the name of freedom of expression. This has nothing to do with censorship or a reticence to offend people when they need to be shaken from their apathy. Daily Journal columnist Garry Abrams decried the pusillanimity of network television afraid to air the movie “Saving Private Ryan” because of concern about a four letter word uttered by soldiers landing at Normandy. As usual he was right on. The tone there was appropriate. What would soldiers in such a circumstance say, “Goodness Gracious”?
I thought the whole affair over my word had blown over when I was compelled to write the offending word in my November column. Well, it is not exactly the same word although it sounds the same. It all came about when this stranger sat down next to me at Starbucks. He tripped and spilled some of his coffee latte on his hands and what looked like a deposition or an appellate brief. Upon spilling the coffee, he used the quaint expression “Shoot!”
I couldn’t help myself. I had to say something. It must have come from subconscious anxiety over the October column. “Shoot?” I asked as he sat down beside me with his head slightly cocked. After an awkward pause I said, “Do you want to shoot the shit?”
“Sure, ” he said.
“You said ‘shoot’ not shit,” I said.
He nodded.
“Shoot is so quaint,” I said, “like a line from the Ozzie and Harriett show. Let me guess why you said 'shoot' instead of 'shit.'"
“Shoot,” he said.
“I bet you are a deeply religious person and offended as I am from the indiscriminate use today of scatological expressions.”
“No,” he replied, “I am an agnostic.”
“Well, I suppose agnostics can be prigs,” I said meekly.
“They can, but I am not a prig,” he said.
“But ‘shoot?’” I protested.
The conversation was over. He got up to leave. It suddenly hit me that he looked familiar.
“Don’t I know you?" I asked.
He was standing. “No," he said patiently, “you don’t know me.”
“What is your name?” I asked.
“Jack,” he said. “Jack Shitt.”
Tuesday, December 14, 2004
Tuesday, November 09, 2004
What's Behind a Name?
What was a great present for a bright kid in 1953? A Gilbert chemistry set. My name happened to be Gilbert. It still is. When I was in high school, everyone thought I would be a wiz in chemistry. That’s how stupid people were in those days. Thank God my name was not Einstein. Is Ernest Hemingway’s brother, the accountant, a brilliant novelist? I proved everyone wrong when I took high school chemistry and coined the phrase, “Worse Things Through Chemistry,” in defiance of DuPont’s slogan which defined chemistry as the road to Shangrila. DuPont labs manufactured napalm used in the Vietnam War. In 1996 Fatboy Slim made an album entitled “Better Things Through Chemistry.” One of the tunes was called “Next to Nothing." That’s what I knew about chemistry. I was a total klutz in the lab. One day I mixed the wrong chemicals. The explosion was not all that powerful. No one was hurt. I received minor burns on my arms. The ointment helped. Within a week the scars had cleared up. The teacher was sympathetic. I passed the course. In college, chemistry was a prerequisite for medical school. That’s why I opted for law school, thereby saving the lives of innumerable potential patients and avoiding being sued in medical malpractice suits.
My name created further difficulties for me in law school. The less astute students thought I had authored the Gilbert Law School Outlines. Professors held the Gilbert outlines in contempt and saw them as the counterpart to Classic Comics in literature classes. But then not many of my law professors seemed to know much about literature. The more malevolent law professors would call on me in class, prefacing a convoluted question with, “Kindly enlighten us, Mr. Gilbert, with an outline to the solution to this apparent conundrum.” I didn’t have the solution. The chemistry just wasn’t right.
We give names much importance, but a name is merely a sound or a squiggle on a page. It should not be confused with the actual thing. Call a weed a rose, it still won’t have the fragrance. Just ask Shakespeare. Jude Law is an actor, not a lawyer. I bet he doesn’t have the slightest idea how to draft a living trust. That our birthdays fall on the same day has no significance. Sometimes names get close to the mark. Take Michael P. Judge, for example, the Los Angeles County Public Defender. His office represents the poor and the disadvantaged charged with criminal offenses. Although not deciding cases as a judge, he and his deputies pursue justice for their clients. Judges dispense justice, don’t they? So there is a connection. But if he should ever become a judge, that is, if there should ever be a governor who will appoint a criminal defense attorney to the bench, he would be known as Judge Judge. Sometime ago a state senator sought to change his first name to senator. It is rumored that his favorite dish was mahi mahi. My computer thinks these are spelling errors.
Judge Minor Wisdom, the courageous judge of the 5th Circuit Court of Appeals who protected and guarded civil rights and steadfastly implemented Brown v. Board of Education was anything but minor, and in all respects wise. There the name worked. The same with Judge Learned Hand, one of the most learned jurists of our century. Can’t say the same about Judge Learned Foot, who has appeared in this column on many occasions. He often steps into trouble. I met a man whose last name was Cool. He would have made a Cool Judge.
But names conjure up images that can enhance or detract depending on our goals. Some of the candidates running for judicial office refer to themselves as “criminal prosecutor.” They no doubt believe that such designation resonates better with voters than the simple “prosecutor." I wonder if the voters know that these “criminal prosecutors” cannot be prosecutors on the bench. A plaintiff’s personal injury lawyer I know wants to run for judge as a “civil prosecutor.” Many years ago I knew a judge who was up for reelection. She drew a challenger. The judge designated herself “incumbent” on the ballot statement. That was the kiss of death. She might as well have called herself “criminal defense attorney.” She lost.
Going further back in time when women judges were a rarity, a judge named Nancy changed her first name to Noel, which apparently won her the male chauvinist vote. And in other ways she copied men. Xaivier Cugat, the famous Latin band leader of the 1940’s, led the orchestra in sambas and mambos with a Chihuahua nestled in his arms. The judge conducted her trials with a Chihuahua nestled in her arm. That was a bad idea. The Chihuahua was a tough sentencer. He has taken issue with a recent 9th Circuit Court of Appeals case, Cetacean Community v. Bush (9th Cir. 2004) 2004 WL 2348373, which holds that the “Cetacean Community,” the world’s whale, porpoise and dolphin population, does not have standing to sue over the Navy’s use of sonar to detect “quiet submarines" at long range. The high strung Chihuahua with a strong aversion to water nevertheless felt a kinship to the laid back cetaceans because “we are all mammals.”
Titles and names mean nothing. The title “Judge,” for instance, carries little weight. Many, many years ago (the statute of limitations has run), I called a popular restaurant to make reservations. I wanted a good table, so I told the person on the phone that I was Judge Gilbert. He made the reservation for Judd Gilbert. I performed a wedding ceremony and at the conclusion pronounced the couple married by virtue of the authority vested in me as a justice on the Court of Appeal. During the toast to the newly married couple, a well known actor referred to me as the “Justice of the Peace.” I would just as soon not use the title. But “retired” judges who become active private judges want to be known and introduced as judges. For some reason you will find them in abundance at bar functions they rarely attended in their pre-retirement days. And those who were not the most congenial bench officers have suddenly learned to smile and be ingratiating with members of the bar.
Names and titles are deceiving. I know someone named Small who is 6 feet tall. I know someone named Short and he is short. There is even someone named Jack Schitt. I don’t know him.
We should all do and be our best and forget about our names and titles. They say nothing about who we are. This is particularly true for judges. The best appellations a judge can carry are “fair,” “objective” and “unbiased,” for example. Because they must be earned, they are the ones that count.
As for me, no need to call me “your honor." Like the Chihuahua, I favor the cetaceans. Call me Gilbert.
My name created further difficulties for me in law school. The less astute students thought I had authored the Gilbert Law School Outlines. Professors held the Gilbert outlines in contempt and saw them as the counterpart to Classic Comics in literature classes. But then not many of my law professors seemed to know much about literature. The more malevolent law professors would call on me in class, prefacing a convoluted question with, “Kindly enlighten us, Mr. Gilbert, with an outline to the solution to this apparent conundrum.” I didn’t have the solution. The chemistry just wasn’t right.
We give names much importance, but a name is merely a sound or a squiggle on a page. It should not be confused with the actual thing. Call a weed a rose, it still won’t have the fragrance. Just ask Shakespeare. Jude Law is an actor, not a lawyer. I bet he doesn’t have the slightest idea how to draft a living trust. That our birthdays fall on the same day has no significance. Sometimes names get close to the mark. Take Michael P. Judge, for example, the Los Angeles County Public Defender. His office represents the poor and the disadvantaged charged with criminal offenses. Although not deciding cases as a judge, he and his deputies pursue justice for their clients. Judges dispense justice, don’t they? So there is a connection. But if he should ever become a judge, that is, if there should ever be a governor who will appoint a criminal defense attorney to the bench, he would be known as Judge Judge. Sometime ago a state senator sought to change his first name to senator. It is rumored that his favorite dish was mahi mahi. My computer thinks these are spelling errors.
Judge Minor Wisdom, the courageous judge of the 5th Circuit Court of Appeals who protected and guarded civil rights and steadfastly implemented Brown v. Board of Education was anything but minor, and in all respects wise. There the name worked. The same with Judge Learned Hand, one of the most learned jurists of our century. Can’t say the same about Judge Learned Foot, who has appeared in this column on many occasions. He often steps into trouble. I met a man whose last name was Cool. He would have made a Cool Judge.
But names conjure up images that can enhance or detract depending on our goals. Some of the candidates running for judicial office refer to themselves as “criminal prosecutor.” They no doubt believe that such designation resonates better with voters than the simple “prosecutor." I wonder if the voters know that these “criminal prosecutors” cannot be prosecutors on the bench. A plaintiff’s personal injury lawyer I know wants to run for judge as a “civil prosecutor.” Many years ago I knew a judge who was up for reelection. She drew a challenger. The judge designated herself “incumbent” on the ballot statement. That was the kiss of death. She might as well have called herself “criminal defense attorney.” She lost.
Going further back in time when women judges were a rarity, a judge named Nancy changed her first name to Noel, which apparently won her the male chauvinist vote. And in other ways she copied men. Xaivier Cugat, the famous Latin band leader of the 1940’s, led the orchestra in sambas and mambos with a Chihuahua nestled in his arms. The judge conducted her trials with a Chihuahua nestled in her arm. That was a bad idea. The Chihuahua was a tough sentencer. He has taken issue with a recent 9th Circuit Court of Appeals case, Cetacean Community v. Bush (9th Cir. 2004) 2004 WL 2348373, which holds that the “Cetacean Community,” the world’s whale, porpoise and dolphin population, does not have standing to sue over the Navy’s use of sonar to detect “quiet submarines" at long range. The high strung Chihuahua with a strong aversion to water nevertheless felt a kinship to the laid back cetaceans because “we are all mammals.”
Titles and names mean nothing. The title “Judge,” for instance, carries little weight. Many, many years ago (the statute of limitations has run), I called a popular restaurant to make reservations. I wanted a good table, so I told the person on the phone that I was Judge Gilbert. He made the reservation for Judd Gilbert. I performed a wedding ceremony and at the conclusion pronounced the couple married by virtue of the authority vested in me as a justice on the Court of Appeal. During the toast to the newly married couple, a well known actor referred to me as the “Justice of the Peace.” I would just as soon not use the title. But “retired” judges who become active private judges want to be known and introduced as judges. For some reason you will find them in abundance at bar functions they rarely attended in their pre-retirement days. And those who were not the most congenial bench officers have suddenly learned to smile and be ingratiating with members of the bar.
Names and titles are deceiving. I know someone named Small who is 6 feet tall. I know someone named Short and he is short. There is even someone named Jack Schitt. I don’t know him.
We should all do and be our best and forget about our names and titles. They say nothing about who we are. This is particularly true for judges. The best appellations a judge can carry are “fair,” “objective” and “unbiased,” for example. Because they must be earned, they are the ones that count.
As for me, no need to call me “your honor." Like the Chihuahua, I favor the cetaceans. Call me Gilbert.
Wednesday, October 06, 2004
Cats and People Have No Shame
The other day Boz, my cat, "took a giant dump" on the living room rug. (The colloquial expression in quotes puzzles me. He did not take anything. It is what he left that disturbed me.) I was stunned by this act of betrayal. We have a box in the house filled with unsullied litter for emergencies. Up until the living room incident, Boz had displayed his perversity in less dramatic ways. He does not limit use of the box to emergencies. Better to interrupt his outdoor activities (lengthy siesta is included here as an activity) to pop in the house for a quick visit to the box. Following completion of the task, he makes perfunctory motions at clean up, rarely accomplishing what I, but apparently not he, consider a thorough job. In the naïve belief that his inattention to details reflects negligence instead of malice, I did not reprimand him. But the living room episode I could not ignore. My disappointment over his unseemly behavior demanded a confrontation. I called Boz into the living room where evidence of the deed was neatly piled in a corner but plainly visible from every part of the living room. “Boz, how could you do this?” I asked. Before he could reply I said, “Bad cat, naughty animal, shame, shame, shame on you.” His head was moving up and down, but not in agreement with my assessment of his unbecoming behavior. He was licking himself. It was then that the epiphany struck me like a thunderbolt. He felt no shame. He didn’t care, or to be colloquial again, "he didn’t give a ****."
In the old days people could endure just about anything but shame. If you felt ashamed it would be unbearable to look others in the eye. That’s why Oedipus switched to Braille. His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles. Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases.
Attitudes about shame today are different. If I had made my cat wear a sign around his neck that says, “Shame on Me, I pooped in the living room,” I doubt that he would have cared, provided the sign did not hamper his movement. That he does not read is beside the point. No one reads these days. But the more pertinent question is: Does anyone feel shame nowadays? If “reality” shows are an indication, the answer is obvious. People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers. If Hester Prynne were here, she would be doing commercials for the Auto Club.
At first blush (does anyone blush anymore?), shame appears to be an anachronism. But if that is so, why are courts meting out shameful sentences, I mean sentences designed to shame defendants?
In United States v. Gementera 379 F.3d 596 (2004) defendant who had stolen mail was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail. This is my punishment" as part of his sentence. At trial Gementera seemed content with the sentence. On appeal, however, he argued the sentence was not legitimate. It violated contemporary standards of decency and humiliated him. The 9th Circuit saw it differently and affirmed the sentence. The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act. I wonder whether defendant Gementera thought his pilfering letters violated contemporary standards of decency.
In Demery v. Arpaio 378 F3d 1020 (2004) the sheriff used "web cams" to stream live images on the Internet of pretrial detainees in county jail. The 9th Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice. The appellate court failed to see how turning pretrial detainees into unwilling objects of the latest reality show served any legitimate goal. The practice amounted to unlawful punishment of pretrial detainees. There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. Getting back to Boz, my cat, I require him to wear a collar with a bell. He protests that wearing the collar is humiliating and has filed for injunctive relief. I plan to argue that the bell serves a lofty purpose. It gives unsuspecting birds and mice a warning. It is doubtful the Demery court will uphold the constitutionality of the warning bell. The court might acknowledge that the warning bell could save a bird or two, but it could buy into Boz's argument that he is being shamed for a crime he has not even committed. His case is therefore even stronger than that of the pretrial detainees who at least had been arrested for crimes they were accused of committing. True, but I would argue that although Boz is allegedly shamed for a crime he did not yet commit, we can take judicial notice that he most certainly would commit the crime if given the chance. Although I cannot predict how the court will rule, I am confident it will unanimously uphold the use of the bell when it comes to mice. I cannot speak to the court's rationale, but I know it will find a way.
If shame is an anachronism, why did Gementera and Arpaio appeal? I think it is because there is a world of difference between choosing to parade one's shameful acts to a jaded public, and quite another to be forced to be shamed in a manner decided by someone else. That can be excruciating. Candid lawyers with unrepressed memories will not forget the humiliating sting inflicted by scornful law professors calling on them with relentless questions for which there were no satisfactory answers. “Shame on the professors,” I thought. But were my indictment shouted from the rooftops it would at best have prompted a yawn.
There is no question that shame can be devastating when one’s humiliating act is revealed by others. This happened to me even when I was out of law school and working as a young deputy city attorney. At the time I was trying innumerable “drunk driving” cases. Each morning before court convened, I would stand in the master calendar court and call out the names of the people’s witnesses subpoenaed to appear that day. The courtroom was usually filled with police officers, defense attorneys, defendants and witnesses. One person’s name appeared on many cases, but he was never there. Day after day I would call out his name loud and clear, “Sid Chemist,” (last name pronounced kem-ēast). Police officers invariably cracked up when I called the name of this flakey witness who never showed. My frustration with Sid Chemist was written up in the Police Gazette. That was when I learned that Sid Chemist was the Scientific Investigation Division Chemist who was on call to testify, if needed, to explain the workings of the gas chromatograph intoximeter. Please keep this embarrassing story to yourself. But judges should be wary of imposing shameful sentences, I mean shaming sentences. One California judge since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years." The Court of Appeal in People v. Hackler 13 Cal.App. 4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation. In another case, unpublished, the same judge sentenced a woman convicted of beating her children, to wear a contraceptive Norplant device as a condition of probation. The case caused an outcry from civil liberties groups. I was curious to know what Boz thought about the case. To give him a balanced view, I presented the judge’s rationale for the sentence. The defendant was a drug addict and already had five children taken away from her. The judge was merely trying to protect a child not yet conceived from brutality and neglect. I asked Boz what he thought about the probation condition. He jumped out of my lap. I heard him scratching away in his box.
In the old days people could endure just about anything but shame. If you felt ashamed it would be unbearable to look others in the eye. That’s why Oedipus switched to Braille. His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles. Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases.
Attitudes about shame today are different. If I had made my cat wear a sign around his neck that says, “Shame on Me, I pooped in the living room,” I doubt that he would have cared, provided the sign did not hamper his movement. That he does not read is beside the point. No one reads these days. But the more pertinent question is: Does anyone feel shame nowadays? If “reality” shows are an indication, the answer is obvious. People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers. If Hester Prynne were here, she would be doing commercials for the Auto Club.
At first blush (does anyone blush anymore?), shame appears to be an anachronism. But if that is so, why are courts meting out shameful sentences, I mean sentences designed to shame defendants?
In United States v. Gementera 379 F.3d 596 (2004) defendant who had stolen mail was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail. This is my punishment" as part of his sentence. At trial Gementera seemed content with the sentence. On appeal, however, he argued the sentence was not legitimate. It violated contemporary standards of decency and humiliated him. The 9th Circuit saw it differently and affirmed the sentence. The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act. I wonder whether defendant Gementera thought his pilfering letters violated contemporary standards of decency.
In Demery v. Arpaio 378 F3d 1020 (2004) the sheriff used "web cams" to stream live images on the Internet of pretrial detainees in county jail. The 9th Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice. The appellate court failed to see how turning pretrial detainees into unwilling objects of the latest reality show served any legitimate goal. The practice amounted to unlawful punishment of pretrial detainees. There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. Getting back to Boz, my cat, I require him to wear a collar with a bell. He protests that wearing the collar is humiliating and has filed for injunctive relief. I plan to argue that the bell serves a lofty purpose. It gives unsuspecting birds and mice a warning. It is doubtful the Demery court will uphold the constitutionality of the warning bell. The court might acknowledge that the warning bell could save a bird or two, but it could buy into Boz's argument that he is being shamed for a crime he has not even committed. His case is therefore even stronger than that of the pretrial detainees who at least had been arrested for crimes they were accused of committing. True, but I would argue that although Boz is allegedly shamed for a crime he did not yet commit, we can take judicial notice that he most certainly would commit the crime if given the chance. Although I cannot predict how the court will rule, I am confident it will unanimously uphold the use of the bell when it comes to mice. I cannot speak to the court's rationale, but I know it will find a way.
If shame is an anachronism, why did Gementera and Arpaio appeal? I think it is because there is a world of difference between choosing to parade one's shameful acts to a jaded public, and quite another to be forced to be shamed in a manner decided by someone else. That can be excruciating. Candid lawyers with unrepressed memories will not forget the humiliating sting inflicted by scornful law professors calling on them with relentless questions for which there were no satisfactory answers. “Shame on the professors,” I thought. But were my indictment shouted from the rooftops it would at best have prompted a yawn.
There is no question that shame can be devastating when one’s humiliating act is revealed by others. This happened to me even when I was out of law school and working as a young deputy city attorney. At the time I was trying innumerable “drunk driving” cases. Each morning before court convened, I would stand in the master calendar court and call out the names of the people’s witnesses subpoenaed to appear that day. The courtroom was usually filled with police officers, defense attorneys, defendants and witnesses. One person’s name appeared on many cases, but he was never there. Day after day I would call out his name loud and clear, “Sid Chemist,” (last name pronounced kem-ēast). Police officers invariably cracked up when I called the name of this flakey witness who never showed. My frustration with Sid Chemist was written up in the Police Gazette. That was when I learned that Sid Chemist was the Scientific Investigation Division Chemist who was on call to testify, if needed, to explain the workings of the gas chromatograph intoximeter. Please keep this embarrassing story to yourself. But judges should be wary of imposing shameful sentences, I mean shaming sentences. One California judge since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years." The Court of Appeal in People v. Hackler 13 Cal.App. 4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation. In another case, unpublished, the same judge sentenced a woman convicted of beating her children, to wear a contraceptive Norplant device as a condition of probation. The case caused an outcry from civil liberties groups. I was curious to know what Boz thought about the case. To give him a balanced view, I presented the judge’s rationale for the sentence. The defendant was a drug addict and already had five children taken away from her. The judge was merely trying to protect a child not yet conceived from brutality and neglect. I asked Boz what he thought about the probation condition. He jumped out of my lap. I heard him scratching away in his box.
Tuesday, September 07, 2004
The Witness Lied-I Think
What you hear the trial judge say at the conclusion of the witness’s testimony: “Thank you. You may step down.” What you would hear if the judge gave voice to the raging thoughts he tied to a post in his mind: “You lying piece of offal.” The judge ultimately enters judgment against the party for whom the witness testified. On appeal the appellate court affirms the judgment because substantial evidence supports it. The trial judge has said nothing about witness credibility, but that doesn’t matter. The appellate court relies on the trial judge’s implied findings that he did not believe the witness. The trial judge’s thoughts can now be safely unleashed from their tether to frolic at will.
Trial judges have enormous power. I once was a trial court judge, so I know. Their findings on credibility are given great deference by appellate courts. Trial judges instinctively know a liar when they see and hear one on the witness stand. Similarly they have an unerring sense of when a witness is truthful and forthright. From where do they get this superhuman power? There is no such course offered at the Judges College. A few years ago a judicial education program offered a course purporting to teach one how to tell whether a witness is lying. The course was cancelled, however, when my wife decided she was too busy to teach it.
Up until recently I gave little thought to credibility findings. When I was invited to speak to a group of Administrative Law Judges (A.L.J's) about credibility findings, I accepted on condition that no one eat turkey for 24 hours prior to my talk. L tryptophan would not enhance audience attention to this seemingly dull topic.
In fact, the topic was not dreary. It prompted me to question how judges in fact judge credibility. How do we know whether someone is telling the truth or lying? Sometimes we just know it in our gut. There is that ineffable quality that exudes from some people and forms these words encased in a bubble over their heads, "I am a sleazy scum bag for whom the truth is as welcome as West Nile virus." But who knows whether the trial judge has it right? Certainly not appellate justices. I suppose in rare cases an appellate judge might question credibility findings, when, for example, a trial judge credits the testimony of Stevie Wonder and George Shearing, each of whom swear they saw plaintiff stumble on the curb and hold his ankle in pain .
But what would happen if trial judges had to document their credibility findings based solely on demeanor? How would they articulate such findings for a reviewing court? I broke out in a cold sweat at the thought. But no judge has to do this, right? Wrong. No one except . . . Administrative law judges. They make important decisions that have a profound effect on the public and on the lives of the parties appearing before them. They adjudicate a plethora of decisions made by state and local governmental agencies. These decisions concern, among other things, professional and vocational licensing, professional and employee discipline, payment of disability and retirement benefits, and land use issues. They write their own detailed decisions stating their findings. And of course they routinely make decisions based on the credibility of witnesses. On writs of administrative mandamus heard by the superior court, are credibility findings of the ALJ entitled to deference? In many cases the answer is yes, but it comes with a price.
Government Code section 11425.50 (a) requires ALJ's to write a statement of the factual and legal basis for their decisions. And when their decisions include a determination based substantially on witness credibility, 11425.50 (b) provides that the ALJ's written "statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination." And to show how valued these findings are, section (b) goes on to tell courts they must give "great weight" to these credibility findings. California Youth Authority v. State Personnel Bd. 104 Cal.App.4th 575 at p. 588 (2002) citing the Law Revision Commission's comments to section 11425.50 (b) concludes that the ALJ 's credibility findings are not entitled to great weight unless the determination derives from the judge's observation of the demeanor, manner or attitude of the witness.
So, to get deference, the ALJ has to identify or describe what it is about the witness that leads to the conclusion of truthfulness or prevarication. I thought back on the innumerable cases I had heard as a trial judge when I was certain a witness or two lied through his or her teeth. I have not forgotten the testimony of an expert statistician. Lies and damned lies paled in comparison to his statistics. If I had been an ALJ I would have gotten no deference on that one because my determination was not based on his demeanor, attitude or manner. But what if it had been? How does one go about describing why a witness is a lying S.O.B? Does this not involve a creative recitation of the judge’s perceptions, something not reflected in the record? With great empathy for the ALJ's, I tried to fashion credibility findings from another case I had heard when I was a trial judge.
“The witness was perched on the edge of his chair like a trapped condor hoping for an updraft to carry him away. Tiny beads of sweat formed on his forehead like drops of condensation inside an old refrigerator. As the noose of cross-examination tightened around his neck he blurted out an answer that sounded like a scream. His wild eyes bulged as tentacles of terror closed round his heart. I have noted the witness’s nervous twitches and discomfort. In my view the witness is . . . .” The witness is what, a liar or highly credible?
Could not either conclusion apply? A nervous and fidgety witness may simply be exhibiting discomfort in a courtroom where he is the center of attention. His uneasiness may have nothing to do with his truthfulness. The witness who hesitates and stammers may be searching for the truth as opposed to the cool and collected witness whose pat answer is a packaged lie.
Identifying aspects of credibility can be particularly dicey in novel cases, say, for example, when someone sues himself. That is what happened in Lodi v. Lodi 173 Cal.App.3d 628 (1985) a case written by a distinguished jurist, Justice Richard Sims, who coincidentally also authored CYA v. Henderson. If Dickens had written about the Lodi case he might have titled his novel, “The Best of Times—The Worst of Times.” Lodi's complaint alleges that he, Lodi, as a defendant is the beneficiary of a charitable trust, the estate of which should revert to him, Lodi, the plaintiff. Apparently plaintiff and defendant could not agree to settle the matter. Defendant Lodi was served but failed to answer. Plaintiff Lodi sought a default judgment. The trial court's dismissal of Lodi's complaint was affirmed by Justice Sims and his colleagues. Justice Sims with characteristic insight noted the even handed application of justice accorded Lodi. True, Lodi lost, but he also won. Driven by unwavering rectitude, Justice Sims ordered each party to bear his own costs. It is rumored that after the decision the Lodis reconciled, made dinner at home and watched a movie on television, “The Three Faces of Eve.”
I shudder to think what would have happened if the Lodis had gone to trial. I can envision plaintiff and defendant Lodi, each telling his respective lawyer to “sue the bastard” and show no mercy. No doubt discovery would have been an ordeal, but the trial would have been a nightmare. Imagine the difficulties facing the trier of fact if he or she had to identify credibility findings. What if the judge believed Lodi, but disbelieved Lodi? The findings might read as follows: “Plaintiff Lodi was the only credible witness. His answers to defendant Lodi’s convoluted questions were forthright. Lodi was patient and reserved. In contrast, Lodi was fretful, evasive, and hostile. He refused to look Lodi in the eye, slumped in the witness chair and stammered when answering the most simple questions. For Lodi, the truth is a pendulum, which under Lodi’s careful cross examination, sliced Lodi’s lies in half.”
Credibility findings whether articulated or not can have serious repercussions. About 35 years ago, a Municipal Court Judge sitting in traffic court found his wife guilty of speeding. After rejecting her defense before a packed court room, he questioned her veracity, lectured her on traffic safety, and fined her $100. Before calling the next case, he said,"see you at home for dinner, honey.” I have been unable to verify the rumor that he was hospitalized that evening for ptomaine poisoning.
It occurred to me the other night while listening to Fred Astair’s version of Gershwin’s “Anything Goes,” that sooner or later there will be a case where a judge appears before himself. I would hate to appear before me. I am tough on myself and put little stock in my credibility. I would no doubt impose a heavy sentence on me, and this is in a civil case. In a criminal case, I would definitely file an affidavit of prejudice.
For the time being, trial judges do not appear before themselves. Nor are they required to do the heavy lifting required of Administrative Law Judges and explain credibility findings on witness demeanor to get deference from higher courts. But I no longer feel sorry for Administrative Law Judges. I have heard that many supplement their income by selling the movie rights to their credibility findings.
Trial judges have enormous power. I once was a trial court judge, so I know. Their findings on credibility are given great deference by appellate courts. Trial judges instinctively know a liar when they see and hear one on the witness stand. Similarly they have an unerring sense of when a witness is truthful and forthright. From where do they get this superhuman power? There is no such course offered at the Judges College. A few years ago a judicial education program offered a course purporting to teach one how to tell whether a witness is lying. The course was cancelled, however, when my wife decided she was too busy to teach it.
Up until recently I gave little thought to credibility findings. When I was invited to speak to a group of Administrative Law Judges (A.L.J's) about credibility findings, I accepted on condition that no one eat turkey for 24 hours prior to my talk. L tryptophan would not enhance audience attention to this seemingly dull topic.
In fact, the topic was not dreary. It prompted me to question how judges in fact judge credibility. How do we know whether someone is telling the truth or lying? Sometimes we just know it in our gut. There is that ineffable quality that exudes from some people and forms these words encased in a bubble over their heads, "I am a sleazy scum bag for whom the truth is as welcome as West Nile virus." But who knows whether the trial judge has it right? Certainly not appellate justices. I suppose in rare cases an appellate judge might question credibility findings, when, for example, a trial judge credits the testimony of Stevie Wonder and George Shearing, each of whom swear they saw plaintiff stumble on the curb and hold his ankle in pain .
But what would happen if trial judges had to document their credibility findings based solely on demeanor? How would they articulate such findings for a reviewing court? I broke out in a cold sweat at the thought. But no judge has to do this, right? Wrong. No one except . . . Administrative law judges. They make important decisions that have a profound effect on the public and on the lives of the parties appearing before them. They adjudicate a plethora of decisions made by state and local governmental agencies. These decisions concern, among other things, professional and vocational licensing, professional and employee discipline, payment of disability and retirement benefits, and land use issues. They write their own detailed decisions stating their findings. And of course they routinely make decisions based on the credibility of witnesses. On writs of administrative mandamus heard by the superior court, are credibility findings of the ALJ entitled to deference? In many cases the answer is yes, but it comes with a price.
Government Code section 11425.50 (a) requires ALJ's to write a statement of the factual and legal basis for their decisions. And when their decisions include a determination based substantially on witness credibility, 11425.50 (b) provides that the ALJ's written "statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination." And to show how valued these findings are, section (b) goes on to tell courts they must give "great weight" to these credibility findings. California Youth Authority v. State Personnel Bd. 104 Cal.App.4th 575 at p. 588 (2002) citing the Law Revision Commission's comments to section 11425.50 (b) concludes that the ALJ 's credibility findings are not entitled to great weight unless the determination derives from the judge's observation of the demeanor, manner or attitude of the witness.
So, to get deference, the ALJ has to identify or describe what it is about the witness that leads to the conclusion of truthfulness or prevarication. I thought back on the innumerable cases I had heard as a trial judge when I was certain a witness or two lied through his or her teeth. I have not forgotten the testimony of an expert statistician. Lies and damned lies paled in comparison to his statistics. If I had been an ALJ I would have gotten no deference on that one because my determination was not based on his demeanor, attitude or manner. But what if it had been? How does one go about describing why a witness is a lying S.O.B? Does this not involve a creative recitation of the judge’s perceptions, something not reflected in the record? With great empathy for the ALJ's, I tried to fashion credibility findings from another case I had heard when I was a trial judge.
“The witness was perched on the edge of his chair like a trapped condor hoping for an updraft to carry him away. Tiny beads of sweat formed on his forehead like drops of condensation inside an old refrigerator. As the noose of cross-examination tightened around his neck he blurted out an answer that sounded like a scream. His wild eyes bulged as tentacles of terror closed round his heart. I have noted the witness’s nervous twitches and discomfort. In my view the witness is . . . .” The witness is what, a liar or highly credible?
Could not either conclusion apply? A nervous and fidgety witness may simply be exhibiting discomfort in a courtroom where he is the center of attention. His uneasiness may have nothing to do with his truthfulness. The witness who hesitates and stammers may be searching for the truth as opposed to the cool and collected witness whose pat answer is a packaged lie.
Identifying aspects of credibility can be particularly dicey in novel cases, say, for example, when someone sues himself. That is what happened in Lodi v. Lodi 173 Cal.App.3d 628 (1985) a case written by a distinguished jurist, Justice Richard Sims, who coincidentally also authored CYA v. Henderson. If Dickens had written about the Lodi case he might have titled his novel, “The Best of Times—The Worst of Times.” Lodi's complaint alleges that he, Lodi, as a defendant is the beneficiary of a charitable trust, the estate of which should revert to him, Lodi, the plaintiff. Apparently plaintiff and defendant could not agree to settle the matter. Defendant Lodi was served but failed to answer. Plaintiff Lodi sought a default judgment. The trial court's dismissal of Lodi's complaint was affirmed by Justice Sims and his colleagues. Justice Sims with characteristic insight noted the even handed application of justice accorded Lodi. True, Lodi lost, but he also won. Driven by unwavering rectitude, Justice Sims ordered each party to bear his own costs. It is rumored that after the decision the Lodis reconciled, made dinner at home and watched a movie on television, “The Three Faces of Eve.”
I shudder to think what would have happened if the Lodis had gone to trial. I can envision plaintiff and defendant Lodi, each telling his respective lawyer to “sue the bastard” and show no mercy. No doubt discovery would have been an ordeal, but the trial would have been a nightmare. Imagine the difficulties facing the trier of fact if he or she had to identify credibility findings. What if the judge believed Lodi, but disbelieved Lodi? The findings might read as follows: “Plaintiff Lodi was the only credible witness. His answers to defendant Lodi’s convoluted questions were forthright. Lodi was patient and reserved. In contrast, Lodi was fretful, evasive, and hostile. He refused to look Lodi in the eye, slumped in the witness chair and stammered when answering the most simple questions. For Lodi, the truth is a pendulum, which under Lodi’s careful cross examination, sliced Lodi’s lies in half.”
Credibility findings whether articulated or not can have serious repercussions. About 35 years ago, a Municipal Court Judge sitting in traffic court found his wife guilty of speeding. After rejecting her defense before a packed court room, he questioned her veracity, lectured her on traffic safety, and fined her $100. Before calling the next case, he said,"see you at home for dinner, honey.” I have been unable to verify the rumor that he was hospitalized that evening for ptomaine poisoning.
It occurred to me the other night while listening to Fred Astair’s version of Gershwin’s “Anything Goes,” that sooner or later there will be a case where a judge appears before himself. I would hate to appear before me. I am tough on myself and put little stock in my credibility. I would no doubt impose a heavy sentence on me, and this is in a civil case. In a criminal case, I would definitely file an affidavit of prejudice.
For the time being, trial judges do not appear before themselves. Nor are they required to do the heavy lifting required of Administrative Law Judges and explain credibility findings on witness demeanor to get deference from higher courts. But I no longer feel sorry for Administrative Law Judges. I have heard that many supplement their income by selling the movie rights to their credibility findings.
Wednesday, August 04, 2004
Judges Should be Seen-Not Heard
In the Victorian age, when I was a child, a popular grown-up adage was “children should be seen and not heard.” That’s not easy for kids. It is unsettling going down a slide with your mouth open in a silent scream. The behavior of kids today proves that the rule has been repealed with a vengeance. That is why I favor enacting a new rule that takes the old one even further: “Children should not be seen, heard nor had.” Why such a draconian measure? Just look around you: brains, noses, and tongues all pierced, blue hair, tattoos of Dante’s inferno adorning parts of the body one should only see in the National Geographic.
When I am in a restaurant and approached by someone wearing a ring in her nose who says, “Hi, I’m Debbie your server,” I go back to my prehistoric roots and invariably order body parts: liver, brains, tongues, legs or ribs, none of which are good for you.
But my rule would not be enforced today. That is because kids have rights. They sue their schools, their parents, their baby sitters and their coaches. But with rights also comes an occasional burden. Some kids have been sued by record companies for instance.
A variation of the rule that no longer applies to kids does apply to Judges. It is an unwritten rule of survival, “Judges should be seen and not heard . . . except for the occasional ‘denied,’ and ‘sustained.’” Judges who violate the rule are dealt with harshly, except Justice Scalia, but not the rest of us. Take the redoubtable Federal District Judge, Penfield Jackson, who a few years ago tried the Microsoft anti-trust case. He violated the rule. For him the consequences were catastrophic.
Jackson gave secret press interviews about the case while it was pending. The interviews were later published in leading newspapers and magazines. All that publicity was heady until the Court of Appeals reversed him in a 72 page opinion. (See U.S. v Microsoft Corp. 253 F3d 34 (2001).). It was bad enough being reversed for errors of law. But the nightmare came in part VI of the opinion where the appellate court excoriated Judge Jackson for creating the appearance of partiality. Perhaps his scathing denunciations of Bill Gates and Microsoft had something to do with it.
The appellate court berated the judge for “posturing for posterity” by “trying to please reporters with colorful analogies and observations.” The per curium opinion disqualified the judge from further participation in the case for his “deliberate, repeated, egregious and flagrant” violations of the Code of Conduct for United States Judges. If only Judge Jackson had had before him on the bench this captivating sentence, “Katherine your beauty melts snow.” Behind its charming simplicity is a powerful mnemonic to remind judges of a cardinal rule--“Keep Your Big Mouth Shut.”
The judge who hears what is called a publicity case is not the celebrity. The judge is simply a referee making sure the parties are getting a fair trial. The case may be difficult and “trying” in every sense of the term, but the judge is nobody special just because he or she happens to be trying the case. But what of judges who think they have something to say, or some talent to display? Should they hang from the bars of the jungle gym with their lips sealed? Maybe not.
The Russian composer Shostakovich composed symphonies that mocked Stalin and the Soviet regime and he survived. Similarly judges off the bench can creatively express themselves and survive provided they do it with circumspection. My colleague Justice William Bedsworth writes a humorous column called “A Criminal Waste of Time.” He says his column is a safety valve that allows him “to get it out of his system.” It’s different with me. If anything, my columns' safety valve has made my life more dangerous.
If anyone wants to read some of the 140 columns I have written for the Daily Journal they can access them on my blog site, http://www.gilbertsubmits.blogspot.com.
I have gotten some hits, but no home runs.
Some judges play musical instruments in public. “Gavel to Gavel,” the Los Angeles Superior Court Judicial Magazine, shows on its cover five judges in their robes playing their instruments. Judges Aviva Bobb, Mary Thornton House, and Helen Bendix make up the violin string section, Richard Denner, on classical guitar, and Brett Klein on trumpet. My colleague Justice Steven Perren appears in musicals and sings and dances, well mostly sings, on the stage in front of people. His performances at oral argument are legendary. I play the piano, but am loath to do much playing in public because of the Judicial Canon which admonishes judges not to do anything that would reflect poorly on the judiciary. The musician judges seem to feel there is a connection between music and judging. I agree- lots of room for improvisation.
The proliferation of rules about what judges can and cannot do has created anxiety about what is appropriate behavior off the bench. At lunch the other day a colleague was concerned about whether she should order melon out of season. I opined that it would be O.K. for an appellate judge but could be dicey for a trial judge. “No,” my colleague answered, “I mean would this lapse in judgment reflect poorly on the judiciary and possibly get me in trouble with . . . ” I interrupted, “you mean . . . .” “Yes,” she whispered, her face ashen.
It was unnecessary to say more. Judges seldom talk in public about the agency that strikes fear in their hearts, the dread Commission On Judicial Performance. This is the agency that has resisted with iron tenacity the right of discovery for judges charged with misconduct. But judges can relax. The Commission that did not want judges to receive the due process safeguards accorded Saddam Hussein, relented and agreed not to oppose a rule that would give judges some discovery rights.
This takes me to my recent public performance off the bench. Please do not relate this to the Judicial Performance Commission. Once a month, writers, actors, and marginal people like myself with a story to tell, read before an audience at the Powerhouse Theater in Santa Monica. The Powerhouse is not named after a candy bar as I thought, but used to be a power station. The stories revolve around a theme. I read a story at the Powerhouse theater a few months ago, a good portion of which I had lifted from my Daily Journal Column of May 2004 on the L.A. Marathon. The theme was “Truth and Dare.” I misread the title.
I thought it was “Truth or Dare,” the title of a 1991 documentary film in black and white that chronicled Madonna’s “Blonde Ambition” tour where she firmly established her credentials as the nation’s preeminent bearable talent of the decade. She plays the game “Truth or Dare” while sprawled on a gargantuan bed with an entourage of her dancers, who like a pride of priapic pampered persnickety Pomeranians, perversely pant and plead for paltry portions of preferential penance. At the rehearsal the directors thought my penchant for alliteration detracted from my story and cut it out, including the bit about Madonna. One of the producers is just wild about Madonna.
The Daily Journal was going to cover the show and my performance. The editor herself, Katrina Dewey, was going to come, but then decided it was a good night to do her laundry. It was just as well. I had talked to Judge Scalia before I went on and he told me to confiscate any one who tried to tape my reading. I asked if he had misspoken and meant for me to confiscate the tape recorder. “That too,” he replied. So as far as I know, there is not a tape of my performance floating around for the Judicial Performance Commission to gloat over. But not to worry. If there is such a tape, the new discovery rule might give me a chance to hear it before the hearing.
I do not believe that my extra curricular activity at the Powerhouse reflected poorly on the judiciary. How could it? No one knew I was a judge, except my wife, who, at the cast party denied she had ever seen me before. And as for the people who didn’t applaud at the conclusion of my performance, I am pretty sure I can rule on their cases with complete impartiality.
When I am in a restaurant and approached by someone wearing a ring in her nose who says, “Hi, I’m Debbie your server,” I go back to my prehistoric roots and invariably order body parts: liver, brains, tongues, legs or ribs, none of which are good for you.
But my rule would not be enforced today. That is because kids have rights. They sue their schools, their parents, their baby sitters and their coaches. But with rights also comes an occasional burden. Some kids have been sued by record companies for instance.
A variation of the rule that no longer applies to kids does apply to Judges. It is an unwritten rule of survival, “Judges should be seen and not heard . . . except for the occasional ‘denied,’ and ‘sustained.’” Judges who violate the rule are dealt with harshly, except Justice Scalia, but not the rest of us. Take the redoubtable Federal District Judge, Penfield Jackson, who a few years ago tried the Microsoft anti-trust case. He violated the rule. For him the consequences were catastrophic.
Jackson gave secret press interviews about the case while it was pending. The interviews were later published in leading newspapers and magazines. All that publicity was heady until the Court of Appeals reversed him in a 72 page opinion. (See U.S. v Microsoft Corp. 253 F3d 34 (2001).). It was bad enough being reversed for errors of law. But the nightmare came in part VI of the opinion where the appellate court excoriated Judge Jackson for creating the appearance of partiality. Perhaps his scathing denunciations of Bill Gates and Microsoft had something to do with it.
The appellate court berated the judge for “posturing for posterity” by “trying to please reporters with colorful analogies and observations.” The per curium opinion disqualified the judge from further participation in the case for his “deliberate, repeated, egregious and flagrant” violations of the Code of Conduct for United States Judges. If only Judge Jackson had had before him on the bench this captivating sentence, “Katherine your beauty melts snow.” Behind its charming simplicity is a powerful mnemonic to remind judges of a cardinal rule--“Keep Your Big Mouth Shut.”
The judge who hears what is called a publicity case is not the celebrity. The judge is simply a referee making sure the parties are getting a fair trial. The case may be difficult and “trying” in every sense of the term, but the judge is nobody special just because he or she happens to be trying the case. But what of judges who think they have something to say, or some talent to display? Should they hang from the bars of the jungle gym with their lips sealed? Maybe not.
The Russian composer Shostakovich composed symphonies that mocked Stalin and the Soviet regime and he survived. Similarly judges off the bench can creatively express themselves and survive provided they do it with circumspection. My colleague Justice William Bedsworth writes a humorous column called “A Criminal Waste of Time.” He says his column is a safety valve that allows him “to get it out of his system.” It’s different with me. If anything, my columns' safety valve has made my life more dangerous.
If anyone wants to read some of the 140 columns I have written for the Daily Journal they can access them on my blog site, http://www.gilbertsubmits.blogspot.com.
I have gotten some hits, but no home runs.
Some judges play musical instruments in public. “Gavel to Gavel,” the Los Angeles Superior Court Judicial Magazine, shows on its cover five judges in their robes playing their instruments. Judges Aviva Bobb, Mary Thornton House, and Helen Bendix make up the violin string section, Richard Denner, on classical guitar, and Brett Klein on trumpet. My colleague Justice Steven Perren appears in musicals and sings and dances, well mostly sings, on the stage in front of people. His performances at oral argument are legendary. I play the piano, but am loath to do much playing in public because of the Judicial Canon which admonishes judges not to do anything that would reflect poorly on the judiciary. The musician judges seem to feel there is a connection between music and judging. I agree- lots of room for improvisation.
The proliferation of rules about what judges can and cannot do has created anxiety about what is appropriate behavior off the bench. At lunch the other day a colleague was concerned about whether she should order melon out of season. I opined that it would be O.K. for an appellate judge but could be dicey for a trial judge. “No,” my colleague answered, “I mean would this lapse in judgment reflect poorly on the judiciary and possibly get me in trouble with . . . ” I interrupted, “you mean . . . .” “Yes,” she whispered, her face ashen.
It was unnecessary to say more. Judges seldom talk in public about the agency that strikes fear in their hearts, the dread Commission On Judicial Performance. This is the agency that has resisted with iron tenacity the right of discovery for judges charged with misconduct. But judges can relax. The Commission that did not want judges to receive the due process safeguards accorded Saddam Hussein, relented and agreed not to oppose a rule that would give judges some discovery rights.
This takes me to my recent public performance off the bench. Please do not relate this to the Judicial Performance Commission. Once a month, writers, actors, and marginal people like myself with a story to tell, read before an audience at the Powerhouse Theater in Santa Monica. The Powerhouse is not named after a candy bar as I thought, but used to be a power station. The stories revolve around a theme. I read a story at the Powerhouse theater a few months ago, a good portion of which I had lifted from my Daily Journal Column of May 2004 on the L.A. Marathon. The theme was “Truth and Dare.” I misread the title.
I thought it was “Truth or Dare,” the title of a 1991 documentary film in black and white that chronicled Madonna’s “Blonde Ambition” tour where she firmly established her credentials as the nation’s preeminent bearable talent of the decade. She plays the game “Truth or Dare” while sprawled on a gargantuan bed with an entourage of her dancers, who like a pride of priapic pampered persnickety Pomeranians, perversely pant and plead for paltry portions of preferential penance. At the rehearsal the directors thought my penchant for alliteration detracted from my story and cut it out, including the bit about Madonna. One of the producers is just wild about Madonna.
The Daily Journal was going to cover the show and my performance. The editor herself, Katrina Dewey, was going to come, but then decided it was a good night to do her laundry. It was just as well. I had talked to Judge Scalia before I went on and he told me to confiscate any one who tried to tape my reading. I asked if he had misspoken and meant for me to confiscate the tape recorder. “That too,” he replied. So as far as I know, there is not a tape of my performance floating around for the Judicial Performance Commission to gloat over. But not to worry. If there is such a tape, the new discovery rule might give me a chance to hear it before the hearing.
I do not believe that my extra curricular activity at the Powerhouse reflected poorly on the judiciary. How could it? No one knew I was a judge, except my wife, who, at the cast party denied she had ever seen me before. And as for the people who didn’t applaud at the conclusion of my performance, I am pretty sure I can rule on their cases with complete impartiality.
Thursday, July 15, 2004
Nobel Peace Prize or Captial Punishment?
Be prepared to answer a question, but first here are the facts:
Stanley Williams, a.k.a. “Tookie,” murdered the employee of a 7-11 store in Los Angeles. He and his friends then took $120 from the cash register. A few weeks later Williams shot and killed the owner of a motel, his wife and their daughter. He took $50 from the cash drawer. Williams was tried, convicted and sentenced to death for these crimes. What followed were a series of appeals and writ proceedings in state and federal courts. The myriad issues raised in his latest federal habeas writ petition are discussed at length in the 9th Circuit’s 60-page opinion affirming the district courts’ denial of his habeas corpus petition. You can read all about it in Williams. v. Woodford (9th Cir.2002) 306 F 3d 665. Williams sits on death row waiting execution for his crimes. He is the co-founder of the Crips, the infamous gang whose name is synonymous with brutality and violence.
Now the question: What do Tookie Williams and Mother Teresa have in common? Answer: Both were nominated for the Nobel Peace Prize, only Mother Teresa won it. But Williams was also nominated for the Nobel Prize for Literature. Can’t say that about Mother Teresa.
On a recent Sunday evening, the cable channel FX aired a movie, “Redemption,” starring Jamie Foxx in a stunning portrayal of Williams and his journey from ruthless killer to reflective writer and peacemaker. Such a metamorphosis sounds like the hackneyed idea of a mediocre screenwriter, only it is the truth. At first, San Quentin did not make a change in William’s life; he fomented gang wars and spread terror within the prison walls much as he did on the streets of Los Angeles. After he had spent six years in solitary, another prisoner heading for execution left Williams his dictionary.
The dictionary was William’s Rosetta Stone. From it he learned to put words together to express ideas, and he soon began to understand that words carry greater power than a gun, the power to do good and to change lives. With the help of journalist Barbara Becnel, who interviewed Williams for a book she was writing on street gangs, Williams wrote a series of children’s books carrying a common anti-gang theme. He also wrote his own memoir, “Blue Rage, Black Redemption,” which chronicles his journey from the streets of South Central L.A. to prison and “redemption.” His “Tookie Protocols for Peace,” which ironically carries his gang moniker, have been successful in initiating peace between warring gangs. Williams methodically set out to achieve this goal “block by block” so that neighborhoods and cities have become safer. He also has reduced violence within the prison.
His Web site, “Internet Project for Street Peace,” allows kids at risk from different parts of the world to achieve literacy and to talk to one another to find alternatives to violence. He has become an international sensation with two Nobel nominations to his name.
The film portrays Williams as a menacing young man filled with rage and hate, now transformed into a reflective man of letters, promoting peace and working from his cell to save lives. The main off-screen character, Death, was William’s servant and now it may be his master if further petitions seeking review before the U.S. Supreme Court are denied. One wishes Williams had had his dictionary long before the senseless killings that led to his conviction.
Some may see the film’s focus on Williams’ redemption as a dramatic argument against the death penalty. But whatever one thinks about capital punishment, the film highlights how problematic it is and the questions it raises. Williams claims his innocence, but he was convicted of the crimes for which he received a death sentence. His trial counsel Joe Ingber is a seasoned criminal defense attorney, well-known for his extraordinary skill and competence. Both the California Supreme Court in People v. Williams (1998) 44 Cal.3d 1127 and the 9th Circuit (supra) found him to have rendered competent counsel to Williams. Ingber, also known for his wit, is reputed to have mumbled under his breath after the trial judge sentenced Williams to death for each of the four murders, “will that be consecutive or concurrent?” But for the sake of discussion let us assume Williams is in fact guilty of the offenses for which he has been convicted and accept as we must, that the death penalty is the law in California.
Does the clamor in some quarters for commutation of Williams’ sentence reflect our fascination with celebrity? You may recall the case of Jack Abbot, the convicted killer whose prison book, “Belly of the Beast,” gave him credentials as a upcoming important American writer. His correspondence with Norman Mailer ultimately led the Utah Parole Board to release Abbott on conditional parole in the employ of Mailer.
Abbott appeared on the Today show, received a contract from Random House and was written up in leading magazines. After only a few weeks out of prison he stabbed to death a waiter in a restaurant over a dispute about use of the restroom. At his trial the prosecutor read what Abbott had written about the incident: “You have sunk the knife to its hilt into the middle of his chest. Slowly he begins to struggle for his life. You can feel his life trembling through the knife.” The prosecutor asked Abbot if he had written that. Abbot replied, “It’s good, isn’t it?”
But a comparison between Williams and Abbott is neither apt nor fair. Williams’ books are for him acts of atonement, or redemption. His work has brought real good into the world and may be credited with saving lives. The earnings for Williams’ work goes to helping youth at risk, not to enriching Williams. And his supporters are apparently seeking to avoid the death penalty, not to gain his immediate release from prison. But is he deserving of special treatment because of his talent? If he lives, he arguably saves lives. But what of the death row inmates who have changed and also seek redemption yet lack Williams’ talent? Are they not entitled to a commuted sentence if he is?
And what of the victims and their families and friends who seek closure? Not surprisingly, the mother of the 7-11 employee who Williams killed more than 25 years ago, wants the ultimate sentence imposed. Prosecutors who worked on the case said that Williams should die for what he did. Writing a few children’s books doesn’t erase that he is a murderer. But that raises the question of whether he is still a murderer.
DNA evidence has firmly established that a large number of people have been sentenced to die for crimes they did not commit. If a person has so changed that he or she is not the same person who originally committed a crime in the past, is that like a change in one’s “psychological DNA”? Is it fanciful to conclude that the person we execute today is not the same person who committed horrendous crimes more than 25 years ago?
Williams says, “In order for me to experience redemption, I had to first develop a conscience...That enabled me to gradually rectify my many faults…only then was I able to reach out to others and make amends.” Psychologists tell us that conscience is learned. But if Williams is a different individual than the one who mindlessly killed his defenseless victims many years ago, should that matter? The prosecutor argues that Williams committed the murders and he should receive the punishment the law allows for those crimes. [ So does Sue Blake, public policy director for the Criminal Justice Legal Foundation in Sacramento. In a Daily Journal article April 21, 2004, she posits that a movie "glamorizing" Williams, "trivializes the deaths of his victims," and gives " a cold blooded murderer" who gets caught, a break. In the same issue William wrote an indignant article laying the blame for his residency on death row to racism, and his trial and appellate lawyers. This is not the repentant Williams portrayed in the film. And as Blake points out, this calls into question Williams' professed redemption. If Blake is innocent , he does not need redemption. Citing the overwhelming evidence of William's guilt Blake argues that ["J]ustice demands that crimes be punished, not reduced in proportion to the perpetrator's rehabilitation level."] And this in turn poses the question whether rehabilitation is relevant here. Is it a concept that we no longer credit? Remarkably the 9th circuit said, in the closing paragraph of its opinion, “Although Williams’ good works and accomplishments since incarceration may make him a worthy candidate for the exercise of gubernatorial discretion, they are not matters that we in the federal judiciary are at liberty to take into consideration in our review of Williams’ habeas corpus petition.” Williams v. Woodford supra at 725.
Whatever your thoughts about Williams and the death penalty, you should see his website, Tookie’s Corner. Williams’ story makes us confront the question whether redemption equals rehabilitation. And if it does, should that be a factor in the continuous and contentious debate about the death penalty?
Arthur Gilbert is the Presiding Justice of Division Six of the Court of Appeal, Ventura.
Stanley Williams, a.k.a. “Tookie,” murdered the employee of a 7-11 store in Los Angeles. He and his friends then took $120 from the cash register. A few weeks later Williams shot and killed the owner of a motel, his wife and their daughter. He took $50 from the cash drawer. Williams was tried, convicted and sentenced to death for these crimes. What followed were a series of appeals and writ proceedings in state and federal courts. The myriad issues raised in his latest federal habeas writ petition are discussed at length in the 9th Circuit’s 60-page opinion affirming the district courts’ denial of his habeas corpus petition. You can read all about it in Williams. v. Woodford (9th Cir.2002) 306 F 3d 665. Williams sits on death row waiting execution for his crimes. He is the co-founder of the Crips, the infamous gang whose name is synonymous with brutality and violence.
Now the question: What do Tookie Williams and Mother Teresa have in common? Answer: Both were nominated for the Nobel Peace Prize, only Mother Teresa won it. But Williams was also nominated for the Nobel Prize for Literature. Can’t say that about Mother Teresa.
On a recent Sunday evening, the cable channel FX aired a movie, “Redemption,” starring Jamie Foxx in a stunning portrayal of Williams and his journey from ruthless killer to reflective writer and peacemaker. Such a metamorphosis sounds like the hackneyed idea of a mediocre screenwriter, only it is the truth. At first, San Quentin did not make a change in William’s life; he fomented gang wars and spread terror within the prison walls much as he did on the streets of Los Angeles. After he had spent six years in solitary, another prisoner heading for execution left Williams his dictionary.
The dictionary was William’s Rosetta Stone. From it he learned to put words together to express ideas, and he soon began to understand that words carry greater power than a gun, the power to do good and to change lives. With the help of journalist Barbara Becnel, who interviewed Williams for a book she was writing on street gangs, Williams wrote a series of children’s books carrying a common anti-gang theme. He also wrote his own memoir, “Blue Rage, Black Redemption,” which chronicles his journey from the streets of South Central L.A. to prison and “redemption.” His “Tookie Protocols for Peace,” which ironically carries his gang moniker, have been successful in initiating peace between warring gangs. Williams methodically set out to achieve this goal “block by block” so that neighborhoods and cities have become safer. He also has reduced violence within the prison.
His Web site, “Internet Project for Street Peace,” allows kids at risk from different parts of the world to achieve literacy and to talk to one another to find alternatives to violence. He has become an international sensation with two Nobel nominations to his name.
The film portrays Williams as a menacing young man filled with rage and hate, now transformed into a reflective man of letters, promoting peace and working from his cell to save lives. The main off-screen character, Death, was William’s servant and now it may be his master if further petitions seeking review before the U.S. Supreme Court are denied. One wishes Williams had had his dictionary long before the senseless killings that led to his conviction.
Some may see the film’s focus on Williams’ redemption as a dramatic argument against the death penalty. But whatever one thinks about capital punishment, the film highlights how problematic it is and the questions it raises. Williams claims his innocence, but he was convicted of the crimes for which he received a death sentence. His trial counsel Joe Ingber is a seasoned criminal defense attorney, well-known for his extraordinary skill and competence. Both the California Supreme Court in People v. Williams (1998) 44 Cal.3d 1127 and the 9th Circuit (supra) found him to have rendered competent counsel to Williams. Ingber, also known for his wit, is reputed to have mumbled under his breath after the trial judge sentenced Williams to death for each of the four murders, “will that be consecutive or concurrent?” But for the sake of discussion let us assume Williams is in fact guilty of the offenses for which he has been convicted and accept as we must, that the death penalty is the law in California.
Does the clamor in some quarters for commutation of Williams’ sentence reflect our fascination with celebrity? You may recall the case of Jack Abbot, the convicted killer whose prison book, “Belly of the Beast,” gave him credentials as a upcoming important American writer. His correspondence with Norman Mailer ultimately led the Utah Parole Board to release Abbott on conditional parole in the employ of Mailer.
Abbott appeared on the Today show, received a contract from Random House and was written up in leading magazines. After only a few weeks out of prison he stabbed to death a waiter in a restaurant over a dispute about use of the restroom. At his trial the prosecutor read what Abbott had written about the incident: “You have sunk the knife to its hilt into the middle of his chest. Slowly he begins to struggle for his life. You can feel his life trembling through the knife.” The prosecutor asked Abbot if he had written that. Abbot replied, “It’s good, isn’t it?”
But a comparison between Williams and Abbott is neither apt nor fair. Williams’ books are for him acts of atonement, or redemption. His work has brought real good into the world and may be credited with saving lives. The earnings for Williams’ work goes to helping youth at risk, not to enriching Williams. And his supporters are apparently seeking to avoid the death penalty, not to gain his immediate release from prison. But is he deserving of special treatment because of his talent? If he lives, he arguably saves lives. But what of the death row inmates who have changed and also seek redemption yet lack Williams’ talent? Are they not entitled to a commuted sentence if he is?
And what of the victims and their families and friends who seek closure? Not surprisingly, the mother of the 7-11 employee who Williams killed more than 25 years ago, wants the ultimate sentence imposed. Prosecutors who worked on the case said that Williams should die for what he did. Writing a few children’s books doesn’t erase that he is a murderer. But that raises the question of whether he is still a murderer.
DNA evidence has firmly established that a large number of people have been sentenced to die for crimes they did not commit. If a person has so changed that he or she is not the same person who originally committed a crime in the past, is that like a change in one’s “psychological DNA”? Is it fanciful to conclude that the person we execute today is not the same person who committed horrendous crimes more than 25 years ago?
Williams says, “In order for me to experience redemption, I had to first develop a conscience...That enabled me to gradually rectify my many faults…only then was I able to reach out to others and make amends.” Psychologists tell us that conscience is learned. But if Williams is a different individual than the one who mindlessly killed his defenseless victims many years ago, should that matter? The prosecutor argues that Williams committed the murders and he should receive the punishment the law allows for those crimes. [ So does Sue Blake, public policy director for the Criminal Justice Legal Foundation in Sacramento. In a Daily Journal article April 21, 2004, she posits that a movie "glamorizing" Williams, "trivializes the deaths of his victims," and gives " a cold blooded murderer" who gets caught, a break. In the same issue William wrote an indignant article laying the blame for his residency on death row to racism, and his trial and appellate lawyers. This is not the repentant Williams portrayed in the film. And as Blake points out, this calls into question Williams' professed redemption. If Blake is innocent , he does not need redemption. Citing the overwhelming evidence of William's guilt Blake argues that ["J]ustice demands that crimes be punished, not reduced in proportion to the perpetrator's rehabilitation level."] And this in turn poses the question whether rehabilitation is relevant here. Is it a concept that we no longer credit? Remarkably the 9th circuit said, in the closing paragraph of its opinion, “Although Williams’ good works and accomplishments since incarceration may make him a worthy candidate for the exercise of gubernatorial discretion, they are not matters that we in the federal judiciary are at liberty to take into consideration in our review of Williams’ habeas corpus petition.” Williams v. Woodford supra at 725.
Whatever your thoughts about Williams and the death penalty, you should see his website, Tookie’s Corner. Williams’ story makes us confront the question whether redemption equals rehabilitation. And if it does, should that be a factor in the continuous and contentious debate about the death penalty?
Arthur Gilbert is the Presiding Justice of Division Six of the Court of Appeal, Ventura.
Speeding Justice Part I
I got another speeding ticket. Damn!--on the Pacific Coast Highway about 8 miles north of where I got my previous speeding ticket, seven years earlier. I plan to go to traffic school-- again. I wrote at length about my past traffic school experience, (euphemism for ordeal.) For those of you who have not indexed my columns of past years, it appeared in the Daily Journal May 6th (1996) The Los Angeles Times even quoted portions of it. I hope the comedy traffic school I chose this time will be funny. The earlier one did not even approach mirthful. “Tragic Traffic School” would have been a more appropriate sobriquet.
My speeding offense is deemed a “violation.” Yet, despite this odious appellation, more condemning than say “transgression,” I publicly acknowledge it. “Why?” the more inquisitive might ask. Simply to demonstrate that judges are human and subject like all mortals to those lapses that are inextricably tied to the human condition. In fact I am planning to write an enlightening book titled, “Judges are Human.” Publishers lack interest. They tell me people do not read that much fiction these days.
People have traditionally thought of judges as abstractions, devoid of emotion, curiosity or passion, bloodlessly applying the law. Perhaps that is why Judge Judy and her imitators are so popular. However obnoxious, rude, and undignified these television judges are, they at least register a heartbeat if not a racing pulse, as evidenced by the tongue lashings they administer to the hapless litigants who appear before them. The unflattering image these judges bring to a large segment of the daytime watching television audience has caused real judges to recoil and double their efforts to be as nondescript as possible.
Some judges work at cultivating a demeanor that is cold and aloof. It is supposed to reflect the absence of passion or emotion that could cloud the intellect and skew a decision. This notion of judging may leave some wondering just how justice is supposed to flourish in this antiseptic climate. But cannot a judge be dignified, fair and impartial and also be and appear human?
Of course to be human is also to err. And judges do that. Just read the advance sheets. And there are errors in judgment however human that judges simply are not allowed to make. Take for example the recent contretemps over private judging. I am not talking about what some complain is a separate system of judging for the rich. I can understand the desire of a judge to retire to smell green backs instead of red roses. Of course if the market for the judge’s services is wanting, smell gives way to the taste of sour grapes. For private judges unlike public ones, it is important to let the consumers know you are available. No doubt that explains why so many private judges show up at bar functions. It also explains why many private judges advertise their services. Yes, there is the argument that no matter how tasteful the ad, endorsements in elite italics, and Visa and Mastercard logos unobtrusively placed in a bottom corner, it is still unseemly. Maybe so, but as I said, judges are human and what’s wrong with making some money and supplying a service to willing parties?
But it gets dicey when the retired judge for hire also sits on assignment as a public judge. Some perceive that a sitting public judge carries a status that fails to attach to a retired judge. Retired judges recently learned that you cannot have your cachet and eat it. The Chief Justice has promulgated a new policy that prevents private judges from sitting on assignment. They must choose between cash and cachet. There is no question that the judges sitting on assignment render a valuable service and their integrity is beyond question, but as the Chief said as reported in the Los Angeles Times, “the public might think judges with private business could favor litigants who are potential future clients.” He is right. Being public and private is like trying to play in a major and minor key at the same time. It doesn’t work and the tune does not sound good. It is human to legitimately seek more money, but the sensible rule promulgated by the Chief requires judges to choose between cash and cachet.
But too heightened a concern about judges acting like human beings can set off false alarms that weaken the judiciary. Take for example the recent furor over the epistolary exchange between 9th Circuit Court of Appeals judge Alex Kozinski and a San Quentin lifer convicted of murder. The inmate, who was once on death row, and Judge Kozinski have one thing in common. They are both talented writers. As reported in the Los Agneles Times on February 16, 2003, the correspondence began when the inmate wrote Kozinski about an article Kozinski wrote in the New Yorker favoring the death penalty. Kozinski even paid the inmate a visit when he toured San Quentin. Kozinski has said that some of his opinions were preceded by 50 drafts. I can assure you none were sent to his prison pen pal for editing.
A philosophical exchange between the judge and the convict about the death penalty has prompted the state Attorney General’s Office to conduct an investigation and request that Judge Kozinski does not hear California death penalty cases. Please. I don’t always agree with him, but Judge Kozinski is one of the most talented, intellectual, and interesting judges to sit on any court. His sin is having an inquiring mind. Curiosity may be lethal to cats, but should not be injurious to judges.
The prosecutors are unnerved. They are concerned that this brilliant jurist might he less supportive of the death penalty because he corresponded with and visited an inmate who for a time was on death row. Horrors. Judge Kozinski attributes the prosecutor’s discomfort to the recognition that it is easier to dispose of death penalty cases “if you don’t think of them (the defendants) as human beings.” But the jurist who recognizes that judges and litigants are human, evidences an awareness of the awesome responsibility that judging carries. Judge Kozinski’s recognition of this truth, together with his formidable and wide ranging intellect, make him an ideal judge. So what is there to investigate? Judge Kozinski has not ruled on any matter involving the inmate at San Quentin nor would he. As far as anyone can determine he is still an outspoken proponent of the death penalty.
Prosecutors can relax. A “human” judge does not mean ignore judicial ethics or decide cases strictly on emotion. Nor does it mean that all human behavior is appropriate for a judge. I merely suggest that because judges are human beings, they should not be ashamed to act like one. I will leave to you dear reader to decide whether this discussion relates to the judges on the 8th Circuit who upheld the procedure in Arkansas of forcing an insane prisoner to take antipsychotic drugs so that he would be “sane” when the state imposed the death penalty.
The reticence to reveal anything about one’s self, does not bode well for those who aspire to the bench. Miguel Estrada, President Bush’s nominee to the U.S. Circuit Court of Appeals for the District of Columbia did not answer questions put to him by the Senate Judiciary Committee. The committee has a legitimate interest, indeed an obligation to know something about Estrada the human being, about Estrada’s judicial philosophy. He ran into opposition, not because of his views, but because no one knows what they are. I am not sure if the administration is concerned that Estrada may be too conservative for a majority of the judiciary committee, but I bet Estrada would have fared better if he revealed himself to the committee as a human being instead of a cipher.
A judge should be disinterested. Note, I did not say uninterested. A judge can be human, can have strong political and philosophical views, and still be disinterested. Disinterested means neutral, unbiased, objective, even handed. A disinterested judge is engaged in all aspects of a case from its legal intricacies to its human elements and fulfills the judge’s obligations to the parties and to society. Some judges are preoccupied with statistics and view the administration of justice as a race to see who can dispose of the most cases in any given stretch of time. The focus is on statistics, and at the end of the day, success is measured by how many cases are decided. By contrast, a disinterested judge works efficiently, but is primarily concerned with how a case is decided. That is the mark of a judge who is human.
I could go on, but I have to bone up for traffic school. At the end of the day they give you a test on the vehicle code. I know it’s human to miss a question or two, but imagine how embarrassing it is for a judge not to get a
My speeding offense is deemed a “violation.” Yet, despite this odious appellation, more condemning than say “transgression,” I publicly acknowledge it. “Why?” the more inquisitive might ask. Simply to demonstrate that judges are human and subject like all mortals to those lapses that are inextricably tied to the human condition. In fact I am planning to write an enlightening book titled, “Judges are Human.” Publishers lack interest. They tell me people do not read that much fiction these days.
People have traditionally thought of judges as abstractions, devoid of emotion, curiosity or passion, bloodlessly applying the law. Perhaps that is why Judge Judy and her imitators are so popular. However obnoxious, rude, and undignified these television judges are, they at least register a heartbeat if not a racing pulse, as evidenced by the tongue lashings they administer to the hapless litigants who appear before them. The unflattering image these judges bring to a large segment of the daytime watching television audience has caused real judges to recoil and double their efforts to be as nondescript as possible.
Some judges work at cultivating a demeanor that is cold and aloof. It is supposed to reflect the absence of passion or emotion that could cloud the intellect and skew a decision. This notion of judging may leave some wondering just how justice is supposed to flourish in this antiseptic climate. But cannot a judge be dignified, fair and impartial and also be and appear human?
Of course to be human is also to err. And judges do that. Just read the advance sheets. And there are errors in judgment however human that judges simply are not allowed to make. Take for example the recent contretemps over private judging. I am not talking about what some complain is a separate system of judging for the rich. I can understand the desire of a judge to retire to smell green backs instead of red roses. Of course if the market for the judge’s services is wanting, smell gives way to the taste of sour grapes. For private judges unlike public ones, it is important to let the consumers know you are available. No doubt that explains why so many private judges show up at bar functions. It also explains why many private judges advertise their services. Yes, there is the argument that no matter how tasteful the ad, endorsements in elite italics, and Visa and Mastercard logos unobtrusively placed in a bottom corner, it is still unseemly. Maybe so, but as I said, judges are human and what’s wrong with making some money and supplying a service to willing parties?
But it gets dicey when the retired judge for hire also sits on assignment as a public judge. Some perceive that a sitting public judge carries a status that fails to attach to a retired judge. Retired judges recently learned that you cannot have your cachet and eat it. The Chief Justice has promulgated a new policy that prevents private judges from sitting on assignment. They must choose between cash and cachet. There is no question that the judges sitting on assignment render a valuable service and their integrity is beyond question, but as the Chief said as reported in the Los Angeles Times, “the public might think judges with private business could favor litigants who are potential future clients.” He is right. Being public and private is like trying to play in a major and minor key at the same time. It doesn’t work and the tune does not sound good. It is human to legitimately seek more money, but the sensible rule promulgated by the Chief requires judges to choose between cash and cachet.
But too heightened a concern about judges acting like human beings can set off false alarms that weaken the judiciary. Take for example the recent furor over the epistolary exchange between 9th Circuit Court of Appeals judge Alex Kozinski and a San Quentin lifer convicted of murder. The inmate, who was once on death row, and Judge Kozinski have one thing in common. They are both talented writers. As reported in the Los Agneles Times on February 16, 2003, the correspondence began when the inmate wrote Kozinski about an article Kozinski wrote in the New Yorker favoring the death penalty. Kozinski even paid the inmate a visit when he toured San Quentin. Kozinski has said that some of his opinions were preceded by 50 drafts. I can assure you none were sent to his prison pen pal for editing.
A philosophical exchange between the judge and the convict about the death penalty has prompted the state Attorney General’s Office to conduct an investigation and request that Judge Kozinski does not hear California death penalty cases. Please. I don’t always agree with him, but Judge Kozinski is one of the most talented, intellectual, and interesting judges to sit on any court. His sin is having an inquiring mind. Curiosity may be lethal to cats, but should not be injurious to judges.
The prosecutors are unnerved. They are concerned that this brilliant jurist might he less supportive of the death penalty because he corresponded with and visited an inmate who for a time was on death row. Horrors. Judge Kozinski attributes the prosecutor’s discomfort to the recognition that it is easier to dispose of death penalty cases “if you don’t think of them (the defendants) as human beings.” But the jurist who recognizes that judges and litigants are human, evidences an awareness of the awesome responsibility that judging carries. Judge Kozinski’s recognition of this truth, together with his formidable and wide ranging intellect, make him an ideal judge. So what is there to investigate? Judge Kozinski has not ruled on any matter involving the inmate at San Quentin nor would he. As far as anyone can determine he is still an outspoken proponent of the death penalty.
Prosecutors can relax. A “human” judge does not mean ignore judicial ethics or decide cases strictly on emotion. Nor does it mean that all human behavior is appropriate for a judge. I merely suggest that because judges are human beings, they should not be ashamed to act like one. I will leave to you dear reader to decide whether this discussion relates to the judges on the 8th Circuit who upheld the procedure in Arkansas of forcing an insane prisoner to take antipsychotic drugs so that he would be “sane” when the state imposed the death penalty.
The reticence to reveal anything about one’s self, does not bode well for those who aspire to the bench. Miguel Estrada, President Bush’s nominee to the U.S. Circuit Court of Appeals for the District of Columbia did not answer questions put to him by the Senate Judiciary Committee. The committee has a legitimate interest, indeed an obligation to know something about Estrada the human being, about Estrada’s judicial philosophy. He ran into opposition, not because of his views, but because no one knows what they are. I am not sure if the administration is concerned that Estrada may be too conservative for a majority of the judiciary committee, but I bet Estrada would have fared better if he revealed himself to the committee as a human being instead of a cipher.
A judge should be disinterested. Note, I did not say uninterested. A judge can be human, can have strong political and philosophical views, and still be disinterested. Disinterested means neutral, unbiased, objective, even handed. A disinterested judge is engaged in all aspects of a case from its legal intricacies to its human elements and fulfills the judge’s obligations to the parties and to society. Some judges are preoccupied with statistics and view the administration of justice as a race to see who can dispose of the most cases in any given stretch of time. The focus is on statistics, and at the end of the day, success is measured by how many cases are decided. By contrast, a disinterested judge works efficiently, but is primarily concerned with how a case is decided. That is the mark of a judge who is human.
I could go on, but I have to bone up for traffic school. At the end of the day they give you a test on the vehicle code. I know it’s human to miss a question or two, but imagine how embarrassing it is for a judge not to get a
Speeding Justice Part II
People have complained. My column is late once again. But what do you expect after my last column which appeared in March? You may recall the subversive theme which bound all the seemingly unrelated topics together: judges are human. They screw up just like everyone else. Clinging to the cliché that to err is human, I foolishly confessed to speeding on the insidious Pacific Coast Highway. A behemoth they call an SUV, sucking up gas, its insouciant driver on a cell phone, was poking along in the lane ahead of me. Jaguar and I had enough and we changed lanes and passed on the left just as a sheriff's deputy going in the opposite direction zapped us with radar gun.
Yes, I was speeding, but only for a short distance. All right, maybe I would have continued to speed, who knows? My admission engendered no more than a yawn from my readers. Not content to leave it at that, I acknowledged being caught, and the yawn gave way to contempt. Contempt morphed into scorn when I revealed the depths to which my self-respect had fallen. I owned up to the disgrace of receiving a speeding ticket. I did not even challenge the accuracy of the radar gun, which I learned in traffic school might have won the case for me. Somehow demanding that the officer show me his radar gun at the scene did not occur to me.
Justice William O. Douglas's imperfections were of mammoth proportions according to a recent biography, "Wild Bill: The Legend and Life of William O. Douglas" by Bruce Allen Murphy, Random House, 2003. So you can hardly expect perfection of me. So why was the column late? I could blame it on the beautiful Saturday I lost in traffic school at the Improv Comedy Club, a hole in the ground off an alley in Santa Monica. Instead of joining my classmates in the serious study of the subtleties and nuances of the Vehicle Code, I could have been composing this revealing column. But that is not the real reason for the delay.
To be perfectly honest, I was embarrassed by my results on the traffic test. In the March column I foolishly hinted at my expectation of receiving a perfect score. By now the prescient reader has deduced that I did not pass the test with flying colors. The damned test accounts for my carrying the "judges are human" theme over to this long-awaited column. Once again frailty meekly raises its bowed head. I expect to do much better on the make up-test.
The manner in which the test was given made the pressure unbearable. The instructor couldn't have just given us a written multiple choice test at the end of the class. Oh no, he had to go around the room and ask impossible to answer questions. I had legitimate handicaps. First of all, the current Vehicle Code is not the one I used when I was reigning king of traffic court back in the 1970's. Furthermore, the instructor had it in for me. He spent the first half of the course telling us how to beat traffic tickets. Can you imagine? Without revealing my true identity, I suggested that perhaps this was not the best approach to promote traffic safety. "Should we not own up to our traffic transgressions instead of devising ways to avoid punishment?" I asked innocently. Instantaneously, I became the class pariah. You expect me to do well on the test?
Try this question. When you turn left from an intersection into which lane should you go? Would not any reasonable person say, as I did, "the left lane"? Wrong. You can turn into any lane provided it is safe to do so. I wonder. When I have time I'm going to look it up. Do you know what color car gets the most tickets? I said, "red." Wrong again. It is white. Question--What color car gets the least traffic tickets? Answer--Black and White. Remember, this is comedy traffic school.
This experience has made me so obsessed with human error that I have come to believe I am responsible for the blunders of others. My wife ascribes this condition as a perverse form of megalomania. When I go to the bank and the computers are down, I apologize to everyone waiting in line for the teller. Shortly after my matriculation from traffic school, my self-confidence was somewhere below sea level. While in this fragile condition, I was leafing through West’s California Reporter when I came across something that caused me to post a sign offering a reward for information leading to the whereabouts of my mind. Before my eyes was a case that had been recently decided in my division. The majority opinion to which I had concurred, was written by Justice Perren. It was a typically good Perren opinion, but the dissent gave me a start. Justice Perren was listed as its author. I broke out in a cold sweat. First a speeding ticket, a humbling experience in traffic school, and now this.
One Perren and one Gilbert is one thing, but two Perrens and one Gilbert is out of the question. I confronted Perren and asked him if he had an alter ego on the loose. He said I was the closest he had come to having an alter ego and that another Perren would create a devastating identity crisis for both of us. As his self-appointed mentor, I had once suggested that a good appellate judge should be careful not to hold absolute views. I wondered whether Perren had taken my counsel too seriously. To my relief, he informed me that the publishing company had made a mistake. I took down the sign.
But I was still feeling a little shaky, but steadily improving. The dreams about headlines screaming "Ex traffic judge caught speeding" were recurring less frequently. On the premise that misery loves company, I felt whole again after receiving something interesting in the mail.
Federal Magistrate Judge Andrew J. Wistrich sent me his fascinating law review article which he co-authored with Professors Chris Guthrie and Jeffrey J. Rachlinski. It is titled, "Inside The Judicial Mind," Cornell Law Review, Volume 86, May 2001. Once you accept the basic assumption made by the title, the article tactfully reveals what the cynical among you may have suspected.
To quote from the introduction; "Judges, it seems are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment." Now that got my attention. Speeding on the highway is one thing, but speeding on the bench is quite another. The authors arrived at their conclusions after conducting an empirical study of 167 human federal magistrate judges who agreed to serve as guinea . . . I mean volunteers.
Like all humans, judges make many decisions on complex issues through what psychologists call "heuristics," a fancy word for "mental shortcuts." This in turn can lead to "cognitive illusions" which lead to errors in judgment. Oh dear! If the federal magistrate judges are an example, not just one, but five formidable cognitive illusions influence the way judges make decisions. They include: "1) anchoring, (making estimates based on irrelevant starting points); 2) framing (treating economically equivalent gains and losses differently) ; 3) hindsight bias (perceiving past events to have been more predictable than they actually were); 4) the representativeness heuristic (ignoring important background statistical information in favor of individuating information); and 5) egocentric biases (overestimating one's own abilities)." The latter is a trait I have observed in abundance.
Examples abound. Judges, like juries, may be influenced by an "anchor" when assessing damages. The request for a specific amount may influence the result by setting the standard of reference for the judgment. Higher requests may get higher awards. Framing the decision options can significantly influence the decision whether it be to help settle the case or decide issues. The study shows that in disputes over ownership of property, for example, the possessor of the property usually wins even when "possession is arbitrary." Arbitrary according to whom?
Judges, like everyone else, are prone to "hindsight bias," an illusion that one has the ability to have predicted past events before they occurred, and that others should have been able to do so. Easy to say after the event has occurred, but in reality often impossible to do. And of course there is that insidious "egocentric bias" which can be a blinder to the recognition of one's limitations. But the authors point out that overall the benefits of having a confident decisive judge are outweighed by an "occasional erroneous decision." Although an inflated belief in one's abilities may be the most difficult illusion to overcome, going to traffic school is a good step in the right direction.
"Inside the Judicial Mind" should be required reading for all judges. I would prefer lawyers not read it, but I'm sure they will with glee. So we are all human and subject to cognitive illusions. No system of justice is perfect, and Judge Wistrich and his colleagues have made us aware of our shortcomings. We are all human and from self-awareness of our human limitations comes the likelihood of better judging and more insight into our concept of justice. It also might make us safer drivers.
Judge Writes Racy Screenplay
Like a river, a theme runs through my last several columns. It is the painful but important recognition that judges, like all humans, are subject to foibles, prone to mistakes, and liable to fall on their faces at the slightest impulse. My frank exploration of this phenomenon has stimulated an interest in some of my readers that borders on the obsessive. Diverse in their backgrounds and philosophies, they share two common characteristics: 1. they are not judges, 2. they take a morbid delight recounting the concrete example I provided of the prosaic maxim that no one, which includes no judge, is above the law. Why such exhilaration over the knowledge that speeding judge gets traffic ticket and attends all day traffic school where know-it-all instructor lords it over him?
Whatever the reason, I have thoroughly examined the existential dilemma of the judge as authority figure, decision maker, and arbiter of right and wrong on the one hand, and floundering, insecure dolt on the other. How best to bridge the gap between omnipotence and ineptitude? I have the answer. It can be summed up in one word: awareness. Judges must be cognizant of their shortcomings. The seeming simplicity of my solution is complex in application. In the infinite variety of situations in which judges find themselves, one cannot reasonably expect them to be aware of everything they do or say each and every moment.
As just one example, judges who decide cases involving important and sensitive issues regarding bias and sexual harassment could themselves be unwittingly guilty of the very conduct that gives rise to the lawsuit they are deciding. It is like the basketball referee who double dribbles when he and his buddies play basketball on his day off.
To heighten the self-awareness of judges hearing cases involving workplace harassment torts, and to make them more sensitive to their own employees and litigants, I have written an instructive yet artistic screenplay. Oddly, investor interest has been tepid. I have pitched my script to various studios but not one has bitten. If you are over 12 years of age, no one in this business will give you the time of day. The studios could learn something about age discrimination, but obviously they are not aware of their own biases.
The Center for Judicial Education and Research has a copy of the script. I still haven’t heard anything from them. I think they are mulling it over. They have had it for 8 years. If I don’t hear from them soon, I'm going to shop it elsewhere. Space and time do not permit me to reproduce the script in its entirety, but here are some highlights. The discerning reader will note the influence of French New Wave cinema. The working title is simply “Bias,” Un film de Artur Gilber. (Soft G.)
Throughout the film an on screen narrator functions as a Greek chorus. Dressed in judicial robes, he or she is the embodiment of judicial awareness, a sort of judicial every man or woman. Most of the time the characters are unaware of the narrator’s presence, but on occasion there may be interaction between a character and the narrator.
Scene I
(Justice Grendel pulls into his reserved parking space at the courthouse parking lot.
Narrator and Justice Grendel walking from the parking lot into the building.)
Narrator
(Putting his hand on the shoulder of Justice Grendel and speaking to the viewer.) This is Justice Grendel coming to work. He’s fair. Well at least he thinks he’s fair.
(Justice Grendel is oblivious to the existence of the narrator.) They walk into the building and into the justice's chambers. Justice Grendel walks by his secretary and says “Hi Babe." The Narrator is shocked. (He speaks to the secretary.) Madame- weren’t you offended?
Secretary
No, and please don’t call me Madame.
Narrator
Sorry, but may I ask your name?
Secretary
Babe Henderson.
Narrator
So you don’t mind being called . . . .
Secretary
By my name, certainly not.
Narrator
Do you have a good relationship with your justice?
Secretary
I really like working for Justice Grendel, but sometimes he is sarcastic when I make a mistake.
Justice Grendel
(Calling Babe. He sounds irritated.) Babe you have a remarkable talent to type while asleep. No doubt your comatose condition accounts for your omitting the changes I noted on page four.
Secretary
(To narrator.) See what I mean?
Narrator
Have you discussed your complaint with the justice?
Secretary
Should I have to?
Narrator
(Speaking to the viewers.) The way in which the court treats its staff reflects on its image. One never knows what staff say about the court to family or friends.
Scene II
Cut to Babe Henderson at a large family Thanksgiving dinner. She is at the head of the table about to carve the turkey. The mood is festive and gay. Uncle Jake yells, “It’s Thanksgiving. First thing we do, let’s kill all the turkeys.” Everyone laughs. Babe begins carving with the expertise of a neurosurgeon. She is intent and seems to be relishing her work. “You sure know how to slice up that turkey,” someone remarks. Babe looks up and says, “I just pretend its Judge Grendel, the turkey I work for.” Raucous laughter from the guests.
Narrator
See what I mean? In public it is important to keep your awesome power in check. Remember Teddy Roosevelt’s admonition and keep your voice down. Wearing your robes to dinner parties is not recommended. Nor is it advisable to hold members of the public, merchants, service personnel and the like, or even family and friends with whom you have disagreements, in contempt. Such conduct tends to erode public confidence in the courts.
Scene III
(Narrator follows Justice Grendel into a conference room for a writ conference. The writ attorney enters the room.)
Justice Grendel
(Acknowledging the writ attorney.) Hi Sweets.
Narrator
(To the writs attorney.) I suppose your name is Sweets.
Writs attorney
No, it's Honey Holloway.
Narrator
They shouldn’t talk to you in that manner.
Honey
Are you trying to stir something up?
Narrator
No, but calling you Sweets . . . .
Honey
It beats calling me by my name. I have told everyone not to call me Honey. I always bring candy to the court. That's why they call me "Sweets" and that suits me fine. Get it, dork head? So do me a favor and butt out.
Narrator
(To viewers.) Some people cannot appreciate legislation for their own good.
Scene IV
(In the courtroom. An attorney is arguing a case to the justices. Two of the justices are conversing on the bench while the attorney is arguing.)
Narrator
(Interrupts the justices. This time the narrator is invisible to the attorney but engages in conversation with the justices.) You know you are talking while the attorney is arguing.
Justice 2
We hear him. He’s not saying much. In fact he’s just repeating what was said in his brief.
Narrator
He probably thinks you are prejudiced against him.
Justice 2
We aren’t prejudiced against him, just against his position.
Narrator
But it looks to him and to his clients, who incidentally are in the courtroom, as though you do not care about his case. You owe him your undivided attention, no matter how bad his argument is.
Justice 3
(To the narrator.) Mind your own damn business.
Justice 2
(To Justice 3.) Smartest thing I've ever heard from you. You won’t get a dissent from me on that one.
Narrator
(To all the justices.) Your insolent and demeaning conduct is rude and boorish. You should treat all attorneys with respect and civility.
Justice 1
(First turning to his colleagues.) This guy is some kind of radical. (Now to narrator.) We have heard just about enough of you. Take this as a warning.
Narrator
You wouldn’t treat lawyers like this if you were private judges.
Justice 1
Bailiff ! (Bailiff pulls the screaming narrator out of the courtroom.)
I have to stop here. I don’t want to give the trick ending away. I don't have a release date, but when the film comes out, you are all invited to the premire.
Whatever the reason, I have thoroughly examined the existential dilemma of the judge as authority figure, decision maker, and arbiter of right and wrong on the one hand, and floundering, insecure dolt on the other. How best to bridge the gap between omnipotence and ineptitude? I have the answer. It can be summed up in one word: awareness. Judges must be cognizant of their shortcomings. The seeming simplicity of my solution is complex in application. In the infinite variety of situations in which judges find themselves, one cannot reasonably expect them to be aware of everything they do or say each and every moment.
As just one example, judges who decide cases involving important and sensitive issues regarding bias and sexual harassment could themselves be unwittingly guilty of the very conduct that gives rise to the lawsuit they are deciding. It is like the basketball referee who double dribbles when he and his buddies play basketball on his day off.
To heighten the self-awareness of judges hearing cases involving workplace harassment torts, and to make them more sensitive to their own employees and litigants, I have written an instructive yet artistic screenplay. Oddly, investor interest has been tepid. I have pitched my script to various studios but not one has bitten. If you are over 12 years of age, no one in this business will give you the time of day. The studios could learn something about age discrimination, but obviously they are not aware of their own biases.
The Center for Judicial Education and Research has a copy of the script. I still haven’t heard anything from them. I think they are mulling it over. They have had it for 8 years. If I don’t hear from them soon, I'm going to shop it elsewhere. Space and time do not permit me to reproduce the script in its entirety, but here are some highlights. The discerning reader will note the influence of French New Wave cinema. The working title is simply “Bias,” Un film de Artur Gilber. (Soft G.)
Throughout the film an on screen narrator functions as a Greek chorus. Dressed in judicial robes, he or she is the embodiment of judicial awareness, a sort of judicial every man or woman. Most of the time the characters are unaware of the narrator’s presence, but on occasion there may be interaction between a character and the narrator.
Scene I
(Justice Grendel pulls into his reserved parking space at the courthouse parking lot.
Narrator and Justice Grendel walking from the parking lot into the building.)
Narrator
(Putting his hand on the shoulder of Justice Grendel and speaking to the viewer.) This is Justice Grendel coming to work. He’s fair. Well at least he thinks he’s fair.
(Justice Grendel is oblivious to the existence of the narrator.) They walk into the building and into the justice's chambers. Justice Grendel walks by his secretary and says “Hi Babe." The Narrator is shocked. (He speaks to the secretary.) Madame- weren’t you offended?
Secretary
No, and please don’t call me Madame.
Narrator
Sorry, but may I ask your name?
Secretary
Babe Henderson.
Narrator
So you don’t mind being called . . . .
Secretary
By my name, certainly not.
Narrator
Do you have a good relationship with your justice?
Secretary
I really like working for Justice Grendel, but sometimes he is sarcastic when I make a mistake.
Justice Grendel
(Calling Babe. He sounds irritated.) Babe you have a remarkable talent to type while asleep. No doubt your comatose condition accounts for your omitting the changes I noted on page four.
Secretary
(To narrator.) See what I mean?
Narrator
Have you discussed your complaint with the justice?
Secretary
Should I have to?
Narrator
(Speaking to the viewers.) The way in which the court treats its staff reflects on its image. One never knows what staff say about the court to family or friends.
Scene II
Cut to Babe Henderson at a large family Thanksgiving dinner. She is at the head of the table about to carve the turkey. The mood is festive and gay. Uncle Jake yells, “It’s Thanksgiving. First thing we do, let’s kill all the turkeys.” Everyone laughs. Babe begins carving with the expertise of a neurosurgeon. She is intent and seems to be relishing her work. “You sure know how to slice up that turkey,” someone remarks. Babe looks up and says, “I just pretend its Judge Grendel, the turkey I work for.” Raucous laughter from the guests.
Narrator
See what I mean? In public it is important to keep your awesome power in check. Remember Teddy Roosevelt’s admonition and keep your voice down. Wearing your robes to dinner parties is not recommended. Nor is it advisable to hold members of the public, merchants, service personnel and the like, or even family and friends with whom you have disagreements, in contempt. Such conduct tends to erode public confidence in the courts.
Scene III
(Narrator follows Justice Grendel into a conference room for a writ conference. The writ attorney enters the room.)
Justice Grendel
(Acknowledging the writ attorney.) Hi Sweets.
Narrator
(To the writs attorney.) I suppose your name is Sweets.
Writs attorney
No, it's Honey Holloway.
Narrator
They shouldn’t talk to you in that manner.
Honey
Are you trying to stir something up?
Narrator
No, but calling you Sweets . . . .
Honey
It beats calling me by my name. I have told everyone not to call me Honey. I always bring candy to the court. That's why they call me "Sweets" and that suits me fine. Get it, dork head? So do me a favor and butt out.
Narrator
(To viewers.) Some people cannot appreciate legislation for their own good.
Scene IV
(In the courtroom. An attorney is arguing a case to the justices. Two of the justices are conversing on the bench while the attorney is arguing.)
Narrator
(Interrupts the justices. This time the narrator is invisible to the attorney but engages in conversation with the justices.) You know you are talking while the attorney is arguing.
Justice 2
We hear him. He’s not saying much. In fact he’s just repeating what was said in his brief.
Narrator
He probably thinks you are prejudiced against him.
Justice 2
We aren’t prejudiced against him, just against his position.
Narrator
But it looks to him and to his clients, who incidentally are in the courtroom, as though you do not care about his case. You owe him your undivided attention, no matter how bad his argument is.
Justice 3
(To the narrator.) Mind your own damn business.
Justice 2
(To Justice 3.) Smartest thing I've ever heard from you. You won’t get a dissent from me on that one.
Narrator
(To all the justices.) Your insolent and demeaning conduct is rude and boorish. You should treat all attorneys with respect and civility.
Justice 1
(First turning to his colleagues.) This guy is some kind of radical. (Now to narrator.) We have heard just about enough of you. Take this as a warning.
Narrator
You wouldn’t treat lawyers like this if you were private judges.
Justice 1
Bailiff ! (Bailiff pulls the screaming narrator out of the courtroom.)
I have to stop here. I don’t want to give the trick ending away. I don't have a release date, but when the film comes out, you are all invited to the premire.
A Judicial Abuse of Discretion
It has been said that the only things certain are death and taxes. As is evident from my last several columns, I must add “error” to this short list of indisputable truths. When one assumes the role of “teacher,” the lapse into error can be as awkward as an ex-traffic judge getting a traffic ticket. But a column offers a therapeutic outlet in which to reveal one's gaffes and blunders without excessive wincing. Mercifully, one does not see the disapproving eyes of the audience.
So let’s get it over with. I was teaching this course to new judges at CJER (Center for Judicial Education and Performance), California's famous Judges College. The spellbinding curriculum included jurisprudence, standards of review vis-a-vis the trial court, and Shakespeare's "Measure for Measure."
My co-teachers, attorney and professor in legal philosophy Robert Gerstein, and retired appellate justice Elizabeth Baron, in no way contributed to or were responsible for the calamity that occurred in a nano second. Ironically, it happened just after my exegesis on the nuances of error. The irony was grossly magnified because I had been discussing harmless error. I concluded my remarks on this peculiar category of error, which the criminal defense bar finds so odious, with what I thought at the time was an apt if not ingeniously clever appellation. I called it “Venus de Milo” error. The look of bewilderment on the student judges' faces should have alerted me that something was amiss. I blurted out “armless error” and saw instantly that the sobriquet was, as they say in legal circles, “inapposite.”
But it was too late to suck in like a Hoover the words that had escaped my lips. The students' derisive laughter, not to mention their boos and hisses, were unnerving. Nevertheless, I pressed on to give them my piece de resistance on the least understood and most abused form of error, “abuse of discretion.” Well consider, if you will, the definitions I gave the students. '"[T]he term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Citation.]'" (In re Cortez 6 Cal.3d 78, 85-86, (1970).) My heavens.
Abuse of discretion occurs when the court exercises "it in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (Baltayan v. Estate of Getemyan 90 Cal.App.4th 1427, 1434, (2001).) Gracious. You can just imagine how off base a judge has to be to abuse his or her discretion. No doubt I was rattled by the students' outburst. In an attempt to capture the significance of abuse of discretion in a graphic, forceful way, I fell into the most terrifying error of all, “error per se.” I said the judge had to be out of his or her “cotton pickin mind.” I then moved on to other topics.
At the break it was tactfully called to my attention that the phrase, “cotton pickin” could be offensive to some people. I was unable to determine if anyone had in fact been offended by the remark, but as I reflected, it occurred to me that the remark could call to mind a shameful part of our history when slaves picked cotton. On the other hand, many people other than slaves also picked cotton and still do. Nevertheless, I decided right there and then to erase that phrase from my lexicon. Although I disavow membership or even a casual association with the political correctness club, the likelihood that the phrase legitimately has offensive overtones for some led me to my decision.
After the break, I expressed regret if that term had offended anyone, and related my decision to find more suitable adjectives to place in front of the noun “brain.” At the end of the class, a number of students from a variety of races and nationalities came up to me and weighed in on the issue. They told me they did not find the phrase offensive and would continue to use it even if I did not.
Nevertheless, I wished to learn from where the expression came, and checked numerous etymological references but could not find its origin. What I did learn through an exhaustive search on the internet is that there are numerous web sites that boldly if not baldly adopt the moniker "cotton pickin." These include a square dance organization, antique fairs and cotton manufacturers.
Whether the phrase I used was in fact error per se, or an error in judgment, I thought my airing the matter and acknowledging it as an error would give me absolution. But that night during a restless sleep I had a disturbing dream. It began like a scene from a movie of the 1930's. I saw twirling before my eyes the front page of a newspaper that became bigger and bigger as it got closer and closer. And then it stopped spinning. Covering my entire field of vision was the front page of the Daily Journal.
The headline screamed "Court of Appeal Presiding Justice severely punished by rioting judges at Judges' College.” The article penned by the editor, Katrina Dewey, said: “It is with regret that we report that the Daily Journal’s own noted columnist, Justice Arthur Gilbert, teaching a course that included of all things, Shakespeare, to new judges at the Judges College caused a riot when he used offensive adjectives to describe a brain. Gilbert, who many have opined tends to push the envelope to the limit, clearly went too far this time. His use of the adjectives, too abhorrent to be reprinted here, would have made Eli Whitney hang his head in shame. The offended students ordered Justice Gilbert to spend an entire day picking cotton in fields in the Central Valley of Fresno.
"Our reporter confronted Justice Gilbert toiling in the 110 degree sun laboriously extracting the white lint from the bursting pods. When asked by our reporter how he felt about his punishment, Gilbert ignored her and zombie like, robotically continued his arduous toil. It was later learned that Gilbert had not heard our reporter’s question because his ears were stuffed with cotton.
"Los Angeles Superior Court Judge Veronica Simmons McBeth, who made international headlines when she sentenced a slum landlord to live in the squalor of his own dilapidated tenement, had this to say about the sentence meted out to Justice Gilbert: 'Art is a good friend of mine, but even friends have to pay for their misdeeds. I cannot deny that the sentence was innovative. But had I been sentencing him, I would have closed his text of Measure for Measure and sentenced him to read the entire works of Dannielle Steele.”
Gilbert is now in seclusion rewriting the lyrics to “Dixie.”
I awoke with a start, got out of bed and washed up, hoping that was not a description of my career. I had breakfast and drove to work, a chastened individual with heightened sensitivity. As I drove up to the on ramp to the freeway, I noted the sign naming the freeway after a former Israeli prime minister. This is perfectly acceptable to me, but with tensions in the Middle East and all, I had hoped that other freeways would bear names of other heads of state, but I could find none. Instead, I discovered that many freeways had the same name. That was not fair, so I wrote to my state representatives urging them to discontinue use of the name "Begin Freeway."
The dream obviously had had an enormous impact on me. But the next day reason returned and I realized how foolish I had been to write my state representatives about the matter. I must have been out
So let’s get it over with. I was teaching this course to new judges at CJER (Center for Judicial Education and Performance), California's famous Judges College. The spellbinding curriculum included jurisprudence, standards of review vis-a-vis the trial court, and Shakespeare's "Measure for Measure."
My co-teachers, attorney and professor in legal philosophy Robert Gerstein, and retired appellate justice Elizabeth Baron, in no way contributed to or were responsible for the calamity that occurred in a nano second. Ironically, it happened just after my exegesis on the nuances of error. The irony was grossly magnified because I had been discussing harmless error. I concluded my remarks on this peculiar category of error, which the criminal defense bar finds so odious, with what I thought at the time was an apt if not ingeniously clever appellation. I called it “Venus de Milo” error. The look of bewilderment on the student judges' faces should have alerted me that something was amiss. I blurted out “armless error” and saw instantly that the sobriquet was, as they say in legal circles, “inapposite.”
But it was too late to suck in like a Hoover the words that had escaped my lips. The students' derisive laughter, not to mention their boos and hisses, were unnerving. Nevertheless, I pressed on to give them my piece de resistance on the least understood and most abused form of error, “abuse of discretion.” Well consider, if you will, the definitions I gave the students. '"[T]he term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Citation.]'" (In re Cortez 6 Cal.3d 78, 85-86, (1970).) My heavens.
Abuse of discretion occurs when the court exercises "it in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (Baltayan v. Estate of Getemyan 90 Cal.App.4th 1427, 1434, (2001).) Gracious. You can just imagine how off base a judge has to be to abuse his or her discretion. No doubt I was rattled by the students' outburst. In an attempt to capture the significance of abuse of discretion in a graphic, forceful way, I fell into the most terrifying error of all, “error per se.” I said the judge had to be out of his or her “cotton pickin mind.” I then moved on to other topics.
At the break it was tactfully called to my attention that the phrase, “cotton pickin” could be offensive to some people. I was unable to determine if anyone had in fact been offended by the remark, but as I reflected, it occurred to me that the remark could call to mind a shameful part of our history when slaves picked cotton. On the other hand, many people other than slaves also picked cotton and still do. Nevertheless, I decided right there and then to erase that phrase from my lexicon. Although I disavow membership or even a casual association with the political correctness club, the likelihood that the phrase legitimately has offensive overtones for some led me to my decision.
After the break, I expressed regret if that term had offended anyone, and related my decision to find more suitable adjectives to place in front of the noun “brain.” At the end of the class, a number of students from a variety of races and nationalities came up to me and weighed in on the issue. They told me they did not find the phrase offensive and would continue to use it even if I did not.
Nevertheless, I wished to learn from where the expression came, and checked numerous etymological references but could not find its origin. What I did learn through an exhaustive search on the internet is that there are numerous web sites that boldly if not baldly adopt the moniker "cotton pickin." These include a square dance organization, antique fairs and cotton manufacturers.
Whether the phrase I used was in fact error per se, or an error in judgment, I thought my airing the matter and acknowledging it as an error would give me absolution. But that night during a restless sleep I had a disturbing dream. It began like a scene from a movie of the 1930's. I saw twirling before my eyes the front page of a newspaper that became bigger and bigger as it got closer and closer. And then it stopped spinning. Covering my entire field of vision was the front page of the Daily Journal.
The headline screamed "Court of Appeal Presiding Justice severely punished by rioting judges at Judges' College.” The article penned by the editor, Katrina Dewey, said: “It is with regret that we report that the Daily Journal’s own noted columnist, Justice Arthur Gilbert, teaching a course that included of all things, Shakespeare, to new judges at the Judges College caused a riot when he used offensive adjectives to describe a brain. Gilbert, who many have opined tends to push the envelope to the limit, clearly went too far this time. His use of the adjectives, too abhorrent to be reprinted here, would have made Eli Whitney hang his head in shame. The offended students ordered Justice Gilbert to spend an entire day picking cotton in fields in the Central Valley of Fresno.
"Our reporter confronted Justice Gilbert toiling in the 110 degree sun laboriously extracting the white lint from the bursting pods. When asked by our reporter how he felt about his punishment, Gilbert ignored her and zombie like, robotically continued his arduous toil. It was later learned that Gilbert had not heard our reporter’s question because his ears were stuffed with cotton.
"Los Angeles Superior Court Judge Veronica Simmons McBeth, who made international headlines when she sentenced a slum landlord to live in the squalor of his own dilapidated tenement, had this to say about the sentence meted out to Justice Gilbert: 'Art is a good friend of mine, but even friends have to pay for their misdeeds. I cannot deny that the sentence was innovative. But had I been sentencing him, I would have closed his text of Measure for Measure and sentenced him to read the entire works of Dannielle Steele.”
Gilbert is now in seclusion rewriting the lyrics to “Dixie.”
I awoke with a start, got out of bed and washed up, hoping that was not a description of my career. I had breakfast and drove to work, a chastened individual with heightened sensitivity. As I drove up to the on ramp to the freeway, I noted the sign naming the freeway after a former Israeli prime minister. This is perfectly acceptable to me, but with tensions in the Middle East and all, I had hoped that other freeways would bear names of other heads of state, but I could find none. Instead, I discovered that many freeways had the same name. That was not fair, so I wrote to my state representatives urging them to discontinue use of the name "Begin Freeway."
The dream obviously had had an enormous impact on me. But the next day reason returned and I realized how foolish I had been to write my state representatives about the matter. I must have been out
Judges Reality Show
A neighbor told me about a T.V. reality show he saw last week. “They showed you a real court with as many members as a football team holding a hearing about the recall election. One of the judges on T.V. no doubt the star, said the trial court judge ‘sort of missed it on the Voting Rights Act, just between us,’ and everybody laughed.”
I pointed out that all 11 judges on the panel were stars in their own right and other than having 11 members, the panel had little in common with a football team.
“You wouldn’t call the laugh a touchdown?” asked my neighbor.
“Hardly,” I replied. I then pointed out that colloquies between judges and lawyers could be enlightening, fascinating, even humorous, but these exchanges were not performances. I then had to explain the meaning of “colloquy” which my neighbor then tried out in a variety of contexts, and eventually concluded that he and I were having one.
We ended our conversation with his seal of approval for the televised hearing of the 9th’ circuit’s en banc hearings in Southwest Voter Registration Education Project et. al, vs. Costa. He noted that this was one reality show that was interesting, informative, and no one ate any snails or worms.”
The Daily Journal headline drew upon the noble sport of boxing to characterize the laugh line as a “Jab.” The article however, nudged the metaphor toward stand up comedy and the “jab” became a “crack.” The judge on T.V. offered an explanation for his laugh line. “Sometimes, we ask question in oral arguments in order to get lawyers to give answers…. “It doesn’t necessarily reflect our views…We may be just trying to get the lawyer to [elaborate on] the Voting Rights Act, just between us.”
Just between us I found the explanation puzzling. Was the judge on T.V. saying that he really did not think “the trial judge missed it,” but asked the question, merely to draw out the attorney on his views about the Voting Rights Act? The trial judge, with customary class, refused to speculate on what the judge on T.V. meant by the remark, but noted that every judge has his own style. As it turned out the en banc panel concluded that the trial judge got it right in denying the injunction to halt the election and affirmed his judgment.
Lest you read too much into an off handed remark at oral argument, the opinion issued by the en banc panel noted its review was limited and deferential. Whatever the district court’s view of the Voting Rights Act, the district court judge did not abuse “its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.” Pg. 8 en banc opinion.
The opinion distinguished between two standards of review, abuse of discretion in reviewing the district court’s denial of the preliminary injunction, and de novo in reviewing the district court’s interpretation of the underlying legal principles. Citing Sports Form, Inc. v. United Press Int’l Inc. 686 F.2d 750, 752 (9th Cir. 1982) the en banc panel noted that “an order ‘will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.” But relying on Bay Area Addiction Research & Treatment. Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) the panel said “’a district court abuses its discretion when it makes an error of law.”’ Pg. 7. Abuse of discretion occurs when a decision is "arbitrary, irrational, or contrary to law." Singh v. Immigration and Naturalization Services, 295 F.3d 1037,1039 (2002). Does this mean that when a judges makes an error in interpreting the law, that judge acts beyond the bounds of reason? Cannot different judges have differing reasonable interpretations of the law?
Apparently the en banc panel subscribed to this view in reviewing the three judge appellate panel’s opinion on the equal protection claim. The en banc opinion states “[T}hat a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.” Pg. 8. Whether or not the three judge panel "missed it" This was a laudatory display of collegiality and civility quite apart from whether or not the three judge panel missed it. I am hard pressed to think of any of my own reversals, or even dissents to my own majority opinions where I was characterized as reasonable.
When it comes to criticism I prefer the critic who assumes there is a reasonable answer for an apparent mistake. Instead of saying, "I Got-Cha" this critic assumes that there is a reasonable explanation for the seeming error. Such a critic will acknowledge that in some cases someone can "miss it" with good cause. Take Ex Vice President Dan Quale for example. Orthographers everywhere said he had missed it because he had misspelled potato. But I believe he made an reasonable mistake. I can't say this happened, but maybe Quale's subconscious mind reasoned that because potatoes have "eyes," they would also have toes, hence "potatoe." Or because of his optimism, he could well have been thinking of a feast rather than a famine. This accounts for the "e" which belongs in a basket of potatoes. So let's give Quale the benefit of a doubt and not jump all over his "miss."
Consider, if you will, my own example. I recently wrote an article for California Litigation, published by the State Bar of California, Volume 16 Number 2, 2003. The issue was devoted to appeals. Through exhaustive research I was able to obtain witness statements of the events leading to the injury sustained by Mrs. Palsgraf in Palsgraf v. Long Island Railroad Co, 248 N.Y. 339, (1928). I wanted to show the contrast between the rambling statements of the witnesses (all of whom with the exception of Mrs. Palsgraf remarkably have the same names as notable scientists in quantum mechanics,) and the brilliantly concise statement of facts authored by Justice Cardozo.
The facts in Palsgraf you may recall involved a man trying to board a train that was leaving the station. He ran for the moving train and the conductor leaned out of the train to give him a hand. As the man was pulled on board by one guard and pushed from behind by another, a package he was carrying under his arm which contained fireworks became dislodged and fell on the tracks causing the fireworks to explode. The shock of the explosion caused some scales that were on the platform to fall on Mrs. Palsgraf who was waiting for her train to take her to Rockaway Beach. In her declaration she stated, "I bought a ticket to go to Rockaway Beach in Jersey, to visit mine granddaughter. I was minding mine own business, watching for a train, and that's all when suddenly—boom! Was an explosion—you wouldn't believe. Something fell on me everything hurts."
A perspicacious reader, Orange County Superior Court Judge Ron Bauer faxed me his comments on the article. His disarming note praised me for my "clever wit." He went on to say that "[P]articularly subtle is the proof of Mrs. Palsgraf's post-accident dementia. Nothing else could explain her reference to a tip to 'Rockaway Beach in Jersey.' Before her mishp, she knew that rockaway Beach is on Long Island. That's why she was taking the Long Island Railroad, which does not go to Jersey. Insurance Investigator Heisenberg would have no uncertainty about this."
This was a powerful observation. A mere perusal of the New York Subway map gleefully supplied to me by my colleague Justice Steve Perren made Judge Bauer's point unassailable. But what struck me about Judge Bauer's comments, was his readiness to supply a reasonable explanation for the apparent mystery. Instead of shouting from the roof tops that someone missed it, whether it be Mrs. Palsgraf, the transcriber of her comments, or even myself, Judge Bauer offered a possible explanation. I immediately set to work to discover the source of the comment. Indeed, I even wrote to Judge Bauer. Here is the salient part of my letter to him.
"Your fax prompted me to do additional research on the apparent confusion of Mrs. Palsgraf (she objects to Ms..) Your geographical insights are unassailable. New Jersey is east of Rockaway Beach which is located in Long Island. From what I could determine Mrs. Palsgraf was not senile. Although uneducated, she was wise and practical. Indeed, she selected the lawyer who represented her in the personal injury suit against the railroad. She insisted that her trial lawyer associate an appellate counsel, Matthew Wood. This is a savvy woman.
At first I believed the confusion stemmed from the placement of the words "in Jersey." Mrs. Palsgraf, having come from the old country, had an accent. I thought the sentence should have read, "I bought a ticket in Jersey, to go to Rockaway Beach to visit mine granddaughter." Unfortunately, like trying to probe the mysteries of life's enigmas, the solution here was not so simple. First of all,
Mrs. Palsgraf did not live in New Jersey. She lived in Rockaway Beach . And her granddaughter lived in New Jersey.
So what is the explanation? Mrs. Palsgraf had been shopping in Rosedale and had purchased a lovely porcelain doll for her granddaughter. To add a few facts to Justice Cardozo's famous opening sentence, Mrs. Palsgraf was standing on the platform of defendant's railroad at the Rosedale station while waiting for a train to take her back to her home in Rockaway Beach, a mere nine stops away. Once home, she intended to freshen up and wrap the doll in colorful paper she had purchased the day before in Rockaway Beach. How she intended to get to New Jersey I cannot say. She could have taken the Staten Island Ferry, or the A train, or a combination of the two. Whether she was a fan of Duke Ellington I cannot say. I have included various maps which I trust elucidate these points.
With these facts in mind, we can better understand Mrs. Palsgraf's statement. Her English was limited, and her singular intent to visit her granddaughter when the injury occurred was uppermost in her mind. Add to that the shock from the trauma she had suffered, her statement is reasonable under the circumstances. She bought the ticket to go to Rockaway Beach, but her ultimate destination was "Jersey" where her beloved granddaughter lived.
To avoid confounding future discerning readers such as yourself, I should perhaps delete the reference to "Jersey" in my piece. The problem there is that the reader will have the impression that Mrs. Palsgraf's granddaughter lives in Rockaway. But such an omission could produce an angry response from the granddaughter who now lives in a retirement community in Florida, and similar response from her daughters, sons, and grandchildren.
By the way one of the daughters who lives in Beverly Hills, California Mrs. Einstein, supplied me with much helpful information about her mother. She seemed more interested in discussing the up coming recall election. We both had strong views about the recall. But we made a pact with one another. I remember our exact words, "I won't tell if you don't tell."
I pointed out that all 11 judges on the panel were stars in their own right and other than having 11 members, the panel had little in common with a football team.
“You wouldn’t call the laugh a touchdown?” asked my neighbor.
“Hardly,” I replied. I then pointed out that colloquies between judges and lawyers could be enlightening, fascinating, even humorous, but these exchanges were not performances. I then had to explain the meaning of “colloquy” which my neighbor then tried out in a variety of contexts, and eventually concluded that he and I were having one.
We ended our conversation with his seal of approval for the televised hearing of the 9th’ circuit’s en banc hearings in Southwest Voter Registration Education Project et. al, vs. Costa. He noted that this was one reality show that was interesting, informative, and no one ate any snails or worms.”
The Daily Journal headline drew upon the noble sport of boxing to characterize the laugh line as a “Jab.” The article however, nudged the metaphor toward stand up comedy and the “jab” became a “crack.” The judge on T.V. offered an explanation for his laugh line. “Sometimes, we ask question in oral arguments in order to get lawyers to give answers…. “It doesn’t necessarily reflect our views…We may be just trying to get the lawyer to [elaborate on] the Voting Rights Act, just between us.”
Just between us I found the explanation puzzling. Was the judge on T.V. saying that he really did not think “the trial judge missed it,” but asked the question, merely to draw out the attorney on his views about the Voting Rights Act? The trial judge, with customary class, refused to speculate on what the judge on T.V. meant by the remark, but noted that every judge has his own style. As it turned out the en banc panel concluded that the trial judge got it right in denying the injunction to halt the election and affirmed his judgment.
Lest you read too much into an off handed remark at oral argument, the opinion issued by the en banc panel noted its review was limited and deferential. Whatever the district court’s view of the Voting Rights Act, the district court judge did not abuse “its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.” Pg. 8 en banc opinion.
The opinion distinguished between two standards of review, abuse of discretion in reviewing the district court’s denial of the preliminary injunction, and de novo in reviewing the district court’s interpretation of the underlying legal principles. Citing Sports Form, Inc. v. United Press Int’l Inc. 686 F.2d 750, 752 (9th Cir. 1982) the en banc panel noted that “an order ‘will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.” But relying on Bay Area Addiction Research & Treatment. Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) the panel said “’a district court abuses its discretion when it makes an error of law.”’ Pg. 7. Abuse of discretion occurs when a decision is "arbitrary, irrational, or contrary to law." Singh v. Immigration and Naturalization Services, 295 F.3d 1037,1039 (2002). Does this mean that when a judges makes an error in interpreting the law, that judge acts beyond the bounds of reason? Cannot different judges have differing reasonable interpretations of the law?
Apparently the en banc panel subscribed to this view in reviewing the three judge appellate panel’s opinion on the equal protection claim. The en banc opinion states “[T}hat a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.” Pg. 8. Whether or not the three judge panel "missed it" This was a laudatory display of collegiality and civility quite apart from whether or not the three judge panel missed it. I am hard pressed to think of any of my own reversals, or even dissents to my own majority opinions where I was characterized as reasonable.
When it comes to criticism I prefer the critic who assumes there is a reasonable answer for an apparent mistake. Instead of saying, "I Got-Cha" this critic assumes that there is a reasonable explanation for the seeming error. Such a critic will acknowledge that in some cases someone can "miss it" with good cause. Take Ex Vice President Dan Quale for example. Orthographers everywhere said he had missed it because he had misspelled potato. But I believe he made an reasonable mistake. I can't say this happened, but maybe Quale's subconscious mind reasoned that because potatoes have "eyes," they would also have toes, hence "potatoe." Or because of his optimism, he could well have been thinking of a feast rather than a famine. This accounts for the "e" which belongs in a basket of potatoes. So let's give Quale the benefit of a doubt and not jump all over his "miss."
Consider, if you will, my own example. I recently wrote an article for California Litigation, published by the State Bar of California, Volume 16 Number 2, 2003. The issue was devoted to appeals. Through exhaustive research I was able to obtain witness statements of the events leading to the injury sustained by Mrs. Palsgraf in Palsgraf v. Long Island Railroad Co, 248 N.Y. 339, (1928). I wanted to show the contrast between the rambling statements of the witnesses (all of whom with the exception of Mrs. Palsgraf remarkably have the same names as notable scientists in quantum mechanics,) and the brilliantly concise statement of facts authored by Justice Cardozo.
The facts in Palsgraf you may recall involved a man trying to board a train that was leaving the station. He ran for the moving train and the conductor leaned out of the train to give him a hand. As the man was pulled on board by one guard and pushed from behind by another, a package he was carrying under his arm which contained fireworks became dislodged and fell on the tracks causing the fireworks to explode. The shock of the explosion caused some scales that were on the platform to fall on Mrs. Palsgraf who was waiting for her train to take her to Rockaway Beach. In her declaration she stated, "I bought a ticket to go to Rockaway Beach in Jersey, to visit mine granddaughter. I was minding mine own business, watching for a train, and that's all when suddenly—boom! Was an explosion—you wouldn't believe. Something fell on me everything hurts."
A perspicacious reader, Orange County Superior Court Judge Ron Bauer faxed me his comments on the article. His disarming note praised me for my "clever wit." He went on to say that "[P]articularly subtle is the proof of Mrs. Palsgraf's post-accident dementia. Nothing else could explain her reference to a tip to 'Rockaway Beach in Jersey.' Before her mishp, she knew that rockaway Beach is on Long Island. That's why she was taking the Long Island Railroad, which does not go to Jersey. Insurance Investigator Heisenberg would have no uncertainty about this."
This was a powerful observation. A mere perusal of the New York Subway map gleefully supplied to me by my colleague Justice Steve Perren made Judge Bauer's point unassailable. But what struck me about Judge Bauer's comments, was his readiness to supply a reasonable explanation for the apparent mystery. Instead of shouting from the roof tops that someone missed it, whether it be Mrs. Palsgraf, the transcriber of her comments, or even myself, Judge Bauer offered a possible explanation. I immediately set to work to discover the source of the comment. Indeed, I even wrote to Judge Bauer. Here is the salient part of my letter to him.
"Your fax prompted me to do additional research on the apparent confusion of Mrs. Palsgraf (she objects to Ms..) Your geographical insights are unassailable. New Jersey is east of Rockaway Beach which is located in Long Island. From what I could determine Mrs. Palsgraf was not senile. Although uneducated, she was wise and practical. Indeed, she selected the lawyer who represented her in the personal injury suit against the railroad. She insisted that her trial lawyer associate an appellate counsel, Matthew Wood. This is a savvy woman.
At first I believed the confusion stemmed from the placement of the words "in Jersey." Mrs. Palsgraf, having come from the old country, had an accent. I thought the sentence should have read, "I bought a ticket in Jersey, to go to Rockaway Beach to visit mine granddaughter." Unfortunately, like trying to probe the mysteries of life's enigmas, the solution here was not so simple. First of all,
Mrs. Palsgraf did not live in New Jersey. She lived in Rockaway Beach . And her granddaughter lived in New Jersey.
So what is the explanation? Mrs. Palsgraf had been shopping in Rosedale and had purchased a lovely porcelain doll for her granddaughter. To add a few facts to Justice Cardozo's famous opening sentence, Mrs. Palsgraf was standing on the platform of defendant's railroad at the Rosedale station while waiting for a train to take her back to her home in Rockaway Beach, a mere nine stops away. Once home, she intended to freshen up and wrap the doll in colorful paper she had purchased the day before in Rockaway Beach. How she intended to get to New Jersey I cannot say. She could have taken the Staten Island Ferry, or the A train, or a combination of the two. Whether she was a fan of Duke Ellington I cannot say. I have included various maps which I trust elucidate these points.
With these facts in mind, we can better understand Mrs. Palsgraf's statement. Her English was limited, and her singular intent to visit her granddaughter when the injury occurred was uppermost in her mind. Add to that the shock from the trauma she had suffered, her statement is reasonable under the circumstances. She bought the ticket to go to Rockaway Beach, but her ultimate destination was "Jersey" where her beloved granddaughter lived.
To avoid confounding future discerning readers such as yourself, I should perhaps delete the reference to "Jersey" in my piece. The problem there is that the reader will have the impression that Mrs. Palsgraf's granddaughter lives in Rockaway. But such an omission could produce an angry response from the granddaughter who now lives in a retirement community in Florida, and similar response from her daughters, sons, and grandchildren.
By the way one of the daughters who lives in Beverly Hills, California Mrs. Einstein, supplied me with much helpful information about her mother. She seemed more interested in discussing the up coming recall election. We both had strong views about the recall. But we made a pact with one another. I remember our exact words, "I won't tell if you don't tell."
Goodbye to Justice Mildred Lillie
I missed the opening of the Los Angeles County Law Library on December 14, 1953. They wouldn’t let me out of Le Conte Jr. High School in Hollywood California, where I was a victim, I mean student. Had the school removed my ankle restraints I could have been there. I would have waited for the bus in front of the bowling alley on Sunset and Bronson. It would be a straight shot down Sunset Blvd. to “downtown.” I would have had to take the bus because I didn’t have a driver’s license, let alone a learner’s permit. It is fun to imagine what could have been, a leisurely stroll in the stacks, maybe stopping now and then to leaf through Cal.App.2d. Cal.App.3d was not even a gleam in the Reporter of Decision’s eye. It would be another five years before the Cal.App.2nd Reports would be graced by a Mildred L. Lillie opinion. But at age 14, what did I know from a law library? Had I been able to drive I might have gone more often to the public library in my neighborhood, the one on Ivar Street, where I fit in with its habitués, a raggedy assortment of kooks and eccentrics.
December 14, 1953, 50 years ago, and I still remember the day well. My thoughts were on my upcoming birthday. Would I survive to celebrate it? Le Conte Jr. High School, you see, was “a rough school.” A newspaper reporter (that’s what they were called in those days), was only slightly exaggerating when she wrote that we had tear gas drills once a week. Just one year before Brown v. Board of Education, students, (a euphemism) were bussed in from a place quaintly named Roger Young Village. Its sister city was reputed to be Devil’s Island. Despite their Neanderthal attributes, the Roger Young kids showed remarkable foresight by introducing methods and techniques used today by our armed forces in warfare-- slash and burn, being but one example. A visit to the law library would have given me a respite from practicing the canny skills I employed each day to stay alive.
How could I know at the time that Le Conte Jr. High School was preparing me for a legal career that would take me to the main building of the county law library fifty years later to celebrate its anniversary and its renaming for my dear friend and colleague Mildred L. Lillie. Like today’s lawyer aspiring to success, I marketed my skills as early as the 7th grade.
My seminars for the Roger Young kids on the value of good hygiene gave me cachet. I persuaded them that they could wear underwear without being sissies because it is hidden beneath their clothes. I soon became a kind of consigliore, advising on the intricacies of how to pass tests, at first instilling the basic tenet for a good start, spelling one’s name correctly, and then introducing more radical concepts like studying.
And then it is November 6, 2003, a mere blink of the eye in Einstein’s or Arthur Clarke’s universe, and I am standing before the Swedish Blue Pearl Granite lower walls and the upper walls that look like white stone that make up the exterior monolith of the law library. If it were only 2001. I reach out towards it. The opening drums of Strauss's "Thus Spake Zarathustra” are pounding in my ears. I sense the irony and the drama of the moment. Let me explain.
Imagine you are a contestant on the popular television game show, Jeopardy (a condition in which I often find myself for writing this column). What, there are a few of you who have never watched Jeopardy? As I recall, the contestant picks a category. The game show host supplies the answer, and the contestant must come up with the question. Got it? Let’s just try an easy one for practice. The category is “Courts.” The answer is, “I can’t count that high.” And the obvious question is “What is the number of reversals from the 9th Circuit?”
Back to the library. I am transfixed. I can hear the opening two chords of Zarathustra which follow the drums, and I become a contestant on Jeopardy. The category is “Paradox.” The voice of the moderator gives me the answer, "50 years old and just born.” The question comes to me during the second entry of the timpani drums. “What is the Los Angeles County Law Library building on this evening?”
The 50th anniversary of this important repository of legal knowledge that very evening was re-born to bear the name of one of our most respected and revered jurists, Mildred L. Lillie. For an extra point, I had to guess what the middle initial L stands for. I take a wild stab -- "Library"?
I snap out of my hypnotic fascination and go inside. Ceremonies to commemorate the 50th anniversary of the library and its renaming, The Mildred L. Lillie Law Library, are about to begin. I still have a few minutes to walk through the stacks and look at the books that carry the case names of so many of the kids bussed in from Roger Young Village 50 years ago.
The program begins with the ebullient president of the Board of Trustees of the Library, Susan Steinhauser. In a stirring opening she explains how the Board, and the library’s director, Richard Iamele, see the library as a bridge to justice for everyone by providing open access to legal information. What better name than Mildred L. Lillie to adorn the main building of the L.A. County Law Library. With grace and determination she pried open the doors of access that had been closed to her and other women in the legal profession. And now the building dedicated to open access bears her name. This was a truly historic moment, quite apart from there being close to 100 judges in the law library, at the same time, another first.
A video presentation chronicled her life and career. The word that kept coming up was "first." Those solid common sense Lillie opinions came from the first woman justice appointed to the 2nd district Court of Appeal in 1958. During her 55 years as a judicial officer she made a stunning contribution to our justice system. Chief Justice George hailed her as a great jurist and scholar.
For someone who did not know Justice Lillie personally it is not easy to capture the essence of this remarkable individual. If you were to think of an amalgamation of important individuals in history such as Catherine the Great, Queen Elizabeth, Queen Victoria (who incidentally was no prude), Betty Crocker, Dolly Madison, Susan B. Anthony, and Golda Meir, you are getting close.
Adjectives that some have used to describe her include, formidable, resolute, elegant, stately, brilliant, human, intimidating, funny, titanic, unassuming, kind, and compassionate. She was Presiding Justice of Division 7 of the 2nd district Court of Appeal, and had been the district's administrative presiding justice for several years. Despite the importance of these positions, she modestly explained that her role was like that of the head of a cemetery. "You have a lot of people under you, but no one listens."
Those subject to a grilling of legal issues at oral argument are aware of her matchless wit and sense of humor, but may not know of her countless jokes. She played one on me a few years ago. She and I were seated in the courtroom of the Supreme Court waiting to speak in support of a nominee for the Court of Appeal at his confirmation hearing. The members of the Commission on Judicial Appointments, the Chief Justice, the Attorney General, and the Senior Presiding Justice of the Second District entered the chambers and the proceedings were called to order.
Justice Lillie and I were seated in the front row. She was the first speaker called. To reach the podium she had to pass by me. My legs were crossed, but even though I was still collecting last minute thoughts about what I would say, I had the presence of mind to draw in my legs to make a clear pathway to the podium. If only I had drawn them in a little further. Her leg made contact with my foot which was protruding ever so slightly into the aisle. At that instant time stopped and the vastness of eternity spread out before me. My earlier reference in this column to Einstein is appropriate here.
I am not a religious person, but during that moment of eternity, I engaged in an intense negotiation with a higher power. To avoid the catastrophe that I envisioned, and my being held responsible for it, I put a number of options on the table. One, for example, that all my published opinions from that day forward would be depublished, was rejected out of hand. Apparently I was not giving up much. Indeed, my bargaining position was so weak that I seriously considered death as a "viable "option. I was so apprehensive that I forgot the deal I made, but time started again, and we were back in the courtroom. The sound of timpani drums was in the air. Justice Lillie, did a graceful, barely noticeable, two step and proceeded to the podium. She began her words to the Commission with: “I intend to speak on behalf of the nominee despite Justice Gilbert’s attempt to trip me.”
Justice Lillie might complain that we are making too big a fuss over her. But I know that she is pleased that the building that bears her name as well as the numerous branches of the Los Angeles County Law Library throughout the county provide access to legal information and consequently, access to justice. Our support of the library invigorates this principle and also pays tribute to an exceptional jurist. For me it is a way of not having to say a final good-bye to a dear friend and colleague.
December 14, 1953, 50 years ago, and I still remember the day well. My thoughts were on my upcoming birthday. Would I survive to celebrate it? Le Conte Jr. High School, you see, was “a rough school.” A newspaper reporter (that’s what they were called in those days), was only slightly exaggerating when she wrote that we had tear gas drills once a week. Just one year before Brown v. Board of Education, students, (a euphemism) were bussed in from a place quaintly named Roger Young Village. Its sister city was reputed to be Devil’s Island. Despite their Neanderthal attributes, the Roger Young kids showed remarkable foresight by introducing methods and techniques used today by our armed forces in warfare-- slash and burn, being but one example. A visit to the law library would have given me a respite from practicing the canny skills I employed each day to stay alive.
How could I know at the time that Le Conte Jr. High School was preparing me for a legal career that would take me to the main building of the county law library fifty years later to celebrate its anniversary and its renaming for my dear friend and colleague Mildred L. Lillie. Like today’s lawyer aspiring to success, I marketed my skills as early as the 7th grade.
My seminars for the Roger Young kids on the value of good hygiene gave me cachet. I persuaded them that they could wear underwear without being sissies because it is hidden beneath their clothes. I soon became a kind of consigliore, advising on the intricacies of how to pass tests, at first instilling the basic tenet for a good start, spelling one’s name correctly, and then introducing more radical concepts like studying.
And then it is November 6, 2003, a mere blink of the eye in Einstein’s or Arthur Clarke’s universe, and I am standing before the Swedish Blue Pearl Granite lower walls and the upper walls that look like white stone that make up the exterior monolith of the law library. If it were only 2001. I reach out towards it. The opening drums of Strauss's "Thus Spake Zarathustra” are pounding in my ears. I sense the irony and the drama of the moment. Let me explain.
Imagine you are a contestant on the popular television game show, Jeopardy (a condition in which I often find myself for writing this column). What, there are a few of you who have never watched Jeopardy? As I recall, the contestant picks a category. The game show host supplies the answer, and the contestant must come up with the question. Got it? Let’s just try an easy one for practice. The category is “Courts.” The answer is, “I can’t count that high.” And the obvious question is “What is the number of reversals from the 9th Circuit?”
Back to the library. I am transfixed. I can hear the opening two chords of Zarathustra which follow the drums, and I become a contestant on Jeopardy. The category is “Paradox.” The voice of the moderator gives me the answer, "50 years old and just born.” The question comes to me during the second entry of the timpani drums. “What is the Los Angeles County Law Library building on this evening?”
The 50th anniversary of this important repository of legal knowledge that very evening was re-born to bear the name of one of our most respected and revered jurists, Mildred L. Lillie. For an extra point, I had to guess what the middle initial L stands for. I take a wild stab -- "Library"?
I snap out of my hypnotic fascination and go inside. Ceremonies to commemorate the 50th anniversary of the library and its renaming, The Mildred L. Lillie Law Library, are about to begin. I still have a few minutes to walk through the stacks and look at the books that carry the case names of so many of the kids bussed in from Roger Young Village 50 years ago.
The program begins with the ebullient president of the Board of Trustees of the Library, Susan Steinhauser. In a stirring opening she explains how the Board, and the library’s director, Richard Iamele, see the library as a bridge to justice for everyone by providing open access to legal information. What better name than Mildred L. Lillie to adorn the main building of the L.A. County Law Library. With grace and determination she pried open the doors of access that had been closed to her and other women in the legal profession. And now the building dedicated to open access bears her name. This was a truly historic moment, quite apart from there being close to 100 judges in the law library, at the same time, another first.
A video presentation chronicled her life and career. The word that kept coming up was "first." Those solid common sense Lillie opinions came from the first woman justice appointed to the 2nd district Court of Appeal in 1958. During her 55 years as a judicial officer she made a stunning contribution to our justice system. Chief Justice George hailed her as a great jurist and scholar.
For someone who did not know Justice Lillie personally it is not easy to capture the essence of this remarkable individual. If you were to think of an amalgamation of important individuals in history such as Catherine the Great, Queen Elizabeth, Queen Victoria (who incidentally was no prude), Betty Crocker, Dolly Madison, Susan B. Anthony, and Golda Meir, you are getting close.
Adjectives that some have used to describe her include, formidable, resolute, elegant, stately, brilliant, human, intimidating, funny, titanic, unassuming, kind, and compassionate. She was Presiding Justice of Division 7 of the 2nd district Court of Appeal, and had been the district's administrative presiding justice for several years. Despite the importance of these positions, she modestly explained that her role was like that of the head of a cemetery. "You have a lot of people under you, but no one listens."
Those subject to a grilling of legal issues at oral argument are aware of her matchless wit and sense of humor, but may not know of her countless jokes. She played one on me a few years ago. She and I were seated in the courtroom of the Supreme Court waiting to speak in support of a nominee for the Court of Appeal at his confirmation hearing. The members of the Commission on Judicial Appointments, the Chief Justice, the Attorney General, and the Senior Presiding Justice of the Second District entered the chambers and the proceedings were called to order.
Justice Lillie and I were seated in the front row. She was the first speaker called. To reach the podium she had to pass by me. My legs were crossed, but even though I was still collecting last minute thoughts about what I would say, I had the presence of mind to draw in my legs to make a clear pathway to the podium. If only I had drawn them in a little further. Her leg made contact with my foot which was protruding ever so slightly into the aisle. At that instant time stopped and the vastness of eternity spread out before me. My earlier reference in this column to Einstein is appropriate here.
I am not a religious person, but during that moment of eternity, I engaged in an intense negotiation with a higher power. To avoid the catastrophe that I envisioned, and my being held responsible for it, I put a number of options on the table. One, for example, that all my published opinions from that day forward would be depublished, was rejected out of hand. Apparently I was not giving up much. Indeed, my bargaining position was so weak that I seriously considered death as a "viable "option. I was so apprehensive that I forgot the deal I made, but time started again, and we were back in the courtroom. The sound of timpani drums was in the air. Justice Lillie, did a graceful, barely noticeable, two step and proceeded to the podium. She began her words to the Commission with: “I intend to speak on behalf of the nominee despite Justice Gilbert’s attempt to trip me.”
Justice Lillie might complain that we are making too big a fuss over her. But I know that she is pleased that the building that bears her name as well as the numerous branches of the Los Angeles County Law Library throughout the county provide access to legal information and consequently, access to justice. Our support of the library invigorates this principle and also pays tribute to an exceptional jurist. For me it is a way of not having to say a final good-bye to a dear friend and colleague.
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