Thursday, July 15, 2004

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

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