Going to the Dogs

Dog- gone it, ( a euphemism for what I'm thinking.) To stay with the metaphor, I am dogged by complaints of people I know unleashing on me their dissatisfaction with perceived misdeeds of the judiciary. Not my misdeeds, mind you but those of others. They are barking up the wrong tree. Is every law abiding ethical CEO responsible for the Enron scandal? Is any judge responsible for the decisions of other judges? How, I ask you can I be held accountable for the occasional miscreant who appears on the scene?

Case in point. People are still complaining to me about the "judge" who several weeks ago, ordered a victim of spousal abuse seeking a restraining order to leave his court or risk arrest and deportation. Well, first of all, he was not a sitting judge. He was a Pro Temp, an attorney volunteering his time to "help out " the Los Angeles Superior Court with its caseload. It appears he didn't help the court, the victim or enhance the public's perception of how the court dispenses justice. But the Los Angeles Superior Court acted with alacrity. It figuratively ordered him to leave the courtroom, or more specifically, it removed him from the list of pro temp judges. The victim who the judge pro temp ordered to leave the courthouse, ultimately had her day in court and another judge granted her request for a restraining order. So a mistake was rectified and justice done. And I hope the public understands that this one isolated incident is not a reflection on the dedicated attorney volunteers who offer their expertise and devote their time to help the court.

Glad to get that off my chest. But on second thought I know about this incident only because I read about it. Judges are supposed to hear all sides of the story before making a decision and here I am making a judgment without hearing the pro temp's side of the story. True, he used bad judgment but could his motivation have been benign? He is reported to have mistakenly believed that he was helping the victim by alerting her to the possibility of arrest.

So why have I considered the sliver of a possibility that the ex judge pro temp may have had a plausible explanation for his actions? I think it is because judges of all stripes often take it on the chin for their misunderstood rulings. I remember back some thirty years ago, when I was a municipal court judge. Despite the awesome power we judges wielded in deciding misdemeanors, one thing struck terror in our hearts, the Appellate Department of the Superior Court.

Its presiding Judge, now a distinguished Judge on the 9th Circuit Judge Arthur Alarcon reminded us that for all intents and purposes the appellate department was our supreme court. That alone was enough to scare the daylights out of us. At this time before word processors were in use in the court system I thought the opinions were prepared and mimeographed by the typing class at Le Conte Jr. High School. "The left turn was safe. Reversed."

I recall the time a Commissioner's finding of guilt on a traffic infraction was reversed by the appellate department. The appeal by a pro per defendant stated adequate grounds for reversal. The defendant also alleged that the Commissioner made numerous inappropriate comments during the trial. The appellate department's opinion stated that if the allegations were true, the commissioner's conduct was unacceptable. But the alleged conduct had not been proved, much less shown any where in the record. I knew this commissioner and it was inconceivable to me that he could be guilty of these allegations.

This is just another indication that a judge's judicial life is not a bed of roses. Even judges who have passed away are not free from criticism. The famous Judge Charles Fricke who died in 1958 is still taking heat for the trial he conducted in the famous Sleepy Lagoon case in 1942 on which the musical Zoot Suit is based. People v. Zammora, 66 Cal.App.2nd, (1966). The Los Angeles Times recently devoted an article to him. Aug. 20th 2006. My friend Alice McGrath who assisted the defendants and their counsel during the trial argues that the manner in which Fricke tried the case reflected bias. Enter again my colleague Judge Alarcon who had tried numerous cases before Fricke, and read the trial transcript. He disagreed with this assessment, and points out that the reversal by the Court of Appeal was not based on bias or racism but error in the admission of evidence. The appellate court found the evidence insufficient to show defendants conspired to commit murder. Ibid at pg.201-202. The appellate court also chastised Judge Fricke for disparaging remarks he made about defense counsel in the jury's presence. Ibid at pg. 215.

Interestingly Judge Fricke's name appears in an article in the Spring/Summer 2005 newsletter of the California Supreme Court's Historical Society. The engrossing article by Kathleen Cairns is about the conviction in 1935 of Nellie May Madison for the murder of her husband. But for a commutation of her sentence by then Governor Merriam she would have been the first woman to receive the death penalty in California. Judge Fricke was the trial court judge and actually testified for the prosecution. The Supreme court in People v. Madison, 3 Cal.2d 671 (1935) approved of Fricke's conduct. It was proper for him to testify for the prosecution about a witness's statements about the interval between shots because that testimony "did not appear in the record and the trial court timed it." At page 679. Lest we be too quick to condemn Fricke, Ms. Cairns points out that the decision tells us much "about judicial attitudes and procedures in the 1930s."

But trial judges can be reversed, and on occasion chided by some uppity court of appeal. Even a graciously written reversal can be devastating to any judge. Recently I was reversed by the California Supreme Court. I was more shocked than upset. When I received the Supreme Court opinion, I said aloud to no one in particular, “Dog gone-it. How could seven intelligent people all be wrong?”

Just as I was about to howl about my sentiments, I thought back to what I had just said aloud. “Dog gone-it.” Of course that was it. What every misunderstood judge should have. A dog. Dogs don’t care about reversals or even affirmances. They are there for you no matter what. Their love is unconditional. For cat lovers, a weakness to which some including this writer have succumbed, it is your unconditional love for the cat that is mandatory. Ask any cat.

But dogs. They are good for judges because they don’t judge. A dog’s tail will wag for a judge that has been censured by the judicial performance commission. Well that may depend on the breed. I am talking about dogs and judges.

But judges can carry their relationship with dogs too far. Take, for example, Judge Noel Canon. See Cannon v. Commission on Judicial Qualifications. 14 Cal.3d 678. She was removed from the bench for some bizarre behavior, including having her dog sit in her lap while she conducted trials from the bench. Some of the dog’s rulings reflected unfamiliarity if not disdain for the Evidence Code.

When she was removed from the bench, Judge Canon's dog, (I think it was a high strung Chihuahua), is reputed to have made commercials to supplement her mistress’s income until a highly publicized dispute with Actor’s Equity ended that. But it does show a dog's devotion.

But I wonder if all breeds of dog show such loyalty to their owners. I have no question about Sergeant Preston and his Husky King. But do you think a Pomeranian would display the loyalty of Judge Canon’s Chihuahua? I mention this because of an ad I saw in the Los Angeles Times.

In thick bold white letters against a blue background, appear the words, “Pomeranian.” Beneath the letters is a photo of an orange Pomeranian sculpture, "actual size 8 3/4 in height. Yours for only $59.60. Allow 4 to 6 weeks for shipping after initial payment."

The ad pitchs the “meticulously crafted figurines” as if they were real dogs. It rhapsodizes about a Pomeranian’s “intelligent eyes” and “friendly expression.” It speaks about how this breed is “outgoing and friendly” and “always ready to play.” The ad then urges you to buy a “figurine” to bring the “irresistible charm of this beloved breed into your home.”

You can also get a black one if the orange one doesn’t appeal to you, or maybe get both. Or maybe get two of a kind. That way one won’t get lonely. The photograph of the head of the black Pomeranian is creepy. It looks a bit like a vampire bat. I haven’t seen all that many Pomeranians, but I am sure I never saw a black one. There are black labs, black poodles, black cockers, but are there really black Pomeranians? But I’m getting off track.

The ad raises some questions. Has any one seen a Pomeranian lately? Haven't seen any in my neighborhood. Maybe people are embarrassed to be seen with them. Would a misunderstood judge be cheered at the end of the day by a yapping, I mean barking Pomeranian? . I don't know but if the judge pro temp who ordered the victim out of his courtroom does not have a dog, I would be willing to send him a Pomeranian figurine.