Wednesday, September 30, 2015


          Yesterday, Labor Day, was my 40th anniversary.  Labor Day 1975.  Four decades ago.  That is when it happened.  Could have been four minutes. Hard to tell even for Einstein.  From my perspective today, the years whizzed by like the rapid flipping of calendar pages to mark the passing of time in a 1940's movie.  But at moments (a measurement of time itself) during those 40 years, time loitered, leaned against a wall, lit a cigarette and watched with detached amusement as I struggled with legal conundrums.  But I cannot help but wonder….  Oh, dear me, in this pseudo-literary pretentious reminiscence, I forgot to tell you what event occurred 40 years ago.  Give me a moment.  Oh, yes, got it.  Justice Stanley Mosk "swore me in" as a judge in the Los Angeles Municipal Court. 
          What was the municipal court?  As I recall, it was a court of limited jurisdiction.  At that time we handled traffic tickets, misdemeanors and civil cases with a limit of $5,000.  What was $5,000 worth at that time?  I can't tell you, but I do know the Bretton Woods Agreement was defunct.  And a few years before my appointment, President Nixon issued an order preventing the conversion of the United States dollar to gold.  Don't ask me to explain the significance of all that.  In 1975, I was hearing DUI cases.
          I cannot speak for others, but for me the acknowledgement that I have been engaged in my profession for 40 years has been a smack in the face.  At age 40, Einstein had figured out E=mc2 some 14 years earlier.  At age 40, Mozart had been dead for five years.  And Leondra Kruger had not been born yet.  But comparisons with geniuses are pointless, if not presumptuous.  And one can accomplish much in the law, but litigating and judging necessarily involve what has been called a "relentless pursuit of error."  That means that lawyers can as easily win a case as lose one.  And judges, even the best, are subject to reversal.  Of course, judges are affirmed from time to time, but statistically they are more often reversed.
          It started my first day on the job, the day after Labor Day 1975.  That is the day Elwood Lui and I began our careers as judges.  We sat as spectators in a trial court and watched Commissioner Nancy Brown handling traffic cases.  In those days traffic violations were considered criminal cases, not infractions.  She later became a superior court judge.  Commissioner Brown took a recess and announced that the next case would be heard by Judge Gilbert.  Huh?  She called me back to her chambers and held out her robe.  It was a perfect fit.  That's what happens when you are short.  Court was called into session and I heard my first case.  Gulp!
          Cannot remember the charge, but I do remember the defendant was a savvy pro. per. who had thoroughly researched speeding and traffic studies in the United States and abroad.  He produced charts and graphs and had an encyclopedic knowledge of the legislative history of the vehicle code.  The deputy city attorney prosecuting the case was not much help.  I found the defendant guilty.  He appealed.  I vaguely remember being reversed by the imposing appellate department of the superior court.  That’s what time can do.  I do remember, however, the presiding judge of that court telling us municipal court judges that the appellate department of the superior court was our Supreme Court. 
          I thought about the progress that has been made in gene sequencing.  In the future we may produce perfect human beings with high intelligence, good manners, impeccable taste.  Surely such faultless individuals would be error free.  Imagine error-free judges and lawyers.  We would all be out of work.
          On second thought, I doubt gene manipulation will solve the problem of error in the legal profession.  The question boils down to when the alleged error occurs and who or, should I say, what court considers it error.  And let’s not forget to add to the mix the concept of harmless error, or what I have termed in some cases, “harmless terror.”  We should consider harmless error against the backdrop of Cal. Const., art. VI, § 13, “miscarriage of justice.”
          For differing views on error, I commend for your reading pleasure and enlightenment the recent case of People v. Blackburn (Aug. 17, 2015, S211078) [2015 Cal. LEXIS 5629].  Justice Liu, in his concurring opinion, and Chief Justice Cantil-Sakauye, in her dissent, offer differing views, both thoughtful and well reasoned. 
          Justice Liu's majority opinion holds that in a MDO (mentally disordered offender) civil commitment proceeding extending the involuntary treatment of the defendant, the court must advise the MDO personally of his or her right to a jury trial.  The court may not hold a bench trial without a personal waiver from the defendant unless there is sufficient evidence to raise a reasonable doubt that the defendant lacks the capacity to waive a jury trial.  In such case, the defendant’s attorney decides the waiver question. 
          Sixteen years ago in People v. Otis (1999) 70 Cal.App.4th 1174, the Court of Appeal held that, in a similar MDO proceeding, the defendant’s trial counsel could waive jury over the objection of the defendant.  The California Supreme Court denied review, and numerous courts in subsequent cases followed Otis.  Blackburn approved the result in Otis, because defendant displayed obvious signs of cognitive impairment at his commitment hearing.  But Blackburn disapproved Otis.
          The partial error in Otis occurred not when it was written over a decade ago, but just a few weeks ago.  I guess that proves that error is in the mind of the beholder.  Or should I say, in the mind of the beholders?  Did I mention that I wrote the Otis decision?  Sorry, I guess it slipped my mind.  But guess what?  I agree with the well-written majority opinion in Blackburn.  I also agree with Otis, as far as it went on its particular facts.
          Changing notions of justice and interpretation give the law its vitality. That is what makes our work so challenging and stimulating. Yet we strive to make change orderly and measured so that people can conduct their affairs with a reasonable degree of predictability. 
          It has been a privilege to serve on the court for the past 40 years.  I suppose the years went by so quickly because I found the work so fulfilling.  A famous judge once said that if a judge is never reversed, he or she isn't doing a good job. 
         I plan to stick around a few more years where I am sure to find errors made by trial judges, and to make more of my own.  And about reversals…

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