Wednesday, August 17, 2005

Judges Must Stay In Tune

Peter Stumpf the principal cellist of the Los Angeles Philharmonic plays a 17th century Stradavarius cello. Although “valued” at around 3 million dollars, some would consider the cello, made by Antonio Stradivari in Cremona, Italy, in 1684, priceless. Stumpf doesn’t own the cello. The Philharmonic owns it. But when you are as good as Stumpf the L.A. Phil lets you use it. In legal talk Sutmpf is a grateful bailee. The L.A. Phil is the generous bailor. An incident last year no doubt made the L.A. Phil an agitated bailor. Apparently, musicians, like professors and judges, can be absent minded, an attribute to be expected with so many weighty things on their minds. But brain surgeons for example also have weighty things on their minds, and we do not expect them to be absent minded with their scalpels. After all, they make on the spot life and death choices. But I suppose even brain surgeons might forget where they put the shopping list, or the car keys.
Getting back to Stumpf, you might recall reading about his inadvertent peccadillo last year. At the time it was no peccadillo, but in light of the subject matter, “peccadillo” sounds so musical and Italian. Stumpf came home late in the evening to his house in Silver Lake after performing in Santa Barbara. He carried the multi-million dollar “Strad” in its case. He put the case down on the front porch of his house, fiddled (pardon the expression) with his keys, opened the front door and went inside . . . without the cello. He left it on the front porch. I guess he was tired. Early the next morning, a thief came by on a bicycle and left with the cello case inside of which was the priceless Stradivarius. A neighbor’s security video camera across the street captured the event and showed the thief wobbling on his bicycle as he precariously peddled away while grasping the ungainly cello case. Oh dear! For the inquisitive, an obvious and compelling question comes to mind. On what instrument would Stumpf play at the next concert, if in fact the directors of the Philharmonic did not throttle him first?
Not to worry. The cello was found in an ashcan with minor damage. The cello had not suffered much damage either. I don’t know about the ashcan, but the cello was repaired. So what is the point of all this? It leads to a seemingly simple question, pregnant with profound implications: who is Stumpf without the Strad? Yes, yes, I know he is still a world class cellist, . . . but . . . . “But what . . . ?," the impatient will inquire. Allow me to elaborate. Stumpf is Stumpf just as we all are who we are, except Stumpf the cellist is not Stumpf the cellist without a cello. Well, OK I grant you that if I were introducing Stumpf to someone, and that assumes I know him and I don’t, but if I did, and I wanted to impress the person to whom I was making the introduction, I could very well say, “And this is Peter Stumpf, the principal cellist with the Los Angeles Philharmonic.” And if I were malicious and not particularly fond of Stumpf, I might add: “This is the clown who left a 3 million dollar Stradavrius cello outside on the front porch of his house.”
In fact, I would not utter these words simply because I am capable of doing the very thing that Stumpf did. Of course this is strictly conjecture because no person, institution, or organization would ever entrust a Stradivarius cello to me under any circumstances, including the presence of a 24-hour armed guard. I feel unworthy playing “I’m in the Mood for Love” on my Steinway. I am not sure if that’s because of the title of the song or the instrument. Suffice it to say, my wife does not trust me with a shopping list.
But getting back to my point. We can indeed say that Stumpf is a cellist, and safely introduce him as such, but to realize the unique attribute that makes Stumpf the cellist he is, it is absolutely indispensable that Stumpf have a cello. A cellist without a cello is like a pilot without a plane.
So what about us in the legal profession? Has it occurred to you that we do not have cellos or any reasonably close counterpart? Take judges for example. Contrary to what is depicted in courtroom scenes in old movies and television shows, we do not even have gavels. We may have a ceremonial gavel or two that friends or associations give us on which is inscribed the same inane rhyme that assumes the judge is peripatetic. Does not anyone realize that “travel” is not the only word that rhymes with gavel? If there must be rhyme written on a gavel, I prefer “Don’t cavil with the gavel.” I don’t know of one real life judge who uses a gavel. It is true we do wear robes, but they are a symbol of the office. If we left our robes at home, and ignored Government Code section 68110---which requires us to wear them, we could still sentence some poor devil to 20 years.
And what about you lawyers? Sure you have your briefcases, and silk suits, (well some of you) but you could wear polyester and still practice (maybe not in Century City), but you get my drift. We do not have cellos. Think about it. The brain surgeon must use implements, scalpels and precision knives come to mind, and I am sure there are many more indispensable tools that are required for surgery. Not with us.
We have one thing and one thing only: words. That’s it. Judges for example, utter words and people lose their freedom, their money, or have to do things or stop doing things.
Words are so important to our work that we have to be careful how we use them. They are too important to be left out in the cold. They have to be taken inside and watched over. For example, a person’s freedom or life can depend upon how judges or jurors view the instruction on reasonable doubt. To arrive at guilt in the old days we had to have an abiding conviction to a moral certainty. No one quite knew what “to a moral certainty” meant though today many people are quite sure of their beliefs to a moral certainty.
In the hope of achieving clarity, “moral certainty” was jettisoned from the reasonable doubt instruction in California . (See CALJIC 2.90) Yet, uncertainty remains. In People v. Johnson 119 Cal.App.4th 976, (2004) the trial court tried to explain reasonable doubt to jurors by referring to decisions we make in our everyday lives. The trial judge explained that when you drive through an intersection on the green light, you might be cautious because it is an intersection, but it would not be reasonable to get out of your car and check to see if the red lights controlling cross traffic were malfunctioning. Damned right, and you would be late for court. The criminal conviction was reversed. The Johnson case cited the early case of People v. Brannon, 47 Cal. 96 (1873) which teaches that it is error to equate ordinary everyday decisions with reasonable doubt.
Another Johnson case, People v. Johnson 115 Cal. App.4th 1169 (2004). (Note-2004 was a good year for mishaps.) The trial judge told the jury he would not attempt to paraphrase the reasonable doubt instruction, but then indirectly did so by contrasting it with a ridiculous doubt. For example, we all have a doubt whether we will be here tomorrow. He analogized reasonable doubt to doubts a couple might have about whether a new home is a wise investment. The appellate court pointed out that this is a far different calculus than deciding whether the prosecution has proved the case beyond a reasonable doubt.
And that takes us to Supreme Court nominee John C. Roberts. His words have earned him an extraordinary number of “wins” in the United States Supreme Court. We will see how effective are his words during the confirmation hearing. No doubt there will be questions about judicial philosophy, Roe v. Wade, Robert’s dissent as a federal appeals court judge in a case involving the Endangered Species Act, and questions about whether the Constitution is an endangered species. But one thing I know beyond a reasonable doubt: Judge Roberts will carefully use his words as though they were a Stradivarius. His ability to use them effectively to advance a reasonable argument should remind us how precious are our instruments. Like the Stradivarius, they must be cared for and treated with respect. They can so easily be stolen and misused when they are carelessly left on the porch after we have locked the front door for the night.
It is hoped (not hopefully) that the Senators use and tune their Stradivarii (or whatever the plural is) at Judge Robert’s confirmation hearing. If they use second rate instruments the hearings could well degenerate into chaotic dissonance. Will the Senators be well served by using the reasonable doubt instruction to guide their decision? If they do, let us hope they do not rely on the scuttled phrase that requires a decision based on moral certainty. “Moral certainty” is what is left when the Stradivarius goes missing.

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