FIRST THING WE DO, LET'S KEEP THE JUDICIARY INDEPDENDENT

"First thing we do, let's kill all the judges." That is what some politicians want to do to the judiciary. Proposed ways to dispatch the black robed miscreants include: impeach them, abolish their office through legislation, or simply treat them as a trauma center and withhold funding. The threats are anything but parochial. They affect not just the judicial branch, but all citizens.
These threats were ostensibly engendered over dissatisfaction with “activist” judicial rulings, and in particular, the heart wrenching decision in the Terri Shiavo case. All the courts involved in that tragic case were accused of judicial arrogance for a refusal to “follow the law.” But that is precisely what those courts did. For all we know the Florida trial judge who first ordered Ms. Shiavo’s feeding tube removed may have wished to keep Terri Schiavo alive no matter what her condition. But he was compelled to reach his decision on the evidence and the law. Indeed, if the trial judge thought his personal beliefs would have hampered his ability to objectively view the evidence, he would have been required to recuse himself. It was the consequence of his following the law that produced a result that critics found so unacceptable.
Ironically these critics were in effect excoriating the trial and appellate judges for not being “activists.” They wished for a ruling that would have kept Terri Schiavo alive without regard for her wishes or the law. This in turn prompted Congress to enact a "Terri Schiavo law" giving federal courts the opportunity to hear once again a state law matter that had been concluded and this time decide the case correctly. The legislative branch displayed contempt for the separation of powers principle they accused the courts of ignoring. When the federal courts refused to again hear the case, some congressional leaders spoke of a judiciary out of control and threatened to metaphorically “kill all the judges,” or at least those whose decisions they disliked.
The original quote, “First thing we do, let’s kill all the lawyers,” I have often seen framed in lawyers’ offices. Taken out of context the words have been misinterpreted as reflecting a pervasive public mood about pesky lawyers creating havoc with baseless lawsuits. Far from it. They are taken from Shakespeare's Henry VI, Part II. Jack Cade, a revolutionary seeks, to overthrow the government and depose the King. While he is inciting a mob to overthrow the government, one of the ordinary citizens, Dick, a butcher, yells the famous quote, “The first thing we do, let’s kill all the lawyers.”
Far from denigrating lawyers, the quote speaks to the value, significance and importance of a government’s judicial system. It is the hallmark of civilization. Without it, we have anarchy and chaos. How to undermine the government and destroy it? “First thing we do, let’s kill all the lawyers.”
By upsetting the balance between the separate branches of government, Congress seeks to punish a judiciary for deciding cases the “wrong way.” The irony of this crude attempt to usurp the separation of powers is obvious. Yet, several legislators concerned about the Shiavo case were motivated by genuinely felt moral principles, and not just crass political motives. But their dissatisfaction was with the law that the judge was bound to uphold. The trial judge could have ruled the other way if he disbelieved the testimony of Michael Shiavo concerning his wife's wishes, or if he had found unpersuasive the expert testimony concerning her mental condition. And if he had made such findings, he would have been bound to rule the other way.
It is not surprising that numerous courts in both the state and federal system refused to hear the matter. Whatever certain members of Congress felt about the Shiavo decision, federal courts determined that this was a state matter that had been concluded. And under both state and federal law, the standards of appellate review mandate deference to the trial court’s findings. It is rare that trial court decisions are reversed because of insufficient evidence. It is seldom possible to make informed decisions about substantial evidence on a transcript.
That is not to say that we do not nor cannot make valid assessments from the written page. We can draw a multitude of impressions about Madame Bovary, or Anna Karenina. We can try to do the same with the unadorned and seemingly prosaic testimony of a witness in a marital dissolution action recorded in a transcript. The words come to us free from the gloss and refined literary filter of Flaubert or Tolstoy, but our insight is limited. It is the trial judge, observing the witness respond to questions under direct and cross examination who is in the best position to make an informed judgment on credibility. The judge then must render a judgment in accordance with the applicable substantive and procedural law, the rules governing evidence, and burdens of proof. The judiciary has no free reign; it operates under constraints.
Judges, like anyone else in public service are and should be subject to legitimate criticism. Law professors make their living more often “burying” than praising judicial decisions. Even judges judge judges. Just look through the appellate reports. But the current debate on judicial philosophy has caused more confusion than enlightenment. The Shiavo case is an example of how radically different points of view interpret “activism” in radically different ways.
One can understand the desire of the appointing authority, be it the president of the United States, or a governor, to hope if not expect their judicial appointees to rule in a manner consistent with their own judicial philosophy. However subtlty or directly these expectations may be expressed to the prospective nominee, predictability is seldom attainable. Exhaustive questionnaires, probing interviews, and recommendations from "kitchen" cabinets offer some insight, but not certainty as to how a judge will rule in a particular case. However disturbing this may be to a president or governor, that’s how it is and must be with an independent judiciary as a co-equal branch of government.
California understands the importance of a truly independent judiciary. To assure that merit, apart from "political" considerations figure prominently in the selection process, we have an independent Judicial Nominees Evaluation committee (JNE). Created by the legislature in 1979, the JNE commission is an agency of the State Bar created to evaluate candidates for judicial nomination or appointment by the Governor. The Commission is presently composed of 34 members reflecting the rich diversity of our state. Thirty members come from various segments of the legal community and four are public members. They are all selected by the State Bar Board of Governors. The non partisan neutral commission complements the governor's investigative process. It receives and evaluates confidential questionnaires sent out to members of the legal community relative to a nominee's qualifications. Competence, integrity, work ethic, and temperament are areas the Commission explores in depth. The Commission's thorough evaluation may expose factors that make a candidate unsuitable for judicial office. This information, in turn, is beneficial to the appointing authority and to the public.
It is the judiciary from which we expect rigorous analysis, unwavering integrity, and genuine independence. The JNE Commission helps ensure that judges of this caliber are appointed to the bench. But to be effective the Commission must enjoy the same degree of independence that is so vital to a fair and impartial judiciary.
At this critical time when the judiciary is under attack a disturbing proposal has been advanced that threatens the vitality and function of the JNE Commission. The proposal seeks to have the Governor's Judicial Appointments Secretary attend the plenary meetings of the JNE Commission. I can’t imagine a better way to stifle a free and spirited exchange of views. It would be like having a party to litigation before an appellate court attend the conference where the justices discuss the merits of the case. The proposal is simply another way of saying, "First thing we do, let's kill the JNE Commission."
The Board of Governors appointed an ad hoc committee composed of past and current JNE Commissioners to study this proposal. Its report issued in February of this year concludes, "One of the principal reasons JNE has been able to perform its stated and statutory mission satisfactorily is that it has been independent of the political process. The presence of a representative of the Governor's Office during JNE deliberations of judicial candidates would be destructive of that independence, would be counterproductive to JNE'S ability to provide fair, candid, straightforward and unbiased evaluations to the Governor's Office, and would irreparably cripple JNE'S ability to perform its mission. The JNE Commission is an enormously valuable independent resource, and should remain so. It does not make the judicial appointments, nor does it want to. It is an important tool in helping achieve excellence in the judiciary of the State of California."
I concur. The workings of the JNE Commission illustrate how one branch of government has a check but not authority over another branch. This is beneficial to our institutions and the public they serve. We should direct our energies to respecting and preserving the balance of power between our separate branches of government instead of destabilizing that balance. Steps to kill the JNE Commission or the judiciary puts our democracy at risk.
I therefore suggest the following: "First thing we do. Let's keep alive an independent judiciary." Our democracy depends on it.

A closing Argument for Johnny Cochran

Q: When? A: The fall of 1964. Q: Where? A: Division 20, the misdemeanor master calendar court of the Los Angeles Municipal Court. Who? Johnny Cochran and I. Q: You mention your names and not the judge presiding? A: What do you expect from two cocky Deputy City Attorneys barely past puberty? Q: But you are telling us about this today. A: Good point. The judge was Richard Schauer who eventually became Presiding Judge of the Los Angeles Superior Court and a Presiding Justice on the Court of Appeal.
Q: Impressive, but specifically what did you and Johnny Cochran do? A: We were prosecutors, seeking to put behind bars, (county jail bars that is ) dangerous criminal misdemeanants who prey upon an unsuspecting public. Q: How would you characterize the two of you, first Johnny? A: Chairman of the board. Q: And you? A: Me? Q: Yes, you, Tell the truth. A: Senior vice president. Q: Who else is there? A: Lawyers, clerks, witnesses, defendants appearing with and without counsel to enter pleas of guilty or nolo contender or to be assigned out to a courtroom for trial. Q: Do the defendants know they have a right to counsel? A: No, Miranda hadn’t been decided yet. Neither had People v. Dorado (1965) 62 Cal. 2nd 338 (defendant must be advised of right to counsel).
Q: What are you and Johnny doing? A: We are “running” the master calendar court. Q: Why are you not trying cases in a trial court? A: We have tried hundreds of cases, but because we are preparing for special cases that have been assigned to us, the chief deputy has given us a respite in the master calendar court. A: What case is Johnny working on? A: He is preparing for a fraud case that will be defended by Melvin Belli. Q: What does Johnny say about his chances for success against such a formidable opponent? A: He is confident. Q: I didn’t ask for your conclusion, I asked what did he say? A: Say exactly? Q: Yes, that would be preferable. A: “I’ll kick his ass all over the courtroom.” Q: Hmmm. A: Well you asked for an exact quote.
Q: What case were you preparing for? A: The kosher chicken case. You see these chickens . . . . Q: (Interrupting) Would you mind saving that for a future column? A: I could do that. Q: We can hardly wait to read it. Isn't this column about Johnny Cochran? A: Yes, Good point.
Q: So getting back to 1964 in Division 20 of the Master Calendar Court. While you and Johnny Cochran were “running” the master calendar criminal court, did anything of significance happen? A: No, not particularly. Q: So why bring it up? A: I didn’t bring it up, you are the one asking questions. Q: But you are writing this column. A: True, but enough arguing. I remember a typical Johnny Cochran exchange with the judge. Q: So tell us about it. A: Judge Schauer called the name of a defendant, “Thomas Edison Jackson.” Johnny couldn't find the file. In a louder voice Judge Schauer said "Thomas Edison Jackson." Johnny grabbed a file in front of him and said, “Your honor, I see the light.” “Now you’ve done it,” I whispered to Johnny. There was a stunned silence in the courtroom as Judge Schauer glared at us for what seemed an eternity. Finally he spoke. “A most illuminating remark, Mr. Cochran.”
That was quintessential Johnny. He shot me a glance. "Schauer's cool," he said.
Q: So tell us more about Johnny.
A: We met in 1964, newly hired deputies at the City Attorney’s office, an ideal place for young lawyers just out of law school to get trial experience. We tried a potpourri of misdemeanors, but drunk driving cases were our staple. Have times changed. Today, a reading of .10 on the breathalyzer guarantees jail time. Back in the 60’s a reading of .15 could often be negotiated down to a reckless driving.
Many in our class of '64 went on to successful careers. Irv Sepkowitz, besides being one of the funniest and nicest human beings alive, became vice president of business affairs for Universal Studios. Ira Reiner became District Attorney, John Karns, a partner in Karns and Karabian. Charlie Lloyd went on to represent professional football players and became a successful entrepreneur. Also, part of the group was then bailiff Julian Dixon, who during tedious trials studied tedious case books in contracts and torts for his night law school classes at Southwestern Law School. He became a highly respected member of congress.
Johnny was not just a mentor to me, he was an inspiration and a model. His life had been a struggle from poverty in the south to opportunity in Los Angeles. Yet, he was always positive and cheerful. He exuded enthusiasm and confidence. Everyone liked him. If I was feeling down, his very presence was uplifting. You can imagine how juries responded to him. He would flash a smile, begin talking, and another drunk driver or other misdemeanant would bite the dust.
I vaguely remember only one case Johnny lost while in the City Attorney's Office. As I recall the defendant was comedian Lenny Bruce charged with obscenity for uttering words we hear on television sitcoms today. There was the possibility I might have to try a similar case against the playwright and poet then known as Leroi Jones. He later changed his name to Amiri Baraka and became New Jersey's third and most controversial poet laureate. His two one-act plays, “Dutchman, ” and “The Toilet” were being performed at the Coronet theater on La Cienega. I attended a performance. Sprinkled throughout the audience were plain clothes police officers furiously scribbling notes. The tough and raw language, the themes of violence and the belligerent protest against racial injustice roiled the establishment. The City Attorney’s Office under the leadership of Roger Arnebergh was contemplating action. At the conclusion of the performance actress Shirley Knight came onto the stage to rally support for freedom of artistic expression.
During the next few days, Johnny and I met with investigating officers and staff of the City Attorney’s Office to discuss whether an action should be filed. I argued, with support from Johnny, that our obligation was to prosecute criminals, not artists, whose words and language were disturbing to some. I predicted we would and should lose the case should anyone in charge be dimwitted enough to file one.
“Not a bad argument,” Johnny said. “Do the same in court, and you will be one hell of a trial attorney.” We didn’t mention Lenny Bruce.
Johnny was always strongly supportive of law enforcement, this even before his son, the Highway Patrol officer was born. His thesis was simply this. Everyone has a responsibility to do their job right, and to do it with integrity and professionalism. He approached his cases with a commitment to attain the highest level of skill and competence of which he was capable. He strived for excellence. He expected others to do the same in their professions, and that included, indeed was a fundamental obligation of law enforcement officers. "Not to much to ask," he would say, "when people’s freedom and their lives are at stake."
I recall a case in which a personable police officer who Johnny liked and admired, testified in a preliminary hearing in Judge Marion Obera's court. The officer testified that he knocked on the front door, the defendant answered and invited him into the house where he "observed large quantities of drugs." Then came the defense, something unusual for a preliminary hearing. Shortly before the officer had arrived, the defendant and his rock group had been rehearsing for an upcoming gig. They had also been recording the session. When the officer knocked, the band was taking a break, only they had forgotten to turn off the tape recorder. Need I say more. There on the tape recorder, for everyone to hear, was the pounding on the door, the rush of the officers into the room accompanied by threats and obscenities.
Johnny’s disappointment was profound. He had lost a friend, and was furious that this misconduct could reflect poorly on the vast majority of police officers who are skilled professionals dedicated to fulfilling the motto of the department, "to protect and to serve." Johnny, a champion of civil rights, was particularly chagrined because here the officer was black and the defendant white. Johnny, who was ecstatic over passage of the 1964 Civil Rights Act said that at least this unfortunate incident proves we are all equal.
Johnny will always be remembered for the O.J. Simpson case. Many people are angry at him for "winning" the case. But however one may feel about O.J. Simpson, Johnny was not hired to lose the case. He pointed out flaws in the prosecution's case and the Simpson jury had a reasonable doubt. One could debate for years whether, in fact, the case was won because of Johnny's unique skill in connecting with that jury. One of the most astute commentators on the case, Ira Reiner, predicted a not guilty verdict shortly after Johnny had made his opening statement. You did not have to see the jurors to know they were hanging on to every word and gesture.
Whether as a prosecutor or defense attorney, Johnny Cochran was devoted to the cause of his clients. He was a consummate trial lawyer and a warm and engaging human being. Professor Gerald Uelman is reputed to have authored the famous quote: "If it doesn't fit, you must acquit." I would add the less pithy, " Johnny's the lawyer with passion and fire. Johnny's the lawyer I most admire."

Perceptions-Castles of Sand or Stone

For many years now I have had this suspicion that things are not what they seem to be. This troubling suspicion I had stuffed in some out of the way corner of my mind. How silly of me. Once an idea is in your mind, the “out of sight, out of mind” theory falters. It is just as well. A healthy skepticism that stops short of cynicism is a judge’s indispensable attribute.
I have had cause recently to pull my suspicion out of its dusty corner, shake it out, and hang it like a tapestry in a more prominent spot in my modest but cluttered quarters. On sunny mornings when I crave the chirping of birds over the inexorable beat of techno rock that invariably accompanies my workout at the local gym, I jog on a variety of routes in and around my neighborhood.
On occasion my jog takes me to a little street and a lovely Spanish style house and its adjacent enchanted garden. In the garden, which extends from the back of the lot to the sidewalk, are windmills, ponds, fountains, gnomes, toads, toadstools, and I believe an old edition of Shepard’s citations. The house is slightly set back from the street and occupies the other half of the lot. The entrance juts out toward the street in a short L. Three Mexican tile steps take you to the tastefully tiled front porch which serves as an entryway to the front door. On the second step sits an extremely English bulldog guarding the house and garden with unwavering vigilance. Even though I know that he, the toads and gnomes share the same unchanging universe, I expect him to come bounding down the steps toward me. I silently tip my hat to the artist who made such a realistic creation.
I had a cat, now deceased. My secretary Val asked for a photo of him. She gave the photo to an artist who painted a perfect likeness of my cat on a smooth large rock which she gave me as a birthday present. My cat lolls around my chambers and keeps me company while I work. Most of the time I know he is not real. Please don't scoff. I know of people who have given their pets the pathetic appearance of immortality through the services of a taxidermist. There is no comparison between a stuffed pet and a pet rock. But this bulldog looks real, I mean like a real bulldog. He even has a real collar around his neck.
So the other day I jogged to take another look at my enchanted garden , and to my horror saw that the house was up for sale, and that many of the gnomes and toads were gone. The “nothing lasts forever” perception began tugging at my heart. No comfort there. Not wanting to dwell on the loss, I began my jog again, but then for a moment my sprits were buoyed. Out of the corner of my eye I glimpsed the stalwart English Bulldog. I turned around to see my old friend. There he was at a new post, this time at the top of the stairs, guarding the house.
I stopped to gaze. I could almost swear the bulldog was looking at me. Did I see his head move ever so slightly? I got closer. So did the bulldog. He took a few steps forward so that he was just at the edge of the top step. He was growling and baring his teeth. I was taken aback more by surprise than fear that the bulldog could outrun me. Just moments earlier I could have sworn he was not a real bulldog, precisely because the figurine I had seen so many times looked so real.
This unnerving experience prompted me to question my perceptions about other things, including legal issues. The other evening I saw my friend, law professor Herbert Morris, at a lecture. He told me about how affected he was by “extraordinary rendition.” I thought he was talking about Coleman Hawkins rendition of Body and Soul.
My perception quickly changed when I learned he was speaking about the name of a program our country uses to extradite terrorists to other countries not averse to using torture as a method of interrogation. Revelations about this program appear in the February 14th edition of The New Yorker in a story by Jane Mayer entitled "Outsourcing Terror."
It is true we live in extraordinary times that may call for what the Bush administration terms "new methods of engagement." But this method of dealing with certain suspects is not what one would perceive as conceivable in the United States, particularly when we are seeking to spread democratic ideals throughout the world. It is contrary and antithetical to the rule of law upon which our democracy depends. The arguments in support of this disgraceful practice are unpersuasive. I have considered the other point of view, but my perception that this is the wrong way to bring terrorists to justice has not changed.
Nevertheless, we must guard against holding on to our perceptions of issues with unyielding tenacity. When we build barricades against the assault of other people's perceptions which challenge what we hold dear, we close the door to tolerance, reasoned debate, and principled compromise, attributes that are congenial for everyone, not just elected officials and judges.
The recent concurring opinion by Justice Brown in People v. Young 2005 DAR 1209 challenges perceptions about whether black women are a cognizable class in jury selection. Her outspoken views prompted a News Analysis article by Peter Blumberg in the Los Angeles Daily Journal Feb. 4th 2005.
Justice Brown wrote the opinion affirming the death penalty for defendant Young. What is noteworthy is the concurring opinion also by Justice Brown in which she calls into question the decision in People v. Motton (1985) 39 Cal.3d 596. Motton holds that for purposes of deciding bias toward groups in jury selection, black women jurors are a cognizable group. In her concurring opinion in Young, Justice Brown expresses concern with the “endless proliferation of cognizable groups” and sub-groups. She acknowledges that “Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group…", but she could find no evidentiary basis for the court to have made that judicial finding in Motton.
Many assume, as did the Motton court, that Black women have long been a group subject to discrimination in jury selection. But Justice Brown’s perception is far different. She posits that the Motton court creates a “pernicious stereotype” that it then pretends to destroy. Does the Motten court accurately portray Black women as a group sharing a similar perspective in attitudes, ideas and experience, or does it demean that group through an unwarranted assumption?
I was struck by the differing perceptions of Brown's points expressed in Blumberg's article and elsewhere. Some argue that Justice Brown, a black woman is insensitive to a class that suffers discrimination, while others argue her views reflect acute sensitivity to the issue. However one views the issue, Justice Brown’s concurring opinion sets the stage for a reasoned discussion which could lighten the weight of some perceptions that had previously been anchored in assurance.
Edward Albee’s recent play, “The Goat or Who is Sylvia?" I doubt one will find on Jerry Falwell’s must-see list. It’s about a man who falls in love with a goat. The play serves as a metaphor for how a radical change of view or behavior upsets settled views. To some it can be so shattering, so devastating that it permanently changes established relationships, and leads to hostility and violence. It's not easy finding common ground and often not possible. But an attempt to understand how others perceive things so differently than we do is a step in the direction of a more harmonious society.
A number of years ago I attended a judicial conference at the University of Kansas. One evening the attendees had dinner at a nearby hotel where a taxidermist convention was in progress. You might not find such a convention at the Biltmore in Los Angeles, but I swear to you there was one in Lawrence Kansas at the Holiday Inn. Justice Brown will back me up on this because she and I were dinner companions. After dessert we strolled through the cavernous hall where the convention exhibits were displayed. There were booths where one could purchase a taxidermist kit. I bought one in the hope I could preserve my opinions that had been depublished by the Supreme Court. I recall someone hawking his services to preserve forever your pet bird, dog, horse or hamster. I wondered whether the people who buy into this creepy preservation actually perceive they are keeping their pet.
After observing a stuffed horse, Justice Brown and I shied away from an extended conversation about taxidermy. I suspect our perceptions were the same.

If Your Theme is "It's Good Enough," It's Time to Change Your Tune

I recently had a birthday. It wasn’t a good one. It came at the same time of the year as all the others. I guess it wasn’t all that realistic to expect this year to be different. My age makes me eligible for curmudgeon status. But I was a precocious child and became a curmudgeon at four. Well you would too, if your birthday comes, as mine does, smack dab in the middle of the holiday season, a few days before New Years. I suppose that is why so many things other than poorly written briefs irritate me during the holiday season.
Take holiday cards for example. Every law firm in town sends its expensive custom card with a snow scene from some vague year in the nostalgic past. There is a sleigh pulled by a frisky horse with cheerful ice skaters in the background. No matter that this is Los Angeles and it’s 82 degrees outside. Or maybe they send a “witty ”card showing Santa being served with a complaint for flying without a permit. And for that personal touch the card bears the name of the law firm in colorful red print. Sometimes two or three different law firms send the same card. They should have a central registry like a wedding registry to avoid duplication. No matter, they all go in the basket along with the third draft of an opinion I am working on. For all I know, the firm on the card represents a party.
But what is the most irritating of all, is the number of form letters I receive during the holiday. These letters often come from persons I hardly know and are filled with information about dozens of people I don’t know, and never want to know or meet, ever. The assembly line letters illustrate our addiction to efficiency and our yearning to be personal. In fact, these letters are the product of lazy writers who will not take the time to craft a letter to a specific individual. Instead they assume their addressees are fungible, bound together by an enduring interest in prosaic stories about unremarkable people living tedious lives. “Dear(name of the addressee written in the blank), Mort and I painted the bathroom last March-only we ran out of paint. Since we bought the paint a long time before we started painting we couldn’t get exactly the same color, so we painted the ceiling a different color than the walls. We thought it looked kind of funny at first, but I think its OK for a bathroom; well, at least the guest bathroom. Ronald, our dog, caught a muskrat last July, brought it into Sparky’s room and dropped it in his bed. It caused quite a ruckus.”
And then it occurred to me that perhaps the judicial opinions I write are strikingly similar to the form letters I detest and may be just as boring. So who was I to criticize well-meaning people who had included me as a recipient of their insipid form letters. I needed a straight answer, and so I decided to call a friend who was not shy about voicing his opinions on any subject under the sun including holiday cards, form letters, my spoken and written opinions, and even my columns. From him I would not receive solace, but uncompromising honesty. What else could I expect from one who had authored a trilogy of short novels entitled, “I Love You, I Hate You, Drop Dead.”
But the day after my birthday, I, and the rest of the world suffered a devastating loss. The friend I was about to call, the legendary Artie Shaw, had passed away. I was fortunate to have known Artie for the past 15 years and his insistence on perfection strongly influenced me. But Artie was a genius to whom perfection was no stranger. To me, genius and perfection are aliens, more mystifying than the Bush twins. But to him, who no doubt was the finest clarinetist of all time, perfection was a constant yet nagging companion. This was one marriage that lasted to the end.
He was an expert in just about everything. The upstairs of his home in Newbury Park was a scaled down version of the New York Public Library. You could divide the library up into departments, the sciences, including quantum mechanics, and astrophysics, history, philosophy from the pre Socratics to the 20th Century, painting and sculpture, and literature. Yes, he read every damn one of those books at least a couple of times and remembered everything he read. He once asked me who, not what I was reading. I said, “Proust.” He then launched into an exegesis on “Swanns Way.” He refused to take credit for his ability to recall everything he read. “I was born with a photographic memory,” he said. “Therefore I don’t get the credit.” “Do you get credit for understanding all that you have read” I asked? That question elicited a smile.
So I have been forced to ponder the dilemma of judicial opinions and form letters alone, yet I can imagine Artie's analysis. He would point out their similarities. They are written for a large audience, not just the litigants. They seek to elucidate points that are presumably of interest to a wide, albeit limited audience. Judicial opinions that are poorly organized and dwell on facts that do not define the legal principle at issue are more like the form letters that ramble, and at best have limited interest.
I can hear Artie pointing out to me that this is entirely avoidable. One merely has to take the time and commit to writing an opinion that is clear and readable, something of interest to the reader. And the same advice can be given to the writer of an appellant’s or respondent’s brief, or the writer of a form letter. No one cares about the muskrat dropped in Sparky’s bed, especially Sparky, a 17 year old line backer on his high school football team, who with fervor wishes his mother hadn’t written about the muskrat incident. His grandmother loves the story.
But what of the case where there is widespread interest. The obligation to be clear about what you wish to tell your audience is all the more essential. Take for example, U.S. v Booker, 2005 DJDAR 410 (U.S. Jan. 12, 2005) the United States Supreme Court decision that invalidates the Federal Sentencing guidelines—I guess. Booker tells us that the guidelines are unconstitutional but courts still have the discretion to use them. Hmmm.
Artie would have disapproved. The ruling leaves much to ponder. Does not Apprendi v. New Jersey, 530 US 466 (2000) and United States v. Blakely 124 S.Ct.2531 (2004) hold that facts that increase a sentence must be decided by a jury? No stranger to litigation, Artie said, “If you are a judge making important decisions, people ought to know what the hell you are talking about.”
Whether writing a form letter, a brief , an opinion, or engaging in an worthwhile endeavor (that should exclude columns), Artie's advice applies; "Good enough is not good enough." Printed in the program prepared for his memorial service was a poem dedicated to him by his friend, A.C. Greene, the poet, not the basketball player. It is titled, "The Soul Of The Song." It speaks to the mission of the artist, but however limited may be our own talents, it offers insight for those who believe that "good enough is not good enough." It reads:
He taught the clarinet to think
Not just to sing.
To explore the music it was making.
To let the fingers probe and find
The hidden places,
The crevices of meaning and emotion.
A good song has---------
But must be found and captured
By some divinity or other,
A melody that cannot just be played,
Can't be chartered,
The secret tempos and their keys
Can only be discovered
By a mind that is listening for the soul
The manuscript does not display.

Words Come Back to Haunt

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.”

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.

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.

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.

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.

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.

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

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.