I’ve been preparing to teach a class with a fellow judge titled “Lawyers Gone Wild.” It’s a primer for judges on how to handle difficult attorneys. Some of us are natural pacifiers and can easily create a calming influence in court, despite hostility swarming around us. I’m not that type, but I can follow tips on de-escalating situations with difficult lawyers. The hardest thing for me when I first became a judge was to stop myself from arguing with the attorneys. After all, I had spent my entire earlier career arguing.
It took me about ten years to feel confident that I could control my courtroom. It would be difficult to become a judge too early in life. With maturity comes a better understanding of human nature and an acceptance that conflict rarely is productive. In my early thirties, an attorney for fewer than ten years, I received an inquiry from someone connected with Governor Jerry Brown who wanted to appoint more women to the bench. I am relieved that I declined the invitation and allowed myself to become more seasoned. After spending years both as a defense attorney and as a prosecutor, I was ready. At age fifty-two, I ran for judge.
When I teach classes to other judges, I always feel intimidated. Today, I am one of the more senior judges. I like to pair myself with someone who is a whiz at the law. I’m better at the color commentary. I probably sell myself short as a legal thinker. Norman won’t accept that my brain cannot process abstract reasoning. For anyone who is considering going to law school and worried that they can’t make it through or get past the bar exam: if I can do it, you can, too. I am an extremely linear thinker and it has served me well. At sixty-seven, I put aside insecurity about abstractions, secure in the knowledge that I’m good at other types of thinking. Organizing my priorities, patiently proceeding toward a goal, and being persistent about what I want are all abilities in which I excel.
I did not pass the bar exam the first time. I passed the essay portion and failed the multiple choice. At the time, 1972, it was necessary to pass both sections and I had to take the entire exam again. I felt frustrated and humiliated. The University of California at Davis was a fine law school, and all of my law school friends passed. I studied hard but always felt queasy about multiple choice.
Narrowing the field to the two most likely correct answers was easy. Then I bounced back and forth among the remaining choices. Fortunately, I passed the second time. For anyone reading this who might be tempted to give up after failing the bar, hear me: No one in forty-three years has asked me whether I passed the bar on my first try. I’ve also joined illustrious company: Michelle Obama and Hillary Clinton (DC bar).
The first defendant this morning was in custody, a man in his fifties, disheveled with messy gray hair, and wearing a yellow jail top, indicating mental illness. He represented himself and claimed to have an engineering degree from the University of California at San Diego. The charge was failing to register as a sex offender, a result of his only conviction for false imprisonment in 2001. He was clear-spoken but not rational.
I asked, “Are you interested in accepting the prosecution’s offer of thirty-two months in state prison?”
“No, I want the maximum,” he said.
The number of mentally ill defendants who pass through the downtown criminal courthouse is staggering. I feel for them. Many just need a safe place to sleep and an organized overseer to make sure that they stay on their meds. More and more defendants belong in the mental health system and not a criminal one. Without taking meds, some of these folks are scary. On their meds, they are often delightful and engrossing people suffering from their illness, whether they are aware of it or not. They could be any one of us.
Next on the morning calendar came the sentencing of two defendants convicted in my court the previous year of two gang robberies. The victims were a married couple who ended up in the wrong neighborhood. Without provocation, they were accosted, and the male victim was struck several times on the head with a rifle. Growing up in the neighborhood where the robbery occurred, the victim’s wife was clever. “From high school, I knew a guy from the gang that controls the neighborhood. I found his Facebook page and looked at his friends. Then I looked at the friends of his friends. It took me three days of searching but I found the guys who robbed
us.” The suspects she found were each around twenty years old at the time of the robbery. And, to bolster her and her husband’s identification, each subject lived in the exact area of the robbery and was a member of the gang suspected by the victim.
The question in these cases is always whether I should apply the sentences that have been set by the Legislature for gang robberies or figure out a way to impose something different. The victims had been traumatized and would be affected for life. Each of the defendants presented an alibi defense using family members who testified. One testified, “There is no way my brother could have been committing that robbery. I know he was with me and my children that night in Las Vegas.” The jurors didn’t believe the alibi witnesses, and neither did I.
The sentences set by the Legislature were approximately thirty years in prison for each defendant, reduced by fifteen percent for good behavior. Each of these young men would be released in their mid-forties. I couldn’t see my way legally to deviate from the sentences. Even if these young men grow up, do well in state prison, and request early release, it likely won’t happen.
The trial next door where the police rookie turned in her training officer for writing a false report will be retried after a hung jury. I feel bad for the rookie, as her life at work must be hell.
This afternoon, I attended proceedings held by the three special masters appointed by the Commission on Judicial Performance (CJP) deciding whether my friend should be disciplined. The proceedings were held in a formal wood-paneled courtroom where the Court of Appeal normally sits. I was sworn in to testify as one of several character witnesses.
As he sorted through the excuses of hundreds of jurors about why they couldn’t serve on a month-long gang murder trial, my friend combined seriousness with light-hearted banter to ease the atmosphere. Some of his jokes fell flat. A prospective juror said she had to be excused because “I have to produce a movie in the next two weeks.” The judge inquired about the nature of the movie. “It’s called The Red Balloon.” She was excused from jury service. As she left the courtroom the judge said, “This is a PG-rated movie, for any of you whose mind is running away with it.” The CJP decided this remark was a sexual innuendo and improper for a judge.
I testified that our friend is extremely straitlaced and religious and never tells sexual jokes or laughs at them. Recounting an incident with fellow judges in the lunchroom, I testified that all the judges, male and female, were talking about a female judge’s attractiveness. My friend not only did not join in but asked me, as we left the room, “Do you think that the conversation was appropriate?”
The CJP combined that charge with several others and charged my friend with willful misconduct. They claimed he violated the Canons of Ethics for judges by not always acting in a respectful and polite manner toward everyone in the court. With the other counts, my friend acknowledged saying certain things and said that he was sorry if he offended anyone.
After my testimony, I listened to the closing argument of the prosecutor (called the examiner) and my friend’s attorney. I am biased toward my friend, but I thought his attorney’s arguments were on point. “Judges are human beings and make mistakes. We all have bad days. Just because a canon says that judges must be polite doesn’t mean one instance of a rule violation should possibly trigger an automatic discipline investigation. How could judges feel comfortable doing their jobs all day long?” The examiner was a young, blustery male, whom I bet never selected a jury in his life.