When it comes to legal reform, where do you think it comes from?
Any new reform measure is a reaction to an abuse. Our constitutional protection against unreasonable search and seizure is a reaction to British redcoat (troops) door kick-ins during the Colonial Period searching for tea smuggled past the tax man.
The right to counsel in criminal cases that led to Miranda (and the rise of the Public Defender movement) can be said to have begun with Gideon v. Wainwright, where a prisoner protested his conviction without counsel. Counsel was appointed for him on appeal to the U.S. Supreme Court which established the new rule requiring appointment of counsel for everyone accused of a serious offense, at no cost.
See Geoffrey Robertson's excellent "The Tyrranicide's Brief" (about the prosecuting attorney who led Charles I to lose his head and then found himself prosecuted when the political worm turned). You would not like to see what passed for criminal justice, then.
So it was interest that I read a one-pager in California Lawyer, the magazine of the State Bar of California, by Ronald W. Tochterman, a retired but still serving Sacramento Judge, in praise of his mentor, the late Leonard M. Friedman of the Court of Appeal, 3rd District.
Under lessons learned, in the October, 2007 issue, Tochterman writes:
Although Leonard never presumed to instruct, I learned five important lessons by watching and listening to him:
- Read well, write well. If you want to be a good writer (and you do), read the best writers and pay attention.
- Write to inform. The important thing in judicial writing is to carefully justify your decision, though style does matter, too.
- Don't be a comedian. Lawyer's laughing at a judge's joke is as meaningful as canned hilarity on TV sitcoms.
- Don't sweat the 1706.s. The affidavit of prejudice typically tells more about the integrity of the affiant than of the target.*
- Respect the defender. Defending accused criminals is the law's highest calling. We owe those who do it a huge debt of gratitude.
Well, that's nice to hear, isn't it? A judge respecting the role of defense counsel? You don't see this every day, which is why I reproduce it here. Thank you, Judge T. I hope you mean it.
I have a friend, a judge in the Bay Area. He gives talks on the presumption of innocence and all those good things. But when it comes to applying them he's poison. What you say and what you do can be two different things, but I guess you knew that, didn't you.
I won't bore you with war stories. Well, maybe one, below:
* [The CCP 170.6 challenge is how you get rid of a bad judge. Well, s/he may not be bad in all respects, all the time, but bad for your cause in this case, unlike a peremptory challenge to a juror, where you don't need to give a reason, it's just thanks and good-bye.
With a judge, you have to swear that the judge is biased or prejudiced against you or your client thus making you believe that a fair hearing cannot be had.
The factual basis may be imaginary, but this is what you have to swear to in order to get a new judge.
You can only do this once per case and your timing has to be perfect, otherwise, if you wait a moment too long, you lose the opportunity, as I saw a lawyer do.
He represented a
black client when the criminal matter was assigned by the Master Calendar judge for trial to a Trial Department presided over by a judge who some people thought wouldn't go out of his way to give an even shake to a black. This lawyer from across the Bay didn't know this, and neither did I.
A moment later, when out in the hall, a
friend clued him in, the defense lawyer
immediately returned to the Master Calendar court, had the matter recalled, and
entered a CCP 170.6 challenge to the judge he'd learned was apt to be biased against his client.
"Too late," said the Master Calendar judge and ordered the matter to trial forthwith, meaning, "Get
over there right now and start picking a jury."
The defense lawyer reported to the trial courtroom, tried to renew the challenge, but was rebuffed, and then refused to proceed with the trial, for which he was held in contempt.
The defense attorney's bar association came to his aid, but, the
attorney, who was black, was held in contempt by the trial judge for refusing
to proceed to trial as ordered. A contested hearing followed, which the lawyer lost, and he wound up serving five days in jail for
civil contempt, disobeying a lawful court order.
As the prosecutor in the underlying criminal case, I was an innocent bystander to this fight between defense counsel and court.
The rule on 170.6 challenge of a judge is that it must be exercised at the time the matter is assigned to the trial court, not after, which is what this poor fellow tripped up on. He needed to have made it his business to find out which departments were available for trial that morning, who the judge was for each, and what their reputation was in handling issues such as presented by the case he was defending against.]
Whenever I appear in Master Calendar for assignment to trial, I have a little form all written out containing the magic words I must swear to in order to be rid of a judge I think has become just a bit too institutionalized for my liking in this case. I challenged a judge once for being excessively punitive. He'd sentenced a defendant in a child molestation case to over 300 years in prison and the co-defendant to over 200 years. I was representing a man facing 480 years on the same kind of charge, and he maintained innocence.
Two hundred years wasn't going to do it for him. He'd turned down a deal to plead guilty to one count for straight probation and no jail. I was going to have go to trial and beat a no jail offer. I did and I did. But not before Judge 300 years. My punishment for challenging Judge 300, of course, was to be assigned by the Master Calendar judge to proceed to trial before Judge 400, to teach me a lesson. But not before I was sent out to trial on my client's trailing case before yet another judge.
When arrested in his store on the child molestation accusation made by the ex-wife, the police found a TV set he'd bought from a street person which, naturally, turned out to be stolen. I beat that case, too, on a bad search. The detective had interviewed the client in jail after he'd retained counsel, a no-no. Then I tried and beat the big case. Back-to-back victories.
But it was a game of judicial "We'll-teach-you," from day one. It's a tough way to make a living, when the only thing between your client and jail is you and there are judges itching to show you a thing or two.
So it's nice to see someone say nice things about defense counsel.
It's so rare.