May 2010 Archives

May 24, 2010

San Diego Judge Elections - San Diego Union Endorsements....

Many election years, I get questions from family and friends asking for whom they should vote in a judicial election. This year, the stakes are higher and there are far more elections than usual. The San Diego Union published its endorsements today.

As usual, I recommend family and friends vote for the incumbents. This year is no different from usual, but the stakes this year are more important than usual. This year, a group has organized to run against a number of very good judges. Why? Because they want the law to be different from what it is, and view election to the bench as their way of changing the law. Talk about judicial activism! They have not chosen to oppose bad judges, just anyone in office, apparently selected at random. The Union has endorsed all but one sitting judge, and made no choice for the remaining seat. I can't disagree.

One of the judges running is not well respected: Not by lawyers, and not even by many judges. That doesn't change my position, and the Union has elected not to take a position in that race.

Lawyers who run against sitting judges, in the overwhelming number of cases, aren't the best of their profession. Often, not even close. I do not know well any of the judges still in the race - two of them had long stints in Divorce Court, where I saw them do their jobs well. I see no reason they should not be reelected, and the lawyers who have appeared in front of them far more than I speak highly of each.

A third former Family Law judge, Harry Powacek of Vista, was challenged by a lawyer who didn't meet the legal standards for the office and was kicked off the ballot. Although he does not have to run, Judge Powacek had legal expenses to deal with the matter in court. What had he done wrong? Nothing. He was just an incumbent. I appeared in front of him many hundreds of times, and he always tried very hard to do a good job.

Many such challenges come from a lawyer who didn't get the result he wanted in his own divorce. Many, just from lawyers who want the publicity because it may be good for business.

As I look back over the last 40 years of such nonsense, very few poor judges were opposed for election, and few great lawyers were challenging them for the position. Those few judges who lost reelection did so largely because on some horrible publicity: One was caught tearing down his opponent's campaign signs. One was accused of putting a "little old lady" in jail on Christmas Eve on a minor traffic matter. In the first case, the lawyer one and turned out to be a good judge. In the second, the replacement turned out to be a disaster. In each case, the judge was running against bad publicity for his personal conduct, or perceived conduct. These very rare occasions, where a judge screwed up and lost an election, have given comfort to potential challengers.

A few years back, a lousy judge was opposed by a mediocre lawyer - no one wanted the judge around, but the choice wasn't clear - the judge had not had a lot of bad publicity, so he won handily. In one election, a bad judge resigned when challenged, but that was a rarity.

The problem with the process: Judges are afraid to take legal positions out of fear they won't be re-elected when they sit every 6 years. The fear isn't great, since they have almost no chance of losing - but the cost of running, financial and emotional, is high. 25 years ago, a judge made a hard call and dismissed a few dozen drunk driving cases because the DA's Office screwed up in failing to charge the cases properly - he was right on the law and felt he had no choice. One of my friends decided to run against him because he sensed vulnerability - I didn't know the judge, but opposed my friend, who then withdrew when many others came to the judge's defense.

The process is broken, especially in this political climate. It will be further damaged by voting out very competent judges. That only serves to make those who remain more scared of losing their positions, and more likely to make safe choices when hard choices are called for. Even where the Union has elected not to endorse a candidate, I recommend a vote for the incumbent - it will help stop the nonsense of challenges where there is no need for change.

May 1, 2010

Testimony, Witnesses, Trial, and Memory

One Sunday in the Fall of 2009 on 60-Minutes, Leslie Stahl presented a two-part piece on the errors in eyewitness testimony. As attorneys, we know that eyewitnesses are not reliable, either because they lack sufficient information, time to assimilate the information, or have trouble distinguishing between conflicting images that interfere with their reporting. Sometimes, they are simply lying.

In Stahl's report, she carefully stepped through the process by which a rape victim innocently caused a defendant to be convicted - then the process by which he was ultimately vindicated and she realized how she had been mistaken. The victim and innocent defendant later met and wrote a book together about the process.

A number of years ago, the State Bar of California Conference of Delegates faced a debate on whether California should repeal the death penalty. The debate was not whether the death penalty should be repealed, but whether it was such a political issue that funds for the conference should not be used to debate the subject. I argued in favor of allowing debate because lawyers are in a particularly unique position to comment on the reliability of witnesses, including those who end up finding people guilty of crimes for which they can spend the rest of their lives in custody, or be put to death.

In decades of trying cases, I recommend to clients that they settle most cases for something within a reasonable range of parameters because they cannot predict what is going to happen in trial. It is an old legal adage that a trial lawyer will have 3 trials in his case: The case he intends to try, the case he actually tries, and the case he wishes he had tried. When you interview a witness [including your client] who tells you a believable story, you put the person on the witness stand assuming that he is going to tell you the same story he told you days, weeks, or even months earlier. It is rare for that to actually happen, and we are often bewildered by the result.

When you confront your own client who has told a totally different story on the witness stand [for example one that benefits his spouse], they may adamantly deny ever having said anything different. When you show the witness the declarations he [or just as easily "she"] signed in the earlier stages of the case, or read from your very specific notes taken when you carefully interviewed him the first day that you met, or even show his deposition transcript telling a different story, the client is dumbfounded; even those who are trying to be truthful at every stage find their memories shifting as information comes in and time passes.

Eyewitnesses who may have a few seconds glance at the perpetrator of a crime, according to study after study, do not accurately report what they saw. When faced with a lineup, photographic or live, where their choices are limited, they are inclined to find someone that tends to look like the person they saw.

Even worse, having seen a person or a photograph, they become adamant as the memory of the event mixes with their view of the person. This is what memory experts tell us happens, as we mix weak memories into something we are extremely confident actually occurred.

If I see a friend who does something, I can later accurately report having seen the person and identify him because I am very familiar with his characteristics: Hairline, face shape, body posture, movements, height and weight, manner of dress, and dress.

When I see someone for a few seconds that I have never seen before, I lack the ability to identify all of these characteristics. Notwithstanding those television detectives who remember and spot every conceivable detail, most of us are not that observant. In times of crisis, we are even less so.

The Innocence Project is a nonprofit entity whose primary goal is to free those convicted of crimes, where the project believes they are not guilty. Hundreds of convicted felons have been released as a result of the project's work because the testimony convicting them was largely eyewitness identification. Where the perpetrator of an act (such as a brutal rape) left behind samples of tissue or fluids, current DNA analysis enabled the project to show that the perpetrator was someone other than the one identified. In many of these cases, there was a physical resemblance between the convicted party and the person who matched the DNA sample - the witness, however, was incapable of remembering sufficient information to correctly rule out the innocent person.

This is not an indictment of the criminal defense system, it is simply an effort to point out the flaws in the system dependent upon something as faulty as peoples' memories.

A growing number of attorneys are opposing the death penalty because of the inability to go back and correct mistakes that result from witnesses' mistakes. From a recent newspaper article, it appears a growing number of states are questioning the massive amount of financial resources devoted to carrying out the death penalty, usually exceeding the cost of housing the convicted defendant for the rest of his or her natural life.

In a time of fiscal constraints, we may be moving toward a consensus on this subject. The 60-Minutes piece may help the dialogue. It would be interesting if the debate between retribution and forgiveness ends up being resolved by financial considerations. This should not be a political issue.