An Exception to the Rule

The Preamble to our Constitution speaks of forming "a more perfect Union."  I read that scientists are perfecting DNA manipulation to make us more perfect human beings.  I suppose that would go a long way in achieving the Preamble's goal. But even the "framers" knew that absolute perfection is an impossible goal.  "More perfect" suggests something short of perfect.  Making what is perfect more perfect may be perplexing, but in Lane County v. Oregon, 74 U.S. 71, 76 (1869), the U.S. Supreme Court clarified the phrase:  "The people, through [the Constitution], established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States." 

Ignoring for a moment the logical hurdle in making people "more perfect," if DNA management could make judges more perfect, they likely would not be reversed by higher courts. Of course that assumes that the DNA of all judges on lower and higher courts was managed to produce "more perfect judges."  I have a few U.S. Supreme Court justices in mind. And I might include a state Supreme Court justice now and then.     

        And if lawyers were subject to the same DNA management, they would not bring frivolous or even "doubtful" cases.  And because people would be less likely to be negligent in their professions or daily conduct, we could dispense with courts. That would free up at least 1.4 percent of California's budget.  And we might even have a Congress that works to achieve something other than its own destruction. 

        I know this all sounds far-fetched. That is because it is.  Our perception of what is best, or who is best, can change course and direction like a flock of feral parrots, or a school of sardines.

This sudden shift in direction occurs even with our perceptions about ourselves.  If you are like me, what appears certain at one moment may be uncertain at the next.  It's called changing one's mind.  And this in turn calls to mind my recurrent refrain‑‑ certainty is … uncertain.  But changing one's mind implies that one has not figuratively or actually lost one's mind.

        Often I ask, "Where is it?"  The inquiry refers to my mind or my cellphone.  At least there is an app, "Find My Phone."  No app to find my mind.  Apps don't work when one's mind is in outer space, let alone another galaxy. Even when my mind is nearby, like when it is hiding under the desk, it is hard to hold on to when discovered.  I will grab it, but it squirms and wiggles out of my grasp.  Now and then I have questioned whether it exists.  But even when all minds are in place and, for the sake of argument, "intact," what they perceive can be far different than the reality behind the appearance.  Plato wrote about this phenomenon in The Republic.

Our perceptions about public figures can change when we learn more about the real person behind the exterior persona.  And no one can be at the top of his or her game all the time.  One big mistake can quickly shatter a person's positive public image. 

        William Mulholland is largely responsible for the creation of Los Angeles as a large metropolitan city.  He built the 233-mile aqueduct that brought water from the Owens Valley to Los Angeles.  A winding road called Mulholland Drive separates the "Valley" from the rest of Los Angeles is named after him.  I can attest that at night this "drive" was extremely important to teenagers in the 1950's.

        Mulholland was an international star for his engineering achievement.  He was asked to run for mayor of Los Angeles.  He refused with a statement that is one of my favorite quotes: "I'd rather give birth to a porcupine backward."  Mulholland's reputation plunged (pardon the expression) from super star to pariah 12 hours after his assessment that the St. Francis Dam was safe.  That is when the dam collapsed.  Six hundred people died.  Mulholland was an expert until he was not. 

        On a lighter note, A.A. Milne created Winnie-the-Pooh, my favorite teddy bear.  Pooh was also the favorite teddy bear of Milne's son, Christopher Robin Milne.  Can you imagine that such delightful characters as Winnie, Tigger, Eeyore and Piglet could later be involved in copyright and licensing litigation?  Yes, I guess you can.  Pooh characters became a multimillion dollar business.  My dear friend, the late Federal District Court Judge Florence-Marie Cooper, decided the case, ruling that the Disney Corporation had trademark and copyright rights, but was obligated to pay royalties.

        One might think that Milne's son Christopher had an idyllic, happy childhood and a warm loving relationship with his father.  But that did not happen.  Christopher had an unhappy childhood and wrote that his father was aloof.  Christopher is reputed to have said that his father's "heart remained buttoned up all through his life."  

        Around 15 years ago I wrote about John James Audobon and his seven volumes of paintings titled "Birds of America." 

He brought joy to countless bird lovers who named their society after him.  They trek through the countryside with their binoculars to glimpse the endless variety of birds soaring above them. 

Have you ever wondered how Audubon could paint in such fine detail this vast variety of birds?  How did he get close enough to a bird to even outline its beak before it flies away? My research revealed that the passionate bird lover Audubon shot the birds dead.  Into the bodies of the lifeless birds he inserted wires that he manipulated to make them look like they were flying.  Audubon killed birds to illustrate them alive.  I offer this story neither to praise nor condemn Audubon's "artistic" practice.  I offer it merely to illustrate (again pardon the expression) how perceptions about people are not always accurate.  Our judgments about people we know only through reputation and the media are best formed with a dose of uncertainty, if not skepticism.  

        This takes me to judges. Predicting how they will rule on cases is a good guessing game.  During the mid-1960's when I was in practice, I appeared in a few cases before the federal judge  Charles "Charlie" Carr.  From the bench he would lean into the microphone and lament in a thundering stentorian tone that the Warren court was leading us "down the primrose path to extinction." 

I expected Judge Carr to be highly prosecution oriented, but that was not necessarily the case.  I recall one Monday when he was presiding over a trial setting hearing on a criminal case.  He told the defense attorney the trial would be on Thursday.  The defense attorney asked, "Thursday of what month your honor?"  Judge Carr replied, "next Thursday."  As the attorney was about to faint, he stammered, "but…but…"  Judge Carr had already turned to the deputy U.S. attorney, who had been a classmate of mine.  "Take defense attorney up to your office right now, open your files, and show him everything."  "Everything?" blurted out the U.S. attorney.  Judge Carr had already called the next case.  A few days ago, some 50 years later, a State Bar panel is "pursuing a requirement that prosecutors turn over exculpatory evidence to defense attorneys."  See Daily Journal Oct. 26, 2015.  I now think of him as the prescient Judge Carr.

Justice Scalia often writes scurrilous dissents deriding his colleagues with ridicule and scorn.  One might expect him be to be disagreeable, unpleasant and unlikeable.  I met Justice Scalia several years ago and we spent about 10 minutes together. I experienced what others have said about him when he is off the bench.  He is warm, charming and engaging. 

This teaches us not to jump to conclusions about others, an important point for all judges and lawyers to keep in mind.  No person is always what he or she seems.  Our heroes can fall at any moment.  I apply this rule to everyone with no exceptions…. well, one exception comes to mind.  And that in turn invokes a conflicting rule: the rule that there are always exceptions to rules including those that have no exceptions.  Oh I almost forgot to mention to whom the exception applies: Justice Ruth Bader Ginsburg.  Anyone know of a good tattoo parlor?

I May Be Wrong, But …

Admission.  For decades I have been violating federal copyright law.  If a case had been filed against me, the number of complaints would be… who knows?  Numbers go on for infinity.  I have sung “Happy Birthday” in a variety of ensembles and venues, including the courthouse in which I preside.  It is beside the point that I sing it poorly.  I read in the Los Angeles Times that a company, Warner/Chappell, was charging for the use of the song “Happy Birthday to You.”  According to the article by Christine Mai-Duc, in 1988, Warner/Chappell paid $15 million to buy Birch Tree Group, the successor to Clayton F. Sunny Co., which “claimed the original disputed copyright.”  Chief Federal District Court Judge George King ruled that the alleged writers of the lyrics to “Happy Birthday to You” did not assert a copyright claim, and that companies collecting royalties for the song were not entitled to the monies they collected.  I guess the lyrics are in the public domain.  Whew! 

This brings up a philosophical question.  Was my past conduct wrongful?  Without question, many types of wrongful conduct remain so forever.  Some might argue that my past conduct in singing “Happy Birthday To You” was wrongful at the time.  But I would like to think that Judge King’s ruling establishes that I was never in violation of the copyright law, despite perceptions to the contrary.

This can be a particularly sensitive issue with judges.  Case in point.  Rhinehart v. Municipal Court (1983) 143 Cal.App.3d 18, my first published case.  Defendant in a criminal case had been granted several continuances at his request. The trial court empanelled a jury on the last day to try the case over the defendant’s objection.  Voir dire was completed and the jury was selected and sworn.   Then the trial judge continued the case for seven days because of a shortage of judges to hear the evidence.  The appellate department of the superior court granted a writ petition prohibiting the municipal court from proceeding on the ground that defendant’s speedy trial rights had been violated.  Think so?  I didn’t and reversed the superior court.

Do not bother looking for the case in the official reports because you won’t find it.  You will find, however, Rhinehart v. Municipal Court (1984) 35 Cal.3d 772 in the official reports.  That is the Supreme Court decision that, in effect, reversed my opinion by affirming the decision of the appellate department of the superior court.  Can you imagine?  In a unanimous opinion authored by Chief Justice Bird, our high court held that the defendant had not been brought to trial within the meaning of the speedy trial statute.  That was because the trial judge had indicated he had empanelled the jurors solely to avoid dismissal under the speedy trial statute.  The lack of available trial judges to hear the case was no excuse. 

I fought that “feeling lonely and mighty low” emotion.  I saw the point, and accepted with “infinite resignation” the Supreme Court’s decision. 

But in People v. Hajjaj (2010) 50 Cal.4th 1184, in a unanimous opinion written by Chief Justice George, our high court reevaluated the Rhinehart decision.  In Hajjaj, on the last day to bring the case to trial under the speedy trial statute, a courtroom became available.  The problem was that the courtroom was in a distant courthouse and it was 4:15 p.m.  The parties could not get to the courthouse until the next day.  The high court ruled that as a practical matter defendant could not be brought to trial on the last day.  It reversed the Court of Appeal and held that Hajjaj’s speedy trial rights had been violated.

Before reading Hajjaj, I thought just maybe Rhinehart might be disapproved.  Then I would have been right all along and would have posed the same philosophical question about singing “Happy Birthday To You.”  I was about to write “no such luck.”  But having re-read Rhinehart and Hajjaj, I agree with their holdings.  The statute says what it says, and “court congestion” is no excuse to deny a defendant his speedy trial rights. 

In Rhinehart, a significant part of the trial, jury selection, had occurred.  But the trial judge admitted he empanelled the jury to avoid dismissing the case.  Should he have kept his big mouth shut?  Absolutely not.  The integrity of our judicial system depends on the openness and candor of trial and appellate judges to give frank, thoughtful reasons for their decisions. This helps advance the law and fosters respect for our system of justice.  Reversal of a trial court or appellate decision should not, in most cases, be an embarrassment.  Nor should a “loss” in the trial or appellate courts, in most cases, be the cause of mortification. How counsel deals with the client is another story.  No one said the practice of law was easy.  Some day we will talk about the cases where discomfiture is earned.

The issue in Rhinehart could be visited again by our “new” Supreme Court.  And I hope not to speculate or give a second thought about what the court may or may not say about Rhinehart or Hajjaj.  And the question of my being right or wrong at whatever point in time will truly be meaningless.

But I am not so sanguine about the holding concerning “Happy Birthday to You.”  Judge King’s ruling concerned the lyrics and music to “Happy Birthday To You.”  But according to the Times article, King said that “a copyright filed by the Summer Co. in 1935 granted the rights only to specific piano arrangements of the music, not the song.”   Come to think of it, I have nothing to worry about.  I only play my own arrangements of the song.  Maybe I should copyright it.   

AS TIME GOES BY

          Yesterday, Labor Day, was my 40^th anniversary.  Labor Day 1975.  Four decades ago.  That is when it happened.  Could have been four minutes. Hard to tell even for Einstein.  From my perspective today, the years whizzed by like the rapid flipping of calendar pages to mark the passing of time in a 1940's movie.  But at moments (a measurement of time itself) during those 40 years, time loitered, leaned against a wall, lit a cigarette and watched with detached amusement as I struggled with legal conundrums.  But I cannot help but wonder….  Oh, dear me, in this pseudo-literary pretentious reminiscence, I forgot to tell you what event occurred 40 years ago.  Give me a moment.  Oh, yes, got it.  Justice Stanley Mosk "swore me in" as a judge in the Los Angeles Municipal Court. 

          What was the municipal court?  As I recall, it was a court of limited jurisdiction.  At that time we handled traffic tickets, misdemeanors and civil cases with a limit of $5,000.  What was $5,000 worth at that time?  I can't tell you, but I do know the Bretton Woods Agreement was defunct.  And a few years before my appointment, President Nixon issued an order preventing the conversion of the United States dollar to gold.  Don't ask me to explain the significance of all that.  In 1975, I was hearing DUI cases.

          I cannot speak for others, but for me the acknowledgement that I have been engaged in my profession for 40 years has been a smack in the face.  At age 40, Einstein had figured out E=mc2 some 14 years earlier.  At age 40, Mozart had been dead for five years.  And Leondra Kruger had not been born yet.  But comparisons with geniuses are pointless, if not presumptuous.  And one can accomplish much in the law, but litigating and judging necessarily involve what has been called a "relentless pursuit of error."  That means that lawyers can as easily win a case as lose one.  And judges, even the best, are subject to reversal.  Of course, judges are affirmed from time to time, but statistically they are more often reversed.

          It started my first day on the job, the day after Labor Day 1975.  That is the day Elwood Lui and I began our careers as judges.  We sat as spectators in a trial court and watched Commissioner Nancy Brown handling traffic cases.  In those days traffic violations were considered criminal cases, not infractions.  She later became a superior court judge.  Commissioner Brown took a recess and announced that the next case would be heard by Judge Gilbert.  Huh?  She called me back to her chambers and held out her robe.  It was a perfect fit.  That's what happens when you are short.  Court was called into session and I heard my first case.  Gulp!

          Cannot remember the charge, but I do remember the defendant was a savvy pro. per. who had thoroughly researched speeding and traffic studies in the United States and abroad.  He produced charts and graphs and had an encyclopedic knowledge of the legislative history of the vehicle code.  The deputy city attorney prosecuting the case was not much help.  I found the defendant guilty.  He appealed.  I vaguely remember being reversed by the imposing appellate department of the superior court.  That’s what time can do.  I do remember, however, the presiding judge of that court telling us municipal court judges that the appellate department of the superior court was our Supreme Court. 

          I thought about the progress that has been made in gene sequencing.  In the future we may produce perfect human beings with high intelligence, good manners, impeccable taste.  Surely such faultless individuals would be error free.  Imagine error-free judges and lawyers.  We would all be out of work.

          On second thought, I doubt gene manipulation will solve the problem of error in the legal profession.  The question boils down to when the alleged error occurs and who or, should I say, what court considers it error.  And let’s not forget to add to the mix the concept of harmless error, or what I have termed in some cases, “harmless terror.”  We should consider harmless error against the backdrop of Cal. Const., art. VI, § 13, “miscarriage of justice.”

          For differing views on error, I commend for your reading pleasure and enlightenment the recent case of People v. Blackburn (Aug. 17, 2015, S211078) [2015 Cal. LEXIS 5629].  Justice Liu, in his concurring opinion, and Chief Justice Cantil-Sakauye, in her dissent, offer differing views, both thoughtful and well reasoned. 

          Justice Liu's majority opinion holds that in a MDO (mentally disordered offender) civil commitment proceeding extending the involuntary treatment of the defendant, the court must advise the MDO personally of his or her right to a jury trial.  The court may not hold a bench trial without a personal waiver from the defendant unless there is sufficient evidence to raise a reasonable doubt that the defendant lacks the capacity to waive a jury trial.  In such case, the defendant’s attorney decides the waiver question. 

          Sixteen years ago in People v. Otis (1999) 70 Cal.App.4th 1174, the Court of Appeal held that, in a similar MDO proceeding, the defendant’s trial counsel could waive jury over the objection of the defendant.  The California Supreme Court denied review, and numerous courts in subsequent cases followed Otis.  Blackburn approved the result in Otis, because defendant displayed obvious signs of cognitive impairment at his commitment hearing.  But Blackburn disapproved Otis.

          The partial error in Otis occurred not when it was written over a decade ago, but just a few weeks ago.  I guess that proves that error is in the mind of the beholder.  Or should I say, in the mind of the beholders?  Did I mention that I wrote the Otis decision?  Sorry, I guess it slipped my mind.  But guess what?  I agree with the well-written majority opinion in Blackburn.  I also agree with Otis, as far as it went on its particular facts.

          Changing notions of justice and interpretation give the law its vitality. That is what makes our work so challenging and stimulating. Yet we strive to make change orderly and measured so that people can conduct their affairs with a reasonable degree of predictability. 

          It has been a privilege to serve on the court for the past 40 years.  I suppose the years went by so quickly because I found the work so fulfilling.  A famous judge once said that if a judge is never reversed, he or she isn't doing a good job. 

         I plan to stick around a few more years where I am sure to find errors made by trial judges, and to make more of my own.  And about reversals…