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Friday, August 31, 2007

'A Tale of Two Hubrises'

"I ain't so tough." James Cagney in "Public Enemy"

I have been feeling pretty good the last week. That sense of well being from the last death case still washing over me. Friends, colleagues, calling, sending e-mails and patting my back when I walk into courtrooms. Nice feeling to hold my head high, kind of a nice cap on all the years of misery.

I went to Pasadena to do a “duty day,” which is an obligation I accepted as a member of the County Bar panel of lawyers who represent indigent defendants when the public defender can’t. It requires spending the day waiting and responding to the courtrooms for any such matters.

I know this courthouse well. In the 80's, I spent years there in the PD office, and, since then, I’ve gone back for many cases and other duty days. I’ve had lengthy trials there, including 3 capital cases, and 3 other murder cases.

Pasadena is most pleasant during the winter, when the air is crisp and the mountains are dusted with snow. But in summer, it can be very hot. It was today, especially because the old courthouse was suffering one of its frequent air conditioner breakdowns.

After checking in with all the courts, flirting with a few cute clerks, I settled into the Public Defender library to wait for calls, hoping that none would come so that I could make progress on the tasks I had brought with me - reading on other cases and such.

At a quarter to 12, I get a call. Go to Department “_.”
The DA in the court briefs me. There’s a man in the lock-up who is a DA witness in a murder case who was subpoenaed and appeared on the day of the prelim, was interviewed by the DA, and then vanished.

A warrant was issued for his arrest and he gave the police who tried to arrest him a phony name, so he’s also going to be charged with that crime, a misdemeanor. The DA wants his bail raised to insure his presence at the next court hearing on the murder case, on September 11.

In the lock-up, I introduce myself to the man, who is steaming from more than the heat. As usual, he directs his anger at the messenger. It goes a little like this:

“Hi, the DA says you were a witness on a murder case.”
“That’s bullshit. You’re lying. It wasn’t murder, it was attempted murder and I’m not a witness, I’m the victim. They shot at me from a car and all I saw was the car. I didn’t see who did it.”

“Okay, so why did you leave the court?”
“Man, I’m no snitch.”
“Well, you’re not a snitch if you were the victim.”
“Not on the streets, man. It don’t matter.”
“The DA just wants to make sure you testify.”
“I don’t want to press charges. I’m dropping it.”
"That’s not your choice. The law says you’re a witness just like any other. You don’t get to decide.”

"What kind of law is that? I gotta risk my life and then they put me in jail? I’m the victim.”

Eventually, he tells me there’s a detective at the Pasadena PD who told him he would intercede with the DA on his behalf. I call Pasadena PD and leave a message.

In the courtroom the judge is on the bench. It is about 5 to 12 and hot. I’m dripping in my jacket and tie noosed around my neck.

I don’t know this judge. Been in his court only once, on a non-contested matter for about 10 minutes about a year ago.

The hearing begins. The DA repeats what he told me, which is information he got over the phone from the trial DA. I try to correct him, based on what the client told me. It was an attempt murder and he is the victim, not an independent eye witness.

The judge interrupts me.
I interrupt him back. “I’m sorry judge, but I felt it important to point out that the DA is relating multiple hearsay which is not accurate.”

The judge is annoyed. His voice rises to meet mine. “Counsel, you are presenting hearsay, doing exactly what you complain he is doing.”

“No. That’s not the same. My client is here, able to be questioned.”

The judge screams at me. "You keep interrupting me... Don’t show disrespect to this court, counsel. I have never seen such disrespectful behavior before... You are in contempt of court."

“Judge, I meant no disrespect. I’ve been a lawyer for 36 years and ...”

Apoplectic now, “I don’t care how long you’ve been a lawyer. Be here with your own counsel at 1:30.”

So for the first time in my illustrious career, I am being held in contempt by a judge. It is now after 12. I put in a call to two people. The presiding judge of the Pasadena criminal courts, who I’ve known for 20 years. When she was a DA, we tried a capital case, and as I’ve noted before, that creates a bond of respect. She’s out to lunch.

The second call is to the Directing Attorney of our Panel. He’s on the way to defend me.

I use the PD computer for some research. (See the quote below).

The PD’s grin knowingly at my tale. “Your first mistake was that you called him 'Judge' instead of 'Your Honor.' That’s this judge’s m.o. He’s got a thin skin, he’s 'bipolar.' Suddenly he goes off and then a half hour later he calms down." They give me examples.

Reminds me of the late Jack Tso, a Pasadena judge who also blew his stack on occasion. If he didn’t have his morning donut he chewed on the first lawyer whose case he called. Once, he jailed a lawyer who had failed to appear when ordered. He called in a jury and they watched the defendant come from the audience and his lawyer from the lock-up.

Gil Alston, also of blessed memory, was another Pasadena judge who sometimes worked his mouth before his brain was in gear.

At 1:30, my counsel and I work out a clever strategy for my defense - groveling for mercy. Painfully aware now of the ironic truth of Borenstein’s Law (clients don’t act in their best interests) I opt to let my lawyer do the talking.

The judge eventually takes the bench. He knows my counsel’s reputation. He recites for him his version of the event. Seems like he’s spent the lunch hour reading the transcript and is now “amending” it to put flesh on the bones. He makes me sound like the mad dog in the fight.

I am bubbling to a boil, but I suppress it. The judge elicits a “sincere apology” to purge the contempt.

I have two choices: contest the charge, seek a stay of punishment from an appellate court and file a writ of prohibition... or apologize and get out of Dodge.

I word my apology as honestly as I can. “... sorry if in vigorously advocating my client’s cause it appeared that I was disrespecting this court. I meant none ... yada, yada.”

So, he accepts my apology and I’m off the hook. We proceed with the witness hearing.

I finish my argument for the client and the judge grants the DA motion to raise his bail to $50,000.

The client is pissed - at me. As he’s being taken away, he whines, “Why didn’t you fight for me, man?”

Perfect. I'm almost thrown in jail for arguing to let a DA victim out of jail and the client (who by the way is getting all my legal expertise pro bono) accuses me of not being aggressive enough! What should I have done, brought a hacksaw?

Footnote: here’s a quote from a very old case in which the California Supreme Court overruled a judge’s contempt order against as defense lawyer.

“... Broadly speaking, judges are empowered to punish summarily for contempt of court in order to facilitate the orderly administration of justice... [I]ntemperate behavior lessens ... the mastery of the trial judge over the progress of the proceedings... Considerable summary power, not usually available to the officers of any other branch of the government, is therefore vested in judges.

If that power is not wisely exercised it can readily become an instrument of oppression...[S]uch a situation invites caprice ... If a trial judge had only to state that the contemnor raised his voice and twisted his features, no contempt order could be attacked...

Many of the protections provided in regular criminal cases would be rendered meaningless and the burden of proof would be sustained by the subjective reactions of the offended judicial officer.

Another consideration is the fundamental interest of the public in maintaining an independent bar.

Attorneys must be given a substantial freedom of expression in representing their clients. ‘An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge ... to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client....

An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case.’

The public interest in an independent bar would be subverted if judges were allowed to punish attorneys summarily for contempt on purely subjective reactions to their conduct or statements.

An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling.

The heat of courtroom debate, particularly where liberty is concerned, often gives rise to persistence on the part of counsel.

If the words used by counsel are respectful and pertinent to the matter before the court, it is not unnecessarily burdensome to require the judge first to warn the attorney that his tone and facial expressions are offensive and tend to interrupt the due course of the proceeding.

Otherwise, attorneys could be subjected to fines and jail sentences because of personal annoyance and pique on the part of trial judges; and these penalties could be rendered unassailable by lengthy recitals in the orders of contempt respecting the demeanor of the contemner.

There is nothing in the reported decisions or in the experience of our courts that makes necessary such an extraordinary authority on the part of the trial judge. Indeed, the recognition of such an authority would involve the surrender of a substantial amount of the independence of the bar, and in many instances would deprive litigants of a fair hearing.

[Gallagher v. Muni. Ct. (1948)]

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