Thursday, June 15, 2006

Reflections of a Trial Lawyer - Now a Dinosaur

Is There Enough Justice To Go Around?

By Tom Adler

In spite of what my colleagues told me, it really wasn’t that difficult. After twenty five years of litigation, I had tired of the continual wrangling... the need to be smarter and tougher than my opponent... the need to win... the nights of being unable to sleep while my mind rehashed a perceived mistake in tactics or worse, a statute that had been overlooked... the dread that I felt when a jury came back into the courtroom to deliver their verdict and wouldn’t look at my client as they resumed their seats. It’s true... there were also some great times. Moments when I knew that it was only through my creativity and hard work that a client had been set free or that an injustice was exposed and made right. But in the last few years of my practice it seemed that it wasn’t as much fun and although I attributed it to burnout, it wasn’t only that. The system was changing. Individual rights didn’t seem quite as important as they once were. There was much more talk of the “system” of justice, how to make it more efficient, how to “move cases”. Judges were appointed that came out of administrative agencies who had never represented real people or fought for the underdog or taken up a cause just because it was the right thing to do. A sweeping assertion... perhaps, but it’s a feeling I had.

In the years since I’ve retired I’ve had occasion to think about the differences about the way judges and attorneys used to view the law and my perception of how that has changed. It can best be illustrated by a story which came to mind after a recent visit I made to the Court of Appeal.

As I passed through the metal detector, the muted colors and the expensive furnishings in the lobby coupled with the respectful silence exuded a sense of solemnity and security. This is one of the major hubs of the law where the injustices of lower courts are straightened out………where the playing field should be leveled for everyone. I started thinking about some of my own experiences in this court while I was in practice. Along the carpeted corridor leading to the courtroom were pictures of the Justices, past and present, who had meted out justice as they saw it. I wondered how and if it had changed. With the exception of those wearing celluloid collars, most of the faces were familiar to me. As I walked by the photos one of them in particular caught my eye. I stopped and stared at it and remembered. Here was the one who had early on given me the belief that the law could indeed be something magnificent. I stopped and stared and let my memory wander.

It was early in 1973. I’d been a lawyer less than a year and was learning the ropes as a staff attorney at the Defenders Program in San Diego. The head of the office was a fiery old Irish trial lawyer, Stan Conant, who didn’t try cases any longer but was content administering the office and trying to keep his flock of young attorneys from getting into too much trouble. He was widely respected by everyone in and out of the office as having tried 16 death penalty cases and losing only one. He never talked about the wins but often recalled the one he lost by recounting the moment that the jury filed into the courtroom with their verdict and all twelve were crying. Every time he told the story he had the same pained look on his face. He was a guy who really cared. The story always ended with his face breaking into a smile as he wryly said, “It was reversed on appeal”.

As for me, my first assignment was handling misdemeanors in the El Cajon Office. I was replacing an experienced attorney, Dave Devore, who greeted me at 8 am as I walked into the tiny cramped Defenders office on my first day at work. The entire office consisted of a small secretarial station behind which was a single windowless room which was shared by all three attorneys assigned to the office from Defenders. Dave was in a hurry to get to court so he invited me to look over the case files I would be taking over and said we’d get together for lunch. I never saw him again. On his desk were 110 case files with people charged with crimes I had never even heard of. Compounding the problem was the fact that there was no penal code in the office. After some thought and with a great deal of trepidation I phoned my new boss, Stan Conant, and asked him if I could get a penal code. There was a long silence at the other end and he finally said “Adler, I thought you were a sissy when I hired you” and the line went dead. So much for training.

After a year or so I was sent to Juvenile Court where the law was seldom mentioned or followed. I filed so many writs that the juvenile court judge talked Stan into transferring me to another division. So I was sent downtown, where the “real” lawyers were and was given a felony caseload. This was the big time! Although my law school dean had said in one of his early lectures that there wasn’t enough justice to go around I was determined to prove him wrong. One of my first cases was a black man charged with burglary. Although there was quite some evidence of his guilt I thought he was innocent and on the morning that the case was called for trial in the criminal presiding department I was ready with my newly polished shoes and high hopes. The presiding judge called my case and I was assigned to Department 5 for trial. Although nervous at the prospect of actually going to trial on my first felony I had heard that the judge in department 5 was a fair minded man and I knew from my discussions with other lawyers in the room that I could have done much worse. I conferred with my client who was in custody, met the judge in Department 5 and after a general discussion of the ground rules we started selecting a jury by late morning. It was right after lunch that the entire system was put to the test.

I was conducting voir dire in a cold sweat. Standing in front of all of these elderly people and asking them personal questions was something that would take me several more years to become comfortable with. The clerk’s phone rang very quietly and after a hushed conversation she leaned up and whispered in the judge’s ear. The judge then interrupted me and advised the jury that we were going to take a break. After they had left the room the judge, who indeed seemed to be fair minded so far, advised me that the criminal presiding judge had “recalled” the case and I was to report back to his courtroom and that the trial wasn’t going to go forward and that he was going to excuse the jury panel. My mind went blank…….nothing I had learned to date prepared me for this. I objected and was politely advised by the judge to "take it up with presiding".

As I walked back into the presiding department I caught a glimpse of the judge in his chambers looking at himself sideways in a mirror on the wall .He smoothed his graying hair with a rather self satisfied look on his face as though approving of what he saw and briskly entered the courtroom. The few remaining people rose as he entered and seated himself. Looking directly at me he said “Mr.Adler I understand your client is on probation. I've recalled the case from Department 5 and am assigning you to Department 8 for a probation revocation hearing based on the new charges. Should your clients probation be revoked I'm sure you'll be able to work out something with the DA and avoid the necessity of a jury trial". I could barely speak. I may have been new but I wasn’t entirely stupid. At a probation revocation hearing there was no jury and the standard of proof was minimal……..certainly not beyond a reasonable doubt. He was going to railroad my client to prison. Because of my limited experience I was unaware that this was a new procedure adopted by the presiding judge to "streamline" the caseload. After assigning my case to a trial department someone had told him my client was on probation.

I did the only thing I knew to do……."Your Honor I object!" "Your objection is noted Mr. Adler. Please report to Department 8" he tersely replied. I couldn't even think of the legal basis for my objection. I just knew it wasn't fair .I also knew that the judge in Department 8 was a notorious hanging judge who made short shrift of defendants and their lawyers. Dutifully, I went to Department 8 where the judge had apparently been alerted to the case. In calm and reasoned tones, which I later learned was how he avoided appearing the crazed lunatic he was, he explained that since the DA and I were prepared to try the same facts that the revocation was based on that he would set the revocation hearing in two days. It all sounded so reasonable. So orderly. So efficient. So unfair. By now my doubts about what to do were giving way to anger.

I returned to my office and asked to speak to my boss Stan. I was still in awe of him and somewhat nervous as I explained what had happened. He mumbled something about that "son of a bitch" and after some commiseration he and I went to see the presiding judge of the entire court. Now I was really getting nervous. This was the big cheese! He ushered us into chambers and I sat and listened as Stan explained what had happened to me. The Presiding Judge was courtly and friendly and with a faint hint of apology in his voice stated that he was unable to interfere with a fellow judge’s decision and sent us on our way. By now I had a real sinking feeling in my stomach……..the same one I had many times thereafter whenever my sense of justice had been offended.

I went back to my office and brooded all afternoon. I looked for some law on the issue. There wasn't any at that time. It was close to 5 pm and I thought about a writ but there wasn't much time. By now my feeling of helplessness had turned to anger and I decided to take action. I called the Court of Appeal and asked to speak to a justice. The clerk asked which one and I told him anyone, it didn't matter which one. After all I didn’t know any judges. Slightly suspicious, the clerk asked me what I needed. I explained that I was a lawyer and had a serious problem with an order of the superior court and I needed to have it resolved soon. The clerk, sensing a rookie on the line, politely explained that the court could not act in the absence of some type of paper work, a fact which became clearer over the ensuing years.

That night I stayed up late preparing a hand written habeas corpus form setting forth what had happened. I had no case law since there was no comparable case that I could find and my reasoning abilities were clouded with an overriding anger. At 8 am the next morning I walked through the doors of the clerk’s office at the Court of Appeal, my sad pile of papers in hand and gave them to the clerk. He stamped them received and I sat down in the waiting room. After several minutes the clerk asked me if there was anything else he could do for me and I replied "No, I’m just waiting for the court to act on my petition”. He smiled to himself and said "Mr.Adler it doesn't work that way. The court will either deny the petition or ask for a response. Either way it will take at least a few days and possibly much longer". I thanked him and said "That's OK but I'm just going to stay here until something happens" and continued to read my magazine. After all, I had nothing else to do since my trial had been called off and the probation revocation hearing wasn’t until the following morning. The clerk disappeared and I had thoughts that he had gone to summon the State Police but rather he returned and calmly continued his duties.

Around 11 am the door to the waiting room opened and a man in shirtsleeves and tie emerged carrying a piece of paper. I later learned that this was Justice Ault. He approached me and said "Are you Mr.Adler?" Not knowing who he was I replied "Yes”. He handed me the paper and said "Here's your order. Good luck” and turned and went back through the door. Incredulously, I read the brief order.

"The order of the Superior court in the above case recalling the trial and setting a probation revocation hearing is reversed. Trial in this matter is to commence forthwith in Department 5.” Ault, J

I was stunned by how direct the order was and how it was within the power of one appellate judge to make something right. Maybe there was enough justice to go around! It was a feeling lawyers only get a few times in their career……..a complete vindication concerning a real injustice. I raced back to the Superior courthouse. The presiding criminal judge had already gone to lunch so I left a copy of the order with his clerk and walked down to Department 5 where two attorneys were already selecting a jury in another case. The room was packed with potential jurors. I motioned for the bailiff and whispered to him that I had an order for the judge. The bailiff took the order to the clerk who read it and handed it to the judge.

I thought I detected a slight grin on the judges face as he said "Well, ladies and gentlemen I have received an order from a higher court that I am to start another case immediately and therefore I'm going to have to declare a mistrial in this case and send you back to the jury room”. The lawyers looked at each other, shrugged and started to pack their briefcases. "Mr. Adler, will you be prepared to proceed at 1:30?" the judge inquired. "Yes sir", I replied. I left the courthouse elated, eager to tell Stan and my colleagues what had happened. But there was more to come.

At 1:30 I arrived in Department 5 ready to start my jury trial. As I walked into the room the bailiff motioned me over and told me I was wanted in Department 8. I quickly walked down the hall and entered the lunatic’s courtroom. He was on the bench ready for me “Mr. Adler I understand that the probation revocation matter set for tomorrow has been taken off calendar so I will reschedule it for two weeks from today. Your trial should be over by then”. As ignorant as I was I knew what he was doing. There would be payback time for going to the Court of Appeal and he wanted to make sure he kept personal jurisdiction over the case rather than it being reassigned to another judge. Now although I knew what he was doing, I didn’t know any legal basis for objecting (which seemed to be becoming a disturbingly regular phenomena) so I mumbled a few perfunctory objections which he smilingly overruled.

All afternoon as we picked the jury I couldn’t help thinking about the lunatic in Department 8 waiting in the weeds to get his revenge. I went home that night and put pen to paper again and by early morning I was at the Court of Appeal as they opened the doors at 8 am and handed the same clerk a similar sad pile of papers without any authority cited in which I railed against the injustice. The clerk sardonically asked, “Are you going to wait Mr. Adler?”. “No” I replied, I’m in trial” and proceeded to drag myself over to the courtroom where we finished jury selection and took a morning break before opening statements. My mind was completely preoccupied with what I was going to say. After the break I walked into the courtroom. The judge was in shirtsleeves talking to his clerk. “Mr. Adler it looks like we’ve received another order from the Court of Appeal”. He walked over to me and handed me the order. It was short and to the point:

“The order of the Superior Court setting a probation revocation hearing in this matter is vacated. The Superior Court is directed to take no further action in the revocation proceeding pending further order of this court” Ault, J

Three days later my client was acquitted of all counts and was released from jail. There was no need for a revocation hearing. Years later, at a social gathering, I ran into the Presiding judge who had ordered the trial to stop. He walked over to where I was standing and said in a somewhat pained and awkward, yet magnanimous voice, “Mr. Adler do you remember that case where you got me and (the lunatic) reversed twice in two days?” “Yes, I believe I do” I replied in a manner sufficiently sarcastic to convey self satisfaction yet remaining respectful to his office. “Well I’ve often meant to tell you that I didn’t like it, but I’ve always respected you for doing it”. I thanked him and forever after that day I had more respect for him also. Funny how that works.

But I digress from the true story which isn’t about the lunatic or the Presiding judge or me or the client. It’s about Justice Ault. He knew the lunatic and he knew what was going on. He didn’t need any blue briefs with ribbons and tables of authority to know what his job was. He was the gatekeeper between right and wrong and he wasn’t afraid to exert the weight of his office to see that it was done. The original intent of the framers of the due process clause was not an intellectual exercise to him when I came in with my pathetic pile of papers. He didn’t fret over the niceties of whether an alternative or a peremptory writ was in order or the fact that my brief wasn’t typed. He looked through the facts and decided that what happened was wrong.

The feeling that those two orders gave me stayed with me for the rest of my practice and gave me hope that an attorney could make a difference. There is such a thing as justice. It just requires a good judge and someone to make it happen. In today’s technocratic “system” oriented approach to justice I think it’s harder to find judges that will rule from their gut once in awhile. It’s antithetical to the way we think and besides we want judges who will “follow the law and not make their own rules”. But somewhere there is a tension between the concept of following the law and doing justice. If Justice Ault had ruled that my petition was “premature” or hadn’t specifically ordered the trial to commence in Department 5 or had allowed the probation hearing to remain on calendar he would have been following the law. But in making the orders he did he not only followed the law but in addition he also meted out justice. The orders said, sub silentio, “Stop messing around with this new lawyer…let’s see what happens at trial and don’t put him under the pressure of thinking about facing the lunatic if he loses”. It affected the way I practiced law over the next twenty five years and I always kept an eye out for the judges who had the same sensibility i.e. to do the right thing.

So I posit the question I started with. Is there enough justice in today’s court “system” or is it all just following the law? You tell me. I’m retired.

©2005 Tom Adler

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