hroughout this election season, The Recorder is giving judicial candidates in Alameda, Contra Costa, San Francisco and Santa Clara counties an opportunity to speak to our readers in their own voices.
Last week The Recorder sat down with each of the four candidates for Contra Costa County Superior Court: Malcolm Sher, Cheryl Mills, Joel Golub and Stacey Grassini. Today we present excerpts of the interview with Sher, a litigator, arbitrator and mediator based in Walnut Creek.
Recorder: Why should the voters choose you?
Sher: I'm 54 years old. I have been a lawyer now for almost the past 30 years. I'm admitted in California and the U.K. I've spent the majority, if not the entirety of my career, as a lawyer serving the public. But serving the public not just within the legal profession, but outside of the immediate legal profession. You see, I think anybody can be a lawyer and sit on this committee of the local bar or that committee of the local bar, and I've done that - on the education committee in Alameda County. I formed the client relations committee of the Contra Costa Bar, which they hadn't had before, about two years ago.
But I think that lawyers have got to be, if they want to be judges, they have to be well rounded as human beings. By that I mean community service. I'm a very strong believer that if you're going to be a judge, you have to have served the community in a relevant way outside the practice of law.
Because as lawyers we can read the law, and as judges we can look up what we don't know - and there are guidelines on various things - but one has to have the right background and temperament to be a judge. And I believe that the public, particularly, are not looking just for technicians, not looking just for the guy who wears the tough justice [label], but they kind of want to know why and who you are, not just what you've done.
So for me, I've reached a period in my life where I've been an arbitrator, I've been a mediator, I've been a judge pro tem now for 18 years. ...
I've mentored at-risk youth in this county for the last 41/2 years, and in 1998 I won the Juvenile Justice Commission Award for service to at-risk youth. ...
Recorder: Which Contra Costa County judge, either past or present, would you most like to emulate if you are elected to the bench, and why?
Sher: Great question. Two, but my first choice would be Judge Maria Rivera, who is now elevated to the court of appeal. Just a terrific appointment. And the reason is she is a great listener. And she is compassionate. I've appeared before her numerous times. She really listens to what you're saying, and you get the impression that she's hearing it. Now whether you win or you lose on the issue, you come out of there believing that you've been given a really fair shake. And I think that she has a social conscience. And she's accessible. ...
The other judge I think I would really like to emulate would be Judge [Richard] Arnason. He's been on the bench probably longer than any other judge. He does mostly criminal work these days. But there's another judge who's heard it all, every excuse in the book, and yet I've sat in his courtroom - I don't do criminal law - and watched him. He treats everyone with respect. He treats everyone with courtesy. Sure, he's firm. But I think that's what part of what tough justice is being. You've got to be firm in the courtroom, you've got to control the courtroom. But a gentleman to the nth degree. ...
Recorder: What, in your view, is the most important [idea] that you have proposed for improving the court system?
Sher: What I would like to do is make the jury system a little bit fairer for the jurors. You see, I think that jurors serve the public, and they need to know if they're going to be requested, indeed required to serve, they should not be put in a position where they get jerked around. They come into the courts, they sit there the entire day, they take time off from work, and then they might not get chosen. That's not the problem.
The problem is that we need to find a way of making it more fair, I think, in the selection process. I've actually sat on a jury. I sat on a jury here in Contra Costa County some years ago. And I enjoyed the experience. I also think that judges need to treat jurors with more deference and more respect. ...
Recorder: What's not fair about the selection process now?
Sher: I think what's probably not fair is the enormous amount of waiting time. And I don't know how you improve that because the lawyers and the litigants have the right to choose their juries. And there's sometimes a lot of gamesmanship that goes on in the selection of jurors. I think possibly using jury statements earlier on in cases would probably give the courts and the litigants and their lawyers a greater opportunity to profile and see who the jurors are relevant to their cases.
The other thing that I think is important and that I would change is I would make the court system more accessible to the public. We have programs like L.A. Law and all of these sensationalized criminal shows, for the most part. That's not how it works.
What I would do is every month at least, I would have an open session in the late afternoon, after the courts are over, when you invite members of the public to step into the courtroom, look around and see what the place looks like. You know most litigants, they show up on the morning of trial and that's the first opportunity they've ever had to be in the courtroom. Particularly with regard to teen-agers and juveniles.
I would like to make the system accessible to kids, so that instead of field trips being taken to Great America and the water slides, that field trips are opportunities to bring kids to the courtroom and watch matters being heard, not just civil cases, but also criminal cases, so that at the end of that session the judge takes off his or her black robe and says, "Now I'm going to step down into the well of the courtroom and I'm going to talk to these kids. I'm not going to lecture at them. I'm going to talk to them. I'm going to ask them what they saw, what they heard, what impressed them, what frightened them." And then suggest to them that they ought to try and stay out of the court system, particularly the juvenile court system. So that's what I mean by making our courts more accessible.
Recorder: When you say invite the public, are you inviting specific members of the public?
Sher: In the newspaper when they talk about what community activities are going on, I would like it to be able to show that my courtroom on a particular day, they can invite anyone they want to be there. I would try hard to get in touch with local schools and probation officers countywide and invite them to bring kids on field trips into the courts from time to time. ...
I also think it's also important that victims of crime are given victims' advocates.
Recorder: Don't they have them now?
Sher: Yes. But just like defendants are given, at public expense, public defenders, I think that victims of violent crime, particularly, ought to be given, at public expense, victims' advocates who can shepherd them through the intricacies of the court system.
I know there are victims' rights advocates. I candidly don't know whether the victims' advocates are provided at county expense. But all too often, and especially in the criminal system of course, the prosecutors need the victims as witnesses. ... They come, they are used for the purposes of obtaining a conviction. But I think that they come away from the system, from the experience, feeling that they have relived again the rape, the molestation, the burglary, whatever it was that made them a victim. And I think victims of crime really ought to be helped to get through that system so that after the trial is over, they're not simply waved good-bye with thanks, then they've got to go out there and rebuild their lives.
Recorder: Not to comment on the merits of it, but wouldn't this be a pretty expensive thing to do? I assume you'd need one victim's advocate for each criminal department, so you'd be talking about quite a few full-time salaries being added at public expense.
Sher: Yes, I suspect you would. I have not investigated the cost, and I know that that would need to be done, would need to be done carefully. I'm talking about a concept, more than the detail of implementation.
Recorder: Are there any courts that you're aware of that do this now? Is there a model out there?
Sher: Not that I'm aware of. You go up to the district attorney's office, and outside there it says "victims' rights advocates," and they give you a phone number. But I don't know the extent of how those organizations are funded, and whether they're funded from public expense. ...
Recorder: How do you feel about the way "Three Strikes and You're Out" is handled in Contra Costa County?
Sher: That's a tough question, and I have to be very, very careful because the canons of judicial ethics, as you know, do not permit judges and judge candidates to take positions on issues that not just might but certainly will come before them.
The only thing I can say on that is this: In my view, there is a big difference between someone who has been convicted, let's say, of rape, of a homicide, and then another violent crime, versus someone who has been convicted the last time of stealing a lipstick from Longs. I just believe that there is a difference. ...
The law is the law. Judges don't make the law, they enforce the law. As a judge I will enforce the law to the fullest extent. However, if we have the discretion - if we have the discretion - I will look very, very carefully and critically at the entirety of the defendant's history and at their background and, if given discretion, I will consider exercising that discretion. But I will always follow the law. ...
Recorder: Do you think all the felony trials ought to remain in the central locations, or do you think it would be better to farm out some of those to the old municipal court locations like Richmond, for example?
Sher: I believe that the public ought to be able to have cases that come before the courts handled in the locations in which they live, so that the public don't believe and don't feel that they're being forced to come into Martinez for the big stuff, and that all the little stuff can be handled in a cow county kind of atmosphere.
Regardless of where the courts are located, they all have the same authority. They all have judges of the same level. And I think that the public ought to be able to have their cases, criminal and civil, tried in their communities. Our courts have got to serve communities. ...
Recorder: Early in the campaign, you were critical of one of the candidates, who's no longer in the race, Denise Schmidt, for referring to herself as a court commissioner. You said you hoped candidates wouldn't take liberties with their ballot designation. But you had to change your proposed ballot designation from "Judge Pro Tem" after someone filed for a writ of mandate. Weren't you kind of taking liberties with the ballot designation yourself?
Sher: No, and let me tell you why. I have been and I am a judge pro tem. I have been a judge pro tem for 18 years. I believe that the public ought to be able to know the background of their candidates who are seeking election. I am very proud to have been a judge pro tem for 18 years.
Recorder: But Denise Schmidt had acted as a court commissioner too.
Sher: She had acted as a court commissioner, and I wasn't critical of her. What I actually said was "I don't know whether she crossed the line," and I said, "That will be for the county counsel to decide." It turned out, in my case, that the county counsel issued an opinion and [Clerk-Recorder] Steve Weir's office made the decision that it would not be appropriate for me to use the designation judge pro tem. And I therefore backed off quickly because I believe that those kinds of issues are not what the public wants to hear. ... I am and have been a judge pro tem. They're allowed to hear that. And they should hear that.
