his election season, The Recorder is giving judicial candidates an opportunity to speak with their own voices. On Feb. 12, The Recorder and the Santa Clara County Bar Association co-sponsored a forum for the four candidates for superior court seat No. 16. They are Deputy District Attorneys Ron Del Pozzo and Aaron Persky; Los Gatos solo practitioner Michael Millen, and Deputy Public Defender Thomas Spielbauer.
Following are excerpts from part one of the forum, which was moderated by Recorder Associate Editor Greg Mitchell. Part two will appear tomorrow.
Recorder: Why should the voters choose you in this race?
Aaron Persky: There are essentially three reasons why I'm well-qualified to be a superior court judge in Santa Clara County. The first is my combination of both civil and criminal legal experience. I have civil litigation experience as an associate at Morrison & Foerster, where I worked on a variety of cases, some of the most interesting of which were pro bono eviction defense cases.
I came to the district attorney's office about 4 1/2 years ago, and I've worked my way up through the office. I came here because I wanted to be a trial lawyer, and I now prosecute chiefly sexual violent predator cases for the office.
The second aspect is I've been committed to the community as an attorney in Santa Clara County. Let me talk about two organizations I've been involved with. The first is the Santa Clara County Network for a Hate-Free Community, which is an organization that was created by the Santa Clara County Office of Human Relations to address the problems with hate incidents, hate crimes, in the county. And I became the district attorney's representative on that network. ...
The second organization that I've been involved with is the Support Network for Battered Women in Mountain View, where I serve on the board. As I was working my way up through the DA's office I prosecuted misdemeanor domestic violence cases for a time. And I think I have a good law enforcement perspective on the problem, and now what I'm gaining through the support network is the community-based perspective, and the victim's perspective.
And finally, I have some expertise in trial presentation technology, which I think would help the court.
Ron Del Pozzo: I believe that judges should have a breadth of experience, and I believe I have the breadth of experience that's necessary to be a good judge.
I'm a well-rounded individual, in that I have a business background -- not only a business degree, where I learned all the basic elements of business and business management, but I was a business manager. I was a regional marketing manager for a corporation, and spent six years in the business field.
Also, I have in my legal career clerked at a civil litigation firm, where I handled all types of motions. I handled hundreds and hundreds of interrogatories, dozens of motions, helped prepare trial briefs, and gained an understanding of civil law.
I also clerked at the public defender's office when I was in law school, and gained a perspective of that side of criminal law. And of course 12 years as a district attorney, where I've tried almost 100 cases and won every felony trial. The 100 cases involved both juvenile and adult trials.
Outside of that I think part of your well-roundedness as a judge, there has to be an element of community service. I've won community service awards, including the Philip Burton Scholarship Award in law school for outstanding community service. When I was in business I participated as our corporate representative in the Junior Achievement Program, reaching out to high schools. I've been involved in Next Door Solutions and Second Harvest Food Bank. ...
Michael Millen: I think the reason the voters want to choose me as the next judge is both because of experience and because of vision.
I've done a lot of pro bono work in civil litigation cases, and there's one published Ninth Circuit case and various California Court of Appeal cases. Not just the higher courts, but the local courts as well. And like all of my opponents, I've certainly done trials, both civil and criminal trials, in the local courts.
But more than that I'm also trusted by the courts in terms of serving on the bench when it's appropriate. For instance, I've been a judge pro tem in small claims court. I was asked on a couple of occasions to be judge pro tem in criminal court. I get routine requests from the court to be a superior court arbitrator. A couple of doors down from us is the county jail, and they have an infraction review board, where the bar association supplies one attorney who helps to judge whether or not the inmates have actually violated the rules of the facility. ...
The last area is, I want to call it bring the law to people. And what I mean is, a lot of people don't have money. How do they get access to the legal system? What do they do? Well, obviously, if they commit a crime they get a free attorney, such as my colleague here. But if they're in a civil case, that's a little bit different. And that's why it's been exciting for me to be part of the federal pro bono project, which matches up attorneys who have time with federal litigants who need an attorney. ...
And finally, vision, suffice it to say that with an electrical engineering background and an MBA, I have a vision of where I think the court could go, and I'd like to be a catalyst in that.
Thomas Spielbauer: The voters would want to choose me because I have a lot of experience. I have twice the experience of each one of my colleagues. I've been a lawyer for 23 years, and my colleagues the most is about 11 1/2 years, so I have twice the experience.
And beyond that, I have a wide breadth of life experience. I have lived in other countries, I've seen many things, I can appreciate the values of different societies and different cultures.
But the primary reason I think the voters would want to choose me is because I'm very sensitive to our constitutional principles, which is the significant and main reason why I'm running for judge.
I'm very concerned about the current erosion of our constitutional rights. And I speak about this every time there's the opportunity to speak, and I speak about this in front of my colleagues at different forums. And it appears that I'm still the only one speaking about this.
The role of a judge is, yes, a judge has to be fair, a judge has to conduct hearings in which people can see that justice is being administered, and you have to do that according to the law. But there's one other significant role of judge that my colleagues are not speaking about, in fact none of the candidates are speaking about, and that is to be a protector and a guardian to our constitutional principles.
And I'm very cognizant of that role. I talk about it every time that we go out, and nobody else is speaking about it. Nobody else is speaking about one of the most significant roles that judges have, and that is to protect constitutional freedoms. ...
In large part I'm running for judge to live the oath that I took, both when I became an officer of the United States Army, and served active service, and when I became a lawyer. That is to protect and defend the Constitution, both of the United States and of California.
Recorder: Could each of you give us an example of a decision you made in your legal career that with the benefit of hindsight you now regret, and perhaps what you learned from that experience?
Del Pozzo: I cannot think of one.
MILLEN: I would say when I first graduated from law school, and I taught at Santa Clara for a year as a legal research and writing instructor to night students. And after that I went out and, due to a series of circumstances, hung out a shingle, and was an attorney, and have had a great 10-, 11-, almost 12-year run now.
If I had to say one thing I kind of regret, it was when I made the choice to become a solo. There was an advantage to that, which was I was able to really focus and do cases the way I thought they should be done. But I didn't have as much of the legal camaraderie, and some of the encouragement you get when you're in a bigger office.
And so if I had to say, almost, I don't even know if I would say I regret it. But it was a difficult choice. ...
Spielbauer: Kind of a baring of the soul here. Probably it was more my philosophical approach when I first became a public defender. In the sense that I was very aggressive and very determined, and that I don't regret. But if I had to do it over again, I think I would have taken more into account my bedside manner, in dealing with opposing counsel, in dealing with the court system, and in dealing with the other parties involved in the court system.
Experience and age brings wisdom. And I think that I have age for sure, and I think that experience and wisdom. And I think what I've learned from all of this is when you do deal with the people who come into the criminal justice system, or the court system for that matter, that is you deal with them as individuals. ...
Persky: I guess I have a fairly specific example. And as background I think that trial advocacy is truly an art and not a science, and you can always learn more about it.
But there was one case where I came to learn the truth of the notion that cross-examination is the greatest engine for truth, where I had an opportunity to essentially strategically force a defendant to take the stand, and did not do the right thing to make that happen.
And as a result, there was a bonding of the jury with that person without him ever taking the stand, without him being subject to that ... cross-examination. And that was a wonderful learning experience for me. You sort of appreciate the human aspect of jury trials, which is people react to personality. People react to credibility in a very visceral way. And that is something that I took from that case.
Recorder: What do you see as the greatest injustice that a court can deliver?
Millen: Boy, that seems pretty easy to me. I'd call it prejudging. Taking a subject matter that is very difficult, say whether it's a violent crime, a civil case about an older person who's lost their life savings to some kind of apparently less than scrupulous operation ... and for a judge to go into that and start having opinions about who the people are before them, before he or she has actually heard them out.
Because I can certainly say, being an attorney, having been both on plaintiffs work, defendants work, and handling criminal defense, that when you go into a case, what you think is there, you don't necessarily find is there. And it's even more difficult with a judge, because at least an attorney really knows the full side of one part of the story. You know what your own client's story is. But when you're a judge, you don't really know what anybody's side of the story is. And so if a judge doesn't listen, if a judge prejudges and makes the wrong decision because they're so sure they're right, just by, "Oh, I can size them up," that to me is an injustice, and I hope that'd never be part of my judicial career.
Spielbauer: I guess trying to boil it down into one characteristic, although there are many characteristics which would be injust, a travesty of justice, is forgetting that you're dealing with real people in a courtroom setting. Forgetting that the people who come in, be it a defendant, a witness, a victim or whoever it may be, are real people. And starting to, or in fact rendering decisions by dealing with people as objects, as things, and forgetting that there are repercussions to every decision that a judge makes.
Coming into a court and presiding over a courtroom setting without compassion for other people -- and when I say compassion, I don't mean stupidity, I don't mean being soft, I don't mean being an idiot or having the wool pulled over your eyes. I'm talking about a human characteristic in which you realize you're dealing with other human beings. ... Once you lose that, everything else flows: unjust sentences flow, harsh sentences flow, and everything else flows from that.
Persky: I think the greatest injustice is to fail to treat every person that comes into the courtroom with the absolutely equal level of dignity and respect that every person deserves.
We as attorneys who are in the courts every day sometimes get hardened to poor treatment by judges. But people ... who are victims or witnesses or jurors, where that contact might be the only contact they ever have with the justice system, those experiences are indelibly etched in those people's minds.
And so I really think that the greatest sin for a judge is to lose that notion of equal respect and dignity for everyone. And there is a tendency by virtue of the position itself for a judge to become insulated from the community, insulated from individual litigants, and I think it's absolutely critical for judicial candidates, for judges -- new judges -- to be aware of that and to guard against it to the best they can.
Del Pozzo: Every case is different and every defendant is different. No two cases are alike and no two defendants are alike. ...
It is so easy for a judge to stereotype a case, a defendant, a situation, because they're reading 20, 30 drug cases at a time. Possession for sale, possession -- the issues are not that complicated, but the people are. Every person who comes into the courtroom brings in different life experience. Every sentence that is laid down by a judge must be geared to the individual that they're sentencing.
This is why education must be a factor in every sentence that is laid down, and it has to be specific to the individual to prevent the recidivism that will occur, unless that person is sentenced properly. ...
So it is imperative that everybody be treated differently in the respect that their sentences should be proportionate to their crime and who they are to try to rehabilitate them, and that's both in juvenile and adult.
