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This 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 2 of the forum, which was moderated by Recorder Associate Editor Greg Mitchell. Recorder: Last year the board of supervisors here in Santa Clara County debated a resolution calling for a moratorium on the death penalty. Do you believe there are problems with the way the death penalty is meted out in this county, and if so, what power, if any, would you as a judge have to address those problems? Thomas Spielbaur: I think a judge has a tremendous amount of power to address the problem. From my perspective, probably the most significant problem that deals with the death penalty is competency of counsel. Those are problems that seem to be surfacing over and over and over again — both in California and throughout other parts of the United States. And that’s where it’s incumbent upon a judge … to ensure that a defendant is being competently represented. And any judge who has experience — and I certainly, after 23 years being a lawyer and 20 years as a public defender, and I’ve tried so many cases to jury it’s not worth repeating, that I know when there’s going to be a problem. And I would expect that probably my colleagues would know as well. And at that critical point the judge then has to make the hard decision whether to look the other way and pretend that everything is going fine, or to do something to cure the problem. … Aaron Persky: I think the single most serious problem with the death penalty, as it relates to the administration of justice in California, is delay. It just takes too long for cases to wind their way through the system. And in the most important of criminal cases, justice delayed truly is justice denied for both sides. I don’t think that as a new judge I would have much ability to affect that. But I truly think that that is the most pressing problem with the death penalty as it relates, again, to administration of justice. Ron Del Pozzo: The judicial code of ethics of course requires us not to take a position regarding the death penalty, and we can only state of course that we will follow the law as it is prescribed in the state of California. The problems of delay, of course, do deny justice to both sides. The incompetence of counsel in death penalty cases of course is an issue that needs to be looked at. But overall, what a judge at the trial level … needs to look at is enforcing the law. If a jury verdict comes back with the death penalty, and the law is that the death penalty must be applied, then the judge must follow the law. Until that law changes, then that has to be what has to be done. Michael Millen: I think all the three answers pretty much sum it up. I think Tom is right on the money when he says that incompetence of counsel is something a judge can be looking out for. But that is — I haven’t seen a statistical study — but I’m sure [that is a very substantial] reason for delay, that courts are continuing to look at what the previous attorney did. So you have appeals about whether another court correctly interpreted what the first attorney did, and it just goes on and on and on. So what a judge can do at the county level, apart from what Tom says — if you think there’s a competency of counsel problem, the trial judge can do something about that — but apart from that, I think Ron is right, you have to follow the law. … Recorder:Can each of you name one Santa Clara County judge, either active or retired, you’d try to emulate on the bench? Del Pozzo: One that I would try to emulate on the bench is Judge [William] Martin. Another would be Judge Ray Cunningham. I have the greatest respect for both of those individuals. Bill Martin is probably the most well-rounded, even tempered, great listener, and experienced judge we have in the county here. He is well respected by everyone. … He always seems to be able to bring sides together in disputes, whether they be civil disputes or criminal disputes. Judge Ray Cunningham, with a little bit lesser experience than Judge Martin, has those same qualities. He’s well respected by both plaintiffs and defense attorneys, and he’s able to keep the sense of humor, as Bill Martin is, he’s able to keep his temper, his dignity, and yet not in any way appear, either of them, as being arrogant at any time. And this is what I hope to be as a judge. Millen: It would be great if I could emulate what Judge Read Ambler — now retired, over at JAMS — did during his career. Two things come to mind. First, whenever the bar association would have a meeting where it needed a judge to come and help share what’s going on at the court and so on, you could count on Judge Ambler being there. He was just going to be there. That was just a real encouragement as a young attorney, to see a judge who would take the time out to come to lunch, talk to our group. … The second thing about Judge Ambler is I remember one of his last trials before he retired. There was kind of a complicated point of law. The attorneys had briefed it and everybody thought they knew what was going on. And he said, you know, hold on a minute. So he goes back to his chambers, pulls out the book, and reads us line by line, “OK, Mr. so-and-so, Now I’m reading this line, do you agree with this?” Because the whole case hinged on this one point. Now that kind of humility and seeking truth, and not being a know-it-all judge but a humble judge who says, “Let’s get the law and let’s get to the bottom of this,” that is a great quality I would love to emulate. Spielbauer: When you look at the roster of judges in this county, particularly when you’ve had contact with them, that’s a very difficult question to answer because you can see a lot of good qualities in each of the judges that are on the bench. … But when addressing the specific question, obviously the deceased judge, Judge [Edward] Nelson, would be somebody that would be hard to beat. … [For current judges] I would have to pick Judge Teilh, Judge Paul Teilh. The reason I would pick Judge Paul Teilh, the sense of fairness. You go into his courtroom, you try a case, and it is a fair trial. There is nothing to complain about. He is a man of the utmost integrity. And in selecting Paul Teilh, I’m realizing he’s a man of extraordinary self-discipline, maybe more than I, but he would certainly be a judge that I would emulate, for the concept of fairness. Persky: I would emulate Judge Robert Foley. First, because he’s just so smart, and he has such a great legal mind. But it’s an intelligence without any hint of arrogance. And that’s the second part of his gift, I think, is his demeanor toward everyone. He treats everyone with equal dignity and respect. And I would try to do that as best I could. Recorder: Mr. Spielbauer, District Attorney George Kennedy has called your ideas about criminal justice “dangerous.” If you’re assigned to a criminal court, do you think his prosecutors would get a fair shake? Spielbauer: Yes, absolutely. No question about that. The district attorney exercises enormous influence, almost control in the criminal justice system. And that’s for a wide variety of reasons, not the least of which we have a superior court which consists of a very large number of former prosecutors. My life experience I would bring with me, my experience as a public defender I would bring with me. And the way I see things would be different than, say, a prosecutor would see things. Particularly when it deals with situations involving people, looking at people as human beings, rather than as objects, or defendants, or witnesses, or things that walk around with labels. … And some of the policies of the prosecution under George Kennedy I think are extraordinarily harsh, and destroy some people’s lives unnecessarily. And so there would be disagreement between the way George Kennedy looks at things and the way I would as a judge. But yes, Mr. Del Pozzo and Mr. Persky could get a fair shake. Recorder: Mr. Persky, your experience consists of working as a prosecutor and as an associate at one of the region’s largest law firms. With these sorts of institutional biases, could you be fair to the little guys — criminal defendants, individual plaintiffs? Persky: I could. And I think the reason that I could is because I’m aware of those institutional biases. As I mentioned earlier, at Morrison & Foerster I took on some pro bono eviction defense cases. And it was really pretty amazing, because in the city of San Francisco, tenants have extraordinary rights under the law, but those rights count for nothing if they’re not represented. And to go into a case and to throw all your effort and your firm’s effort and resources into representing an individual, and you see the transformation, you see the results that you can get from that, you get an appreciation for the other side, the little person. So, again, I think one has to as a judge — because it can be an insular type of job — one has to be aware of those institutional biases and fight them. I think that I could do that. Recorder: Mr. Del Pozzo, you’ve been in the DA’s office quite a bit longer than Mr. Persky, and you’ve gotten most of the law enforcement endorsements. Yet Mr. Persky has gotten campaign contributions from two of the top managers in that office. Do you see that as a vote of no confidence? Del Pozzo: Not at all. First of all, I’d like to say that I didn’t solicit campaign contributions from those people that you’re referring to in the office. I don’t know whether I would have gotten any contributions or not. As you know it’s been very difficult to solicit within our own office. We can’t do it during the company time. However, I do want to point out that the senior, at least by age, assistant district attorney, Al Weger, has endorsed me in this campaign, and has also given monetarily. I also have more than 15 DAs who have contributed to my campaign, and many of them are working on my campaign. So quite the contrary, I feel that I have at least equal if not more support than my colleague in the DA’s office at this time, and I’m certainly receiving a lot of support in the community with the 21 judges and commissioners that have endorsed me, and over 150 attorneys that have endorsed me overall. I feel I have the support of the legal community in the race. Recorder: Mr. Millen, you’ve represented abortion protesters in First Amendment cases, and you also represented a couple who sued a library for allowing unfettered access to the Internet. How did you become involved in those kinds of cases, and how, if at all, does that representation affect your legal philosophy? Millen: When you first get out of law school, you have an opportunity to get involved in pro bono cases, and the reason … is because you probably don’t have too much life overhead. You don’t have a big house and a big car and 18 kids or anything else. And so when I got out of law school, I wanted to get trial experience, I wanted to get appellate court experience, and the only way to get that, when you’re first out, is you have to represent people for free. Because nobody will pay you. And that’s what civil rights litigation often, sadly, is. It’s about people who have no money who need good quality representation. So you work on these with experienced attorneys. So that’s how I came to start doing pro bono work in general. With regard to the cases you’re talking about, they each have different histories. One of them, with regard to Kathleen R., where young Brandon was exposed to obscene Internet pornography, I was contacted by the Pacific Justice Institute, which is an organization that handles a lot of different kinds of cases. And they contacted me because I happen to know the president of it. And he said, “Look, we have a mom here and a young man who’s been injured by obscene pornography, and the library ought not be giving this out, making it available to kids.” How could I say no to a case like that? With regard to Foti v. Menlo Park [146 F.3d 629], I had done pro bono work before that, and some people I know knew Mr. Foti and said maybe you’d be the man to represent him. My personal philosophies and my client philosophies may or may not be the same. Recorder: To follow up on that, you say may or may not be the same. Can you explain the extent — does it represent your legal philosophy or not? Millen: Well, see, this is what’s interesting. There is a big difference between the client’s political philosophy and the legal principle at stake. So when I represented Mr. Foti, it was about a man who wanted to park his car and put signs all around his car, that the city could not get rid of him because everything he did was legal. The issue at stake was not about the content of the signs, it was about the lawfulness of free speech. So while I appreciate, for instance, Mr. Spielbauer was talking about the importance of protecting free speech rights, I’m actually the only candidate who’s gone out and has published decisions on free speech, because I take it so seriously. So if your question is, “Is my legal philosophy that the Constitution is important?” You betcha.

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