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Court: Santa Clara Superior Appointed: Feb. 26, 1993, by Gov. Wilson Date of Birth: April 25, 1948 Law School: Santa Clara University (1973) Previous Judicial Experience: Santa Clara County Municipal Court Judge James Emerson doesn’t play politics on the bench, defense attorneys say. They describe Emerson as one of the few judges on the Santa Clara County Superior Court bench who really weighs defense arguments before ruling and doesn’t pander to prosecutors. “He has courage to rule what he thinks is right as opposed to what is politically popular, or what the prosecutor wants him to do,” said Santa Clara Deputy Public Defender Charles Gillan. “He is not afraid to take a politically unpopular stance if he thinks it’s the right thing to do.” In 1997 Emerson was one of the first trial judges in the state to strike down as unconstitutional the sexually violent predator law, which keeps certain criminals locked up indefinitely after their sentences have been served. Ultimately, Emerson didn’t win that fight, with higher courts upholding the law. Emerson is now challenging Gov. Gray Davis’ policy to deny parole to nearly all killers who seek it. Despite a California Supreme Court opinion issued in December that backs Davis’ position, Emerson has ordered parole or a new parole hearing for six inmates, writing that the Supreme Court didn’t have enough evidence at the time to come to the right decision. “His orders just reflect a very strong opinion about it,” said Supervising Deputy Attorney General Julie Garland, adding that Emerson is ruling for inmates in virtually all cases he’s decided. “He is unique in that respect.” But defense attorneys contend that Emerson is actually upholding the law, and not just rubber-stamping prosecutors. They say he takes defense arguments seriously and is one of the best judges to draw for Romero hearings, where a judge can dismiss a prior conviction in a Three Strikes case. “Judge Emerson is a very respected judge and one of the brighter legal minds,” said San Jose defense attorney Allen Schwartz. “I know all his rulings are all according to the law. He is not an activist judge or trying to make a statement. Each case is handled on a case-by-case basis.” Not surprisingly, prosecutors have less glowing reviews. Many, unhappy with what they describe as soft sentences or other rulings, refused to comment. Emerson did not comment for this story. A Republican, the judge worked as a deputy county counsel for five years before Gov. George Deukmejian appointed him to the municipal court bench in 1990. Gov. Pete Wilson elevated Emerson to superior court in 1993. Gillan represented one of the indefinitely detained sex predators in 1997. “He’s loved by the defense,” said Gillan. “He doesn’t always side with the prosecution. That’s probably why some prosecutors don’t like him very much. Where he has judicial discretion, he does what he thinks is right.” Gillan also tried a murder case in front of Judge Emerson. His client, who was driving the car during a backseat drive-by shooting, was acquitted. The shooter was convicted of murder, and another passenger was convicted of lesser offenses. Gillan said he probably would have gotten the same result in front of another judge, but said Emerson’s formal yet polite style, and his willingness to weigh defense arguments, makes him an ideal trial judge. “He will always reconsider. The defense has a chance,” Gillan said. “You can spend a week putting together a motion that you think has merit, and you think you have a chance that it will be considered on the merits. There are lots of other judges who, No. 1, you wonder if they will even read the motion and, No. 2, they will read it and rule with the prosecution as a fallback position.” Aside from the law, Emerson is also known for his annual Christmas party. The judge invites attorneys, court staff and other judges to his Saratoga home each holiday season. “He’s the only judge I know that has get-togethers for non-judges,” Gillan said. “He’s very cordial and very open and he wants to be viewed as totally fair.” Outside of court, Emerson is an avid swimmer. In 1999 he swam in the Alcatraz Sharkfest Swim, telling a reporter that he enjoyed the irony of a judge swimming from Alcatraz to San Francisco. And not all prosecutors complain about the judge’s rulings. Deputy DA Randy Hey prosecuted a Northern California chain of convalescent homes for neglect and abuse in Emerson’s courtroom in 2000. Hey said he was satisfied with Emerson’s ruling to force the company to sell two of its facilities. “He has a good reputation. He listens,” Hey said. “As prosecutors, we may not always agree with him, but he does listen and that’s important.” Hey said he also has handled several elder and child abuse cases in Emerson’s court that mostly ended up in guilty pleas. “The best thing you can say about Judge Emerson is that he has a good understanding of people,” Hey said. “There is a time when a parent simply overreacts and he can understand that. There are times when a parent is being terribly abusive and he understands that too. That decision is reflected in his sentencing.”

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