COURT: San Mateo County Superior
ASSIGNMENT: Criminal court; veterans court
APPOINTED: 2004 by Governor Arnold Schwarzenegger
LAW SCHOOL: UC-Hastings
PREVIOUS EMPLOYMENT: Law Offices of Hunt and Hunt (1977 to 1984); deputy district attorney, Riverside County (1984 to 1987); deputy DA, San Mateo County (1987 to 2004); 17 years of service in the Army Reserve JAG Corps
PLACE OF BIRTH: San Francisco
POLITICAL AFFILIATION: Republican
Q: You preside over one of the few veterans’ courts in the state of California. Can you speak about the eligibility requirements for the defendants in your court?
A: Sure. What a veteran needs in order to get admitted into veterans treatment court is he needs a probationary sentence. The people who come before me for treatment in veterans court have already been convicted. The sentencing judge has already determined that they are eligible for probation. Then, the additional requirements that are necessary for them to qualify are that they must have some kind of mental health issue — PTSD, traumatic brain injury, substance abuse — those kinds of things, and it has to have a military connection; they have to be eligible for VA benefits. Meaning, they have to have had a good-conduct discharge of some sort. They have to be prepared to enter into what is probably an 18-month program that’s going to be a great deal more restrictive than probation is.
It can’t be a crime involving — obviously, it wouldn’t be in a probationary setting most often — death or serious bodily injury to a victim. Those are the eligibility requirements. And San Mateo County residence because under the new statutes, if you have residence in another county then probation is obliged to transfer your case to another county.
Q: What do you like best about being a judge?
A: I used to tell people that as a DA my job was to convince the jury and often the judge to do the right thing, to make the right ruling. Becoming a judge has allowed me to cut out the middleman. Now I just get to do the right thing. And I like that.
As much fun as it was to be an advocate, and I was an advocate both for defendants in my civil work — when some of my civil clients would have issues or their children would have issues with regard to DUIs and the like, I would do some defense work, and in the Army reserves I did defense work as well — but primarily I was a prosecutor for many, many years. I liked being an advocate; it was something that I took great pride in, but I love not being an advocate now. I really enjoy just making the decision and not having to put forth a particular perspective on the evidence. I enjoy coming into a case neutral and doing the right thing.
Q: Your service in the JAG Corps, was that part of the impetus for wanting to head the veterans court?
A: It certainly was part of the impetus. Especially when I saw these young guys coming through the courts and having problems based on their experiences serving the rest of us. It certainly did give me a desire to give something back to them and help them overcome the legal difficulties that they may not have had, had it not been for their veterans service.
I began to pay attention to what was being done on the East Coast and then when it started being done in California. And then, unfortunately, in these dire budget times, I had to find a way to do it that was revenue neutral for the courts, because we were shrinking the courts, and here I was asking to expand it with a veterans treatment court — a new type of court for San Mateo County. That was challenging, to do it in a way that wouldn’t impact the other courts; do it in a way that wouldn’t cost us anything. So I spent 18 months organizing lunch meetings with various agencies, federal and county, trying to find a way to do this without costing the courts any money and without making things inconvenient and disruptive to the other courts we already had in San Mateo County. After 18 months, I think we did find a way to meet the goals of helping the vets and yet not disrupting the kind of court system we had here and not costing us any money, that was a real key, too.
Q: What makes for effective voir dire?
A: What I was taught, way back when, was that it was very important to engage the jurors. Keep them interested in your case and make them trust you, as the advocate representing a particular side, more than anyone else in the courtroom. That if you have their trust, you are doing everything you can in addition, of course, to the evidence in the case, to win the case.
I think that definitely applies in voir dire; you do not want to bore the jurors. You want to hold their interest. What I did — and of course it’s something I learned from someone else — the very first words out of my mouth when I did voir dire in many, many jury trials is I would put up my hand and say, "How many people here have gotten a traffic ticket they didn’t deserve?" And they would snicker and so on, and a lot of times no one would raise their hands because they’re still shy. And I’d say, "So I’m the only one?"
The idea was to get them to relax, get them to be comfortable. To get them interested. I think all of those things, if you keep those as your goals, you can be much more effective in voir dire and use it as a plan to persuade those jurors from the very start of the case. On the other hand, I’ve seen cases where there’s been absolutely no voir dire by one side and excellent voir dire by the other, and it didn’t have any effect on the outcome. I can’t say that’s the be all and the end all, but if you want to be a good trial lawyer, you have to learn how to relate to the jurors, use your people skills and get them to talk about themselves and make an informed decision in a short period of time.
The worst things you can do are to ask a repetitious question and to ask it in order as you go through the entire jury panel. The jurors are restless, uninterested and singularly unimpressed with your work thus far.
Q: Do you impose time limits on argument?
A: I impose time limits on voir dire because it’s the first impression what the jury has and I don’t want them to be bored with the case. I want attorneys to hone their questions down; ask a question generally at first and then follow up with individual members. I want them to manage their time well. I do a lengthy voir dire. I try and ask the difficult questions so the attorneys don’t have to. So they can mainly just follow up. I have never imposed time limits on argument and hopefully, I never will.
As a trial lawyer I remember one time where I was finishing up a two-month trial with three defendants and three defense attorneys and they had just spoken on a combined basis for 3.5 hours. And a judge told me, when I got up for rebuttal, "All right, you have 45 minutes." After a two-month murder case, it seemed inappropriate to me. And I won’t do that to attorneys. But what I try to do when running a trial is to impress upon attorneys the absolute paramount need not to waste a jury’s time. So by the time we get to final argument, they understand the need for expedition and they, generally, don’t need any time limits from me.
Q: How can attorneys assist you with settlement?
A: By preparing their case in a meticulous way so that they know exactly what their witnesses are going to say, not just in terms of their attorney’s questions, but knowing their case well enough so they can figure out what their opponent is going to be asking. Ask their witnesses those questions. In that way be more familiar with the case than anyone else.
Then, managing the expectations of the client. Making sure the client understands how things could go in a trial so the client is receptive to settlement and I think that applies to criminal and civil. If the attorneys come to the courtroom prepared and if they have lowered the expectations of their client in terms of the vagaries of trial, then that’s going to help me the most in terms of trying to settle the case.
It’s when the attorneys come in winging the case. They don’t know their case, they don’t know their witnesses; they haven’t spoken to some of their witnesses; they haven’t anticipated the negative sides of their case and haven’t managed their client’s expectations accordingly. They haven’t developed the rapport with the client so they can’t talk frankly about what the chances are. That is not conducive to settling the case.
Q: Do you have a tip for new attorneys?
A: That trust aspect that you want the jurors to have. You want to have that from the bench as well. You want to do nothing to destroy that; you want to build that trust from the very first time you make an appearance in front of a judge. You also want to have trust from your opponent. You have to be extremely, in my opinion, forthcoming with your evidence, with your discovery, with your disclosures so that there isn’t that mistrust that makes it much more difficult to try your case. You have to be professional with your opponent and you have to be reasonable. Give when you should. Don’t spend a great deal of time on minutiae. Think of the big picture. Think of the elements either for your cause of action or your crime. Figure out what evidence you have with regard to each of those elements so you don’t end up embarrassed at the end of the case because you missed one.
Q: Are there any common mistakes you see experienced attorneys make?
A: Yes. It goes back to that idea of winging it. Maybe an inexperienced attorney doesn’t know exactly how to prepare. An experienced attorney does, but sometimes because of calendar management issues, because they’re overworked, because they know they can get away with winging it, they will. Well, that makes it very difficult to settle a case. And it makes it difficult to make it expeditious during trial. And it doesn’t serve your client very well. Sometimes, some attorneys, not very many, will attempt to wing a case. When they do, that can cause problems.
Q: Do you have an opinion on the use of technology in the courtroom?
A: I do. I liked the way I tried my cases. But that’s Stone Age at this point. That was with the legal tablets. The huge ones. The butcher paper. I liked that. I liked the fact that I could use a bunch of different pens. Write notes to myself.
Well, the things that I liked about the way I tried cases, they’ve been superseded, clearly. At the end of my time trying cases I started using PowerPoint, and I liked it. I couldn’t use those little penciled notes the jury couldn’t see. That I didn’t like. But now, with the capability of embedding so many videos, so many photographs into a PowerPoint, that is definitely a superior way to practice trial advocacy. It’s much more interesting to the jurors. It holds their attention. They’re used to television and videos. It’s a lot easier for them to take things in that way. But mostly, it’s the ability to display the evidence in a way the jury can see right for the time you mark it for identification. Putting it up on an Elmo or putting it up on some kind of display device and running through it with a computer connected. It’s very impressive what an attorney can do if they spend the time with the audiovisual portion of their trial. And so I think it has revolutionized things.
The fact that they can play segments of an interview or interrogation. The fact that they can play jail conversations [and] telephone conversations that have been recorded. These are all things that make the case more interesting and I think more persuasive to a jury.
Q: Do you have any common reasons for sanctioning an attorney?
A: Only when I did civil trial management conferences, where somebody didn’t file their conference statement or didn’t show up to court, and then there would be the monetary sanctions. I haven’t had to find an attorney in contempt. I’ve had to find a juror in contempt. Oh, I did recently find an attorney in contempt when he was a victim of a crime. And did not wish to, for his own personal reasons, pursue prosecution, and thus refused to answer questions on the stand. That was a time when I had to sanction an attorney who should know better, in terms of the fact that there are certain obligations that you have in respecting the rule of law and one of those includes testifying honestly. So I had to sanction that person. But apart from that, and apart from discovery sanctions in doing law and motion and trial management conferences, no sanctions.
Q: Are you involved in any community activities?
A: Yes I am. I consider initiating veterans treatment court a community activity. I’ve stopped the Army reserves work and my kids don’t need as much of my time any more, but I still do charitable work. I still deliver food with St. Vincent de Paul’s as I have for many years. I do weddings for people. That is always just for friends. That’s nice. That gets me out in the community. People know what I do for a living. Oh and then mock trials. I do that as well. I’ll do that for high school students and even junior high students. That’s very rewarding.