Jim Cooper's Orange County; Retiring Judges: A Look At The Courts

If we're going to a few weeks of each other settle Orange County Superior Court judges are announced they're retiring from the bench with about 20 years tenure in the judicial system of the county. I'm Jim Cooper and I'll be talking with him in a candid conversation on their views of the past present and future of life and the courts in Orange County. Local journalist for the past quarter of a century have enjoyed one of the most exciting new arenas in the

nation and reporting the Orange County story have been exciting stories about the executive branch's of all levels of government even including a western White House in Orange County. The legislative level from hot congressional races and state legislative battles to rough and tumble stories about the Board of Supervisors and twenty six city councils have provided fertile grounds for news coverage but no part of the governmental story has produced more colorful figures nor more interesting and provocative issues than the whole judicial branch in Orange County the story of the courts. Today I'll talk with three Superior Court judges who are retiring from the bench after a collective total of sixty three years of your additional service in Orange County. Let's look at the profound changes in the judicial story in Orange County going back only to 1960. In that year the county had a grand total of eight superior courts. Today there are a total of 51 Superior Courts plus five commissioners for a total of 56. That's seven times the 916 number of courts.

Looking back again to the year of 1960 Orange County legal landscape boasted a grand total of 450 attorneys including about 20 women. Today Orange County the estimated total of attorneys stands at six thousand eight hundred women. That represents a total of lawyers today in the county which is 13 times greater than in the year of 1960 yet population in the county in that same period of time has only multiplied three times in the case of the County judicial processes. It seems that more does not necessarily mean better this by a new 18 million dollar courthouse and seven times as many superior courts as in 1960. If Now it takes about three years to get a civil lawsuit to trial in the county one judge said it often takes more time now to select a jury that's in criminal cases than it used to require to try the whole case. What needs to be done. Let's meet our guests. Judge William or a senior judge of the Superior Court folded his confederate flag and completed his last day of judicial duty on February

29. Resigning and ending a 23 year career on the bench that must be described as colorful. In 1961 he served on a Minnesota court and then served since 1963 on the Superior Court bench including three years as a juvenile court judge. He's outspoken an ex-Marine and has always mixed a stern view of Criminal Justice where the Mississippi born wry sense of humor superior court judge there has announced he will not seek re-election this year he'll end his 19 year career on the superior court sometime this year after his law degree from the University of Minnesota he served with the Marine seeing duty in Korea in 1953 he opened a law office and spent also three years in part time public defenders duties. He served six years as a Republican Assemblyman later changes party affiliation to Democrat. He sponsored legislation establishing both the UC Irvine and Cal State Fullerton in 1965 he went on the superior court for 10 years he served including the chairman's job on the California Constitution revision commission. Byron K. McMillan

resigned in mid January from the superior court pending a total of 21 years of judicial service he was appointed to the municipal court in 63 and then served on the Superior Court. Since 1965 in 1979 he won a trial judge of the year award from the state trial lawyers association. He's become known for all his vexation with the system and his efforts to streamline it while presiding judge of the superior court he started a plan to have some judges specialize in hearing criminal cases to speed up the calendar. He also initiated the mandatory superior court settlement conference program to help unclog the civil cases calendar is never concealed his frustrations with Supreme Court rulings on criminal law. And now he'll be on the other side of the bench as a plaintiff's trial lawyer. Well gentlemen I think change is what we're talking about here and I think that people would love to hear us discuss at the very top your perspective of the enormous the profound changes that have happened within the judicial process in Orange County since 100 60 61 in that era. The

judge very well we start with whom Jim and number one thing is Roy judges. Almost every legislature meets the Create two or three more judge ships. Whoever the current governor the support it's more. They built a new courthouse but that really does make a difference I don't think. I thought the judges that were here and there in me when I first came were all very good and I wouldn't necessarily endorse as a great jurist. But the others were really good. I can't say that about everybody on the bit. You all had a chance to serve as presiding judge which means that you not only had your judicial disease but you had a chance to. Let's say streamline the system. You had a whack at it

anyway. Judge Sander what about that time when you were presiding judge in the changes you've seen. The role of the presiding judge is to to administer the courts. You were elected by your colleagues. Therefore it's having been in the legislature is like being speaker where you can only go so far and in running the court within the area of support by the people on the court. Better run of the things that I noticed and it's a continuing problem is the complexity of litigation criminal and civil. We have lawsuits filed on things that were never heard of before your gracious frivolous rugrat not necessarily capricious and frivolous. Take the whole area of products liability the tremendous numbers of medical malpractise cases which was possible before but never really seized on. The criminal law area of the complexity that has been imposed on the trial of the

case makes the question of guilt or innocence really irrelevant. It's a game and that's. And as a judge you're presiding over the game and the game takes a long time each and picking a jury. Even today jury selection in a capital case can take much longer than the trial of the case. Incredible. Months and months I should I should tell you gentlemen. One of your colleagues judge Bob Bennett who was not able to be with us today mentioned that very thing he said if there's one thing I would like to have you inject into this discussion is the consequence of the litigation. I mean 20 years ago what did they have such a thing as a hazardous waste lawsuit kind of things the complexity and all the experts then who might be brought in and on both sides of hazardous waste with sophisticated chemical testimony I suppose in that kind of a case. Well I think it's important to note that these aren't necessarily bad because we've had to change some of the things I would endorse. But I think we could get into a system that is simpler. Yes. Hazardous Waste is a real problem one that

we really had addressed. It's just one of them and to give an example then he said to you Bret that people have come up with a whole industry engendered a whole industry of people who are experts who are then will testify and are brought into the court to testify to prove whatever you have you know if the proliferation of this so-called What shall we call it the parade of experts that are available. That's a kind way to put it kindly. You know you did some interesting work of that that we have mentioned. And I was impressed by that effort that you had to speed up the calendar by. Setting up the compulsory mediation would you tell us about that and. Well I had the opportunity to become a presiding judge at a time when we had mushrooms out. In the whole state all the courts in the state were suffering under four and five years to get to trial on a civil matter and the reason for that wasn't necessarily the voluminous civil work but

the way we were handling criminal cases maybe and the extra duties that were imposed upon the trial courts by whomever the Supreme Court and legislature in handling the trial of criminal cases. In 1977 when I went on presiding. Out of our total court manpower probably almost 70 percent of the judges were trying criminal cases and we were assigning cases out of department 1. First the criminal cases then the civil cases as well. By the time you assigned the criminal cases out indiscriminately there were no places no homes for the civil cases. And so they got stacks stacks stacked and we had to devise a method to try and eliminate some of those. We developed a federal system on our criminal department in 77 and designated 10 judges to take the criminal cases handle that he would have specialize in math and then the other 30 judges that were available for trial were doing civil trials in

it. I think it worked out really well. Then we did a mandatory settlement conference for a whole month. Two times in 77 78. We're still doing it two times a year one week each time and we get rid of some of the lesser cases which compose about 85 percent of the civil cases filed and get down to the cases that need to be tried. You've all experienced about every kind of activity that the courts can experience. Certainly juvenile work domestic divorce probate civil criminal in which of those areas do you feel the most profound changes have come about if you had to name one of them. Oh my how serene and criminal and kind of where the greatest changes come about. Used to be for instance criminal calendar. Mr. Jones you're charged with burglary How do you plead Oh I'm guilty. Well and may I have a media center saying you know that means you go to prison.

Oh yeah no I want to see if I can get my old job back. Susan Vale. And now it's gone. Today before you can take a man's guilty plea spent about 10 minutes trying to talk him out of it and she wants the jury to confront your accusers cross-examine them etc.. I like each of you comment on that. I understand that there are many more rules that have been posed by the California State Supreme Court rules pretrial motions and that kind of thing that make that stretch out not necessarily better justice but longer justice. Would you comment on that. Sure is. The pretrial motions of a criminal case for selecting a jury in particular a capital case. Oh yes it is it is out on their ears it is the let's kill or take wrong in the case requires for trial the middy is.

Does that necessarily mean better justice in my opinion. I suppose that could be argued we could have a two hour show to argue that but what I think of it and you come to one of the problems that we have commendably we're trying to devise a perfect system. Bet we aren't dealing with perfect people and we're But we keep trying to make it better. And I think the the the motivation is excellent run of the problems that we face as you mentioned our collective experience of this 60 years if you take the entire California Supreme Court yes or put together we haven't had the amount of trial experience that any one of the three of us have had and I think that riled judge now many having this this is the body that is laying down rules. That's where you must play the game. That's right. And I'm coming to you in just a minute. It is a frustrating thing to to have the rules made by people that many times really have never experienced the reality of the courtroom. You have to rule

on motions you have to move the case. There are the poor litigants will never get to trial. And there's a tremendous pressure. I think the time is coming very frankly when we take another look at the system and discover that it's not only cumbersome but it's also frightfully expensive. Now you don't want to put a price tag on justice. But how far are we going to go all in some of these matters it's really become absurd. We waited for your observation and I totally agree with Bruce and Bill become absurd. AMERICAN JURISPRUDENCE adopted the English common law and were governed by that that's where we started out and England or in all the commonwealth nations. They can try a jury trial of a robbery case in maybe four or six hours including selection of a jury and nobody's ever complained about substantial justice not being carried on in the English common law countries where they do this. We

have taken their common law philosophy and refined it to the absurdity. There is no finality here. There is no if analogy to a judgement. Appeals go on endlessly. Time never runs but the meter is running quite a meter aggravators on the court costs and they use up the decent citizens are paying for these courts and not the people charged with crime aren't decent citizens but a lot of them who are convicted may not be all that decent yet but they are the guys that are used in all these courts and the citizens who are in business and what not. They have a partnership dissolution or a problem that has to be resolved soon or they both go B.K. bankrupt they can't get in they can't get access to the courts because we're servicing these other cases in the mode that were dictated to service them. Would you agree with those who say that we have now become obsessed with protecting the rights of the accused to the extent to the disadvantage of the innocent. You

betcha. You've been making a bet out of one another because of the grievance that we've come that would you agree with that. Good summer I think that the battle over the run concurrently was assessed but certainly that's the that's the big consideration and I'm sympathetic to the idea that you don't want to convict the innocent person but I think you have to look at what we've devised and say Is this any greater protection in 1084 than it was back in 1960 when you could have a case tried in a reasonable amount of time the answer is No. When I started practicing as a public defender there I was one of three. We did this whole thing part time where Judge Franklin as he went down eventually. Yeah. And we tried those cases there weren't many appeals almost none. Now do you were giving some statistics you know there's more than 100 percent appeals of all criminal cases you might say How can that be any answer is that they're appealing on motions and writs and all the rest. So if you don't appeal your case it's really almost malpractise on the part of the

attorney. Now we're talking again. You don't want to just draw and they're not going to protect that. It cost about twenty five hundred dollars a day to open one of our courtrooms at any one of the fifty six. And that's where the taxpayers are paying for. I think the time is coming they're going to look at and say hey are we really getting our money's worth. Is it necessary to have this complicated system. This is what we're talking about here this this criminal road and it and the requirement that you have to get a criminal case to trial in 60 days is that part of the reason for this three year wait that we're talking about the litigation. Well the 60 day requirement really isn't part of the civil thing. Very few criminal attorneys and clients want to go to court in 60 days 60 days were this was set out to protect people from getting held held incognito are separated before I get to that to at least plead that 60 day trial as a last thing. I would want for my defendant in a criminal case

people's memories go back I mean people get that wild by cynical day you wouldn't even want that. No way. Name against Delay delay unless you can think you can play the number game and say I will force a dismissal because there aren't courts available in all of us said the courts play get in the game too and we all try a criminal case and then everybody settles down. Could you judge give it give any kind of a judgment an off the cuff judgment of what the average case of a criminal what is a reasonable time than average. Not complicated then average criminal trial might take from the day of a rest to the date of disposition of now. Yeah right now in Orange County I don't think you can do any Every any case less than three days in probably five or six days for a common burglary case. No I'm talking about a criminal a major a major criminal trial it goes to him and the time of arrest to the time of this edition of the case. Would you even make a hazard a guess on this a year as a year too much in a major trial no longer.

How long did the Waddell trial go on the I tried one of those the last one and the trial itself that I tried with which was after a mistrial before me. It took four months and it took about six weeks to get a jury in that case. Six weeks the jury in front of the trial and was that an inordinately long example that you just pointed out are somewhere around the middle for a criminal. Complicated every day a heavy duty lawsuit criminal wise that would be what all of you agree was Judge Van your complaint that not only are we getting more litigation but the briefs are much much longer is if the attorneys thought by the weight of the brief they could convince their client that they had done a better job. And of course you know I tell a judge to do more reading. When I was in the legislature I used to think that the what we should do is require that every legislator write out in longhand any bills that they introduced so that that at least have some familiarity with what they propose. I now have reached the point where I feel that lawyers should have to write out their briefs in long hand because with the advent of word processors and the rest you can get it. They can put tons of material on your desk. And with all this automation yet you're still

just one person which most people don't realize the trial judge in the Superior Court we with a few exceptions don't have any help when you get this brief and it looks like the New York songbook. Is it incumbent on you to go through that thing in justice to the case to go through the whole brief and in order to do justice to both parties. Well these that we're talking about now rights a civil case civil case. And there are some factories called law firms that charge by the pound to climb out. And when they bring that crap in I would tell them to take the bonus down 250 pages bring it down to three pages and I'll read it and a judge can do that and maybe without getting reversed so you would agree with that complaint. It sure would not only proliferation a litigation but unnecessary complexity. Oh yeah there is buyer and sold it by the phone of course not but were there also they're also setting it up for an appeal and they want to make a record and they want to say this is the brief that was filed et cetera.

And sometimes they're nervous about the judge. They're going to get which I like to touch on and that is the use of non judicial determination of disputes about 25 percent of our civil case load at the present time is handled and disposed of by the so-called right to judge people like a settlement conference. Yes and there's that you had that good or bad necessary. It's very good and it's almost a limit. Libertarians dream. If 20 years ago you'd suggested that some non-governmental agency would be involved in the trial of lawsuits. I think a lot of people would have said no no that's that is a legitimate area of government. But you know in our society we have a way of coming up with answers. And so a lot of litigants. So we can't afford to go through all this endless discovery and all this all these motions all these appeals. Let's just hire somebody to hear the case agree that world stand by the decision and try that way. We have about five minutes left I'd like to each of you to give me at least one case that sticks out in your mind I know you have been many of them that you will remember for some compelling reason. Judge Mary what would

it be. I remember always the Gary Phoenix case was a criminal case. It was to Phoenix. He is the only man rather than Caryl Chessman to ever get the death penalty without killing a human being. He was convicted of kidnapping robbing and rape being as I recall 12 separate individuals in Orange County. There were other cases which were not prosecuted because the witnesses that were to take the limelight of testifying to the jury gave him a death penalty in every single one of these offenses. It was shortly after he got San Quinten that the California Supreme Court determined that they said she was constitutional. I remember him for his depraved the lack of

utter lack of remorse or you know do it again that I'm convinced he lives up for parole consideration every year. You write the letter you write a letter I write letters yes or judge sign or what would be your case that. But remember that some of that in any but I remember run because it involved I thought some profound issues that have not been really resolved and that involved a young man who was in a very tragic automobile accident because of the promptness of the paramedics he was kept alive and then he was sustained on life support systems. His mother came to court and asked to be appointed his conservatory indicating that she rise that she would order that the machine be stopped them but they wanted machines to turn the machine off so that he would die peacefully and it posed a real question as far as I was concerned. I appointed special counsel to represent him in in addition to his mother who had the

capacity to represent him because she was his conservatory. And we have the hearing and the question that I will remember is right is relevant in this. I have that the question of how much it cost every day was not relevant. We should not be considered the fact that his church supported this mother's decision should not be considered or that other family members did and decided on the purer grounds that his mother acting as his representative had the right to refuse medical treatment just like you or I have. It's a continuing problem that I think we as a society are going to have to face what with the ultimate this position in a way fortunately everyone or Unfortunately everyone agreed. So the matter wasn't appealed so I didn't get a Supreme Court decision on that we just did it. It ended at the trial level. I've always been so high that it didn't go up because I thought it was an interesting quote is taking sometimes and sometimes of things that must strike at the very fiber of whatever it is to be human to make those kind of decisions that's true. What would you say viewers would be to

if it's difficult to say. The Rodale case was interesting. I had two real fine lawyers in court Charles weedman and Chatterton doctor accused abortion murdering murdering and murder. Yeah he was accused of choking out a failed abortion. It appeared that he may have tried an abortion on a 32 week baby that came out screaming and breathing and heartbeat and all and and then a pediatrician stood next to him and said he was choking on the baby and asking for a bucket of water to drown the baby and you know that kind of yeah it was very interesting. Speaking of between the 60s and now yeah it calls to mind Timothy Leary. Oh you know I gave 10 to life for a joint in his ashtray and you know nowadays as a lawyer he had one joint in his ashtray He got you know a lot of yeah. Well bit to me I've done a lot of funny things about what year was that about

67 I think and 67 68. The courts reflect more Either way the courts reflect the community what attitudes we have what is permissible now what was not preventable that you could have a wait we have a few I guess a couple of minutes left if we have a wish of what you'd like to have made better in the courts for the years to come what would be that wish wish would be to just strike out most of the pretrial proceedings and group. If you don't have that same wish what would you say. I do the same thing in this civil war that the game of endless in a derogatory is and depositions are necessary that a lot of the pretrial matters are unnecessarily complex and I know I'd provoke some critical comment but I think we got a look at the use of juries. Justice would be better served by that in Europe Well you know you try a case involving the husband wife and little child and you might decide millions of dollars and dispute is as a trial judge whereas you have a jury in a

twenty five hundred dollar whiplash. Yeah which is the most important. I think we could take a look at the whole system. We have little time left what would be your special wish if you could do something to make the courts make the game as it's played better. My wish would be to emulate the Commonwealth in bring back from the elevated judgements and put a time limit such as 60 90 under and 20 days on a sentence or a judgment and make it final. And that's the end of that three special which is from some judges who had a lot to do with our lives our time is about up right now and I want to thank all the jurors who helped bring justice and style to the Orange County courts. Please join me next week at this same time when I take a special look at the very critical need for more foster homes for Orange County. I'm Jim Cooper. Thanks for being here.