Supreme, appellate and trial court judges from across the country joined us to listen to new perspectives on how the U.S. court system can deliver better justice for all.
Courting Justice pt. 1 – Los Angeles, CA
Tavis Smiley: Good evening from Los Angeles. I’m Tavis Smiley.
I’m here at Loyola Law School for the first in a series of Town Hall meetings that we’re calling Courting Justice. Behind me is where you’d expect to see judges sitting, but tonight some of the country’s most distinguished jurists are coming down from the bench to engage in a frank give-and-take with the communities they serve about how our courts can deliver on the promise of justice for all.
We’re glad you’ve joined us. A no-holds-barred conversation about court reform coming up right now.
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Announcer: Funding for this program provided by State Justice Institute improving the quality of justice in our state courts.
Tavis: The California Endowment. Health happens here with help and justice for all. Support for this program also provided by Public Welfare Foundation.
Announcer: And by contributions to your PBS station from viewers like you. Thank you.
Tavis: The erosion of trust in our judicial system has prompted many of this country’s most influential judges to call for a new openness with the communities they serve. In our audience are stakeholders from those communities.
And on the panel tonight, five distinguished jurists. California Supreme Court Chief Justice Tani Cantil-Sakauye, Judge Jimmie Edwards from the 22nd Judicial District City of St. Louis, Associate Justice Maria P. Rivera from California’s First District Court of Appeal, Judge Daniel J. Buckley of Superior Court of Los Angeles County, and Chief Judge Eric T. Washington, District Columbia Court of Appeals. Please thank them all for being here.
Tavis: All right. Chief Judge, I think I want to start with you because I want to confess to the audience watching us in this country and around the world that this was not my idea. I’d like to take credit for this, but I can’t. You all actually reached out to us at PBS and suggested that now was the most propitious time to have this kind of conversation.
You didn’t put it in this way in particular, but it seems to me–and I think the audience writ large–that with the presidential race with implications for who will be on the next Supreme Court, with a Supreme Court vacancy, for that matter, and then this case of Brock Turner here in California that’s outraged the nation in ways that I can’t even describe.
The timing, again, couldn’t be better for this conversation. You didn’t necessarily know all of that when you reached out to us about doing these series of Town Hall meetings, but tell me why judges are willing to take off the robes, come off the bench and engage in a conversation with the people you serve.
Chief Judge Eric T. Washington: Well, I think the short answer is that judges’ stock in trade is the public’s trust and confidence that we will protect rights and liberties and that we’ll resolve disputes fairly.
Yet what we were seeing around the country in light of what had happened in Ferguson and the law enforcement involvement in Baltimore and around the country was an erosion of that trust and confidence beyond what it had been before.
We understood that people, the community at large, was very interested and very confused about the role courts play in the justice system generally and especially with respect to law enforcement. But the issue for us was one of trust and confidence.
Without engaging, without trying to figure out why they believed that we were somewhat complicit in this justice system that they viewed as unfair, we could never address the problems from within and certainly we have an obligation to self-examine to determine whether we can do better so that communities who come before us wanting justice will feel as though we’ve done our jobs.
Tavis: So since you went there, let me follow you in. Are judges complicit?
Washington: Judges in terms of complicity are following the system, are performing within the system, that we have. Judges are looking and doing what they believe is right. The system is one that starts at the earliest stages with, of course, law enforcement and arrest and prosecutors, both of whom are part of the Executive Branch, both of whom we have absolutely no control directly over.
Where judges have an opportunity to make a difference is when those cases are brought to court. And then in terms of making a difference, what our role is is to be fair and impartial arbiters, to be the persons who conduct and allow people to have their day in court and to conduct themselves and present the best cases they can.
Tavis: I wonder, Judge Rivera, whether or not it is your opinion that the damage that’s already been done, particularly in communities of color, is irreparable.
Associate Justice Maria P. Rivera: Oh, I would never say it’s irreparable.
Rivera: But I think it’s definitely a wakeup call. California courts have been studying the whole issue of trust and confidence in the courts and particularly the trust and confidence of minority communities and immigrant communities in particular in the courts.
We started back in ’92 and followed up again in 2005. The good news in California is that we got better. Now I’m looking at what came out of the National Center for State Courts and they’re saying, “Well, yeah, but we’ve lost some ground recently.”
And that may well be true because I think so many of these high profile cases across the country suggesting that there’s a two-tier justice system has eroded that trust and confidence as a general matter. The question, I think, that we grapple with as the California Judiciary is there are many, many institutional things that we need to reexamine in order to regain that trust.
So we’re looking at all kinds of things, including language access, disability access. We’re looking at the fairness statistics. We have a really grave concern and we’re in an ongoing process of reviewing and retraining our judges in procedural fairness, matters of implicit bias. All of those things are being looked at as an institutional matter to improve the trust and confidence.
Tavis: I want to discuss some of those issues in this conversation tonight. Let me come to Judge Canti-Sakauye and let me preface this by saying I know that there’s only so much you can say about this, and that is the Brock Turner case.
But as I mentioned earlier, there’s such outrage in the nation. I know you can’t say much about it because we elect judges here in California and there is a process to recall this judge that’s now underway. I know that your court is being petitioned.
The California State Legislature is trying to figure out what authority they have to get this judge out of office who sat and made this decision for a six-month sentence and probation for this rape that Mr. Turner committed on this, we are told, unconscious victim.
So I know you can’t speak to the particulars of the case because it might come to you. But I guess my question is, more broadly, how should the nation judge justice or the lack thereof in the State of California?
Chief Justice Tani Cantil-Sakauye: Well, I think those are very good questions and we’re having the kind of dialogue that we should be having now in California and nationally. And I think it brings to light several factors. The first factor I would say that it shines a light on is the public outrage, the public reaction to the sentence. I think it’s understandable. We expect that and the public, I think, is showing its concern in a healthy way.
A, by the legislature looking into impeachment proceedings. B, by the public right now outside our California Supreme Court with a petition to the Commission on Judicial Performance asking that independent commission with a majority of public members about whether or not they’d take the case and bring charges to remove that judge from office. At the same time, I understand the visceral reaction to six months for three felony counts, including a rape.
On the other hand, I look also through the lens of the Chief Justice of California. I look through it as a lens as a judicial officer. And it’s at this time that I caution and I say, yes, I understand the outrage, but now is the time also to bring a voice of some sanity and to step back and say the outrage, the reaction, is appropriate.
But let’s not lose our heads over this. Let’s remember that the judiciary performs an important check and balance on the other two branches of government. Let us remember that judges are not politicians in black robes. Let us remember that we want judges to be able to provide a check and a balance, to be independent, but to be constrained by the statutes.
So all I can say basically about the sentence for Brock Turner is it’s not unlawful. It’s not void. It’s not an illegal sentence. It is within the confines of the statute that permitted this judge to exercise his discretion to sentence.
So there’s a lot of room between what’s illegal and what’s appropriate, but I also will say I’ve been a judge for over 25 years and judicial sentencing is subject to a great deal of discretion. I think all of us would say that. And I think that we have to be careful and not turn it into what could potentially be seen in some far outer reaches as we sentence by popular vote.
Tavis: I hear your wise counsel and yet I think the question is whether or not you think that judges have too little or too much discretion.
Canti-Sakauye: I believe that judges have sufficient discretion and I believe, though, it has to be an educated discretion. And judges’ discretion is always informed by, A, their personal background, their experience, their values, their principles, but most importantly, by the statutes that the legislature passes and the governor signs that says what a judge can and cannot do.
And in addition to what Justice Rivera was saying about the strides we make in trying to raise the consciousness and educate our judges, I want to be clear that we heavily teach the disciplines of law as well. That is, first and foremost, our commitment that judges get it right.
Tavis: Judge Buckley, there are a lot of folk, I suspect, watching this right now who might not argue with me when I make this particular point to you, which is that if in this country there really is justice for all, pardon my English, it ain’t distributed evenly or equally. Would you argue me on that point?
Daniel J. Buckley: I would argue with you in a sense that we don’t see what happens every day in thousands of courtrooms with judges trying individual cases, giving individual sentences.
We see that, whether it be on appellate review, in my role of working with colleagues on the Los Angeles Superior Court, in my actually getting complaint letters about judges. We see so many times a high, high percentage of our colleagues doing it right and doing it fair and doing it in a sort of individual approach.
And that’s what we really ask of our bench officers is that they treat each case individually. Don’t have a blanket approach to it. Don’t because of a race, because of a certain type of charge, whatever else that might be. Treat this case individually. And time after time, I would confidently say it is done right.
Tavis: But you wouldn’t argue that the more money you have, the more freedom, the more justice you can buy. You’d argue that part?
Buckley: First of all, I see, for example, public defenders do the best job in the courtroom day in and day out.
Tavis: With no resources.
Buckley: With very limited resources, but extremely talented lawyers. I cannot in any way argue that if one has a lot of money, they can hire a very expensive attorney. And expensive attorneys can do very well, but our system is set up, I think, very, very well with a structure where those that are indigent get extremely competent, very competent, representation. Again, we see that every day.
Tavis: You mentioned a moment ago the complaints that you often see about certain judges. If you live in a state where judges are not elected, what agency does the demos, what agency do we the people really have to deal with judges who are run amok if they’re not subject to being recalled or unelected?
Buckley: Well, in California, one I can address, what I was talking about, first of all, as far as complaints, if someone writes a letter or sends some kind of an email complaint to Los Angeles Superior Court, as the Assistant Providing Judge, I read every one of those. We investigate them, we address them.
And if in fact some action needs to be done, some counseling is done, we do that. I in fact do it personally. But ultimately, within California, we have what we call the CJP, Commission Judicial Performance. The Chief Justice referred to it.
They do a very diligent, careful job in addressing complaints that are brought to them, complaints that they hear about through the public means, through other attorneys and so forth. From all accounts, they’re doing not only a good job, but appropriately an aggressive job.
Tavis: I want to go to Judge Edwards here in just a second, but Judge Rivera, I want to come back to you. It occurs to me in that beautiful blue suit you have on that we know of the blue line that cops tend not to cross when protecting one another. Is there, if I can use this phrase, a black line that those of you in these black robes will not cross to critique or criticize another judge, no matter what he or she does?
Rivera: There isn’t a black line. The issue here tends to be, whenever a judge’s decision is called into question, we are constrained not because we’re circling the wagons to protect the judiciary. We are constrained by an ethical rule. The ethical rule is thou shalt not make a comment on a pending or an impending case.
So if we’re going to be good judges and follow our own rules, that’s why we don’t speak up. It’s not because we are not equally outraged as the public is on some subject that occurs. It’s just that we’re not permitted to say anything publicly.
Tavis: So judges can never be whistleblowers? You all couldn’t be whistleblowers.
Rivera: We are required to be whistleblowers if we’ve seen this conduct.
Rivera: We are affirmatively required if there is actual misconduct. So I think there was a case in Orange County where a judge went and was slashing tires in the parking lot. Well, that judge was turned in by a fellow judge.
Tavis: Only in Orange County [laugh].
Rivera: That judge was turned in. We have to turn in when the rules or the laws are violated–not the laws, but when our ethical rules are violated. But we cannot cross over that line when we’re commenting on some action the judge has taken in a case that is still ongoing.
Tavis: Judge Edwards, you sit on the bench in St. Louis.
Judge Edwards: That’s correct.
Tavis: And we all have come to know more about St. Louis than we wanted to know over the last few years, thanks to the outrage at what happened in Ferguson. I want to ask you about a decision, not one that you made, but a decision made recently where I believe his name is Judge Webber?
Edwards: Yeah, Judge Richard Webber, yes.
Tavis: Judge Richard Webber did something that, to my mind, was rather unusual. He has released publicly the Grand Jury testimony in the Michael Brown case. Let me ask you. Was that a good decision or a bad decision and, however you answer it, tell me what the fallout is going to be one way or the other.
Edwards: Well, certainly, I think that when we assure the public, especially witnesses, that their testimony before Grand Juries will be kept in confidence, I think it chills witnesses coming forth certainly to release Grand Jury testimony.
Now this was done as a result of a civil lawsuit, a wrongful death lawsuit, being filed in the State Court and removed to the Federal Court. Judge Richard Webber, a wonderful District Court Judge, decided that the family had a right to hear all of the testimony unredacted of every witness and to see every piece of testimony that was presented to the Grand Jury.
So is it bad or is it good? From where I sit as a trial judge, I would not have done it. And the reason for that is that I don’t want to chill the opportunity of folk coming forward to assist with prosecutions.
Tavis: So how do you then make decisions as a jurist on what the public has a right to know?
Edwards: Well, certainly we struggle with that every single day. I mean, that’s a tough balance. We have access to records, we have privacy. We fight that battle every day as trial judges. Particularly, we try to resolve it with protective orders. That’s what Judge Webber did in this particular case, to issue a protective order and to limit that testimony only to the lawyers that are involved in the case.
But it is an ongoing struggle in every single case in terms of balancing access by the public and to the privacy of the litigants and the parties that are involved, whether it’s on the civil side or on the criminal side.
Tavis: I want to get a couple of questions from the audience here in the time we have left in this portion of this show. But I want to first come back to you, Chief Judge, and ask you as an African American how it is that you would explain that, although there’s so much more work to be done to make our courts, our jurists, look like America, clearly more work to be done. Nobody argues that point, right? We agree on that. More work to be done in that regard.
But we do have the most multiracial, multiethnic, multicultural group of jurists we’ve ever had in this country and yet I’m trying to square how the court could look more like America than it ever has and yet so many people in America don’t have trust in the system. Does that make sense?
Washington: It makes sense…
Tavis: If the judges were still all white like they were back in the day, maybe I could see why we’d be having this conversation. But when the court is colored and they got women on the court, why are we having this conversation?
Washington: Well, in fact that is what led us to want to have this conversation. We are much more ethnically and in gender diverse than we’ve ever been before. It’s not certainly as much as perhaps–it doesn’t perhaps reflect America exactly, but certainly we’re in different places.
But we are also—as we bring our experiences to that forum and bring our experiences to the art of judging that we engage in—we are still constrained by issues of fairness, rules of evidence.
There are lots of things that control how we operate within the sphere of litigating cases. And when I talk about that, it’s not in a bad way necessarily, and doing our jobs as jurists are constrained by the law, the law which has been passed in many ways by the communities that we serve.
And it could be in response and could be as well intentioned as any other law, laws that increase sentencing for drug offenders and made it much easier, or led to, I should say, these long periods of incarceration for people who were sick.
Well, those were laws passed by legislative branches responding to their communities who believe that was the answer. We can look back on it in hindsight and say that was wrong, but at the same time, as judges, we had statutes that said for the commission of this crime, the community wants you to address them in this way. As judges, we don’t have unfettered discretion. We have discretion within limits.
Tavis: Where is Deborah Kaye? Deborah Kaye, there you are. Deborah has a question. Give it to me.
Deborah Kaye: Well, recognizing that judges are often restricted by mandatory sentencing requirements, what do you think judges can do to help young offenders be rehabilitated rather than incarcerated? Being incarcerated can have major impacts on their future.
Tavis: Thank you, Deborah.
Edwards: Yes. I agree with you wholeheartedly that rehabilitation is more important than incarceration. In my mind, sending an 11-year-old to a detention facility for a small amount of marijuana doesn’t make sense. See, the jury formality of learning continues irrespective of whether the child is locked up or whether the child is in school.
That begs the question in my mind. How do we want that child back in our community? Do we want that child back in our community with a more sophisticated criminal mind because we decided to lock them up? Or do we want that child back in our community with the ability to understand what it means to be decent, what it means to be a good citizen?
So I believe that rehabilitation is paramount and it has to start to happen and we have to be less punitive with respect to children in this community. It doesn’t mean we’re soft on crime. It means that we’re doing the right thing because those children will return back to our community. Once they have reached majority, those kids are returning back to our community whether we want them back or not.
Tavis: Let me get one more question in before this show ends. Diane Ortiz, where are you, Diane? There you are. Come on, Diane. Give me your question.
Diane Ortiz: Do we involve youth, dual status youth? They’re on both sides of the system in two jurisdictions in the Department of Family and Children’s Services and the Juvenile Justice System. Knowing that these youth are often the most vulnerable in our communities and that these systems were never set up to communicate with each other.
And to exacerbate that, the education system is often completely missing as part of that piece of supporting these young people. What can the courts do? How can the courts improve the process and the positive and successful outcomes for these children?
Tavis: Judge Buckley?
Buckley: We recognize that problem. So for example, in Los Angeles, we have as we speak Dependency Courts and Delinquency Courts. And we are now trying to bring those two courts together so that the one judge handles both of those situations, handles the issues of the family with respect to the child in the Dependency Court and then have that same judge deal with the delinquency charges.
That’s also tied to the prior question. I think before we get the children to the court, things are happening. In ’07-’08, we had 33,000 petitions filed in Delinquency Courts. Last year, we had only 9,000. That’s because of pre-filing diversion programs. The District Attorney’s office deserves credit. Lots of programs deserve credit. I think the court deserves credit.
But you have to recognize that takes more funding and it’s more expensive. We’re, obviously, willing to do that, but as we deal with the cuts that the court has to add, if you will, those type of specialized courts, it becomes more challenging and less money times.
Tavis: I don’t want to be in contempt of court, Judge, interrupting you, but our time…
Buckley: Only the Chief Justice can do that [laugh].
Tavis: Our time is up for this particular program. We’re going to end the first of tonight’s programs here. For those stations leaving us, thank you for watching and, for those staying for the second part of our Courting Justice Town Hall meeting, we’ll be right back after a short break.
Let me thank our panel, members of our audience, and our host, Loyola Law School. And a special thanks to the National Center for State Courts. And thank you for watching and, as always, keep the faith.
Announcer: For more information on today’s show, visit Tavis Smiley at pbs.org.
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Announcer: Funding for this program provided by State Justice Institute improving the quality of justice in our state courts.
Tavis: The California Endowment. Health happens here with health and justice for all. Support for this program also provided by Public Welfare Foundation.
Announcer: And by contributions to your PBS station from viewers like you. Thank you.