by Vincent Bugliosi

transcribed from And The Sea Will Tell

This observation by notable and accomplished attorney Vincent Bugliosi is an interesting presentation of an aspect of our justice system.

A word about judges.

The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer,[1] people would have a markedly low opinion of them. But on the contrary, the mere investiture of a twenty-five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. As an example, judges have, for the most part, remained off-limits to the creators of popular entertainment, being depicted on screens large and small as learned men and women of stature and solemnity who are as impartial as sunlight. This depiction ignores reality.

As to the political aspect of judges, the appointment[2] of judgeships by governors (or the President of the federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97 percent of President Reagan's appointees to the federal bench were Republicans. Thus, in the overwhelming majority of cases there is an umbilical cord between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards (as we have seen was the case with Judge King), or he is a favored friend of one who has, oftentimes a generous financial supporter of the party in power. As Roy Mersky, professor at the University of Texas Law School, says, “To be appointed a judge, to a great extent is a result of ones political activity.” Consequently, lawyers entering courtrooms are frequently confronted with the specter of a new judge they've never heard of and know absolutely nothing about. The judge may never have distinguished himself in the legal profession, but a cursory investigation almost invariably reveals a political connection. (Of course, just because there is a political connection does not mean that the judge is not otherwise competent and qualified to sit on the bench. Many times he is.) Incredibly, and unfortunately, the political connection holds true all the ay up to the U. S. Supreme Court, where, for instance, the last three Chief Justices — Earl Warren, Warren E. Burger, and, to a lesser extent, William Rehnquist — like so many of their predecessors in history, have all been creatures of politics.

Although there are many exceptions, by and large the bench boasts undistinguished lawyers whose principal qualification for the most important position in our legal system is the all-important political connection. Rarely, for instance, will a governor seek out a renowned but apolitical legal scholar, such as a highly regarded law school professor, and proffer a judgeship.

It has been my experience and, I daresay, the experience of more veteran trial lawyers that the typical judge either has no or very scant trial experience as a lawyer, or is pompous[3] and dictatorial on the bench, or worst of all, is clearly partial to one side or the other in the lawsuit. Sometimes the judge displays all three infirmities.

For whatever reasons (undoubtedly the threat of being held in contempt of court ranks high), the great run of lawyers are intimidated by judges and continue to be outwardly respectful even when publicly humiliated by them. The lawyers’ complaints are made in private to each other and to their families. Commonly heard at any watering hole for the courthouse crowd is one lawyer crying to another over his first drink of the evening. “The judge is killing me in court.”

The judge's obligation in a jury trial is to be totally impartial, the decision on guilt being the exclusive province of the jury. For instance, federal judges take a swearing-in oath to “impartially discharge and perform their duties.” But time and time again a judge makes it very clear to the jury which side he prefers. This is a corruption and bastardization of our system of justice by the very people whom the law entrusts with the responsibility of insuring that it works properly and equitably.

Unfortunately, jurors usually assume that whatever the judge says or does in court is correct and justified. As we’ve seen, Judge King demeaned and humiliated the defense attorneys in the Walker case without justification, and they were very mild-mannered in response. Yet unbelievably, a juror was overheard in the elevator saying, “The defense attorneys have been giving poor Judge King a lot of trouble.” Because Judge King, in contrast, treated the prosecutors with respect, the jurors drew another inference (correct or otherwise), the most serious one to the defense that could possibly be made: that the judge sided with the prosecution. During the trial, Jennifer’s brother remarked to a stranger in the elevator that Judge King seemed to be very biased toward the prosecution. “Well” the man responded, “he must have done a lot of research into the case and knows what happened.” Ted later noticed, to his shock, that this man was actually a Walker juror! After the trial, a more discerning juror was even more direct. “It was obvious the judge was out to convict Walker,” said Robyn Schaffer.

The problem that confronted me now was obvious but knotty, and potentially perilous. Thus far, Judge King had been very friendly toward me, even abnormally deferential. For example, while the lawyers in the Walker trial were discussing proposed jury instructions with the judge in his chambers, I sat off to the side as an observer. During a lapse in the discussion, Elliot Enoki turned to me and asked if I had ever had one of my murder convictions as a prosecutor reversed on appeal. (The answer is no.) Before I could respond, Judge King interjected, “They [the appellate courts] wouldn't dare.” Obviously King was just joking, but his quip nonetheless showed a certain measure of respect for my work.

Yet is was abundantly clear that although Judge King was neither pompous nor, believe it or not, as tyrannical as many other judges in action, he still had a short fuse and was capable of an angry outburst in open court at any lawyer whose conduct displeased him. Whenever this type of thing happens in court, the lawyer nearly always comes out the loser, and his credibility with the jury inevitably suffers.

My demeanor in court is somewhat freewheeling. Add my confrontational manner of cross-examination, and I knew I would have no difficulty irritating King. If so, and if he were to react against me as he had against the defense in the Walker trial, how would I respond? No mystery there. If he waxed intemperate and demeaning in front of the jury, I would be several degrees tougher in my response, right in front of the jury. Maybe I'd be held in contempt, but at least I would retain my stature with the jurors. I'd rather be held in contempt and pay a fine than allow the judge, in the presence of the jury, to demean me and threaten my credibility with the jury. My personal style before a jury is to try to gain their respect. Although I obviously want them to like me also, I not only feel uncomfortable making an effort in this regard, but am too absorbed in the trial anyway. What I try to convey to the jury is sincerity, honesty, substance, and stature. They all add up to credibility, which I want to have with the jury above all else.

Clearly, if I could completely avoid a verbal confrontation with Judge King in open court, I (and my client) would be much better off. My best hope, I had decided, was forthrightly to place the judge on notice, before the trial, that I wasn't going to accept any maltreatment before the jury, and that if he chose to disregard my admonition, he'd have to pay a price himself before the same audience. I aimed for checkmate before the game began.

Subsequent paragraphs report on the discussion in judge's chambers where Mr. Bugliosi presents the above material to Judge King.

...from the appendix

p. 320: Even Chief Justices of the U.S. Supreme Court are creatures of politics.

Earl Warren was the chairman and keynote speaker at the Republican National Convention in 1944 and the Vice President nominee on the Republican ticket in 1948. Warren Burger in 1948 was the floor manager for Minnesota Governor Harold Stassen's home-state candidacy at the Republican National Convention, and in 1952 he pledged the Minnesota delegation to Dwight Eisenhower's Presidential bid at the convention. (With no previous judicial experience at all, in 1956 Burger was appointed by Eisenhower to the U.S. Court of Appeals.) Talk about the political vineyards, the nevertheless qualified William Rehnquist (an active political supporter of Barry Goldwater's 1964 bid for the Presidency) provided on-site legal advice in 1962 to Republicans assigned to the task of challenging voters' credentials at a Phoenix polling location. The charge by witnesses that he had intimidated black and Hispanic voters on the ground of their inability to read was denied by Rehnquist.

p. 321: “The Judge is killing me in court.”

No lawyer is exempt. For example, only a very few lawyers in the history of the legal profession have practiced law in as grand a fashion or sown more new legal ground (particularly in the area of tort law) than the celebrated San Francisco lawyer Melvin Belli. Yet, despite his considerable legal stature and characteristically gentlemanly behavior in court, he was treated with so much disrespect by a small-town judge in recent case that he mournfully observed, “The judge is riding me so hard in front of the jury I've got spur marks on my back.” Predictably, the judge was a political animal, having run for office a few years earlier. The judge's campaign theme was to “end the reign of arrogance” of the incumbent judge. Another legal giant, F. Lee Bailey, has from time to time not been treated with the considerable respect he has earned with his sterling courtroom victories.

p. 321: Failure of judges to be impartial.

The prosecution, of course, is not immune; judges can also show preference for the defense. An example was my prosecution of Charles “Tex” Watson for the seven Tate-LaBianca murders. As excerpted from Helter Skelter (W. W. Norton, 1974, pp. 465-66): “Judge Alexander not only repeatedly favored the defense in his rulings, he went far beyond that. During voir dire he remarked: ‘Many of us are opposed to the death penalty.’ When prosecution witnesses were testifying, he gave them incredulous, unbelieving looks; when defense witnesses took the stand, he industriously took notes. All this was done right in front of the jury. He also frequently cross-examined the prosecution witnesses. Finally, I'd had it. Asking to approach the bench, I reminded Alexander that this was a jury trial, not a court trial, and that I was immensely concerned that by cross-examining the prosecution witnesses he was giving the jury the impression that he didn't believe the witnesses, and since the judge has substantial stature in the eyes of the jury, this could be extremely harmful to the People. I suggested that if he wanted to have certain questions asked, he write them down and give them to the defense attorneys to ask.

“Thereafter, Alexander cut down on his cross-examination of the prosecution witnesses. However, he still continued to amaze me. When the jury went out to deliberate, he didn't even have the exhibits sent back to the jury room—a virtually automatic act—until after I had demanded that he do so. And once, in chambers and off the record, he referred to the defendant as ‘poor Tex.’

"Also off the record was a remark I made to him toward the end of the trial: ‘You're the biggest single obstacle to my obtaining a conviction of first-degree murder in this case.’

"Despite the problems presented by Judge Alexander, on October 12, 1971, the jury found Watson guilty of seven counts of first-degree murder and one count of conspiracy to commit murder. And on October 21, after remaining out only six hours, the returned with a verdict of death.

“Judge Alexander remarked, on the day he sentenced Watson, ‘If I had tried this case without a jury, I possibly would have arrived at a different verdict.’ ”

p. 322: Credibility with the jury.

An example of the dynamics involved on this point occurred near the beginning of a major murder trial I prosecuted for the Los Angeles DA's Office. I raised an objection while sitting down. The judge ordered me to stand up when making an objection. I immediately asked to approach the bench. I was boiling. I told the judge (outside earshot of the jury), “I represent the People of the State of California, twenty million people, and when I stand up in front of the jury in my final summation, I have to have stature and credibility with them. If you tell me to stand up and sit down like a yo-yo, I'm not going to have it. From now on, I'll stand up and sit down in this courtroom when I want to, not when you want me to,” whereupon I stalked back to me seat. Thereafter, the judge never again ordered me to stand up or sit down.


[1]  Judges, with the ironic exception of Justices of the U. S. Supreme Court, must be lawyers. No non-lawyer has ever sat on the U. S. Supreme Court, although Lyndon Johnson did try to get non-lawyer Dean Rusk, his Secretary of State, to accept a nomination. [back]

[2]  If not appointed (the usual situation), to become a judge one has to run, like any other politician, for office. [back]

[3]  Federal judges, who are appointed for life, are even more insufferably pompous than their state counterparts. When one is not, he prompts this type of remark: when U. S. District Court Judge Anthony M . Kennedy was nominated for the U. S. Supreme Court in 1987, Ronald Zumbrun, the director of the Pacific Legal Foundation in California said: “If you picture a federal judge, he does not fit it. He has a low ego threshold and he has no airs about him. He is a normal person.[back]