Judge Lester Accepts Penn Case Challenge : Sense of Humor Has Carried Part Indian, a Product of Detroit’s Ghetto, to the Top
San Diego County Superior Court Judge J. Morgan Lester is a man of many personas.
He is “Lester the Jester,” the deadpan, self-mocking, David Brenner look-alike whose quick wit has stung many a lawyer.
He is “Golden Owl,” the one-quarter Iroquois Indian who has woven his ambition and talent with his heritage and let the result carry him from the district attorney’s office to the Vista Municipal Court and then to the Superior Court bench.
He is the child of the Detroit ghetto, the boy who was neither a “greaser” nor a “Princeton” but learned to survive between them on the streets.
And, according to co-workers and lawyers who know him best, Lester is a diligent, astute, politically attuned judge who surprised no one when he agreed to come to downtown San Diego to preside in the retrial of accused police killer Sagon Penn.
“I kid him all the time,” said Judge David Moon Jr., Lester’s tennis partner and colleague on the Vista Superior Court bench: “It’s hard to be humble when you’re so great.”
Prosecutors and defense attorney Milton J. Silverman selected Lester, 48, from a list of three judges to preside in the second trial for Penn, the Southeast San Diego man who shot and killed one police officer and wounded another and a civilian in a March, 1985, confrontation that opened a wide fissure between law enforcement and the black community.
In a recent interview, Lester acknowledged that the case was bound to be among the most memorable in his career as a judge, which began when he ousted a liberal incumbent from the Vista Municipal Court in a 1978 election highlighted by his opponent’s bad luck in getting caught--three times--tearing down Lester’s campaign posters.
“I recognize, of course, the case is going to be a challenge,” Lester said. “But on the other hand, I’m willing to do it.”
Asked if he considered the assignment a plum or a punishment, the judge--whose dark, almost black eyes peer out above the high cheekbones of a thin, angular face--quoted a maharishi whose self-development tapes he sometimes listens to while driving on the freeway.
The attractiveness of the job, Lester said, depends on one’s “vantage point.” And from his perspective, the Penn case is attractive.
“It goes a long way toward one using whatever you’ve amassed over the years in ability and judicial acumen, to use it to your highest level--to use the Army cliche, to ‘Be all that you can be,’ ” said Lester, who was elevated to the Superior Court by Gov. George Deukmejian in one of his first judicial appointments in 1983.
“I would not be the type to have said no,” he said, “and if I’d said no, I don’t think I would have been proud of myself.”
Lester learned a lot of lessons about pride as a poor kid growing up in the 1940s and ‘50s in a ghetto neighborhood near Cooley High School in Detroit.
“Most of the people who went to the high school I went to either were hoodlums in gangs or they were college preparatory,” he recalled--the greasers versus the Princetons. “I fit kind of in the middle. I had medium hair, I wasn’t in a gang, but I didn’t have the money to be Ivy League.”
Gang activity in the area was so violent that Cooley High’s night football games were postponed for awhile and basketball games were canceled altogether. Gang members once beat Lester up, though police had a high-visibility, heavy-handed presence in the neighborhood.
“They were in an era of a little more physical applications than we have today,” Lester said. “The rules were a little different in the courts and on the street. If you knew what the rules were, you stayed out of trouble. If you didn’t, you paid.”
As an adult, Lester said, he has visited California’s urban poverty pockets--areas such as West Oakland, the Fillmore district of San Francisco, Watts and Logan Heights--and he says they don’t compare with the combat zone around Cooley High.
“I laugh at people in California who talk about ghettos,” Lester said in an interview a few days before the opening of the Penn retrial--the case of a young black man who shot two white police officers in Southeast San Diego and claims one of the officers’ racist comments instigated the attack.
“If those people think that’s a ghetto, they need to go to Detroit or Chicago or Philadelphia or parts of New York,” Lester said. “I haven’t seen in California what those cities have to offer if we want to define ghetto .”
Lester said he cannot consider the Penn trial his biggest case as a judge. That distinction belongs to the case of William Marshall, a black ex-Marine convicted of murdering an Oceanside shopkeeper in 1979.
The trial, which Lester conducted as a municipal judge on special assignment to the Superior Court, involved the first major challenge to the Vista court’s virtually all-white juries. At an appellate court’s urging, Lester moved the trial to San Diego, where defense lawyers argued there was a better chance of seating blacks on the jury.
Moreover, Marshall could have been sentenced to death--a penalty Penn never faced, even before the jury in his first trial found him innocent of first-degree murder last year.
“Willie Marshall was bigger because the death penalty was involved,” Lester said, comparing the two cases. “Yes, this has publicity, but we’re not dealing with that ultimate penalty.”
Lawyers suspect that Lester’s ability to withstand the pressures of presiding in a high-profile case won him a place on the short list of candidates for the Penn trial, though Superior Court Presiding Judge Thomas Duffy says the thickness of Lester’s skin was not considered in the selection process.
“He can handle the pressure,” said Escondido defense attorney Richard Mills, who worked with Lester in the district attorney’s office and has practiced in his court.
“As a trial lawyer, you want a judge where you can count on the fact he’s going to run a high quality trial, because then you can know how to plan your strategy,” Mills said. “There aren’t a lot of judges that run a courtroom better than he does.”
Nor is Lester without the ego and ambition that could be stroked and stoked, respectively, by participation in what promises to be one of San Diego County’s most closely watched trials. Friends say Lester harbors hopes of being elevated to the state appeals court--as happened, for instance, to Judge William Todd after he presided over the trial and retrial of former mayor Roger Hedgecock.
“It’s fair to say that he is an ambitious person and this is a high-publicity case,” Mills said. “That should benefit everybody: it should be good for him and it should be a fair trial.”
Cynics suggest that ambition may explain, in part, the attention Lester has paid to his Indian heritage.
His grandmother was a full-blooded Iroquois from the Seneca tribe in upper New York. Until a recent divorce, he lived for years in rural Valley Center, near the Rincon reservation, and was actively involved in Indian affairs.
As a Municipal Court judge, Lester used a tomahawk in place of a gavel in court. Kiddingly, some North County lawyers call him by his Indian name, “Golden Owl,” which a local tribe bestowed upon him in one of the many tribal ceremonies he has attended through the years.
In interviews, Lester has credited Indians in North County with helping him win his judicial posts, and, according to Mills, the judge is conscious of the political benefits of his association with the tribes.
“These things are part of his political awareness, rather than being strange,” Mills said. “The Indians are real powerful politically, and though I think he truly believes in a lot of that stuff, it didn’t hurt him politically.”
Richard Sola, attorney for the Rincon Indians, said he has never seen Lester use his heritage to advance his aspirations.
“I’ve never seen him wear it on his sleeve as a point of ambition,” Sola said. “Liberal Democrats wear it on their sleeves. Conservative Republicans don’t.” (Lawyers note, however, that Lester, who is half-Irish, sometimes wears a green robe on the bench on St. Patrick’s Day.)
Lester is a registered Republican, a former prosecutor and a Deukmejian appointee--all attributes that might portend a rightward tilt in his judicial views--but he has won the respect of defense attorneys for his even-handed approach in criminal cases.
“He’s a very careful, measured person,” said Vista defense lawyer Diane Campbell. “I don’t think I’ve heard complaints from either side, ever, that they haven’t gotten a fair shake in a case (in his court).”
In the Municipal Court, Lester was a stickler for decorum, handing out a sheet of strict directives regulating attorneys’ behavior in the courtroom.
He has loosened up a bit now. “I don’t let the courtroom devolve into a poolroom setting,” Lester said, “but on the other hand, I don’t conduct a star chamber proceeding that is antiseptic and has an artificial air.”
Indeed, visitors last week to Lester’s courtroom in San Diego, as pretrial hearings in the Penn case got under way, would have found a judge far less stolid than many of his peers.
For one thing, Lester is ambidextrous. Listening to lawyers and witnesses, he takes notes with a pen or pencil in each hand, their shafts wagging like the rabbit ears on a portable TV.
For another, he’s funny, in a puckish, sometimes biting way--as befits “Lester the Jester,” the one-time humor columnist for the San Diego County Bar Assn.'s monthly newsletter.
At one point in last week’s proceedings, Silverman was questioning San Diego Police Officer Jenny Castro, who discovered the 8-year-old transcript of a Police Academy counseling session with Agent Donovan Jacobs that is considered crucial to Penn’s defense.
Silverman asked Castro about the furniture in the office where she claimed to have found the document. When she could not describe the size of a bookcase, Silverman searched the courtroom for a yardstick. Finding one, he measured a bookcase and asked her to compare it to the one she recalled.
Minutes later, Castro said she could not recall the size of a notebook that sat in the bookcase. Silverman theatrically found a notebook to measure, then asked again for a comparison.
As he spoke, a smile spread across Lester’s face. A bubble was about to be burst.
“I’m afraid now that you’ve found that ruler,” he told Silverman, “we’re going to hear a lot about it.”