Defense Lawyers Aim Broadsides at Judge Levitt

There’s no question about it; San Diego County Superior Court Judge Jack Levitt is punctual. If court is to go into session at 9 a.m., Levitt will be at the door at 8:59, watching the second hand sweep toward the appointed hour.

And there’s no question that Levitt is fastidious. In 15 years on the bench, he has refused even to consider hundreds and hundreds of legal filings because they were typed on the wrong kind of paper or contained misspellings or grammatical errors.

But is Jack Levitt just?

A number of attorneys--mainly criminal defense lawyers--say Levitt is so preoccupied with form that the substance of justice has been lost in his courtroom. Appellate judges have hammered at Levitt for excesses of sternness and advocacy. Even his fans--and there are many in the legal system--say Levitt’s no-jonsense manner at times boils down to nothing more than tactlessness.

Appointed by Reagan

The criticisms have rained down on Levitt virtually from the day Gov. Ronald Reagan named him to the Superior Court in 1972.

But now they are taking on a new pointedness:

A defense attorney whom Levitt held in contempt last year is asking the state Commission on Judicial Performance to remove him from office for demonstrating a lack of judicial temperament. Defense lawyers are fleeing from his court, challenging assignment to his courtroom 10 times more often than they challenge any other judge. And the Criminal Defense Bar Assn. has voted to ask the performance commission to rebuke Levitt for posting cartoons outside his courtroom that its members consider offensive.

All this could not come at a worse time for the judge, a family man and legal scholar as affable off the bench as he is imposing while on it. Levitt wants to be considered for a position that is about to open on the 4th District Court of Appeal, and some of his defenders suspect the broadsides against Levitt are designed to cloud his chances of being elevated to the higher court.

Levitt, 61, says his critics are the ill-prepared, the laggardly and the intellectually lax.

“You offend those whose errors you point out,” he said Friday in an interview in his chambers. “The lawyers who get ticked off at me are the lawyers who are unprepared. Talk to a good lawyer who comes in prepared and they don’t have that problem.”

But the attorneys questioning Levitt’s performance say their quarrel is more profound.

‘That’s Not Justice’

“It looks like you just have a hard-working, precise person, but that’s just not the case,” said Allen Bloom, the defense lawyer who says that later this month he will ask the performance commission to oust Levitt from the bench. “There’s a difference between hard-working-and-precise and just caring about form over substance. That’s not justice.”

Levitt calls himself an “old-fashioned judge” and acknowledges he insists on compliance with rules many other judges ignore. But critics say his tendency to see issues in black and white embroils him in needlessly rancorous battles over the picayune, while he loses sight of the principles of justice on which the court system is based.

One example, the critics say, was Levitt’s recent refusal to authorize the release to lawyers representing accused multiple murderer David Lucas of a transcript of a hearing he conducted in the capital case.

The district attorney’s office had no objection to the defense receiving the document. But Levitt said the transcript could be of no meaningful use to the defense and that it was wasteful to ask taxpayers to provide it to Lucas and his court-appointed lawyers.

The defense lawyers appealed, saying they had an unquestioned right to the document, and Levitt took the unusual step of asking the county counsel’s office to argue the case in his behalf.

The result: The 4th District court coolly castigated Levitt late last month for refusing to turn over the transcript, saying it was a clear-cut matter of law that the defense was entitled to the document.

And Justice Edward Butler--Levitt’s frequent nemesis on the appellate court--wrote a separate opinion in the case slapping at Levitt for taking it upon himself to enlist the help of the county counsel’s office.

“Judges adjudicate, not advocate, issues,” Butler wrote, expressing his “puzzlement” at Levitt’s action. “Here, the People declined to pick up the gauntlet. Judge Levitt is not their champion to enter the list in this tournament and county counsel is not required to serve as his squire.”

Action Defended

Said Levitt: “I felt the point ought to be properly litigated on appeal. Since the district attorney was abrogating it, I thought somebody should.” Chief Deputy County Counsel Daniel Wallace said instances of his office representing judges in such cases were rare.

Steven Feldman, one of Lucas’s attorneys, said it cost far more to litigate the issue than it would have to provide the transcript in the first place. And he complained that Levitt diverted the attention of the defense from the critical issues in a death penalty case.

“What concerns me the most, really, is the fact the court is forcing the focus of the lawyers off the substantive litigation and onto stuff like this,” Feldman said.

Levitt’s latest action in the case underscored his concern, Feldman said.

Defense lawyers and the county counsel’s office, following the dictates of the appellate decision, submitted a stipulation several days ago for release of the transcript. Levitt sent it back. It was typed on letterhead stationary--in violation of court rules, he noted--and it contained an incomplete sentence.

Stickler for Accuracy

Levitt says he rejects hundreds of documents for similar reasons. Rules keep the playing surface of the courts level, he argues. By reading every document and rejecting those with grammatical flaws, he weeds out papers that could cause confusion later on.

“I’m the only judge that is a stickler on these rules,” he said. “Most judges, I guess, consider it form over substance. And they just sign them. I think that’s sloppiness.”

He is equally averse to seeing time wasted in court--particularly in the lengthy jury selection process that has become commonplace in criminal and civil trials.

Again, however, the critics say a recent incident suggests Levitt’s preoccupation with the clock can backfire, to the detriment of the courts.

Early last year, Levitt held Bloom in contempt of court for his persistence in trying to question a prospective juror about prior cases in which he has served. Though such questions often are asked in similar circumstances, Levitt ruled the question was irrelevant to the proceedings--a mental competency hearing for a criminal defendant--and that Bloom had refused to follow his directive to go on to another subject.

Last April, the 4th District overturned the contempt finding, saying Levitt had not followed proper procedure. But a few weeks later, Levitt sought again to hold Bloom in contempt for the same incident, this time using a different contempt procedure.

Accused of Vindictiveness

Bloom argued that he was being subjected to double jeopardy and said Levitt was being “vindictive.” In September, a 4th District panel voted unanimously to throw out the second contempt citation, saying Levitt had violated Bloom’s due-process rights.

“To hold such a proceeding before the same judge who earlier decided the issue is fundamentally unfair to the person charged,” the judges ruled.

The experience--and other aspects of Levitt’s conduct during the competency hearing--prompted Bloom to announce his intent to ask the Commission on Judicial Performance to remove Levitt from the bench. He also wrote an article outlining his complaints about Levitt--without naming the judge--which appeared in the April edition of the county bar association’s monthly magazine.

“When you’re so technical that you start losing any sense of the overall right and wrong and you prevent the court from working the wonder of a jury trial and coming up with justice, that’s just not right,” Bloom said. “It got to the point where it would be pathetic. He was just a shell of a person up there. He’d go off the edge on so many things.”

Levitt says Bloom’s published account of the incident is riddled with inaccuracies. The judge’s defenders, meanwhile, say defense attorneys are criticizing him because he is a tough sentencer and a strict follower of the law--not because of any genuine doubts about his competence or judicial temperament.

“The defense attorneys don’t like somebody who’s going to disallow some of their frivolous things or at the end of a case is going to send a deserving person to prison,” said Deputy Dist. Atty. Charles Nickel, who supervises prosecutors in the Superior Court.

‘Harsh Taskmaster’

“He’s a harsh taskmaster--there’s no question about that,” Nickel said. But he said Levitt is equally tough on the defense and the prosecution.

“When you’re in front of Jack Levitt, you’re on time, you have your witnesses, you expect to go from beginning to end,” Nickel said. “If there’s a point of law to be raised, you’d better be ready to argue it.”

Recently, the board of the Criminal Defense Bar Association voted to request action against Levitt by the Commission on Judicial Performance because of cartoons he has posted on a bulletin board outside his courtroom.

Offending Cartoons

In one of the offending cartoons, a judge is portrayed telling a defendant: “The jury has found you not guilty, but I’m going to give you two years to be on the safe side.” In the next panel, the judge adds: “And don’t go off whining to some higher court.”

The cartoons “make fun of the court system and tend to portray criminal defendants in a very poor light,” said Judy Clarke, the association’s president. “Certainly they’re presumed innocent until they’re found guilty, and you’d think the court of all places would believe in that and present that image to the public.”

Levitt calls the criticisms of the cartoons “ludicrous.” He noted that he had scored poorly in past bar polls for lacking a sense of humor and was attempting to show he had one.

“The jokes relate to the court system,” he said, and do not single out defendants or defense lawyers. “What am I supposed to put up there? Jokes about lion tamers?”

Yet the defense bar is deadly serious about its concerns regarding Levitt’s fairness. Since his return in the past year to frequent duty in the criminal courts after several years mainly in civil departments, defense lawyers have sought in droves to avoid having their clients’ cases heard in his courtroom.

A study commissioned by Bloom of criminal court records found that for the year ending March 31, lawyers formally challenged Levitt--thereby removing cases from his court--10 times more often than any other judge. Levitt was challenged 34 times, the study found. Altogether, there were only 17 other challenges, and the jurist with the next highest number--Judge Raul Rosado--had just three.

The defense bar’s distaste for Levitt was so widely known that defense lawyers suspected it was being used against them by court officials. The defense bar association complained last year that when a lawyer announced his intention to challenge some other judge, the judges who managed the court’s calendar threatened to assign them to Levitt--thus discouraging them from entering the challenge in the first place.

“It was, in fact, inhibiting (the use of) that challenge,” said Clarke.

Supervising judges told the defense lawyers that they were not using Levitt’s reputation as a club against them, and only assigned cases to Levitt when his courtroom happened to be available.

“Judge Levitt is a fine, competent judge and there’s no reason not to keep him fully occupied,” said Superior Court Judge Richard Huffman, who was the supervising criminal judge at the time.

Levitt is well aware of his reputation and his critics, and acknowledges his concern about their official complaints.

But Levitt says he is not about to start changing the kind of judge he is now.

“I believe in being on time and being prepared and following the rules,” he said. “I don’t see anything wrong with that. There are just a lot of lawyers who don’t like that.”