Execution Issue Clouds Davis’ Judge Selections
Gov. Gray Davis’ first judicial appointees are more diverse and moderate than those named by his predecessors, but their qualifications have failed to diminish continuing criticism that the administration is making support for the death penalty a crucial test for the bench.
After 10 months in office, Davis recently appointed 12 judges, all of them Democrats described as “centrist” or “moderate to liberal” by lawyers and judges, who generally praise them for their acumen and balance.
The state Commission on Judicial Appointments this week confirmed Davis’ three appointees to the state Court of Appeal.
Four of the governor’s judicial appointees are women, two of them African American. Others include an Asian American and a Latino. The group includes a former Legal Aid Society lawyer and an attorney from a liberal firm who has represented environmental groups.
But even many of those who praise the qualifications of the new judges continue to fault the Davis administration for what they see as inappropriate questioning of candidates about the death penalty.
Peter Keane, dean of the Golden Gate University Law School in San Francisco, said several pending candidates have come away from their interviews “absolutely traumatized” by the queries about capital punishment.
“None of the candidates indicated that they thought the death penalty was the greatest thing since sliced bread,” said Keane, who added that he had spoken to several of them. “That is what Davis is requiring.”
Davis also has gone out of his way to stress the law and order credentials of his first judges. His written announcement about his Court of Appeal appointees began with a statement that one was “the daughter of a former police officer” and two were “former prosecutors.”
The officer’s daughter is Candace Cooper, 50, a highly respected, 19-year Los Angeles judge whom Davis elevated to the Court of Appeal in L.A.
“It is very disappointing for the governor to feel compelled to describe her that way, because that is not the qualification for her elevation,” said Los Angeles Public Defender Michael Judge. “She is qualified because she did a splendid job on the Superior Court.”
One of the “former prosecutors” is a longtime Court of Appeal justice who worked one year as a prosecutor 30 years ago.
Haunted by Memories of Rose Bird?
Analysts say Davis is haunted by the memory of former Chief Justice Rose Bird, whom his former boss, Gov. Jerry Brown, appointed to the state high court and whom voters ousted because she never voted to uphold a death sentence.
“The appointment of more women and minorities is a big plus,” said Dean Keane, a former San Francisco public defender. “But what is disturbing is this absolute terror Davis has that someone is going to say he is soft on the death penalty because of some appointment.”
Hilary McLean, a spokeswoman for Davis, said his goal is to ensure that the judges he appoints “share his concerns for public safety.”
“Everyone the governor appointed has certainly indicated clearly that they will uphold the law” on the death penalty, she said.
And what if a candidate expressed personal opposition to the death penalty but pledged to follow the law?
“That person would be asked some additional questions about the process, about the death penalty,” McLean said. “In that instance, whether or not the person would be ultimately appointed by the governor, I can’t tell you.”
In addition to Cooper, an African American appointed to the Los Angeles Municipal Court by Jerry Brown, Davis’ appointments to the Court of Appeal were Arthur Gilbert, 61, and Steven Z. Perren, 57, who will both serve in Ventura County.
Gilbert, 61, will become presiding justice of a division of the 2nd Appellate District in Ventura. He is the “former prosecutor” whose prosecutorial stint was one year--at the Los Angeles city attorney’s office more than 30 years ago.
Gilbert met Brown at UC Berkeley when Gilbert was in law school and Brown was an undergraduate. Brown later appointed Gilbert to the bench. He was recognized as Appellate Justice of the Year by the California Trial Lawyers Assn. in 1993 and 1984.
Gilbert is regarded in legal circles as one of the best writers on the appellate bench. He said a judge’s personal views should not color his or her decisions.
“A judge shouldn’t go into any case with a preconceived notion about what a case is about,” the jurist said. “There are plenty of laws I enforce vigorously that in my opinion are not very good laws.”
Cooper, Gilbert and Perren, who served as presiding judge in the Juvenile Court of Ventura County, are highly respected by the bar.
“I am impressed that this governor and [Legal Affairs Secretary] Burt Pines are making a real effort to get really good people,” said Court of Appeal Justice Walter Croskey, a conservative appointed by former Gov. George Deukmejian. “Of the ones I know, all are first-rate.”
On the more liberal end of the spectrum, Public Defender Judge agreed. “These are very solid appointments,” he said.
Davis also has appointed Jon M. Mayeda and Dennis M. Perluss to the Los Angeles Superior Court, Leslie A. Swain, Deirdre H. Hill and Richard E. Rico to the Los Angeles Municipal Court, Marshall Y. Hockett to the San Diego County Superior Court, Verna A. Adams to the Marin County Superior Court, Loren E. McMaster to the Sacramento County Superior Court, and Kent M. Kellegrew to the Ventura County Superior Court.
McMaster contributed $2,050 to Davis’ campaign. Perluss gave $500, Adams $250, Rico $100 and Hockett $100.
Mayeda, 52, an Asian American who has served on the Los Angeles Municipal Court, is described by lawyers and judges as a careful, smart judge who doesn’t bring an agenda to the bench. Lawyers and judges say both he and Cooper would have been elevated long ago if they had been Republicans.
Perluss, a partner in the law firm of Morrison & Foerster, has a liberal to moderate background. He has represented environmental activists without charge and served on the boards of various public interest groups.
On the death penalty, he said, he is “not opposed” to it.
“For me, the issue with capital punishment is fundamentally fairness,” Perluss said. “The argument resonates with me when people say African American and Latino poor male defendants are the ones who are sentenced to death. But I also have seen studies that say that isn’t the case.”
Deukmejian appointed mostly white, male prosecutors to the bench. Gov. Pete Wilson broadened the judiciary by appointing civil litigators as well. He also appointed women in a percentage about proportionate to their numbers in the legal profession. But he was sharply criticized for failing to appoint significant numbers of racial minorities.
Appointment Process Assailed Early On
Although Davis’ first group of appointees reflect more diversity, his appointment process was attacked before the appointments were even announced. Support for freedom of choice on abortion and the death penalty were believed to be essential to winning an appointment.
Santa Clara University law professor Gerald F. Uelmen, in a California Lawyer article titled “A ‘Death-Qualified’ Judiciary,” complained of a “disquieting message” being sent by the administration to judicial hopefuls.
“As a vocal critic of the death penalty who has harbored judicial aspirations, I may be seen as someone with sour grapes to ferment,” Uelmen wrote. “But the challenge of appointing judges who will be thoughtful and independent should concern every California citizen.”
Patrick Mahoney, chief trial deputy for the San Francisco city attorney’s office who has applied for a judicial post, recalled that Pines asked him whether he had any philosophical objections to the death penalty.
“I said I can’t say I was enthusiastic about the death penalty, but I certainly didn’t have any philosophical problems with it and would apply it if I thought it was appropriate,” Mahoney said.
In interviews for the federal bench, the staffs of Democratic Sens. Barbara Boxer and Dianne Feinstein also queried him about his philosophy toward the death penalty, he said.
“I am not sure that anything is going on here that hasn’t gone on for a long time,” Mahoney said.
Hockett, a family law attorney whom Davis tapped for the San Diego Superior Court, said: “I was asked about everything, from where my son went to school to what did I think about gun laws to you name it. . . . There is no way my views coincided with all the views of the governor.”
Hockett has served on the board of the San Diego Trial Lawyers Assn. and worked as the supervising attorney for the Legal Aid Society of San Diego from 1972 to 1975.
San Francisco Public Defender Jeff Brown called the appointees a “center-to-liberal group of people.”
“The feedback I get from talking to people who are close to the process is that they are really looking for high-powered lawyers, people who have substantial experience,” he said. “If you are a partner of a premier law firm and you are not identified with the previous administration, you stand a pretty good chance of being considered.”
Of the death penalty, Jeff Brown said he believes that Davis will accept reservations about it as long as the candidate believes “the death penalty is a settled question” and will impose it.
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New on the Bench
After 10 months in office, Gov. Gray Davis recently appointed 12 judges, all Democrats described as “centrist” or “moderate to liberal” by lawyers and judges. Four appointees are women, two are African American, one is Asian American and one is Latino.
Verna A. Adams, 53, was appointed to the Marin County Superior Court. She has been a sole practitioner and family law specialist in Marin County.
Candace D. Cooper, 50, was appointed to the state Court of Appeal in Los Angeles. She has served on the Los Angeles Superior Court and the Municipal Court for 19 years. She is a past president of the California Judges Assn.
Arthur Gilbert, 61, was named presiding justice of Division 6 of the state Court of Appeal in Ventura County. He has been acting presiding justice since January. During his 17 years as a Court of Appeal justice, Gilbert has written about 2,000 opinions.
Deirdre H. Hill, 39, was appointed to the Los Angeles Municipal Court. She has previously served as inspector general of the Los Angeles Police Department, as a hearing officer for the department and as president of the Los Angeles Board of Police Commissioners.
Marshall Y. Hockett, 52, was appointed to the San Diego County Superior Court. He has been a family law attorney in San Diego since 1972. From 1972 to 1975, he was the supervising attorney for the Legal Aid Society of San Diego.
Kent M. Kellegrew, 46, of Ventura was appointed to the Ventura County Superior Court. Kellegrew has served as a Ventura County Superior Court commissioner since 1997. From 1983 to 1985, he was a Ventura County deputy district attorney.
Jon M. Mayeda, 52, was appointed to the Los Angeles Superior Court. Mayeda has served on the Los Angeles Municipal Court since 1981. He began his legal career as a prosecutor in the Los Angeles city attorney’s office.
Loren E. McMaster, 54, was appointed to the Sacramento County Superior Court. He has been a sole practitioner specializing in government, administrative and public employee law and litigation.
Dennis M. Perluss, 51, was appointed to the Los Angeles Superior Court. He was a partner in the law firm of Morrison & Foerster and has litigated securities, antitrust and other complex business and financial disputes in both state and federal courts.
Steven Z. Perren, 57, was appointed an associate justice of the California Court of Appeal in Ventura County. Perren has served as presiding judge in the Juvenile Court of Ventura County.
Richard E. Rico, 45, was appointed to the Los Angeles Municipal Court. He has served as a senior attorney for the California Court of Appeal in Santa Ana since 1995.
Leslie A. Swain, 46, was appointed to the Los Angeles Municipal Court. Swain has served as an assistant U.S. attorney since 1987. Most recently she specialized in prosecuting white-collar crimes.