Trials

I am in Los Angeles where, 28 years ago, I began my legal career as a deputy city attorney for the LA City Attorney's office prosecuting misdemeanor crimes in the downtown court house on Temple Street.

After six weeks of training I was taken into a courtroom, shown where the prosecutor sits, and a pile of cases. That was my office and that was my work. My supervisor said, try them, deal them or trail them, but get rid of them. A slightly more experienced public defender was sitting at her table.
The judge came out, looked at me, the water dripping from my wet-behind-the-ears, and said, "Let's call the calendar." "People v. Doe," and said, "Status, Mr. Nava? Are the People ready to proceed?"

One blinding moment of panic and then I looked at the notes in the case that said the witnesses were present in the master calendar court and said, "The People are ready for trial, Your Honor."
Evidently this was the correct response because she smiled. "Defense?"

"Ready, Your Honor."

She looked at her clerk and said, "Let's get some jurors up here." And I was off.

I worked as a prosecutor for four years. I tried somewhere between 50 and 60 cases, most to jury, in the same building where OJ Simpson was acquitted. (One afternoon I saw an elderly, beautifully-dressed African-American couple standing outside a courtroom consoling each other -- it was the parents of the singer Marvin Gaye whose father had been charged with his homicide. )

I appeared before tough judges and affable ones, smart judges and judges who owned their appointment to political connections. I tried everything from drunk driving cases -- surprisingly complex because of the scientific evidence of blood alcohol levels -- to serious assault with deadly weapons cases the DA had kicked down to a misdemeanor because all the witnesses were gang members. I tried a child sexual abuse case with a six year old victim who endured hours of cross-examination; the jury convicted. I remember hugging one of my witnesses, a woman whose car had been stolen and who, lost her job because she kept having to come to court -- the defendant was convicted but that didn't help her. When she started crying, I didn't know what else to do but hold her. (This was in the day before there was significant assistance for crime victims.) Some of my hardest cases involved domestic violence where the victim -- a wife or girlfriend -- recanted and refused to testify. One woman told me that if her husband went to jail, there would no one to support her and her children.

Those four years were the most exciting ones of my career and, even with the heartbreak stories and the stresses of trial, the most fun. I can't wait to get back to a criminal courtroom, my ears considerably drier, as a judge.

Why It's Called Running

I've been out for the past four nights: at Santa Clara University Law School with Justice Moreno who received an award; at the Alice B. Toklas Democratic Club's fall event; at the Bar Association of San Francisco Foundation's gala; and at the Minority Bar Coalition's award ceremony where I accepted an award for Justice Moreno. I'm three episodes behind on "Glee" and no one told that "30 Rock" has started its new season.

Today I took the day off so I could sleep past eight but as soon as I was up I was on the computer and then I went to lunch with two judges. One of them, who successfully ran for the trial court, told me this is the toughest part of a campaign because there are so many elements to coordinate and they all have to be done at once and pretty much by the candidate.

Though my eyes feel as if I've walked through a sandstorm and there have been moments when I really thought my brain would explode, it's been kind of exhilerating, too. One of the many remarkable people I met told me that I could expect people to come out of nowhere and work their hearts out for me; my friend the judge told me running for office was on the hardest things she had ever done but it was also one of the best years of her life because she discovered strengths she never knew she had.

What has impressed me is the decency and idealism of so many of the people I've met this week, some of them young but many my age, or older, who are still motivated by the desire to make the world a more equitable place for everyone.

I have come to believe there are two histories of humanity. The one in the history books is mostly about men killing each other over things that don't belong to them. The other one, seldom written about in the official texts, is the secret history of human decency, kindness, and generosity -- all the loving and selfless acts (and so often by women) that have kept this whole human enterprise afloat. What has inspired me as I race around the city is the hope that I am part of this secret history.

Abraham Lincoln

When I was a boy I wanted to be president for no better reason than that I was obsessed with Abraham Lincoln. Looking back now I understand that what I saw in his life story was a blueprint -- smart, book wormy boy from poor family makes a place for himself in the world. He was what would now be called my role model. In the encyclopedia that my grandparents had purchased from a door-to-door salesmen, Lincoln's life was illustrated by drawings, including one that showed him sprawled on the floor in front of a fire reading a book. I similarly could often be found sprawled on the floor reading a book. I also venerated Lincoln because he was a great writer, eloquent and concise. By the time I was eight I had memorized the Gettysburg Address, which, to my mother's consternation, I would recite at family gatherings from the branches of an apple tree. I puzzled my family and felt misunderstood by them which tended to drive me even more deeply into books and daydreams.

So, Lincoln's life. Rail splitter, lawyer, legislator, president. That was his trajectory and, except for the rail splitting, I expected it would be mine, too. Eventually, the blueprint was abandoned, except for the lawyer part. But Lincoln remained a living influence in my professional life, long after my childish worship of him had given way to a greater appreciation of his human complexities. He was, like all lawyers, caught between the law's highest aspirations and its mundane day-to-day applications. Justice is a grind, the sifting through of facts until the relevant ones are found, which are then examined in the light of statute and precedent to reach a conclusion about their legal significance.

The law isn't difficult just because of its high level of abstraction -- words that refer to words that refer to nothing ever beheld by any of the five senses -- or because it is so often the product of sloppy thinking and bad writing. It is also difficult because it treads the gray zone between morality and necessity -- between what is right and what the situation requires. I think that is terrain that Lincoln came to know tragically well. And for that, he remains a hero to me.

Politics

Reverse racism

The right-wing TV and radio commentators who called Justice Sotomayor a "racist" were clearly more interested in their ratings than in initiating a thoughtful conversation about race and ethnicity in this country. Still, they may well have expressed the anxieties of some white Americans who might not otherwise agree with the Limbaughs, Becks and Dobbses of the world.

The charge of "reverse racism" against people of color who call attention to the legal and economic inequalities between their communities and the white middle-class is an old one. It goes back at least into the 1970s when governments sought to address those inequalities with affirmative action programs. Even now, when most of those programs have been dismantled, the charge is still leveled against those of us who advocate for racial and ethnic diversity in, for example, the legal profession and the judiciary.

I have given these subjects considerable thought over the years and drawn some tentative conclusions; tentative because I, like you, continue to mull these matters over.

First, the idea of "white" like the idea of "Latino" is, I completely recognize, a statistical generalization. "White" people are not a monolithic group from the same cultural background who share a single point of view. They are my brother and sister humans whose unique backgrounds, life experiences, perspective and values help make American the vibrant society that it is. On a personal level, the many loving hands that helped me achieve an education and a place in the world from which I can help others were white hands; teachers, mentors, friends, lovers -- people I love very deeply and who have loved me.

Second, I am fully aware that class and economics can play as big a part in access to opportunity as race and ethnicity. The daughter of a poor white family in the central valley and the son of a poor Latino family in the same town are likely to encounter the same obstacles in trying to make a better life for themselves. That is why my notion of diversity also includes making a place for that girl and that boy, as a place was made for me, also a child of the poor.

But all that having been said, it is still fair to point out the fact that, in our society as a whole, certain racial and ethnic groups are disproportiontely poorer, live in worse and more dangerous neighborhoods and send their kids to overcrowded and inadequate schools from which they are more likely to drop out and end up unemployed, in dead-end jobs or in the the criminal system. Given all these obstacles, they are also likely to be significantly underrepesented in the positions of power in this society -- like the judiciary.

To point out that, for example, Latinos as a group have less access to the necessities of life and opportunities toward advancement in this society than whites as a group is not a racist statement, but a verifiable fact.

To advocate for the greater inclusion of people of color in position of power is not attack on whites who occupy those positions. It is an argument about representative government. Representative government -- which includes the courts -- proceeds from the premise that people are more likely to respect and obey the laws if they a voice in deciding who makes and enforces those laws. Therefore, representative government must include meaningful representation from all groups, which is not the case among California's judges.

Diversity includes everyone, it does not exclude anyone, and its purpose is not to displace one group with another, but to bring every groups' perspectives and experiences into the process of governing.

If the people elect me judge I will continue to proudly identify as a gay man, a Latino, a child of the poor, but no one, regardless of his or her background, would ever step into my courtroom and be treated any differently than anyone else. There is no hate in my heart for anyone. I wish the same could be said of some of those who attacked Sonia Sotomayor.

Learning How to Swim

Although I grew up in a river town, I never learned how to swim. This didn't prevent me from splashing around in the waters of the American River or diving from the high dive at the public pool where my older brother and I took refuge from Sacramento's triple digit temperatures in the summer -- that was kid stuff, fun and, in retrospect, kind of dangerous (which was part of the fun.) Once I left home for college, I rarely encountered any body of water larger than a bath tub and, over time, I developed a mild case of anxiety about being in pools, rivers and oceans, so mostly I stayed out.

I took up running in the 20s and have run, off and on, for almost 30 years. But last year, after running two half-marathons, it occurred to me that I needed to develop an aerobic exercise that was gentler on my aging joints. So, at the age of 54 I decided I would learn how to swim.

Of course, being who I am, I threw myself into it; taking group classes twice a week supplemented by a private lesson once a week. It was hard, very hard. The first lap I swam left me as breathless as if I had run a 10 k and then there was the water. Unlike the firm ground beneath my feet when I ran, I could not get a purchase on water and a certain animal terror seized me from time to time as I clumsily struggled to learn how to breath -- exhaling into the water and then, every third stroke, turning and raising my head out of the water to inhale.

I took my first lesson in June. Tonight I swan 45 laps, 50 minutes, alternating free-style and backstroke. I love swimming!

What does this have to do with running for judge? Well, I haven't run for anything since I ran for student council in high school and, believe me, a city-wide race in San Francisco is considerably more complex. The process is unfamiliar and difficult at times. It's especially hard to ask people for money. There are moments when I feel I am in deep water and learning how to breath.

But I know that, if the people of the city elect me, I would be a good judge, conscientious, hard-working and fair. I also know how important it would be, especially to young people of color and GLBT kids, to see an openly gay judge of color. So I push past my anxieties and my doubts and take the process one stroke, one breath at a time.

Judicial Diversity Essentially Flatlines in California

This is from a forthcoming report on judicial diversity from the California state bar's council on access and fairness that I worked on with other council members during my term on the council:

The most recent statistics on California's judiciary continue to show a significant disparity between what the people of California look like and what the judiciary looks like -- despite reflecting some improvement in overall numbers of diverse judges . . . [J]udicial appointment data from the Governor's office for the year 2008 shows that the cumulative percentage of Asian-American (6.3%), African-American (6.7%) and Latino/a (10.1%) judges appointed is now greater than the percentage of lawyers from those communities (5.3,%1.7% and 3.8% respectively) and the percentage of women judges appointed (33.6) is nearly equal to the number of women lawyers in California (34%) . . . However, overall,the bench in California is no more appreciably diverse today than it was three years ago when the data [on minority and women judges] was first collected.

The reasons for what is essentially a flatline are multi-fold. First, many women and judges of color have retired, and their seats have not been filled with judges from the same ethnic or gender group. Second, the California bench itself has increased by 128 seats in the past three years, growing from 1,610 authorized judgeships in 2006, to 1, 738 judicial seats as of December 31, 2008.

Furthermore, a comparison between the percentage of minority and women judges to their numbers in the population as a while still shows a disturbing level of underrepresentation in some cases. For example, while Latinos make up 32.5% of the population, according to the 2000 census, they are only 6.5% of the current judiciary, even taking into account the Governor's appointments. Similarly, women are 50.2% of the population but only 26.6% of the judiciary. These numbers . . . indicate that the process of diversifying the judiciary continues to be a long-term journey, and not yet a destination.

Elsewhere, the report quotes retired judge and former president of the ABA, Dennis Archer who observed: "When you recognize that, in the United States, it is the ability to petition our courts for fairness that keeps people from seeking justice in the streets, then you understand that diversity in the legal profession is critical for democracy to survive." Juxtaposed against this observation is a statement in a report from the Administrative Office of the Courts -- the administrative arm of the California judiciary -- that "It is notable and a cause for substantial concern that the majority of every major ethnic group perceive 'worse results' in outcomes for African-Americans, low-income people, and non-English speakers."

Gratitude

I drove to Sacramento, where I grew up, to see my mother who turned 76 last week. She lives in the house my grandfather built for her next door to the house where she was born and which my grandparents built together. My grandfather was a Yaqui -- an Indian tribe from Sonora, a state in northwestern Mexico. The nineteenth century Mexicans advanced into the Yaquis' ancestral homeland and took it by force, exterminating most of the tribe and sending those who survived into exile across the border; my grandfather was born in Arizona in 1905.

My grandmother's family arrived in Sacramento in 1920, refugees from the Mexican Revolution which was not so much a revolution as a civil war that sent a million Mexicans -- out of a population of 10 million -- into flight. In family lore, my grandmother, her parents and her siblings traveled up the spine of California as migrant farm workers -- picking cotton in one place, oranges or hops or pears in another and coming at last to the tomato fields of the Sacramento Valley.

By enormous dint of effort, my grandparents worked themselves up from poverty to working-class stolidity. I remember their house, filled with heavy, brocaded furniture and decorated with framed pictures of Jesus; praying in the garden of Gethsemane, parting his robe to reveal his burning heart. Everything about their house proclaimed lives of toil and stoicism.

Their house was in a neighborhood called Gardenland, populated by the other families of Mexican immigrants. I grew up there, in my mother's house. Everyone in Gardenland was poor, some poorer than others, some, a little better off, but the hard edge of poverty I see today in the homeless encampments in the streets of San Francisco was absent. Our poverty was softened because it was shared; families took care of each other, neighbors pitched in. And, of course, because we were descended from rural people, most families had vegetable gardens and a few chickens.

The values of our community were the values of the poor everywhere. Family as a collective was valued more than the individual members because there was strength and survival in numbers. Material possessions were utilitarian and used until all were too broken or too old to have further use. The pace of life was unhurried, following the seasons, the important religious holidays, and we lived in the eternal present that exists among people for whom the past and future are seen as changeless.

I was the first in my family to attend college -- and the only of my five siblings -- and to enter a profession. When I entered the world of the educated, I entered a very different culture than the one into which I had been born. This new culture was characterized by almost a cult of the individual that emphasized individual initiative and individual achievement. It was also a materialist culture that measured success in money and possessions in a way that was entirely foreign to me. It was a future-oriented culture because the future was expected to bring more, bigger and better. And it was a culture in which there were very few other Mexicans and I was often mistaken for something else: Italian and Jewish were the most common. (In law school a girl asked me my last name and when I said, "Nava," she asked me what it had been before my family shortened it.)

When I was a younger man, the values I had observed as a child did not seem to be very helpful in my striving to make for myself a place in the world where achievement seem to matter more than character. But today, sitting with my mother in her backyard, surrounded by fruit trees my grandmother planted 50 years ago, I see the beauty of the Gardenland and of the people among whom I grew up.

Today, I am grateful for the gifts that were given to me as a child of poor people; not measuring the value of people based on what they have and gratitude for what I have with the greatest gratitude reserved for the people in my life, and not the possessions. Gratitude for this moment.

And this place and these people who I thought I had had to leave behind to succeed I realize now that I have always carried within me.

Diversity and Democracy

This is an excerpt from a speech I gave at the annual meeting of the California state bar in 2006. The speech was entitled Diversity and Democracy and it was given at the reception where the state bar presented its diversity awards:

My theme tonight is diversity and democracy and a vision of America in which those concepts are symbiotic. The point I want to make is that your story -- which is my story, too -- is the story of America. American democracy is an idea formed by the words of Declaration of Independence that all people are created equal and that each person possesses the inalienable right to life, liberty and the pursuit of happiness. These words encapsulate the promise of America, a promise made to everyone, regardless of race, ethnicity, gender or sexual orientation. The diverse audience in this room is proof that this is still a promise America can keep. Our diversity, in turn, is evidence that American democracy is still a beacon to the world.

Our story -- the outsider's story -- is not simply a story of personal success, it is a story made possible by the guarantees of equality, freedom and equal access to opportunity that are the natal values of our country. Therefore, creating a society in which people of all ethnicities and races, women as well as men and gay, lesbian, bisexual and transgendered people can succeed is not just good politics or good policy, it is the very definition of America.

Diversity is the life-blood of our democracy. America is a dream reborn in the hearts of every generation of outsiders, whether they are immigrants, or members of racial, ethnic or sexual minorities or women. The promises of equality, freedom and opportunity are promises that beat most powerfully in the hearts of those who are in the greatest need of them. The great stories of our history are not the stories of the privileged few who enjoyed the fruits of their position and prestige. The great stories of our history are the stories of people who came from nothing and achieved greatness is some sphere of life. Today, as in every point in our history, the true test of our democratic ideals is how well they operate when they are invoked by the outcast, the marginalized and the discriminated against.

The Whos and Whys: A Summary.

So, I am a lawyer (Stanford, '81) and a novelist (a series of mysteries featuring a gay criminal defense lawyer named Henry Rios) and, as of Monday, a candidate for a seat on the San Francisco Superior court. That's what we call the trial court in California, a slightly confusing designation since superior implies, well, elevation, but nearly as confusing as what New York calls its trial court -- the supreme court.

As it happens, I work for the Supreme Court, California's, not New York's. Since 2004 I have been a staff attorney for Justice Carlos Moreno, who, most recently was the lone dissenter in the court's decision to uphold Proposition 8, which revoked the right of same-sex couples in California to marry.

As it also happens, I'm gay, and, as of October 21, 2008, married to an extremely loveable man. Really loveable -- kids want to sit in his lap, dogs want him to pat their heads. Even though California's Supreme Court upheld Proposition 8 (minus Justice Moreno), my partner and I are still legally wed. This is because we got married before Proposition 8 passed. The court decided that the marriages of all the same-sex couples who got married before the election that outlawed gay marriage would remain valid. So, there are roughly 20,000 same-sex couples who are married in California even though same-sex marriage is banned, for now.

What does this have to do with me running for judge? Well, I have worked for and around judges for most of my career as a judicial staff attorney. So, I know from first-hand experience that the shape of the law is determined, at least in part, by the personalities and the life experiences of the men and women who wear the black robes. I also know from first-hand observation and also from state bar surveys that the vast majority of judges in California are white, heterosexual and upper-middle-class. California's population, on the other hand, looks very different -- there is no single majority racial or ethnic group, there is a large LGBT (gay, lesbian, bisexual and transgender) community, women are about half the population and I imagine most Californians make a lot less than the six-figure salary judges are paid.

I don't mean to suggest that these judges are necessarily biased or unfair because their backgrounds may be different than the backgrounds of the people who come before them, and they -- the judges -- have never personally faced the challenges of the disenfranchised. Most of the judges I have known worked hard at being fair. But it can make a difference. Maybe at the margins as when a judge has to decide which of two witnesses is telling the truth and one witness shares the judge's background while the other doesn't. And sometimes it can make a difference not at the margins of a case, but the heart of the case, as in the male judge ruling unfavorably on a claim of sexual harassment because he thinks the female plaintiff was overreacting. Does this happen? Yes. I can provide the case citations.

There is also the point -- often overlooked -- that the legal system is not a private system of dispute resolution but the third branch of government in our representative democracy. Judges are part of that system. No less than legislators they are public servants who represent the community. In California, they are also subject to the will of the voters. Every judge in this state, from the Chief Justice to the trial court judge in the one-horse town comes before the voters who decide whether that judge should continue in office. Of course, by the time most voters get to the end of one of California's voluminous ballots and see the judicial races, they are apt to skip them entirely or take the path of least resistance and vote for the incumbent. (Or, like my friends, call whatever lawyer they know and ask him or her who to vote for.)

I am running for judge because I think there is a place on the judiciary for a gay Latino raised in a working-class family. In fact, I think there has to be a place for someone like me. And I am running because I have spent almost my entire legal career in public service and I see this as a way to continue that service.

And because I think it will be a great adventure!