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.
Saturday, October 31, 2009
Friday, October 23, 2009
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.
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.
Wednesday, October 21, 2009
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.
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.
Saturday, October 17, 2009
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.
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.
Wednesday, October 14, 2009
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.
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.
Tuesday, October 13, 2009
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."
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."
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