San Francisco Elections, March 5, 2024 -- Special Blog Post On Contested San Francisco Judicial Races

RETAIN JUDGES MICHAEL BEGERT AND PATRICK THOMPSON

San Francisco is having elections on March 5, 2024, for a number of ballot propositions and offices.

While I will be doing my usual blog piece about what is up for a vote, I thought it might be useful to discuss separately the issue of the two judges who are up for reelection and who have drawn opponents.  I think I have something to offer her beyond what you may see in the news media as I am a practicing lawyer and a regular user of the legal system.  Also, when I started out in practice I did work in criminal law.  

 

SHORT TAKE – VOTE IN FAVOR OF INCUMBENT JUDGES MICHAEL BEGERT AND PATRICK THOMPSON

For those of you who just want something (relatively) short and quick, here you go.  Two judges, Judge Michael Begert and Judge Patrick Thompson, are being challenged by two relatively unknown challengers.  The basis for the challenge is bogus – the challengers claim that the sitting judges are somehow “soft on crime.”  The challengers are long on accusations but very short on specifics.  One of the two judges, Judge Begert, has served 12 years already.  He is well respected by his peers and is actually doing innovative legal work to reduce crime.  The other judge, Judge Thompson, has been in office barely two years and has not been given the chance to really develop a track record, much less be “soft on crime.”  Both judges have top level educational and professional backgrounds before being appointed to the bench by Governor Newsom.  Both were rated “Well Qualified” by the Bar Association of San Francisco (“BASF”) while their challengers refused even to engage with the BASF Judiciary Committee’s evaluation process, which is basically unheard of.  They also fared quite badly when interviewed by the San Francisco Chronicle’s Editorial Board, which came out, strongly, in favor of the incumbents.

The situation is muddled by “hit piece” mailers that claim to “score” the judges and misleadingly characterize some of the cases in which the judges released offenders rather than jailing them.  These mailers conveniently fail to mention that this was done without objection by the District Attorney’s Office as well as legal and other constraints on keeping defendants in custody.  The Chronicle has an excellent article debunking these claims that I strongly recommend reading.  Here is a link.  SFist also has a good piece on the use of anonymous Internet websites that claim to evaluate judges but which no one I know takes seriously.  Here’s a link to that article.

The back story here is that the challenge to these judges is part of an orchestrated effort to deflect blame from the Mayor and the District Attorney by implying that judges are somehow the problem when it comes to crime in San Francisco.  If you want to understand just how ridiculous that claim is, read on.

LONG TAKE – HERE IS HOW THINGS WORK AND WHY YOU SHOULD VOTE FOR
JUDGES BEGERT AND THOMPSON

For those unfamiliar with the process, in California trial court judges (Superior Court judges) serve six-year terms.  Elections are “non-partisan,” meaning that candidates do not indicate a party affiliation (unlike a number of other states).  While there are occasionally vacant seats where there is no incumbent, more typically the Governor appoints the judge when a judge retires or dies during the term of office.  The appointee enjoys the benefits of incumbency, and it is very rare for incumbents to be defeated for reelection.  The Governor acts with the advice of the California Commission on Judicial Nominees Evaluation and local bar associations also weigh in regarding the suitability of candidates in addition to members of the California Bar generally (who are asked for their views via a statewide confidential e-mail process).

Usually, the candidates live up to their recommendations.  There is the occasional “bad judge,” typically a function of a difficult personality or one who takes weird approaches to what should be relatively cut and dried legal issues.  It happens, but not very often.  Lawyers trade information regarding such judges and can take advantage of California’s unusual statutory right to disqualify any single judge for any reason (or no reason) from a case. 

From a broader perspective, readers need to understand how complicated the legal system is when it comes to law enforcement.  While judges obviously play a huge role, they are not the only players.  This point seems to get lost in the overly simplistic discussions and campaign e-mails I am seeing with increasing frequency, some of which, in my opinion, are highly misleading.

There are three different players in the area of criminal law.  The police, the District Attorney, and the courts.  

The police have wide discretion when it comes to arresting someone for allegedly committing a crime. They don’t, and as a practical matter, can’t arrest everyone who has violated the law. 

The District Attorney (the “DA”) also has wide discretion.  This involves the decision whether to charge someone with a crime and the nature (and extent) of the charges.  The DA does not have to charge someone just because the police made an arrest and if she does not, that person goes free.  While, in theory, the charging decision is shared between the DA and the Grand Jury (a panel of 24 citizens selected by the Presiding Judge of the local Superior Court), in practice the DA dominates the Grand Jury, which almost always goes along with what the Assistant DA who works with the Grand Jury proposes that it do.  The old joke is that a Grand Jury can be relied upon to indict a ham sandwich if that is what the assistant DA wants.

Then there are the courts.  Judges also have some discretion, but they are also subject to a host of legal requirements regarding the prosecution of a criminal case.  In addition to state laws, there are federal and state constitutional and other requirements regarding criminal cases as well as strict rules of evidence.  Since criminal defendants are generally entitled to a jury trial, that makes trials even more cumbersome as there are many rules governing what evidence a jury is allowed to hear and instructions to the jury regarding the applicable law.  On top of that, the decisions of trial-level judges (and jury verdicts) are subject to review by the appellate (higher) courts, who make sure that the law is being followed and who can nullify (“reverse”) an erroneous decision.  On top of all of that, juries can also go rogue and acquit notwithstanding a judge’s instructions on the law and an acquittal cannot be reviewed on appeal.

Overlaying all of this is the issue of capacity.  Some years ago, I did a “back of the envelope” calculation regarding the cost of maintaining a single trial court judge.  Adding in supporting staff, salaries, protection and building expense, I came up with approximately $1 million per courtroom.  Of course, the higher courts also cost money and have limited capacity.  Worse yet, the Legislature massively cut the budget of the courts some years ago.  While courts have scrambled to find ways to address the budget courts through the creative use of technology and by adjusting staffing, if anything the capacity of the court system is worse now than it was in years past.

The DA, too, has capacity issues.  The DA does not have sufficient staff to try every case that is charged.  (Nor, as noted, can the police arrest everyone who they believe has committed a crime.)

You then have to add in the huge number of non-criminal cases in the system.  While criminal cases take precedence, our society also depends on the judicial system to process other disputes, includes Family Law (divorce), juvenile cases, landlord/tenant (eviction) disputes as well as commercial and other civil litigation.  A number of cases in this category are supposed to get priority over “ordinary” civil disputes, just behind criminal cases.

The more capacity used for criminal cases, the less is available on the civil side.  The result is a backlog making the civil litigation system less effective as not only is “justice delayed justice denied” but the delays add to the expense of litigating a case.  For example, every time a case comes up for a civil trial, the lawyers have to prepare.  Every time a case “trails” and then gets reset to another trial date because of court congestion, the legal expense of ramping up for trial is largely wasted.  In addition, the longer the delay, the more it becomes a factor in forcing settlements that might otherwise not have been made as the parties reach a monetary and mental exhaustion level after protracted delays. 

Focusing back on the criminal side of the equation, with all the issues of capacity and complexity noted above, it should come as no surprise that the overwhelming majority of criminal cases settle through plea bargains.  Criminal defendants and their attorneys know that the State cannot afford to try every case and even in cases where it may look like a “slam dunk,” if the DA can get a good deal to resolve a case without trial, there is tremendous inducement to do so.  In cases where there are significant issues regarding the facts (the quality of the evidence) or the law (for example the legality of a search), there are even more reasons to try to make a deal and take a case out of the trial track of the court system.

The point here is that it is not only judges who are factors in when a person is arrested, charged, much less convicted of a crime.  The “law and order” e-mails and blog posts I continue to see do not address the sheer complexity of the criminal justice system.  I’ve actually never met a judge who is “soft on crime” in the sense of letting defendants off just for the fun of it, or because of some misguided ideology.  And judges who adopt an “off with his head attitude” don’t actually get to do that.  While judges have significant discretion, for example in receiving certain types of evidence, they work under the spotlight of potential appellate review and a judge who is too anxious to convict will get reversed on appeal.  No judge likes that to happen to him or her. 

As a result, when I see “law and order” groups or candidates for judicial office attacking sitting judges as being “soft on crime” and claiming that removing them from office is going to solve the problem I’m pretty dubious. 

The other thing I’m pretty dubious about is that somehow replacing sitting judges with judges who are supposedly “hard on crime” is actually going to change anything.  I know it’s tempting to just wish that if the police made more arrests, the DA charged more people, and the judges (and juries) convicted more criminal defendants, that somehow things will get better.  But that’s what not what the science says.  Arresting more minor drug pushers, for example, doesn’t actually change anything.  Others step up to take their place.  Breaking up dealer networks is just plain hard, all the more so in the era of social media and apps like WhatsApp, where data is encrypted and beyond the reach of the police.  Criminals are also far more adept as exploiting jurisdictional divisions by operating across state lines (and even offshore).  So while the law-and-order types talk a good game, there is actually empirical evidence indicating that the most effective way to reduce crime is to try to address the economic and sociological circumstances that drive it.  I recently read with great interest how Portugal is successfully reducing its drug dependency problem through the use of more effective social and medical services along with repurposing the police function to enable this kind of approach.  If you are curious, here is the article I read.

All of this makes the attempt to unseat Judge Begert actually bizarre. 

Judge Begert was appointed by then Governor Schwarzenegger in 2010.  Before that he was a partner in a major San Francisco (and later national) law firm.  “Big firm” training matters.  Judge Begert worked with some of the best and brightest attorneys in San Francisco before he became a judge.  He also graduated with honors from the University of Chicago Law School, one of the most prominent (and demanding) law schools in the nation. 

He is highly respected as a judge by his peers.  He is also in charge of a number of experimental specialty courts in San Francisco that are specifically targeted to reducing crime by addressing the underlying issues, specifically the Veterans Justice Court, the Drug Court and the Community Justice Center.  In fact, he is one of the seven judges in the entire state charged with setting up new CARE (short for “Community Assistance, Recovery and Empowerment”) courts to address defendants with mental health issues.  These are proven means to address the causes of crime and are more effective and economical than imprisoning people. 

Perhaps that is the greatest irony here.  It’s tempting to think that if only the various constituent agencies (police, DA, courts) got “tough on crime” everything will be all right.  But the science here says otherwise.  Every recognized study has shown that “tough on crime” initiatives fail whereas addressing the root causes of crime is far more effective. 

That makes Judge Begert exactly the right judge at the right time.  His opponent has no judicial experience nor, with a Silicon Valley transactional background, much relevant experience at all when it comes to addressing issues involving the criminal justice system.  It’s also pretty telling to me that his opponent would not meet with the Judiciary Committee of the Bar Association of San Francisco and that he could not cite specifics regarding Judge Begert’s supposed “soft on crime” approach.  While he claimed that doing so would violate judicial ethics governing candidates for judicial office, the Chronicle’s Editorial Board, rightly in my opinion, disagreed.  Here is a link to the Chronicle’s Editorial Board’s recommendation, with which I heartily concur.

The other endangered judge, Judge Patrick Thompson, is also highly qualified in terms of legal education and background.  He, too, went to a top ranked, national law school and has the kind of “big firm” background that offers some assurance of a well-trained lawyer who was exposed to major cases and received excellent mentoring. 

Unlike Judge Begert, Judge Thompson has only been on the bench for two years.  As a result, he hasn’t developed the kind of track record that Judge Begert has.  But he also hasn’t done anything that would come close to justifying his being unseated.  He deserves a chance to show what he can do as a jurist.

I am also concerned that his challenger, a long-term career prosecutor, is not the kind of person we want to replace Judge Thompson.  She may very well be able to function as a judge, but we really don’t know much more about her – like Judge Begert’s challenger, she, too, declined to engage with either the Bar Association of San Francisco Judiciary Committee or the Chronicle Editorial Board.  Not surprisingly she is backed by the self-described “law and order” groups who claim that our problems with the criminal justice system are going to be magically solved by a judge throwing all the bad people in jail.  As I hope I have successfully explained in this blog  post – that kind of simplistic approach is simply bogus.

The well-funded and well-organized campaign to unseat Judges Begert and Thompson is a dangerous attack on the integrity and independence of the judiciary.  Their retention, hopefully by resounding margins, should send an unmistakable message that this type of demagoguery does not work.  We have quite enough of that on the national political scene; we don’t need it in San Francisco.

Next up will be my more conventional blog post regarding upcoming ballot initiatives and other candidates for office. 

Regards.

Bob White