Judging the Judges: Paying the price for judicial arrogance (National Review Online, 040224)

Legal archaeologists have unearthed yet another constitutional right, one that, like the right to an abortion and the right to racial discrimination in the pursuit of noble ends, went mysteriously undetected all these years. Now we are told that homosexuals have the God-given right to marry one another. Who knew?

No one, apparently, until the orchestrated outbreak of such marriages in Massachusetts and California gave a handful of judges — and now, even a mayor — the opportunity to so rule. And once more we are instructed by our enlightened betters that the law means what it doesn’t say, and says what it doesn’t mean. Anyone so knuckle-draggingly backward as to question this, they tell us, should quit their caterwauling and go back to watching Fox News.

The carnival taking place in San Francisco should surprise no one familiar with the peculiar politics of that charming but ever-more-crackpot city. In coming out for homosexual marriage as he has, San Francisco Mayor Gavin Newsom has been lauded as a courageous defender of civil rights, but one may ponder the level of courage required to take a position shared by two-thirds of his constituents. No, the recently elected Newsom is merely practicing a time-honored political art by pandering to the quirky, dare I say queer, San Francisco electorate. Opponents of gay marriage naively looked to the courts in their quest for adult supervision, but two Superior Court judges declined to order a halt to the city-hall ceremonies, ruling that the petitioners had failed to show these marriages would cause “immediate and irreparable harm.”

And therein lies the larger problem of judicial arrogance. The level of immediate and irreparable harm posed by homosexual marriage may be subject to debate, but the clear letter of the law is not, and these judges were merely asked to enforce it. Four years ago, California voters resoundingly approved Proposition 22, which added to the state’s family code these few simple words: “Only marriage between a man and a woman is valid or recognized in California.” If this seems plain enough to you, if you think homosexual marriage is therefore a violation of California law, it is only because you lack the sophistication required to grasp the legal nuances involved. Like the right to abortion and the right to discriminate against academically superior college applicants, the right to gay marriage is hidden beneath all those constitutional “penumbras” and “emanations” we’ve been hearing about since the ‘70s, and only those properly educated are equipped with the sensitive antennae required to detect them. Few people out there in the howling wilderness between the San Francisco Bay and the Hudson River are so equipped.

But arrogance on the bench can have more immediate and devastating effects as well, as was horrifically demonstrated by the recent murder of 11-year-old Carlie Brucia in Sarasota, Fla. Her accused killer, Joseph Smith, had been arrested no less than 13 times since 1993, and convicted of such crimes as aggravated battery and drug possession, but Florida judge Harry Rapkin twice declined to imprison him for violating the terms of his probation. To be fair to Judge Rapkin, judges all over the country make similar decisions every day, and his record in this area may be no worse than many others’. But when Bill O’Reilly dispatched a camera crew to confront Rapkin outside his home, the judge was most vehement in his condemnation of... Bill O’Reilly. “O’Reilly’s a piece of scum,” Rapkin told the reporter, then went on at some length on why O’Reilly was unfit for polite company. If Rapkin harbored any similarly harsh feelings about Joseph Smith, he did not express them on the tape I saw. Rapkin will face a retention election this November, and if O’Reilly has anything to say about it (and you know he will) he’ll be looking for a job soon thereafter.

Though it hasn’t attracted much attention outside the local legal community, a similar story is unfolding here in Los Angeles, where an LAPD sergeant is challenging a powerful local judge in the March 2 election. Sergeant Kevin Burke, who served as a prosecutor in Orange County before joining the LAPD, is running against Judge David Wesley, currently the supervising judge for the Los Angeles County Criminal Courts. Last May 28, Wesley, at that time the assistant supervising judge, ordered a subordinate judge to close one of the county’s busiest arraignment courts promptly at 4:30 P.M., thereby sparing the county the expense of overtime for court staff. All well and good for the taxpayer, perhaps, but for the fact that the balky machinery of the justice system had not yet completed the day’s calendar. About 60 defendants would have to be released if they were not arraigned by the appointed hour, yet Judge Wesley was adamant that his order be followed regardless of the consequences. Prosecutors were able to hold about half of these defendants on probation violations and other warrants, but 26 others were released on the condition they return the next day. Among the beneficiaries was Jerell Patrick, who was already on probation when he was arrested for armed carjacking. Set loose without bail despite facing more than 30 years in prison, Patrick unsurprisingly declined the judge’s invitation to return to court the following day. One month later, police and prosecutors now allege, Patrick murdered 22-year-old Lawrence Middleton on a Los Angeles sidewalk. Middleton was the father of a seven-month-old baby.

So outraged by this chain of events was Sergeant Burke that he undertook his effort to replace Judge Wesley, a campaign that has caused quite a stir in the Criminal Courts Building and in Parker Center, the LAPD headquarters building. LAPD Chief William Bratton, County Sheriff Lee Baca, and District Attorney Steve Cooley have all endorsed Wesley, as is fairly standard in any judicial election. But it’s interesting to note that the people who work beneath these executives have come out strongly the other way: The LAPD Command Officers’ Association and the Los Angeles Police Protective League have endorsed Burke, as have the Association of Los Angeles Deputy Sheriffs and the Association of Deputy District Attorneys.

“My philosophy is simple,” Sergeant Burke wrote to me in an e-mail. “A judge has a fundamental duty to protect the public, and to protect the rights of victims to the maximum extent allowed by law. Police officers had to risk their lives once to apprehend these suspects, and for those who did not show up as ordered the next day, it had to be done again.”

Tragically underscoring Burke’s thoughts, an LAPD officer was murdered Friday afternoon, shot by a man allowed to roam the streets despite a lengthy criminal record. Officer Ricardo Lizarraga and his partner were on patrol in South Los Angeles when they were flagged down by a woman who sought their help in removing an unruly boyfriend from her home. When the officers attempted to search the boyfriend, he pulled a gun and shot Lizarraga just below his ballistic vest. Lizarraga died later at a local hospital. His accused Killer, Kenrick Johnson, was arrested hours later when a SWAT team found him hiding in an abandoned car.

Lizarraga was the twelfth American police officer to be murdered this year. He was 30 years old.

— Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.

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