Tension in the Court: Prosecutors vs. Supervising Judge

By Dennis J. Opatrny
Daily Journal Staff Writer

      SAN FRANCISCO - The supervising judge of San Francisco's criminal courts says he had to dismiss one-third of the misdemeanor cases filed in the first two months of the year because prosecutors weren't ready for trial.
      Prosecutors and public defenders, meanwhile, say they're tired of being berated by Judge James McBride while they're trying to do their job.
      This clash between judge and attorneys has created tension in the courtroom.
      A recent audit by state-court administrators found that the processing of criminal cases in San Francisco suffers because key players don't communicate well.
      After receiving the report, McBride agreed to meet more regularly with lawyers from the district attorney's office and public defender's office and others in the criminal justice system.
      But a lack of communication isn't the only issue, judging from recent interviews with McBride and the attorneys who appear in his court, most of whom sound deeply frustrated.
      Attorneys rarely complain publicly about the court demeanor of judges, but they didn't hold back when talking about McBride, who they say often turns abusive when he gets angry.
      McBride, who insists he controls his temper, took the unusual step of releasing detailed statistics that reflect his annoyance when cases are derailed because the district attorney's office fails to meet trial deadlines.
      In response to this criticism, San Francisco County District Attorney Kamala Harris issued a public statement saying that her office is understaffed to handle the misdemeanor caseload.
      She asked the Board of Supervisors to hire more attorneys for her office.
      Harris emphasized that fully prosecuting all crimes, not just felonies, is important.
      "Our misdemeanor team is the city's front line on quality-of-life offenses and many other serious matters charged as misdemeanors," she said in a prepared statement. "We're taking these cases all the way to trial to get the right results, but we need a lot more trial attorneys if we're going to hold the line. We must hold offenders accountable at this level before they graduate to more serious crimes."
      McBride said he's not convinced the district attorney's problem is understaffing. He said the district attorney's deputies are simply not on top of their cases. He said that, if Harris' deputies can't meet trial deadlines, the cases shouldn't be filed.
      "I demand that the [prosecutors] be ready to sustain their burden of proof in every case," the judge said. "They should be driving in every case. I find they're not. ... It creates a drag on the system."
      The judge said prosecutors often come to court without the evidence they need, without witnesses ready to testify or without a plea bargain offer that defendants will accept.
      "I have a problem with that," McBride said.
      He said that, if more deputies would help, "that's fine with me."
      In response to the audit conducted by a three-member task force appointed by California's Administrative Office of the Courts, the judge took inventory of all the cases on his calendar in January and February.
      He said that, of 292 cases set for trial, 100 were dismissed on the day of trial, because the prosecution was unable to sustain its burden of proof.
      "The reason this is a problem for the court is simple," McBride said. "Cases that linger on the calendar until dismissal on trial day make daily calendars longer, thus reducing the time our misdemeanor judges have for jury trials."
      A spokeswoman for Harris said she could not respond directly to this data because she could not confirm its accuracy.
      Assistant District Attorney Linda Klee, who's in charge of all misdemeanors, conceded that the dismissal rate had increased, but she could not offer a reason.
      "I do not know why the dismissal rate has increased," said Klee, who retired last week after 35 years as a prosecutor.
      Dismissals aside, Harris claims an impressive record on the misdemeanors she does prosecute.
      Harris said her office won 34 convictions in the 38 misdemeanor cases that went to trial during the first four months of this year.
      Public Defender Jeff Adachi reports a much lower success rate for prosecutors during the 2006 calendar year. He asserts that his attorneys won more acquittals than Harris' attorneys did convictions.
      Adachi said that, of 146 jury trials last year that his deputies tried, they won 55 percent of the felony cases and 57 of all misdemeanors.
      He also accused Harris of filing far more cases than she can prove, which compounds the problem.
      "[A] logical explanation is that too many weak and marginal cases are being filed in this county, thus compelling some defendants to insist on their right to a trial," he wrote in a letter to McBride.
      Klee rejected the notion that weak cases are being filed.
      "I think we are filing appropriate cases," she said.
      The continuing friction in McBride's court has led to sharp exchanges between the judge and the attorneys. McBride demands that lawyers act professionally, but they say he loses his temper and peppers them with rude remarks.
      "He displays anger at times, when the attorney is just being an advocate, which is not appropriate judicial demeanor," said Deputy Public Defender Rebecca Young, who supervises felony attorneys.
      "I can appear gruff," McBride said about his demeanor.
      He said his low tolerance for ill-prepared attorneys contributes to his pique.
      Several attorneys said McBride has made laudable efforts to improve the lawyering in his court by urging them to prepare cogent arguments.
      "He doesn't countenance fools," said defense attorney Joe O'Sullivan. "If he thinks you're weak and not prepared, he'll jump all over you."
      Presiding Judge David Ballati declined comment on McBride's temperament.
      He called it a "court personnel matter."
      McBride is the assistant presiding judge, and, if tradition holds, will succeed Ballati in January 2009.
      When McBride took over the master criminal calendar job 17 months ago, one of his goals was to reduce the number of pending trials.
      In January 2006, he said, 544 felony cases were awaiting trial. This past January saw 429 cases awaiting trial, a 27 per cent drop, he said. The recent Administrative Office of the Courts audit commended him for his progress.
      McBride has made a concerted effort to keep trimming the caseload, but he has ruffled the feathers of a few attorneys he pushes to dispose of cases.
      Some take umbrage, and others say "that's just McBride," who is a former police officer and prosecutor.
      Although attorneys may criticize McBride's demeanor, they said his knowledge and application of the law is usually on target and just.
      "His decisions are well-thought-out," said Deputy Public Defender Rafael Trujillo. "His feelings are good about the facts and defendants."
      Others, such as defense attorney Damone Hale, said McBride's style is more animated than other judges.
      "He's upfront and puts it out there," said Hale, who's come to expect acerbic comments from the bench.
      "Yes, and you give it right back to him," he said.
      Defense attorney Ira Barg echoed that sentiment.
      "He takes as well as he gives," Barg said.
      That perception is not universal. Others who appear before him say his crankiness goes too far.
      Assistant District Adrian Ivancevich, who is the day-to-day misdemeanor supervisor, said he tries not to send his charges into McBride's court. Instead, he stands in for them, because of what he terms McBride's "abusive" nature.
      "I find it pretty aberrant," Ivancevich said.
      He added that the judge's comments to attorneys are "strident" and "venomous."
      Ivancevich recounted one recent experience when, he said, the judge lost his cool.
      "I was in open court and going back to the podium from the bench, and he forcefully told me, 'Remind me never to call you up here for a pretrial conference,'" the prosecutor said.
      The judge recalled the incident. McBride said that he attempted to settle the case by asking reasonable questions but that Ivancevich got testy.
      "His attitude was rude, impatient and he was not willing to participate in a give-and-take about the case," the judge said. "Everything I'm going to do with him from now on will be on the record. We have to maintain more formality."
      In another case, the judge refused to take a public defender's word that her colleague could not make a court appearance that day, because she was home sick. McBride demanded a doctor's note, according to a court transcript.
      The judge said, however, that he did not in the end demand the note.
      Young said McBride's intemperate behavior makes it harder for attorneys to represent their clients. She said that, if the judge delivers caustic remarks to a lawyer, the client may say, "The judge obviously doesn't like you ... I'm going to get hurt," and ask for a new lawyer.
      She said that, on two occasions, she had to assign a different public defender to a case, because the defendant was concerned with the judge's comments from the bench.
      McBride denied that he has caused strained relations between attorneys and clients. He couldn't recall any requests from Young for a change of counsel.
      Assistant District Attorney Chuck Wood said McBride's style is to employ a "military fashion" to impose discipline on attorneys.
      "If you're even slightly unprepared, I would think it would be a very memorable and unpleasant experience," Wood said. "I know he'll be sarcastic toward me, even if I'm letter-perfect."
      One perception shared by the attorneys interviewed is that McBride is never demeaning toward defendants.
      "If you're looking for a judge who treats clients with respect, he's the one," said Deputy Public Defender Linda Colfax, who practices before McBride three days a week in the master criminal calendar court.
      One of Colfax's supervisors, Deputy Public Defender Will Maas, said that, although he has never felt the sting of a McBride barb, he know others have.
      "I would say that his demeanor toward people could use some improvement," Maas said diplomatically.
      McBride said he understands that his comments may upset some people, but his patience is tried when lawyers have cases on the calendar and can't proceed.
      "Because of the volume in this court, I demand efficiency from both sides," he said. "That means I want a lawyer who knows what she wants and musters the argument."
     

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