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Real Washington – Her Honor: My Life on the Bench…What Works, What’s Broken, and How to Change It: Retired Judge LaDoris Hazzard Cordell

Retired Judge LaDoris Hazzard Cordell, the first African American woman jurist in Northern California, joins cohosts Richard Levick of LEVICK and Michael Zeldin of That Said with Michael Zeldin and a former CNN Legal Analysist to discuss her new book, Her Honor: My Life on the Bench…What Works, What’s Broken, and How to Change It. On the show as in her book she provides a rare and thought-provoking insider account of our legal system and reveals the strengths, flaws and much-needed changes required within our courts. She suggests that we provide our judges with better training in their respective disciplines; identifies needed changes in juvenile justice; the impact of racism in law enforcement and the courts; the importance of judicial appointments versus elections;, the criticality of diversity on the bench and her view of today’s U.S. Supreme Court. Listen here

Follow the podcast link to hear their full discussion, or read a segment of their conversation below.

Richard Levick:
Good day and welcome to In House Warrior, the daily podcast of Corporate Counsel Business Journal. I’m Richard Levick. And of course, if Michael Zeldin is with me, then it’s time for our weekly show, Real Washington. Michael, of course, is the star of That Said with Michael Zeldin on CommPRO. He’s a former legal analyst for CNN. Michael, it is always such an honor to have you on the show. Great to see you. You know, I know we’re neighbors separated only by Rock Creek Park, but we only get to see each other on air. So great to see you.

Michael Zeldin:
Thanks for having me back, Richard.

Thank you for coming back, I might add. We have a very special guest today. It is Judge LaDoris Hazzard Cordell. She’s the first African American woman judge in all of Northern California. We’re going to get into so many of the firsts. She has a new book out, her first. It’s called Her Honor: My Life on the Bench, What Works, What’s Broken and How to Change It. I’m sure we’re going to get through during the show everything that needs to be fixed and how to do that. So, Your Honor, it is such an honor to have you on the show. Welcome to the program.

Judge LaDoris Hazzard Cordell:
Thank you so much both to Richard and to Michael. I’m just very excited about being able to talk with you.

You have also a notion about the nature of the sentences that juveniles can receive: the ability of judges to sentence juveniles without the possibility of parole. So can we talk a little bit about that too?

Judge Cordell:
Sure. So, the US Supreme Court has made some good decisions. I’m not putting them down all the time. But one is that if a person commits a crime, or murder, as a juvenile, they cannot be executed. So there have been adults who have been executed when they committed their crimes, however, as juveniles, so that’s no longer allowed. No longer allowed is mandatory life without parole for juveniles. So, you can’t—and no state can—enact a law that mandates if a juvenile commits a murder, that that juvenile is mandated must have life without the possibility of parole. However, what the Supreme Court has also said is that “you know, we’re going to leave it to the discretion of the trial judges. So, if the judges decide that life without the possibility of parole is okay for a person, maybe now adult, who committed this terrible crime when they were juveniles, that’s, that’s up to the judge. The judges, I’m sure, will do the right thing.” And my response to that is, I’m not sure judges will do the right thing. I’m very concerned, first of all, about racism, and that there may be juveniles who are of color or poor, who may end up getting these harsh sentences disproportionately, when compared to kids who are white. But even more than that, I just believe that if you mandate life without the possibility of parole, you are saying, “we give up on this child, on this person. There’s just no hope.” And I don’t think that’s appropriate to do. So, what I would like to see is that the discretion judges have, —to give life without the possibility of parole to a person who committed a crime when they were a juvenile—I’d like to see that abolished. I’d like to see it done away with entirely and then give to every juvenile, at least the possibility of parole.

The thing that’s interesting about this, you mentioned in passing, was that judges don’t necessarily give justice when it comes to sentencing. And you have another part of the book, which talks about the election of judges, and you reflect on the fact that when judges are coming up for election, their sentences tend to be much more harsh and disproportionately harsh with respect to people of color. You were elected the second time around, so maybe we can talk a little bit about the election of judges and the implications of that for the criminal law system, and then I’d like to return, if we could, back to the peremptory challenges for a minute, and then I’ll give it back over to Richard.

Judge Cordell:
Absolutely. Judicial elections were first instituted in the late 1770s and the early 1800s, when the then-territory of Vermont, and the states of Georgia and Indiana used them to fill seats for the lower courts. And then in 1832, Mississippi became the first state to adopt judicial elections for all of its judges. And in the rest of the states, at that time, governors appointed judges to lifetime terms during, and I quote, “during good behavior”. I want your listeners to know that I—anything I write in the book I have experience. So, I’m just not kind of pulling things out of thin air. Yes, indeed, I won election to the Superior Court in 1988, and I write about that adventure. And I came out of this whole experience thinking, “I am absolutely opposed to the election of judges.” So, when I ran for election, I raised $70,000. This was in 1988. Primarily, that money came from donations from about 800 lawyers. And that amount of money is a pittance today, compared to judicial races. And there’s a passage in the book, I want to just read to you very quickly, it’s not very long if I could, and it is this: “today, outside special interest groups pour money into contested judicial elections, particularly when state Supreme Court seats are at stake. And according to the Brennan Center for Justice, 1/3 of all elected justices, these are to the appellate courts in the state Supreme Courts, currently sitting on the bench have run in at least one $1 Million Race. And during the 2015-16 Supreme Court, election cycle, political action committees, social welfare organizations and other non-party groups engaged in a record $27.8 million of outside spending, making up an unprecedented 40% of overall Supreme Court election spending. And unsurprisingly, 56% of that money was contributed by lawyers, lobbyists and corporate interests.”  So, the other part of this—so, there’s the money, and then there’s the decision making, judicial decision making, and boy does it impact the money coming in during judicial elections, impact judicial decision making, and once again from the book, this is from the Brennan Center, where they analyze 15 years of television advertising data for State Supreme Court elections to gauge the ads impact on judicial decision making in criminal cases. Generally, the ads attacked judges for being soft on crime, or praise them as tough on crime. Three key findings: One, the more frequently ads aired during an election, the less likely state supreme court justices were to rule in favor of criminal defendants. Two, closer to their reelections, trial judges in Pennsylvania and Washington sentenced defendants convicted of serious felonies to longer sentences than normally imposed for those crimes. And three, trial judges in Alabama impose death sentences more often in election years, sometimes overriding life sentence verdicts handed down by judges. So, judges are not politicians, politicians make promises to voters to appeal to whatever it is their constituents want. And that’s fine. But unlike politicians, judges are independent The only promise that judges can ever make is to adhere to the rule of law, to adhere to legal principles, to adhere to constitutional precedent. So, in my view, judicial elections should be done away with entirely.

Richard, do we have time to have the judge take us a little bit backwards to the peremptory challenge problem in courts. And if you would judge talk a little bit about peremptory challenges and what you discussed in the book as being one of the elephants in the room in the criminal law system, which is implicit bias, and how to dress that.

Judge Cordell:
Absolutely. So peremptory challenges allow each side in a criminal case or civil case to excuse potential jurors. And you don’t have to give a reason, as long as that juror, prospective juror, has not been removed, because of their race, their gender, their sexual orientation, or their religion. And each side gets a defined number of these challenges. So, in California, for example, if you are on trial for felony, the prosecutor gets 10 peremptories, and the defense gets 10 peremptories. And that’s different from challenges for cause. So, if you get up and say, I don’t like that defendant, I don’t like what it looks like, and I can’t be fair, okay, that’s for cause you’re out of here. But if there’s other jurors that the prosecutor or defense wants to get off, and they don’t have to give a reason, it isn’t for cause. Alright, so in 1986, the US Supreme Court issued a ruling in Batson versus Kentucky. I describe it in the book but basically, when a defendant contends that a prosecutor’s peremptory challenge was racially motivated, then that prosecutor has to give a race neutral explanation for removing that prospective juror. And then it’s up to the trial judge to determine if that explanation is plausible. So, you ask, well, how has that worked out? I mean, that’s 1986. And in my view, not very well at all. So more than 30 years after Batson trial, judges continue to accept the superficial and outright ridiculous race neutral excuses from prosecutors for their peremptory challenges. And I give an example in the book where a prosecutor in a case was challenged because he was getting rid of two black jurors. And so the explanation well, they had facial hair, and I don’t like facial hair. And so, the judge said, “Oh, that’s fine.” And off, they went, they were they were just taken off the jury. So peremptory challenges. Thurgood Marshall, by the way said they are the greatest embarrassment to the criminal justice system, Thurgood Marshall. And so there there’s a fix for this. And I have a chapter in the book called “The fix” that talks about this. So. But basically, California is leading the way to finding an answer to this problem, because we have something called a Racial Justice Act. And the purpose of that act is to weed out racism in the criminal legal system. And you can read in the book, what the particular fix is that I suggest for peremptory challenges.

And addresses in that fix. It addresses this notion of implicit bias, meaning that judges often and even prosecutors often don’t consciously understand that their decision making is based on implicit bias. Yes?

Judge Cordell:
Absolutely. So, judges, lawyers, all of us, the three of us right now, every one of us, we’re human beings, we have biases. You have to have them. You have biases to survive in the world. And some biases are very good, and some are very bad. The problem in the legal system is that if you have judges who are responsible for sentencing people who have, let’s say, racial bias or gender biases, and don’t realize that they have them, then what they do is these biases inform their sentencing. And there’s a reason why there’s a disproportionate number of black and brown people in our prisons serving disproportionately long sentences. There’s a reason for this and that is because of these biases, some of which are what you say, implicit or unconscious. So, the judge, the job of a judge, is to become aware of our biases, and then to do something about it, to become aware of it. So, it’s just very, very important that we become aware and not be lacking in courage to step up and deal with these biases. Once we do that, then we have a fairer system.